Marteze Armondo Butler v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Nov 21 2018, 11:05 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Sally Skodinski Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Marteze Armondo Butler, November 21, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1399
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff. Judge
Trial Court Cause No.
71D03-1710-F6-992
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1399 | November 21, 2018 Page 1 of 10
Statement of the Case
[1] Marteze Butler (“Butler”) appeals his conviction, following a jury trial, of Level
6 felony auto theft.1 Butler argues that the trial court abused its discretion when
it denied his motion to exclude the testimony of four witnesses regarding what
they observed on an unavailable surveillance video. Finding no error, we
affirm the trial court’s decision.
[2] We affirm.
Issue
Whether the trial court abused its discretion when it allowed four
witnesses to testify about the contents of an unavailable surveillance
video.
Facts
[3] On October 20, 2017, David Thorpe (“Thorpe”) parked his car in a parking
space at a Discount Liquor store in South Bend. He left his keys, cell phone,
checkbook, and registration inside the car while he went inside the store to
purchase liquor. Thorpe left the liquor store and realized that his car was no
longer in the parking space. He went back inside Discount Liquor and told the
store clerk, Inderbut Singh (“Singh”), and the store’s security guard, Javon
1
IND. CODE § 35-43-4-2.5(b)(1) (repealed, effective July 1, 2018). The jury also found Butler guilty of Class
A misdemeanor conversion, but the trial court dismissed this conviction citing “double jeopardy” reasons at
sentencing. (Tr. 181).
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Scruggs (“Scruggs”), what had happened. The three men watched the
surveillance video recorded by a camera outside the store. The camera was
located on the side of the building and pointed directly at the location where
Thorpe had parked his car. In the surveillance video, Thorpe, Singh, and
Scruggs observed an individual with a distinctive hairstyle wearing a brown
jacket and blue jeans enter Thorpe’s car and drive off in it. Scruggs, who had
worked for the liquor store for nine years, recognized that the brown jacket
from the surveillance video belonged to a regular customer who lived in a
nearby apartment complex, but he could not remember the customer’s name.
[4] Thorpe called the police, and South Bend Police Department Officer Benjamin
Canarecci (“Officer Canarecci”) arrived at the store. Officer Canarecci
reviewed the surveillance video and spoke with Thorpe, Singh, and Scruggs.
Scruggs informed Officer Canarecci that he believed the individual in the video
lived in a nearby apartment complex. Neither Singh nor Scruggs were able to
download the surveillance video for Officer Canarecci that night. Singh told
Officer Canarecci that the owners of the store would download the video and
give it to the police at a later time.
[5] Officer Canarecci left the store and drove to the nearby apartment complex and
patrolled the area. He located Thorpe’s car in the apartment complex parking
lot. Thereafter, Officer Canarecci observed Butler walking in the area, wearing
the same clothes as the individual in the surveillance video. Officer Canarecci
ordered Butler to stop, but Butler kept walking, took off his brown jacket, and
threw it in the grass. Officer Canarecci arrested Butler, collected the brown
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jacket as evidence and took Butler back to the liquor store. Singh and Scruggs
identified Butler as the individual they observed in the surveillance video
stealing Thorpe’s car.
[6] On October 23, 2017, the State charged Butler with Level 6 felony auto theft,
and Class A misdemeanor conversion. On two occasions, the State requested
the liquor store’s surveillance video, but it was informed that the store’s owners
had not given the tape to the police. Eventually, the police obtained the
surveillance video. However, the video “ended up being messed up, or [the
police] didn’t do something right.” (Tr. 65). The video was either lost or
destroyed and was not entered into evidence at Butler’s trial.
[7] On the morning of Butler’s jury trial, defense counsel filed a written motion to
exclude the testimony of Thorpe, Singh, Scruggs, and Officer Canarecci
(“State’s witnesses”) regarding their observations from the surveillance video.
Counsel specifically argued that this evidence violated Indiana Evidence Rules
1004, 1002, 403, and Butler’s federal and state constitutional rights to confront
the witnesses against him. Citing Indiana Evidence Rule 1004, the trial court
denied Butler’s motion to exclude the testimony. The trial court explained:
It’s unfortunate -- this is why cases are lost because the police in
their job of investigating offenses don’t follow through. But I
don’t see that the police acted in bad faith. I don’t see that the
State acted in bad faith.
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(Tr. 10). Thereafter, the State’s witnesses each testified at trial and recounted
what they had seen in the recording.2 They described seeing Butler, who was
wearing a brown jacket, jeans, and had distinctive hair, enter Thorpe’s car and
drive off. The jury found Butler guilty of both counts. He was sentenced to
time served for the Level 6 felony conviction and the trial court dismissed the
Class A misdemeanor citing “double jeopardy” reasons. (Tr. 181). Butler now
appeals.
Decision
[8] Butler maintains that the trial court abused its discretion when it allowed four
witnesses to testify about the contents of an unavailable surveillance video.
Specifically, Butler contends that the State’s witnesses’ testimony was admitted
in violation of his due process rights because the State failed to preserve the
surveillance video upon which their testimony is predicated.
[9] The admission and exclusion of evidence falls within the sound discretion of
the trial court, and we review the admission of evidence only for an abuse of
discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of
discretion occurs when the trial court’s decision is clearly against the logic and
2
In open court, the trial court denied Butler’s motion to exclude. As a result, it noted his continuing
objection to the witnesses’ testimony throughout the trial.
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effect of the facts and circumstances before it. Conley v. State, 972 N.E.2d 864,
871 (Ind. 2012), reh’g denied.
[10] The State argues that Butler has waived appellate review of his admission of
evidence issue because he did not object at trial on the same grounds that he
raises on appeal. We agree.
[11] “A claim of evidentiary error may not be raised for the first time on appeal but
rather must first be presented at trial[.]” Hunter v. State, 72 N.E.3d 928, 932
(Ind. Ct. App. 2017), trans. denied. “The failure to make a contemporaneous
objection to the admission of evidence at trial, so as to provide the trial court an
opportunity to make a final ruling on the matter in the context in which the
evidence is introduced, results in waiver of the error on appeal.” Brown v. State,
783 N.E.2d 1121, 1125 (Ind. 2003). Additionally, “[a]ny grounds for objections
not raised at trial are not available on appeal, and a party may not add to or
change his grounds in the reviewing court.” Hunter, 72 N.E.3d at 932.
[12] Here, Butler’s trial court objection was based on Indiana Evidence Rules 1004,
1002, 403, and federal and state constitutional rights to confront the witnesses
against him. On appeal, his challenge is based on a denial of due process.
Because Butler objected based on different grounds than he now raises on
appeal, he has waived review of his appellate argument regarding this
testimony. See, e.g., Hunter, 72 N.E.2d at 932 (holding that grounds for
objection not raised at trial are unavailable on appeal).
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[13] Waiver notwithstanding, we disagree with Butler’s argument that the admission
of the State’s witnesses’ testimony concerning their observations from the
surveillance video violated his due process rights because the State failed to
preserve the video. He contends that the surveillance video “would have been
materially exculpatory, or at the very least, potentially useful evidence and that
the State acted in bad faith in failing to preserve this evidence.” (Butler’s Br. 7).
[14] Generally, “[a]n original writing, recording, or photograph is required to prove
its content[,]” unless the Rules of Evidence or a statute provide otherwise. Ind.
Evid. R. 1002. Indiana Evidence Rule 1004 provides as follows:
An original is not required and other evidence of the content of a
writing, recording, or photograph is admissible if: (a) all originals
are lost or destroyed, and not by the proponent acting in bad faith; (b) an
original cannot be obtained by any judicial process; (c) the party
against whom the original would be offered had control of the
original; was at that time put on notice, by pleadings or
otherwise, that the original would be a subject of proof at the trial
or hearing; and fails to produce it at the trial or hearing; or (d) the
writing, recording, or photograph is not closely related to a
controlling issue.
(emphasis added) (format altered). At the outset we note that the trial court
was correct in finding that Indiana Evidence Rule 1004 was applicable. Here,
the surveillance video was either lost or destroyed and was not available for
trial. It was permissible for Thorpe, Singh, Scruggs, and Officer Canarecci to
testify about what they observed on the video because it was within their
personal knowledge. See Pritchard v. State, 810 N.E.2d 758, 760-61 (Ind. Ct.
App. 2004) (permitting the testimony recounting what witnesses saw on a jail
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surveillance video that was unavailable at trial because the testimony was
within the personal knowledge of the witnesses).
[15] It is well settled that a criminal defendant has the right to examine physical
evidence in the hands of the State. Roberson v. State, 766 N.E.2d 1185, 1187
(Ind. Ct. App. 2002), reh’g denied, trans. denied. The State’s failure to preserve
such evidence may, under certain circumstances, constitute the denial of due
process. Id. To determine whether a failure to preserve evidence deprives the
defendant of due process, we first determine whether the evidence at issue was
“‘potentially useful evidence’” or “‘materially exculpatory evidence.’” Id.(quoting Chissel v. State, 705 N.E.2d 501, 504 (Ind. Ct. App. 1999), trans. denied).
[16] If the evidence was only potentially useful, the defendant must establish bad
faith on the part of the State. Albrecht v. State, 737 N.E.2d 719, 724 (Ind. 2000)
(citing Arizona v. Youngblood, 488 U.S. 51, 58 (1988)), reh’g denied. “The United
States Supreme Court has described potentially useful evidence as ‘evidentiary
material of which no more can be said than that it could have been subjected to
tests, the results of which might have exonerated the defendant.’” Roberson, 766
N.E.2d at 1199 (quoting Youngblood, 488 U.S. at 57). To meet the standard of
being “materially exculpatory,” the evidence at issue “‘must both possess an
exculpatory value that was apparent before the evidence was destroyed, and be
of such a nature that the defendant would be unable to obtain comparable
evidence by other reasonably available means.’” Albrecht, 737 N.E.2d at 724
(quoting Holder v. State, 571 N.E.2d 1250, 1255 (Ind. 1991)). “Exculpatory”
evidence has been defined as “‘[c]learing or tending to clear from alleged fault
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of guilt; excusing.’’’ Albrecht, 737 N.E.2d at 724 (quoting Samek v. State, 688
N.E.2d 1286, 1288 (Ind. Ct. App. 1997), reh’g denied, trans. denied). Unlike
merely potentially useful evidence, the State’s good or bad faith in failing to
preserve materially exculpatory evidence is immaterial. Roberson, 766 N.E.2d at
1188.
[17] Turning to Butler’s first argument, we disagree that the surveillance video was
potentially useful. Three of the State’s witnesses similarly testified about the
clothing and appearance of Butler based on their viewings of the surveillance
video, describing him as an individual with a distinctive hairstyle wearing a
brown jacket and blue jeans. Two of the State’s witnesses identified Butler the
same evening of the theft. The witnesses also positively identified Butler and
his brown jacket at trial. We cannot say that the surveillance video might have
exonerated Butler.
[18] Even assuming the surveillance video was potentially useful, Butler has failed to
carry his burden of demonstrating bad faith on the part of the State. Bad faith is
defined as being “‘not simply bad judgment or negligence, but rather implies the
conscious doing of wrong because of dishonest purpose or moral obliquity.’”
Samek, 688 N.E.2d at 1289 (quoting BLACK’S LAW DICTIONARY 139 (6th ed.
1990)). Our review of the record reveals that the handling and collection of the
evidence in this case was certainly not a perfect example of law enforcement
procedure. Indeed, even the State acknowledges that “[a]t most, [Butler] could
accuse the police of negligence in failing to ensure the preservation of the
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surveillance video.” (State’s Br. 17). However, nothing in the record suggests
any conscious doing of wrong by the State.
[19] Butler next argues that the surveillance video was materially exculpatory. We
disagree. While a defendant is not required to prove conclusively that the
destroyed evidence was exculpatory, there must be some indication that the
evidence was exculpatory. Chissell, 705 N.E.2d at 504. We cannot assume that
the destroyed evidence contained exculpatory material when the record is
devoid of such indication. Id. Here, the record is devoid of any indication that
the surveillance video was exculpatory, and Butler provides no evidence of
such.3 We conclude that the surveillance video does not rise to the level of
materially exculpatory evidence. Accordingly, we find that Butler has failed to
prove a due process violation, and we conclude that the trial court did not abuse
its discretion by allowing the State’s witnesses to testify.
[20] Affirmed.
Najam, J., and Crone, J., concur.
3
Our appellate rules require that each contention made in the argument section of an appellant’s brief “must
contain the contentions of the appellant on the issues presented, supported by cogent reasoning.” Ind.
Appellate Rule 46(A)(8)(a). In his brief, Butler failed to satisfy Indiana Appellate Rule 46’s requirement of
providing a cogent argument by failing to provide citation to relevant authority. This hindered our review
and resulted in waiver of appellate review of his argument. See Foutch v. State, 53 N.E.3d 577, 580 n.1 (Ind.
Ct. App. 2016) (waiving a defendant’s sentencing argument where he failed to provide a cogent argument).
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