State v. Beavers , 2012 Ohio 6222 ( 2012 )

[Cite as State v. Beavers, 2012-Ohio-6222.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellant : C.A. CASE NO. 24994
v. : T.C. NO. 10CR2971
REUBIN J. BEAVERS : (Criminal appeal from
Common Pleas Court)
Defendant-Appellee :
:
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OPINION
Rendered on the 31st day of December , 2012.
..........
R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellant
LUCAS W. WILDER, Atty. Reg. No. 0074057, 120 W. Second Street, Suite 400, Dayton,
Ohio 45402
Attorney for Defendant-Appellee
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FROELICH, J.
{¶ 1} The State of Ohio appeals from a judgment of the Montgomery County
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Court of Common Pleas, which granted the motion of Reubin J. Beavers to dismiss his
indictment for possession of crack cocaine and possession of marijuana due to the
destruction of evidence. For the following reasons, the trial court’s judgment will be
reversed, and the case will be remanded for reconsideration of defendant’s motion using the
legal standard established by the Ohio Supreme Court.
I.
{¶ 2} At approximately 7:22 p.m. on September 15, 2010, Dayton Police Officer
Sean Humphrey stopped Beavers’ vehicle because Beavers’ windows were heavily tinted
and because the officer could smell a strong odor of freshly-cut marijuana emanating from
the vehicle as the officer drove behind it. Officer Kari Staples, who was patrolling the area
in a separate cruiser, saw Humphrey initiate the traffic stop and parked her cruiser behind
Humphrey’s cruiser. Beavers was asked to exit his vehicle, and Humphrey patted him
down for officer safety. During the patdown, Humphrey felt and retrieved small bags
containing marijuana and crack cocaine from Beavers’ front pants pocket.
{¶ 3} Both cruisers had audiovisual recording capabilities, and both cruisers
recorded some or all of the stop. The cruisers’ audiovisual recordings were saved and
maintained pursuant to Dayton Police Department General Order 3:02-4, XXI. Under that
policy, audio and video recordings are retained for 45 days, at which point they are
permanently erased and the blank disks are returned to the cruisers to be reused.
{¶ 4} On September 21, 2010, Beavers was charged in Dayton Municipal Court
with possession of marijuana in an amount less than 100 grams. Case No.
2010-CRM-9724. The case arose from the marijuana retrieved from Beavers during the
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September 15 stop. On October 22 (a Friday), Beavers’ attorney in the municipal court case
filed a demand for discovery, which included a request to “Preserve and provide any
video/audio tapes; See State v. Benton (2000) 136 Ohio App.3d 801.” (Emphasis in
original.) The audiovisual recordings from Humphrey’s and Staple’s cruisers were
destroyed three days later, in accordance with Dayton Police Department General Order
3:02-4, XXI.
{¶ 5} On February 2, 2011, Beavers was indicted with possession of crack
cocaine, a fourth degree felony, and possession of marijuana, a minor misdemeanor.1 These
charges also stemmed from the drugs that were seized during the September 15 stop. The
parties stipulated that the sole reason for the delay in the indictment was that the Miami
Valley Regional Crime Lab had a backlog of cases. The parties agree that the audiovisual
recordings were not preserved by the Dayton Police Department, and they were unavailable
at the time of Beavers’ indictment.
{¶ 6} In August 2011, Beavers filed a Motion to Compel and/or Dismiss. He
asserted that the video recordings from the police officers’ cruisers appeared to be
unavailable, despite the fact that the prosecutor was required to provide the “cruiser cam”
under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Beavers
emphasized that the recordings “would be especially probative in this case because the
reason given for the stop was that the officer, riding in his cruiser and following the
defendant while driving down Salem Avenue, could, even at normal traffic speed, smell the
1
According to the Dayton Municipal Court online docket, the municipal court case was continued several times.
The case remained active until October 5, 2011, at which point the charges were withdrawn due to the indictment.
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odor of marijuana.” (It is undisputed that the unburnt marijuana weighed 1.86 grams.)
Beavers asked the court to dismiss the action due to the State’s destruction of exculpatory
evidence. In another supporting memorandum, Beavers further noted that the recordings
“would have shown the actions taken by the officers at the scene and would have preserved
the audio recordings made by both officers as the events unfolded.” Beavers argued that the
State should bear the burden of establishing that no due process violation occurred, because
the destruction of the videotapes occurred after Beavers requested those items to be
preserved.
{¶ 7} The trial court granted Beavers’ motion to dismiss, finding that Beavers’
right to due process was violated by the State’s destruction of the audio/video recordings.
The trial court followed Columbus v. Forest, 36 Ohio App.3d 169, 522 N.E.2d 52 (10th
Dist.1987), which held that, when the State fails to respond in good faith to the defendant’s
request to preserve evidence, the State bears the burden to show that the destroyed evidence
was not exculpatory, but the defendant must show that the evidence could not be obtained by
other means. The trial court concluded that “[n]othing in the Stipulation of Facts or in the
State’s Response to Defendant’s Motion to Dismiss persuades this Court that the destroyed
audio/video recordings have no exculpatory value.” The court further found that Beavers
was prejudiced by the destruction of the recordings, because “there appears to be no
‘alternate channels’ available to Beavers to challenge the officers’ version of the stop.” The
court thus dismissed with prejudice the possession of crack cocaine and possession of
marijuana charges.
{¶ 8} The State appeals from the trial court’s judgment.
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II.
{¶ 9} The State’s sole assignment of error states:
THE TRIAL COURT ERRED IN DISMISSING THE CASE FOR FAILURE
TO PRESERVE EVIDENCE IN VIOLATION OF THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION.
{¶ 10} The State claims that the trial court erred in granting Beavers’ motion to
dismiss the indictment. It argues that the trial court should not have followed the
burden-shifting analysis in Forest, and that the trial court should have applied the law as set
forth in State v. Brown, 170 Ohio App.3d 235, 2007-Ohio-179, 866 N.E.2d 584 (2d Dist.).
Alternatively, the State asserts that, even if Forest did apply, Beavers did not demonstrate
that he was prejudiced by the destruction of the recordings.
{¶ 11} Within the last few years, the Ohio Supreme Court has addressed what
standard should apply when evaluating an alleged due process violation based on lost or
destroyed evidence. State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d
865; State v. Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239, 878 N.E.2d 1. The Ohio
Supreme Court discussed United States Supreme Court case law on the issue, as follows:
* * * Specific tests are applied to determine whether the state’s failure
to preserve evidence rises to the level of a due process violation. The test
depends on whether the lost or destroyed evidence involves “material
exculpatory evidence” or “potentially useful evidence.”
In California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d
413 (1984), the Supreme Court held that the government violates a
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defendant’s due process rights when material exculpatory evidence is not
preserved. Evidence is constitutionally material when it possesses “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.” Id. at 489, 104 S.Ct. 2528,
81 L.Ed.2d 413. The defendant bears the burden to show that the evidence
was materially exculpatory. See State v. Jackson, 57 Ohio St.3d 29, 33, 565
N.E.2d 549 (1991).
In Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d
281 (1988), the Supreme Court reviewed a case in which the state had failed
to properly preserve semen samples and clothing obtained from a child who
was the victim of a sexual assault. A police criminologist performed testing
on the evidence but was unable to identify the assailant. Id. at 53–54, 109
S.Ct. 333, 102 L.Ed.2d 281. Expert witnesses testified at trial that the
defendant might have been completely exonerated by timely performance of
tests on properly preserved semen samples. Id. at 54, 109 S.Ct. 333, 102
L.Ed.2d 281. The defendant was convicted of child molestation, sexual
assault, and kidnapping. Id. at 52, 109 S.Ct. 333, 102 L.Ed.2d 281. The
Arizona Court of Appeals reversed the conviction on the ground that the state
had breached a constitutional duty to preserve the semen samples. Id.The Supreme Court reversed, stating:
The Due Process Clause of the Fourteenth Amendment, as
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interpreted in Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,
10 L.Ed.2d 215 (1963)] makes the good or bad faith of the
State irrelevant when the State fails to disclose to the
defendant material exculpatory evidence. But we think the
Due Process Clause requires a different result when we deal
with the failure of the State to preserve 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.
Id. at 57, 109 S.Ct. 333, 102 L.Ed.2d 281. In that situation, the court held
that “unless a criminal defendant can show bad faith on the part of the police,
failure to preserve potentially useful evidence does not constitute a denial of
due process of law.” Id. at 58, 109 S.Ct. 333, 102 L.Ed.2d 281. See also
Illinois v. Fisher, 540 U.S. 544, 545, 124 S.Ct. 1200, 157 L.Ed.2d 1060(2004).
Youngblood made a clear distinction between materially exculpatory
evidence and potentially useful evidence. “If the evidence in question is not
materially exculpatory, but only potentially useful, the defendant must show
bad faith on the part of the state in order to demonstrate a due process
violation.” State v. Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239, 878
N.E.2d 1, ¶ 10.
(Footnote omitted.) Powell at ¶ 73-77.
[Cite as State v. Beavers, 2012-Ohio-6222.]
{¶ 12} As stated above, the defendant generally bears the burden of establishing
that lost or destroyed evidence was materially exculpatory. E.g., Powell at ¶ 74, quoting
Trombetta, 467 U.S. 479. However, several Ohio appellate districts have held that, when
the defendant specifically requests that certain evidence be preserved and that evidence is
subsequently destroyed or lost by the State, the burden shifts to the State to show that the
evidence was not materially exculpatory. E.g., Columbus v. Forest, 36 Ohio App.3d 169,
522 N.E.2d 52 (10th Dist.1987); State v. Benton, 136 Ohio App.3d 801, 737 N.E.2d 1046(6th Dist.2000). But see State v. Canter, 5th Dist. Fairfield No. 01 CA 51, 2002-Ohio-3473(rejecting Forest).
{¶ 13} In concluding that Beavers’ due process rights had been violated, the trial
court followed Forest, a case decided after Trombetta, but prior to Youngblood. In Forest,
the Tenth District framed the issue before it as “the constitutional duty of the state to respond
to a criminal defendant’s discovery requests and the remedies available upon breach of that
duty.” Forest, 36 Ohio App.3d at 171. The Forest court concluded that the Due Process
Clause places a duty upon the State to respond in good faith to a defense request to preserve
evidence. Id. at 172. The court noted that this duty was limited to a good faith response;
there was no attendant constitutional right to pretrial discovery or to have evidence
preserved, other than evidence which is apparently exculpatory and unique. Id. at 173.
{¶ 14} Under Forest, the remedy for the State’s breach of this duty was not
necessarily dismissal of the charges. Rather, where the State breaches its duty to respond in
good faith to a defense request to preserve evidence, “the appropriate remedy is to shift to
the state the burden of proof as to the exculpatory value of the evidence.” Id. If the State
could not demonstrate that the destroyed evidence was not exculpatory, the defendant was
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still required to show that the evidence could not be obtained through “alternate channels.”
Id.
{¶ 15} The trial court followed Forest based on dicta in State v. Kuralt, 2d Dist.
Montgomery No. 20532, 2005-Ohio-4529, that placing “a burden on the State to show that
the destroyed evidence was not exculpatory * * * may be appropriate where the State
destroys evidence after Defendant has requested that it be preserved.” Kuralt at ¶ 26, citing
Forest. See also State v. Terry, 2d Dist. Greene No. 04 CA 63, 2004-Ohio-7257, ¶ 13.
However, we have never adopted the approach taken in Forest, and we have expressly
declined to address it when no request to preserve the evidence was made prior to the
evidence’s destruction. See Kuralt at ¶ 26; State v. Fuller, 2d Dist. Montgomery No.
18994, *3 (Apr. 26, 2002).
{¶ 16} With the issue now squarely before us, we decline to follow Forest. We
reach this conclusion for several reasons. First, we note that Forest was decided one year
prior to Youngblood and 19 years before the Ohio Supreme Court addressed the standard for
evidence that was lost or destroyed by the State in Geeslin. Although Forest ostensibly
interprets Trombetta, the Tenth District in Forest framed the issue differently than the
United States Supreme Court and established a constitutional duty “to respond in good faith
to a defense request to preserve evidence.” Forest, 36 Ohio App.3d at 172-173, 522 N.E.2d
52. That duty was neither addressed nor recognized in Trombetta.
{¶ 17} More significantly, the standard established in Trombetta and Youngblood
marks a clear distinction between materially exculpatory evidence and potentially useful
evidence and the State’s duties with respect to each category of evidence. The United
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States Supreme Court recognized that materially exculpatory evidence was limited to
evidence where the exculpatory nature was apparent and the evidence was unique.
Trombetta at 489, Powell at ¶ 74.
{¶ 18} Under Forest, in which the burden is shifted to the State to establish the
inculpatory nature of the destroyed or lost evidence, evidence that has been destroyed by the
State may be treated as exculpatory, even though the exculpatory nature was not apparent
prior to the evidence’s destruction. Indeed, as the United States Supreme Court
commented, “[w]henever potentially exculpatory evidence is permanently lost, courts face
the treacherous task of divining the import of materials whose contents are unknown and,
very often, disputed.” Trombetta, 483 U.S. at 486. The fact that a defendant has previously
requested that an item be preserved suggests that the evidence may be potentially useful, but
it does not reasonably suggest that the evidence is exculpatory when the exculpatory nature
was not apparent prior to its destruction.
{¶ 19} We further note that in Illinois v. Fisher, 540 U.S. 544, 124 S.Ct. 1200, 157
L.Ed.2d 1060 (2004), which is cited in Powell, the United States Supreme Court reaffirmed
the burden faced by defendants, even when the defendants had requested that the evidence
be preserved prior to its destruction. In Fisher, the defendant was charged with possession
of cocaine, and eight days later he filed a motion for discovery seeking all physical evidence
that the State of Illinois intended to use at trial. The State responded that all evidence
would be available, upon request, at a reasonable date and time. The defendant absconded
prior to trial. Eleven years later, while Fisher was a fugitive, the substance seized from the
defendant was destroyed in accordance with established procedures.
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{¶ 20} Fisher moved to dismiss the charge due to the destruction of evidence.
The motion was denied, and the defendant was convicted after a jury trial. The appellate
court reversed, however, on the ground that the destruction of the evidence, after the request
to preserve it, violated the defendant’s right to due process, even though the State had not
acted in bad faith. The Illinois Supreme Court denied leave to appeal.
{¶ 21} The United State Supreme Court reversed, reasoning that the substance had
been tested and found to be cocaine, and, thus, it was not materially exculpatory. Rather,
the substance was “potentially useful evidence,” the destruction of which violates due
process only upon a showing of bad faith by the State. Although discussing potentially
useful evidence rather than materially exculpatory evidence, the Supreme Court discounted
the significance of a pending discovery request or the importance of the destroyed evidence
to the defense. It stated:
We have never held or suggested that the existence of a pending
discovery request eliminates the necessity of showing bad faith on the part of
police. Indeed, the result reached in this case demonstrates why such a per
se rule would negate the very reason we adopted the bad-faith requirement in
the first place: to “limi[t] the extent of the police’s obligation to preserve
evidence to reasonable grounds and confin[e] it to that class of cases where
the interests of justice most clearly require it.” 488 U.S., at 58, 109 S.Ct.
333.
We also disagree that Youngblood does not apply whenever the
contested evidence provides a defendant’s “only hope for exoneration” and is
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“‘essential to and determinative of the outcome of the case.’” In
Youngblood, the Arizona Court of Appeals said that the destroyed evidence
“could [have] eliminate[d] the defendant as the perpetrator.” Similarly here,
an additional test might have provided the defendant with an opportunity to
show that the police tests were mistaken. It is thus difficult to distinguish the
two cases on this basis. But in any event, the applicability of the bad-faith
requirement in Youngblood depended not on the centrality of the contested
evidence to the prosecution’s case or the defendant’s defense, but on the
distinction between “material exculpatory” evidence and “potentially useful”
evidence. As we have held, the substance destroyed here was, at best,
“potentially useful” evidence, and therefore Youngblood’s bad-faith
requirement applies.
(Citations omitted.) Fisher, 540 U.S. at 548-549.
{¶ 22} In addition, in Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239, 878 N.E.2d
1, the Ohio Supreme Court gave little weight to the timing of the destruction of the evidence.
The Court noted that the Third District Court of Appeals had “devoted a portion of its
analysis to whether appellant had requested that the state provide him with the evidence in
question prior to its destruction.” Geeslin at ¶ 8. In that case, the evidence had been
destroyed within 24 hours of the defendant’s arrest. The Court summarily addressed the
Third District’s discussion, stating: “[U]nder those circumstances, appellant could not
reasonably be expected to have requested [the evidence] prior to its loss. We therefore do
not need to address whether appellant had a burden to first request from the state the
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evidence in question. Our inquiry here is what standard should apply in evaluating an
alleged due process violation based on lost or destroyed evidence.” The supreme court then
articulated the standards established in Youngblood and Trombetta, which placed the burden
on the defendant to establish a due process violation.
{¶ 23} Geeslin involved the destruction of a portion of a cruiser videotape that
showed the defendant’s driving prior to the stop. In determining that the missing portion of
the recording could not have been materially exculpatory, the Ohio Supreme Court noted
that “the missing evidence would not have been used to acquit appellant of the
impaired-driving charge itself. Rather, it would have been used only with regard to the
validity of the stop that led to appellant’s arrest.” Id. at ¶ 13.
{¶ 24} In this case, Beavers’ counsel argued to the trial court that the video
recording would have shown the actions taken by the police officers at the scene and would
have provided “objective facts surrounding the decision to search first the defendant and
then the car.” Beavers emphasized that the stop was based in part on Officer Humphrey’s
claim that he could smell unburnt marijuana from his cruiser while driving behind Beavers’
vehicle. Only 1.86 grams of marijuana was found during the stop. Thus, Beavers argued
that the cruiser video recordings would undermine the legitimacy of the stop of the vehicle
and the search of his person. He did not claim that he did not, in fact, possess the baggies of
marijuana and cocaine. Under Geeslin, it would appear that the video recordings would not
be materially exculpatory, but only potentially useful. However, following Forest, the trial
court never engaged in this analysis.
{¶ 25} Youngblood has been subject to criticism. See, e.g., Norman C. Bay, Old
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Blood, Bad Blood, and Youngblood: Due Process, Lost Evidence, and the Limits of Bad
Faith, 86 Wash. U.L. Rev. 241 (2008). In our view, that criticism is well-deserved. See,
e.g., State v. Barron, 2d Dist. Greene No. 10-CA-28, 2011-Ohio-2425, ¶ 29-30 (Froelich, J.,
concurring).
{¶ 26} Nevertheless, we are bound to follow to the dictates of the Ohio Supreme
Court, which has chosen to follow Trombetta, Youngblood and Fisher. Accordingly, we
agree with the State that the trial court erred when it applied the analysis in Forest in this
case. In light of this disposition, the State’s alternative argument that Beavers was not
prejudiced by the destruction of the recordings is moot and we need not address it.
{¶ 27} The first assignment of error is sustained.
III.
{¶ 28} The trial court’s judgment will be reversed, and the matter will be
remanded to the trial court for reconsideration of Beavers’ motion to dismiss the indictment
using the standard established by the Ohio Supreme Court.
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FAIN, J. and HALL, J., concur.
Copies mailed to:
R. Lynn Nothstine
Lucas W. Wilder
Hon. Dennis J. Langer