STATE OF NEW JERSEY VS. WILLIAM GRAHAM, IIIÂ (15-01-0023, GLOUCESTER COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4776-15T1
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
WILLIAM GRAHAM, III,
Defendant-Respondent.
________________________________
Submitted May 3, 2017 – Decided June 29, 2017
Before Judges Manahan and Lisa.
On appeal from Superior Court of New Jersey,
Law Division, Gloucester County, Indictment
No. 15-01-0023.
Sean F. Dalton, Gloucester County Prosecutor,
attorney for appellant (Douglas B. Pagenkopf,
Assistant Prosecutor, on the brief).
Respondent has not filed a brief.
PER CURIAM
By leave granted, the State appeals from an order suppressing
evidence after a finding by the Law Division that the State
engaged in bad faith for failure to provide requested discovery.
We reverse and remand.
On July 2, 2014, defendant William Graham, III, was stopped
by Woodbury City police pursuant to an investigation of alleged
controlled dangerous substances (CDS) distribution. Defendant was
not arrested, but his car was impounded in the secured, locked
rear garage behind the Woodbury City Police Department (WCPD).
The WCPD station, including the garage, was monitored by a 24-hour
surveillance system. Although no camera was installed inside the
garage, the outside of the garage was monitored. Once defendant's
vehicle was secured in the garage, both the vehicle and the garage
were locked and the ignition key was placed inside a secured
evidence mailbox.
The next day, the police applied for a search warrant, which
was issued.1 The search of the vehicle yielded a CDS, which formed
the basis for defendant's subsequent arrest. During the arrest
process, defendant accused the police of planting drugs in his car
while it was impounded.
Defendant was charged in Indictment 15-01-0023 with third-
degree possession of heroin, N.J.S.A. 2C:35-10A(1) (count one);
third-degree possession with intent to distribute heroin in a
quantity less than one-half ounce, N.J.S.A. 2C:35-5B(3) (count
1
The record does not reveal the basis for the issuance of the
search warrant. Defendant did not challenge the search pursuant
to the warrant.
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two); third-degree possession with intent to distribute heroin
while within 1000 feet of a school zone, N.J.S.A. 2C:35-5(a),
N.J.S.A. 2C35-7 (count three); and fourth-degree throwing bodily
fluid at a police officer while in the performance of his or her
duties, N.J.S.A. 2C:12-13 (count four).
On March 15, 2015, defendant made a request for discovery.
Specifically, defendant requested video surveillance of the garage
for the period when his car was impounded. Two weeks later, the
State responded to defendant's request noting that no video
surveillance footage was available for the relevant time period.
On January 8, 2016, defendant made a second request for
discovery demonstrating whether the surveillance system used by
the WCPD had been repaired or replaced. A month later, the State
provided a police report prepared by Sergeant Erik Lokaj that
noted several attempts to copy the surveillance footage. However,
the attempts were unsuccessful due to an unidentified issue with
the system.
Defendant filed a motion to compel discovery on March 14,
2016. During the hearing, Lokaj testified that a request for a
copy of the video footage was made to Captain Thomas Ryan (now
Chief Ryan), who was the primary officer responsible for accessing
video surveillance.
3 A-4776-15T1
Ryan testified that he was unable to recall if he received
the request, but did recall attempts to recover the video. The
chief stated that the WCPD did not have any standard operating
procedures requiring recording or preservation of video
surveillance of impounded vehicles and, despite numerous attempts
to recover the footage, the video was no longer available. Ryan
further testified that the system used was "antiquated and old,"
and that the system would record new footage over existing footage
approximately every two months.
On May 31, 2016, the judge placed his decision on the record.
The judge found that Ryan's testimony regarding the automatic re-
looping was at odds with Lokaj's report. Specifically, the judge
noted the initial reason given by the police for its failure to
provide the surveillance was a system malfunction. Additionally,
the judge pointed to Ryan's testimony that explained when an
arrestee accuses the police of planting evidence in an impounded
car, the police "100%" should preserve the footage. The judge
held that because the police did not follow their own procedures
and protocol for preserving video evidence, the WCPD acted in "bad
faith." The judge granted defendant's motion to compel discovery
and, as a sanction for the State's inability to comply, suppressed
the evidence found in the truck. This appeal followed.
The State raises the following points on appeal:
4 A-4776-15T1
POINT I
THE TRIAL COURT ERRONEOUSLY DETERMINED A BRADY
V. MARYLAND2 VIOLATION ON BEHALF OF THE
PROSECUTION FOR FAILING TO PROVIDE VIDEO
SURVEILLANCE WHEN THERE WAS NO WRITTEN POLICY
FOR OBTAINING THE VIDEO, NUMEROUS TECHNICAL
ISSUES WITH THE VIDEO SYSTEM AND AN AUTOMATIC
RELOOPING OF THE VIDEO SYSTEM MONTHS BEFORE
THE REQUEST WAS MADE BY DEFENDANT-RESPONDENT.
A. The [p]rosecutor and [p]olice did
not act in bad faith because there
was no written policy or procedure
for the recording of video
surveillance of the rear garage for
the Woodbury City Police
Department, the video system was
constantly broken and the video
system automatically recycled over
itself within sixty-seven (67) to
seventy-six (76) days after
[d]efendant-[r]espondent's arrest.
B. The [t]rial [c]ourt erred in
analyzing whether a due process
violation existed by failing to
address the two additional
Hollander factors.
POINT II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
SUPPRESSING ALL EVIDENCE OBTAINED IN THE
SEARCH OF DEFENDANT-RESPONDENT'S VEHICLE AS A
REMEDY FOR THE LOST VIDEO SURVEILLANCE. []
Our standard of review for an order to suppress evidence by
a trial court is limited. State v. Gamble, 218 N.J. 412, 424-25
2
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963).
5 A-4776-15T1
(2014). We give "deference to those findings of the trial judge
which are substantially influenced by his opportunity to hear and
see the witnesses and to have the 'feel' of the case, which a
reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161
(1964). If we are satisfied that the trial court's factual
findings could reasonably have been reached on sufficient,
credible evidence present in the record, those findings are binding
on appeal. Gamble, supra, 218 N.J. at 424. Our review of the
trial court's application of the law to the facts, of course, is
plenary. State v. Hubbard, 222 N.J. 249, 263 (2015).
The State first argues that the failure to preserve the
surveillance evidence requested by defendant was due to a system
malfunction and the automatic re-loop of the video. As such,
there was no bad faith on the part of the WCPD. Additionally, the
State argues that since the WCPD had no written policy for
preserving surveillance video, the judge's basis for suppressing
the evidence, i.e., failure of the police to follow that policy,
was erroneous. Finally, the State argues defendant was not
prejudiced because there was no apparent exculpatory value to the
surveillance footage.
"[T]he Constitution guarantees criminal defendants 'a
meaningful opportunity to present a complete defense.'" Crane v.
Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2141, 2146, 90 L. Ed. 2d
6 A-4776-15T1
636, 645 (1986) (internal citations omitted). The withholding of
material evidence favorable to a defendant is a denial of due
process and the right to a fair trial, regardless of the good
faith or bad faith of the prosecution. Brady, supra, 373 U.S. 83,
83 S. Ct. 1194, 10 L. Ed. 2d 215. Accordingly, the prosecutor is
constitutionally required to disclose information within the
custody or control of the prosecutor that is exculpatory and
material to the issue of guilt or punishment. Ibid.
Such evidence is material "if there is a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different." Strickler
v. Greene, 527 U.S. 263, 280, 119 S. Ct. 1936, 1948, 144 L. Ed.
2d 286, 301 (1999) (citing United States v. Bagley, 473 U.S. 667,
682, 105 S. Ct. at 3383, 87 L. Ed. 2d at 494); see also N.J.R.E.
401 (defining "relevant" evidence as "[e]vidence having a tendency
in reason to prove or disprove any fact of consequence to the
determination of the action"). A "reasonable probability" is one
"sufficient to undermine confidence in the outcome." Bagley,
supra, 473 U.S. at 682, 105 S. Ct. at 3383, 87 L. Ed. 2d at 494.
Thus, in order to establish a Brady violation, the defendant
must show: the prosecutor failed to disclose the evidence, the
evidence was of a favorable character to the defendant, and the
evidence was material. State v. Parsons, 341 N.J. Super. 448, 454
7 A-4776-15T1
(App. Div. 2001) (internal citations omitted). A Brady violation
therefore occurs even where the evidence is not directly
exculpatory, but rather "upon the suppression of evidence which
is reasonably calculated to lead to evidence impugning the
credibility of the State's witnesses." State v. Laganella, 144
N.J. Super. 268, 282 (App. Div. 1976) (citing State v. Taylor, 49
N.J. 440, 447-48 (1967); State v. Blue, 124 N.J. Super. 276 (App.
Div. 1973)).
In order to establish a violation of due process when evidence
is no longer available, a defendant must show that the evidence
had "an exculpatory value that was apparent before [it] was
destroyed" and that "the defendant would be unable to obtain
comparable evidence by other reasonably available means." Cal.
v. Trombetta, 467 U.S. 479, 489, 104 S. Ct. 2528, 2534, 81 L. Ed.
2d 413, 422 (1984). If a defendant cannot establish that the lost
evidence had "apparent" exculpatory value and can show only that
the evidence was "potentially" useful or exculpatory, then the
defendant can show a due process violation by establishing that
the evidence was destroyed in bad faith. Arizona v. Youngblood,
488 U.S. 51, 57-58, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281, 289
(1988); see State v. Reynolds, 124 N.J. 559, 569 (1991) (rejecting
Brady claim because the destroyed tapes in issue "did not possess
8 A-4776-15T1
any apparent exculpatory value, and because their destruction did
not involve bad faith.").
Prosecutors have a duty to preserve potentially exculpatory
evidence on behalf of criminal defendants. Trombetta, supra, 467
U.S. at 486-87, 104 S. Ct. at 2532-33, 81 L. Ed. 2d at 420-21.
The State's duty to preserve evidence is limited to evidence that
"might be expected to play a significant role in the suspect's
defense. . . . [E]vidence 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." Id. at
488-89, 104 S. Ct. at 2534-35, 81 L. Ed. 2d at 422-23. In
Youngblood, supra, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281,
the Supreme Court expressly limited "the extent of the police's
obligation to preserve evidence to reasonable bounds and
confine[d] it to cases in which the police themselves by their
conduct indicate[d] that the evidence could form a basis for
exonerating the defendant." Id. at 58, 109 S. Ct. at 337, 102 L.
Ed. 2d at 289.
This court has drawn the distinction between potentially
useful evidence and exculpatory evidence. George v. City of
Newark, 384 N.J. Super. 232, 243 (App. Div. 2006) (quoting
Youngblood, supra, 488 U.S. at 57, 109 S. Ct. at 337, 102 L. Ed.
9 A-4776-15T1
2d at 289). In George, we held that "a failure to preserve
potentially useful evidence" requires a finding of bad faith on
the part of the State. Ibid.
We conclude the nature of the evidence in the matter before
us, a video of the exterior of the garage in which the vehicle was
stored, does not constitute evidence that possessed an apparent
exculpatory value. State v. Mustaro, 411 N.J. Super. 91, 102
(App. Div. 2009) (quoting Trombetta, supra, 467 U.S. at 489, 104
S. Ct. at 2534). The video would have presumably depicted whether
anyone entered and exited the garage without depiction of what may
have occurred inside the garage. At best, the video would have
been of potential use to defendant rather than evidence that, had
it been available, would have had a material impact on the case's
outcome. See State v. Robertson, 438 N.J. Super. 47, 67 (App.
Div. 2014). Thus, bad faith must be established to sustain a due
process violation.
The defendant bears the burden of proving bad faith.
Youngblood, supra, 488 U.S. at 58, 109 S. Ct. at 337, 102 L. Ed.
2d at 289. We have suggested that "bad faith" might apply to
destruction that occurred: "in a calculated effort to circumvent
the disclosure requirements," as in Brady, supra, 373 U.S. at 87,
83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218; when there was an
"allegation of official animus towards" the defendant; or when
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there was "a conscious effort to suppress exculpatory evidence."
State v. Serret, 198 N.J. Super. 21, 26, (App. Div. 1984) (quoting
Trombetta, supra, 467 U.S. at 488, 104 S. Ct. at 2533, 81 L. Ed.
2d at 421-22).
In State v. Carter, 185 N.J. Super. 576 (App. Div. 1982), a
case involving the suppression of exculpatory evidence, we
concluded that even if actual intent to deceive was not present,
"egregious carelessness" would warrant suppression. Id. at 580.
We defined "egregious" as "conspicuously bad, flagrant." Id. at
581.
Here, the judge found that the police failed to adhere to
their own policy by ensuring the video system was in operating
order and preserving the video. The judge held that the police
conduct in not following "the guidelines and protocols in making
a copy of the video[,]" though not "necessarily with knowledge[,]"
was "a mistake" that constituted a "show of bad faith."
The State, as noted, argues that the judge erroneously
concluded that there was a "policy" relative to the recordation
and preservation of the garage video system. We reject that
argument. While there may not have been a "written" policy in
existence, there was a pattern and practice employed by the WCPD
of preserving the videos of the lobby of the police department
employed for internal affairs investigations. The lobby video
11 A-4776-15T1
system was the same as the garage video system. The chief further
conceded that when an allegation such as that made by defendant
was brought to the attention of the police, the video should have
been preserved. However, while we agree with the finding on the
"policy" score, we disagree that the circumstances which gave rise
to the unavailability of the video sustain a finding of bad faith
as a matter of law.
Notably, as the judge concluded, there was no evidence of
malice or intentional efforts by the WCPD to destroy evidence.
Serret, supra, 198 N.J. Super. at 26. Also, there was no evidence
that the unavailability of the video was premised on "egregious
carelessness." Carter, supra, 185 N.J. Super. at 581. To the
point, the judge found that the loss or destruction of the evidence
sought by defendant was the product of a "mistake" by the WCPD;
conduct that is not consonant with "bad faith" as the term is
commonly defined by federal and state decisions.
In sum, we discern no due process violation. Defendant has
not established that the video, if recorded and preserved, would
have had "apparent" exculpatory value. Reynolds, supra, 124 N.J.
at 569. Nor has defendant met his burden to demonstrate bad faith.
Youngblood, supra, 488 U.S. at 58, 109 S. Ct. at 337, 102 L. Ed.
2d at 289.
12 A-4776-15T1
Notwithstanding our rejection of a due process violation, we
next address the issue of the failure of the State to provide
requested discovery. Rule 3:13-3 imposes obligations upon the
State to preserve and produce evidence to a defendant. Consistent
with that Rule, the State was obligated to respond to defendant's
requests for the video by preserving the video or by informing
defendant that there was no video available. Although it is
unclear from the record whether there was an available video, the
State exercised custody and control of the video surveillance
system and the failure to respond to or comply with defendant's
request must subject it to an appropriate sanction.
Rule 3:13-3(f) provides for sanctions for non-compliance:
If at any time during the course of the
proceedings it is brought to the attention of
the court that a party has failed to comply
with this rule or with an order issued
pursuant to this rule, it may order such party
to permit the discovery of materials not
previously disclosed, grant a continuance or
delay during trial, or prohibit the party from
introducing in evidence the material not
disclosed, or it may enter such other order
as it deems appropriate.
The judge concluded the State violated its discovery
obligation; the sanction for which was suppression of the evidence
seized from the motor vehicle. We hold the suppression of the
evidence obtained pursuant to an unchallenged search warrant, with
its cloak of presumed validity, State v. Kasabucki, 52 N.J. 110,
13 A-4776-15T1
122-23 (1968), is a remedy unsuited for the discovery violation
in this case.
We are informed by our Supreme Court's decision in State v.
Dabas, 215 N.J. 114 (2013), which involved a post-indictment
discovery violation by destruction of interrogation notes. The
Court held that an adverse-inference charge was the appropriate
remedy for the destruction. Id. at 140. The Court noted that
"balancing the scales required the court to instruct the jury that
the State had a duty to produce" the notes and that the jury "was
permitted to draw an inference that the contents of the notes were
unfavorable to the State." Id. at 141.
In accord with Dabas, upon remand and upon request from
defendant, the court should instruct the jurors that they may draw
an adverse-inference relative to the discovery violation.
Reversed and remanded. We do not retain jurisdiction.
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