STATE OF NEW JERSEY VS. DIONNDRE AMISÂ (17-15, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2041-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DIONNDRE AMIS,
Defendant-Appellant.
——————————————————————————————
Argued January 26, 2017 – Decided June 23, 2017
Before Judges Hoffman and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Municipal Appeal
No. 17-15.
Thomas M. Cannavo, argued the cause for
appellant (The Hernandez Law Firm, attorneys;
Mr. Cannavo, of counsel and on the brief).
John C. Tassini, Assistant Prosecutor, argued
the cause for respondent (Joseph D. Coronato,
Ocean County Prosecutor, attorney; Samuel
Marzarella, Chief Appellate Attorney, of
counsel; Mr. Tassini, on the brief).
PER CURIAM
Defendant Dionndre Amis appeals from his de novo conviction
for driving while intoxicated (DWI), N.J.S.A. 39:4-50, and refusal
to submit to a breath test (Refusal), N.J.S.A. 40:4-50.4(a). He
argues the Law Division erred when it rejected his request for
dismissal based upon spoliation of evidence, after the State
destroyed a video of his refusal to submit to a breath test. The
municipal court reviewed the placement of the camera and the breath
test, and it found the video would not have captured defendant's
face during the test. It therefore concluded the video would not
have shown anything "favorable" to defendant's defense, and it
found defendant guilty of DWI and Refusal. Following a trial de
novo on the record, the Law Division found no basis for dismissal
based upon spoliation of evidence and entered the same convictions
and sentence as the municipal court. For the reasons that follow,
we affirm.
I.
On June 29, 2014, a Manchester Township police sergeant
observed a speeding vehicle. While in pursuit, the sergeant saw
the vehicle’s brake lights come on several times without an
apparent reason to stop. The sergeant also watched the vehicle
make several unprompted lane changes. Radar detected the vehicle
traveling at double the speed limit. Upon pulling the vehicle
over, the sergeant noticed defendant had droopy eyelids, smelled
of alcohol, and slurred his speech. Defendant also admitted he
consumed two to three beers that evening.
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The sergeant administered three field sobriety tests, which
defendant failed. The sergeant then transported defendant to the
police department for a chemical breath test. The sergeant
instructed defendant on how to provide a proper breath sample. On
his first attempt, defendant blew a sufficient sample of air to
obtain a result; however, on his next two attempts, defendant
failed to provide sufficient air for a valid test. The sergeant
repeated the instructions and told defendant he would charge him
with Refusal if he did not provide a sufficient sample on his next
attempt. After defendant again failed to provide an adequate
sample, the sergeant charged defendant with Refusal.
On July 1, 2014, defendant’s attorney requested discovery and
preservation of in-station video recordings. The attorney
repeated the request on July 14, 2014, as part of a motion to
compel. The State destroyed the video without providing defendant
a copy. The video system had automatically deleted the video
after its storage system reached its limit, and this video was the
oldest on the system. Defendant consequently filed a motion to
dismiss the charges against him. In its written opinion denying
defendant's motion, the municipal court wrote, "[D]uring the
course of the hearing, we were able to observe the room where the
breath test was administered. In that room is a video camera
located on the opposite side of the [A]lcotest machine. The video
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is situated such that the defendant's back would be to the camera."
The court noted, "The only question is whether the video had some
potentially exculpatory depiction of the defendant's good faith
attempt to give a breath sample." It found "due to the proximity
of the camera, the video could not have shown what was happening
from the back. In other words, the breath tube and defendant's
mouth could not possibly be seen on the video footage." It
therefore concluded, "[W]e have a situation where evidence
favorable to the defendant cannot be identified."
In August 2015, after hearing the trial testimony of the
arresting officer, the municipal court found defendant guilty of
both charges. In December of 2015, the Law Division conducted a
trial de novo and found defendant guilty of both charges. On
appeal, defendant presents the following arguments:
POINT I
THE LAW DIVISION ERRED IN DENYING DEFENDANT'S
SPOLIATION OF EVIDENCE MOTION. THIS COURT
SHOULD REVERSE THAT DENIAL AND DISMISS THE DWI
AND/OR REFUSAL CHARGE, OR, IN THE ALTERNATIVE
EXCLUDE THE OBSERVATIONS OF THE POLICE DUE TO
THE BAD FAITH AND GROSSLY NEGLIGENT
DESTRUCTION OF THE POLICE IN-STATION VIDEO IN
VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS
OF LAW PURSUANT TO THE FIFTH AND FOURTEENTH
AMENDMENTS AND ART. 1, PAR. 1 OF THE NEW JERSEY
CONSTITUTION AND HIS SIXTH AMENDMENT RIGHT OF
CONFRONTATION.
A. The police conduct of not preserving the
in-station video, after specifically
requested[,] without justification,
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constitutes prima facie or sufficient evidence
of "bad faith" requiring dismissal of the
charges or exclusion of observational
evidence.
B. Even if "bad faith" or prima facie evidence
of "bad faith" is not found, this court should
nevertheless find a due process spoliation of
evidence violation based on the State
Constitution and fundamental fairness to
defendant as expressed in the Arizona v.
Youngblood1 concurring opinion of Justice
Stevens and other jurisdictions based on our
State Constitution.
POINT II
EVEN IF THE DUE PROCESS AND RIGHT TO
CONFRONTATION EVIDENCE SPOLIATION MOTION WAS
PROPERLY DENIED, THE LAW DIVISION ERRED. THE
STATE FAILED TO PROVE REFUSAL BEYOND A
REASONABLE DOUBT AND DEFENDANT SHOULD
THEREFORE BE ACQUITTED.
II.
In reviewing a trial court's decision on a municipal appeal,
we determine whether sufficient credible evidence in the record
supports the Law Division's decision. State v. Johnson, 42 N.J.
146, 162 (1964). Unlike the Law Division, which conducts a trial
de novo on the record, Rule 3:23-8(a)(2), we do not independently
assess the evidence. State v. Locurto, 157 N.J. 463, 471 (1999).
In addition, under the two-court rule, only "a very obvious and
exceptional showing of error" will support setting aside the Law
1
Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed.
2d 281 (1988).
5 A-2041-15T2
Division and municipal court's "concurrent findings of facts."
Id. at 474. However, when issues on appeal turn on purely legal
determinations, our review is plenary. State v. Adubato, 420 N.J.
Super. 167, 176 (App. Div. 2011), certif. denied, 209 N.J. 430
(2012).
Due process requires the State to disclose exculpatory
evidence. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194,
1196-97, 10 L. Ed. 2d 215, 218 (1963); see also State v. Carrero,
428 N.J. Super. 495, 516-18 (App. Div. 2012) (applying Brady to
quasi-criminal motor vehicle violations). A Brady violation
occurs when the prosecution suppresses evidence that is both
material and favorable to the defense. State v. Martini, 160 N.J.
248, 268 (1999). "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.'" State
v. Robertson, 438 N.J. Super. 47, 67 (App. Div. 2014) (quoting
State v. Knight, 145 N.J. 233, 246 (1996)), modified on other
grounds, 228 N.J. 138 (2017) (stating "[b]ecause defendant has
completed his license suspension, we do not apply the above
standards to his case. The standards govern future requests for
a stay of a license suspension by the municipal court and the Law
Division."). "When the evidence withheld is no longer available,
to establish a due process violation a defendant may show that the
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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.'" State
v. Mustaro, 411 N.J. Super. 91, 102-03 (App. Div. 2009) (quoting
California v. Trombetta, 467 U.S. 479, 489, 104 S. Ct. 2528, 2534,
81 L. Ed. 2d 413, 422 (1984)) (alteration in original). Suppression
of exculpatory evidence violates due process regardless of whether
the prosecutor acted in bad faith. Knight, supra, 145 N.J. at
245.
However, a different standard applies to evidence that is
only potentially useful. "Without bad faith on the part of the
State, 'failure to preserve potentially useful evidence does not
constitute a denial of due process of law.'" 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.
2d at 289); see also State v. Marshall, 123 N.J. 1, 109 (1991)
(applying Youngblood's bad faith standard); Mustaro, supra, 411
N.J. Super. at 103. When evidence has been destroyed, the court
must focus on "(1) whether there was bad faith or connivance on
the part of the government, (2) whether the evidence . . . was
sufficiently material to the defense, [and] (3) whether [the]
defendant was prejudiced by the loss or destruction of the
evidence." State v. Hollander, 201 N.J. Super. 453, 479 (App.
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Div.) (citations omitted), certif. denied, 101 N.J. 335 (1985).
Moreover, the fact that a discovery request was made prior to the
routine destruction of evidence does not compel a finding of bad
faith. See Illinois v. Fisher, 540 U.S. 544, 548, 124 S. Ct.
1200, 1202, 157 L. Ed. 2d 1060, 1066 (2004) ("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 the
police.").
In addition to the dictates of due process, our discovery
rules impose obligations upon the State to preserve and produce
evidence to a defendant. See R. 3:13-3 (governing criminal
proceedings in Superior Court); R. 7:7-7 (governing municipal
court proceedings). We reviewed the scope of allowable discovery
in Robertson, supra, 438 N.J. Super. at 66-67:
A DWI defendant's "right to discovery . . .
is limited to items as to which 'there is a
reasonable basis to believe will assist a
defendant's defense.'" [Carrero, supra, 428
N.J. Super. at 507] (quoting State v. Ford,
240 N.J. Super. 44, 48 (App. Div. 1990)).
A defendant is not entitled to information
that "merely could lead to other information
that is relevant." Ibid. (citing [State v.]
Maricic, [] 417 N.J. Super. [280,] 284 [(App.
Div. 2010)], and Ford, supra, 240 N.J. Super.
at 48). Discovery "must be relevant in and
of itself." Carrero, supra, 428 N.J. Super.
at 508. "However, at least with respect to
certain classes of information," including
repair records, "a DWI defendant need not have
actual knowledge of the facts supporting the
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contentions that underlie his discovery
requests." Ibid.
To sustain a conviction for Refusal under N.J.S.A. 39:4-
50.4a, the State must prove, beyond a reasonable doubt,
(1) the arresting officer had probable cause
to believe that defendant had been driving or
was in actual physical control of a motor
vehicle while under the influence of alcohol
or drugs; (2) defendant was arrested for
driving while intoxicated; (3) the officer
requested defendant to submit to a chemical
breath test and informed defendant of the
consequences of refusing to do so; and (4)
defendant thereafter refused to submit to the
test.
[State v. Marquez, 202 N.J. 485, 503 (2010).]
"[A]nything substantially short of an unqualified, unequivocal
assent to an officer's request that the arrested motorist take the
[breath] test constitutes a refusal to do so." State v. Bernhardt,
245 N.J. Super. 210, 219 (App. Div.) (quoting State v. Corrado,
184 N.J. Super. 561, 569 (App.Div.1982)), certif. denied, 126 N.J.
323 (1991). "[A] defendant bears the burden of proof regarding
his or her alleged physical impairment to complete a chemical
breath test." State v. Monaco, 444 N.J. Super. 539, 551 (App.
Div.), certif. denied, __ N.J. __ (2016).
Defendant first argues, "The police conduct of not preserving
the in-station video, after specifically requested without
justification, constitutes prima facie or sufficient evidence of
'bad faith' requiring dismissal of the charges or exclusion of
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observational evidence." He also argues, "Even if 'bad faith' or
prima facie evidence of 'bad faith' is not found, this court should
nevertheless find a due process spoliation of evidence violation
based on the State Constitution and fundamental fairness to
defendant as expressed in the Arizona v. Youngblood concurring
opinion of Justice Stevens and other jurisdictions based on our
State Constitution."
We reject these arguments because the Law Division properly
deferred to the municipal court's factual findings regarding the
placement of the camera and the video's ability to show anything
relevant to defendant's defense. See Locurto, supra, 157 N.J. at
471. The municipal court observed the room where defendant took
the breath test, and it found the video could not have depicted
anything "favorable" to defendant because he took the test with
his back to the camera. We therefore conclude the video did not
depict anything exculpatory, as required under Brady, supra, 373
U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218, potentially
useful, as required under Youngblood, supra, 488 U.S. at 57, 109
S. Ct. at 337, 102 L. Ed. 2d at 289, or relevant, as required
under Rule 7:7-7(b). The Law Division did not err when it
concluded the State did not violate defendant's rights when it
destroyed the video.
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Defendant next argues, "The Law Division ruling was . . .
erroneous given that it is apparently based on inappropriately
shifting the burden of proof to defendant to proffer an 'alternate
theory' or respiratory illness as to why he could not provide a
sufficient breath sample." We disagree. The Law Division noted
defendant had not "offered any alternative theory as to why he was
unable to provide adequate breath samples," but it said this in
relation to defendant's arguments concerning the video and whether
it could possibly show anything relevant to defendant's defense.
The Law Division also said, "[D]efendant did not indicate he had
any respiratory illness that would affect his ability to give a
proper sample," but it said this in its summary of the police
officer's testimony about why the police officer determined
defendant refused to take the breath test. If the officer had
testified defendant told him that he could not produce a proper
breath sample because he had asthma or some other respiratory
problem, the Law Division would have had to address such testimony.
The Law Division correctly observed the record did not require
such a digression. When defendant failed to produce a valid breath
sample three times, without indicating any respiratory illness or
other physical infirmity to the police officer administering the
test, his conduct was "substantially short of an unqualified,
unequivocal assent to an officer's request," constituting Refusal
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under N.J.S.A. 40:4-50.4(a). Bernhardt, supra, 245 N.J. Super.
at 219.
Affirmed.
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