Opinion
No. 15–P–968.
08-31-2016
COMMONWEALTH v. Daniel J. SOUCY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from an order dismissing a complaint of operating a motor vehicle under the influence of intoxicating liquor (OUI), fourth offense, because the Commonwealth could not produce a video recording of the defendant's booking. We conclude that the remedy of dismissal was too drastic under the circumstances and reverse.
Background. On May 26, 2013, at 1:13 A.M., the defendant's vehicle was parked on a public way in Westford with the driver's side wheels partially in the driving lane and without the exterior lights illuminated. Westford police Officer Paul Selfridge observed that the defendant was sleeping in the driver's seat. Selfridge knocked on the vehicle's window three separate times and on the third attempt, he awakened the defendant. At Selfridge's request, the defendant lowered the driver's side window. The keys were in the ignition. The defendant told Selfridge that he was very tired, he had had a few drinks in Lowell and was driving home, and he stopped because he was too tired to drive. Selfridge detected the odor of alcohol on the defendant's breath and asked him to get out of his vehicle. Selfridge felt the hood of the vehicle, which was warm to the touch, despite the cool and rainy weather.
The defendant represents that “[a]ll statements the defendant made prior to receiving his Miranda warning were suppressed, but all statements made thereafter were not.” He attaches an order handwritten in the margins of the motion to suppress and related papers. The pages of the ruling do not appear to be in order, and it is unclear that all pages were provided to this court. What was provided states that “[t]he statements/utterances attributed to defendant at roadside were spontaneous and are not suppressed. ” Any statements at the police station before the Miranda warning were suppressed. We do not recite any statements by the defendant at the police station because it is unclear from the record specifically which statements were before and after the Miranda warnings and therefore which statements are suppressed.
The defendant admitted to drinking whiskey in Lowell and said he thought his last drink was a “couple of hours” earlier. The defendant said that he was aware he was too intoxicated to drive and asked the officer if he could just take him home.
When Sergeant Brian Gendron arrived on scene, he detected a strong odor of alcohol emanating from the defendant, and he observed that the defendant's eyes were bloodshot and glazed and that he was swaying from side to side while standing still. Gendron told the defendant that he was under arrest for OUI. The defendant became upset and attempted to avoid arrest by flailing his arms and clenching his fists so that it would be difficult to handcuff him. The officers gained control of the defendant and placed him in the back of a police cruiser.
The defendant was brought to the Westford police station and the booking officer, Sergeant James D. Peloquin, administered Miranda warnings to him. Peloquin detected a strong odor of alcohol on the defendant's breath and person. He also observed that the defendant's eyes were red and glassy, and that his speech was slurred, as Peloquin had difficulty understanding him. The defendant also made statements that led Peloquin to believe that the defendant was intoxicated.
Counsel for the defendant sought discovery of the booking video because he was aware that the Westford police department records bookings. When the video was not produced, the defendant moved to dismiss the charge against him. The only witness at that hearing was Detective Sergeant William G. Luppold, Jr. He testified in sum that there was a problem with the department's video recording system, the defendant's booking had not been recorded, and no video existed. Specifically, in early 2013, the department was aware that its server became overloaded after the town installed additional video cameras at the town hall and senior center. On occasion, the cameras at the police station failed to record when activated. Luppold would not learn that the cameras failed to record any particular booking until the following day, when the recorder would display an error message.
Luppold testified that in 2013, there were “close to over a dozen times” when he was unable to obtain a booking video or there was no room on the system for a new recording. The company that serviced the system informed the department that it needed a larger computer server due to the volume of information being recorded. Funding became available in July, 2014, and a new system was installed. The motion judge stated that he was “never moved by [lack of funding]” and noted that “either the cases are important and we're going to make funds available, or they're not important, but it's not both.”
The judge allowed the motion to dismiss, finding:
“[T]he police were aware of the problem since January of 2013; I do find that the problem was caused by technicians working, essentially working for the Commonwealth or at least contracted by the Commonwealth, and that their steps overloaded the system, and the police were aware of it since January; there were no corrective measures done in January, February, March, April or May, and that corrective steps would have preserved this evidence.[ ]
The only evidence at the hearing was that the town did attempt corrective steps between February, 2013, and the day of the defendant's booking on May 26, 2013, but the measures were not successful.
“I do find that the evidence is potentially exculpatory; I've had a chance to review the police reports. I will say that there would not be any testimony in terms of erratic operation; there simply is a car parked to the side of a public way. I'm not suggesting that there might not be enough for public way or that there wouldn't be enough for operation, but the issue here is what would the videotape potentially show, and it would potentially show the defendant's level of intoxication at the time.
“So the only evidence that we have is the testimony of the police officers. As I've stated earlier, the booking video does have potentially exculpatory value in that potentially, the fact finder would be able to see the way the defendant spoke, the way that he balanced himself, his physical dexterity as well as his mental acuity, which would be obvious on the videotape. So I do find that it was potentially exculpatory, I do find specifically that this defendant was prejudiced by the evidence that had been destroyed. Now the question is are there any potential—obviously, dismissal is an extreme remedy, but are there any—it is material, it is potentially exculpatory—are there any other means that I could do in terms of besides dismissal, and I don't think so in this case, so I'm going to allow the defendant's motion.”
Discussion. “In reviewing the [allowance] of a motion based on the Commonwealth's loss [or destruction] of allegedly exculpatory evidence, we do not disturb the judge's decision absent a clear abuse of discretion.” Commonwealth v. Kee, 449 Mass. 550, 554 (2007). In considering a remedy when evidence is lost or destroyed, the defendant
“has the initial burden ... to establish a reasonable possibility, based on concrete evidence rather than a fertile imagination, that access to the [lost or destroyed evidence] would have produced evidence favorable to his cause.... If he meets his initial burden, a balancing test is employed to determine the appropriateness and extent of remedial action. The courts must weigh the culpability of the Commonwealth, the materiality of the evidence, and the potential prejudice to the defendant.”
Commonwealth v. Heath, 89 Mass.App.Ct. 328, 333 (2016), quoting from Commonwealth v. Williams, 455 Mass. 706, 716–717 (2010).
We assume, without deciding, that cases on lost or destroyed evidence apply here because the Commonwealth failed to make a video it intended to make and knew there was some risk that error would occur because of prior system failures. We also pass over the significant question of whether the defendant met his initial burden “to establish a reasonable possibility, based on concrete evidence rather than a fertile imagination, that access to the [lost or destroyed evidence] would have produced evidence favorable to his cause.” Heath, supra, quoting from Williams, supra. Here, the defendant did not offer his own affidavit but relied only on the fact that the video recording would have shown his behavior during the booking. The judge's findings regarding culpability are supported by the evidence. The failure to rectify the recording defect for a substantial period of time was a choice, although there is no suggestion of bad faith, and the judge did not find bad faith. See Commonwealth v. Harwood, 432 Mass. 290, 302–303 (2000).
The motion judge engaged in the requisite inquiry regarding the culpability of the Commonwealth, the materiality of the evidence, and the prejudice to the defendant. We conclude, however, that he abused his discretion with respect to the choice of remedy. “[A]bsent egregious misconduct or at least a serious threat of prejudice, the remedy of dismissal infringes too severely on the public interest in bringing guilty persons to justice.” Commonwealth v. Sasville, 35 Mass.App.Ct. 15, 28 (1993), quoting from Commonwealth v. Cinelli, 389 Mass. 197, 210, cert. denied, 464 U.S. 860 (1983). Unlike the circumstances in Sasville, the loss of the booking video here did not leave the defendant in an impossible position with respect to the missing tape. Compare id. at 27. Nor can we say that the loss of the booking video otherwise created a strong possibility of prejudice. Contrast Commonwealth v. Henderson, 411 Mass. 309, 309–310 (1991) (loss of interview notes of sole identifying witness who identified defendant in suggestive circumstances).
It was error for the motion judge to conclude that there was no evidence of erratic operation—while no witness saw the vehicle in motion, Selfridge's report stated that the defendant parked with his driver's side wheels in the driving lane and no exterior lights were illuminated.
In Henderson, supra, the Commonwealth argued that the judge applied the wrong standard, not that a less severe sanction was appropriate.
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Although the judge made a passing reference to other remedies, it is not apparent from this record why he found them insufficient, or why the failure to create the booking video “is nonetheless so critical to the defense as to make a criminal trial fundamentally unfair.” Id. at 311, quoting from Arizona v. Youngblood, 488 U.S. 51, 61 (1988) (Stevens, J., concurring). In similar cases, it was a sufficient remedy for the defendant to refer to the missing booking video in his opening statement and closing argument, and to cross-examine any of the officers the Commonwealth called to testify. In addition, the trial judge has discretion to consider whether to prohibit the Commonwealth from explaining the absence of the booking video. See Commonwealth v. Cameron, 25 Mass.App.Ct. 538, 549 (1988) (lost booking video of OUI defendant did not warrant dismissal of complaint but rather new trial at which defendant could question Commonwealth's witnesses regarding missing evidence and comment on its absence, and Commonwealth could not offer explanation for absence, where Commonwealth failed to provide timely explanation). Compare Heath, 89 Mass.App.Ct. at 340 (permitting defendant to elicit evidence of missing booking video but allowing Commonwealth to explain circumstances). Moreover, as explained in Heath, the judge must instruct the jury on how to assess the missing booking video. See ibid. (discussing in detail parameters for jury instructions to address missing booking videos). See also Kee, 449 Mass. at 557–558.
We reverse the order allowing the defendant's motion to dismiss. The matter is remanded for further proceedings consistent with this memorandum and order.
So ordered.