Submitted October 31, 2014.
This is an unpublished decision under D.C.App. R. 28 (h) and is of no precedential value except when used under res judicata, collateral estoppel, in a criminal action against same defendant or in a disciplinary action against the same respondent.
Appeal from the Superior Court of the District of Columbia. (CTF-18919-12). (Hon. Franklin A. Burgess, Motions Judge, Hon. Ronna L. Beck, Trial Judge).
Nicholas Q. Elton was on the brief for appellant.
Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Rosalyn C. Groce, Deputy Solicitor General, and Janice Y. Sheppard, Assistant Attorney General, were on the brief for appellee.
Before BLACKBURNE-RIGSBY and MCLEESE, Associate Judges, and RUIZ, Senior Judge. Opinion for the court by Senior Judge RUIZ. Concurring opinion by Associate Judge MCLEESE at page 30.
Ruiz, Senior Judge :
Appellant Terrence Melvin Koonce was convicted by a jury of driving under the influence (" DUI" ), in violation of D.C. Code § 50-2206.11 (2012 Repl.). Appellant contends that the trial judge committed errors requiring reversal of the conviction by: (1) failing to impose an appropriate sanction after finding that the government did not preserve video evidence that was subject to discovery; (2) failing to suppress photographs of a liquor bottle the police claimed to have found in appellant's car as a sanction for not preserving the bottle itself; and (3) giving a DUI testing refusal jury instruction. Although we agree with appellant's
claim that he should have been able to obtain the requested video and liquor bottle through discovery, we conclude that the trial court did not commit error in the actions it took in response to the government's failure to preserve and produce these items of evidence, or in instructing the jury. Therefore, we affirm appellant's conviction.
I. Factual and Procedural Background
Late in the evening on November 2, 2012, appellant was involved in a multi-car accident on the 1400 block of Varnum Street, Northwest, Washington, D.C. The SUV appellant was driving collided with a Nissan Maxima, which in turn collided with a black Volkswagen, and the Volkswagen then crashed into a Honda Accord. Four cars were involved in this initial collision. Appellant then continued to drive westbound on Varnum Street, and when he attempted to turn north, the SUV collided with a Dodge pickup truck. Appellant's SUV spun the truck around, and the SUV collided with yet another car, traveling northbound. This collision left appellant's SUV immobile, as the SUV became " locked into the left rear quarter panel" of the pickup truck. Appellant's SUV had sustained significant damage to the front end and was missing a tire on the passenger side of the vehicle. The SUV appeared to have traveled some distance without the tire, driving on its rim.
Mr. Lloyd Bing, who lived on Varnum Street, left his home upon hearing the initial collision, observed appellant attempt to drive away from the scene of the accident, and saw the subsequent collisions. After appellant's SUV came to a stop when it became locked with the Dodge pickup truck, Mr. Bing approached appellant's SUV and called 9-1-1. He believed appellant was intoxicated based on his speech and movements. Metropolitan Police Department (MPD) officers responded to the scene of the accident, and testified that appellant " swayed back and forth," had " slurred speech," and a " strong odor of alcohol emanating from [his] breath." Appellant was also " argumentative and belligerent." Police officers found two open bottles in appellant's car; one of vodka, and one of cranberry juice. The vodka bottle was removed, photographed, and discarded. MPD Officer Clifton Murphy testified at trial, while observing photographic evidence of the vodka bottle, that the seal had been broken and the bottle was approximately ninety-percent full.
At the scene of the accident, MPD Officer Oxenrider-Murphy asked appellant to submit to a series of field sobriety tests. Appellant stated " [I am] not as drunk as they think I am," and refused to submit to the field tests after being informed that he could lose his license for up to one year if he did not agree to be tested. When asked again, appellant " very loudly and belligerently" responded by saying " [r]evoke it for six months." Appellant was asked three times to submit to a field sobriety test. Appellant was arrested and taken to the MPD Fourth District station where he was placed in a holding cell. Officer Oxenrider-Murphy asked appellant if he would provide a urine sample; appellant stated he would not. When asked if he was refusing to provide a sample, appellant responded in the affirmative. Officer Oxenrider-Murphy left to retrieve the chemical/blood testing Implied Consent Form, but upon returning, the officer
found that appellant was asleep. Various attempts to wake appellant, including " yelling" for " several minutes" and administering a " sternum rub" were unsuccessful. There were fixed cameras located in the cellblock, but the video from the night of appellant's arrest no longer existed on the date of trial.
Appellant's defense at trial focused largely on the government's lack of evidence to prove his guilt beyond a reasonable doubt. Appellant also argued that the government failed to preserve important evidence, such as the vodka bottle recovered from appellant's SUV and video recordings of appellant at the police station from the night appellant was brought to the Fourth District station, in violation of MPD General Orders. Appellant explained his appearance and actions at the scene as the result of having just been injured in a " major [car] accident." It was appellant's contention that the responding police officers mistakenly assumed he was intoxicated and took no steps to determine whether appellant was suffering from injuries associated with the car accident.
The jury found appellant guilty of driving under the influence. He filed a timely appeal.
II. The Government's Obligation to Preserve Discoverable Evidence
We have repeatedly recognized that the " government has a general duty to preserve discoverable evidence under [Superior Court Criminal Rule] 16 (a)(1)(C) and long-established case law." Williams v. United States, 77 A.3d 425, 437 (D.C. 2013) (quoting Bean v. United States, 17 A.3d 635, 638 (D.C. 2011)). Documents and tangible objects " within the possession, custody or control of the government"  are discoverable if " material to the preparation of the defendant's defense." S.Ct. Crim. R. 16 (a)(1)(C). Under Rule 16 the threshold of materiality " is not a high one; the defendant need only establish a reasonable indication that the requested evidence will either lead to other admissible evidence, assist the defendant in the preparation of witnesses or in corroborating testimony, or be useful as impeachment or rebuttal evidence." Tyer v. United States, 912 A.2d 1150, 1164 (D.C. 2006) (citation omitted) (internal quotation
marks omitted). However, to show that a failure to preserve discoverable evidence that is " potentially useful to the defense" violates due process, appellant must also establish that the government acted in bad faith. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988) ( cited in Williams, 77 A.3d at 437). Bad faith of constitutional magnitude is shown if the " evidence . . . possess[es] an exculpatory value that was apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). The trial court has " considerable discretion in determining 'the degree of negligence or bad faith involved' in the failure to preserve evidence."
Tyer, 912 A.2d at 1165 (quoting Battocchi v. Washington Hospital Center, 581 A.2d 759, 767 (D.C. 1990)). We will disturb the trial court's findings that the government did not act in bad faith or was not grossly negligent only if those findings are " plainly wrong or without facts to support [them]." ( Emanuel S.) Davis v. United States, 641 A.2d 484, 494 (D.C. 1994) (alteration in original) (quoting D.C. Code § 17-305 (a) (2012 Repl.)).
When breach of a discovery rule has occurred, the trial court has authority to fashion an appropriate sanction. See Sheffield v. United States, 397 A.2d 963, 967 (D.C. 1979) (citing Cotton v. United States, 388 A.2d 865, 869 (D.C. 1978)). The imposition of sanctions, however, is not automatic, and the form of sanction imposed " may vary with the degree of culpability found." Id. (citing Cotton, 388 A.2d at 870). We review the trial court's decision to impose sanctions for abuse of discretion. Ferguson v. United States, 866 A.2d 54, 59 (D.C. 2005); Gethers v. United States, 684 A.2d 1266, 1272 (D.C. 1996). For sanctions short of dismissal for a due process violation, the trial court weighs three factors: " (1) the degree of [government] negligence or bad faith involved; (2) the importance of the evidence lost; and (3) the evidence of guilt ...