Opinion
No. 348454
08-13-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. CHAD DASHAUN JONES, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Calhoun Circuit Court
LC No. 2018-002141-FH Before: MURRAY, C.J., and CAVANAGH and SWARTZLE, JJ. PER CURIAM.
Defendant appeals as of right his jury conviction of resisting and obstructing a police officer, MCL 750.81d(1). Defendant argues that he was denied due process because of the destruction of the mobile video recorder (MVR) evidence from his arrest and that defense counsel was ineffective for failing to preserve the MVR. For the reasons stated below, we affirm.
In the early morning hours of June 30, 2019, Battle Creek Police Officers witnessed defendant committing a traffic violation. When the officers pulled up behind defendant, defendant had already parked his vehicle and was getting out of it. The officers turned on their vehicle's overhead lights, and defendant fled. The officers found defendant hiding under a pile of brush in the Battle Creek River and took him into custody.
After his conviction, but before being sentenced, defendant filed a pro se motion for a new trial. Defendant argued that the officers either "mishandled" or "destroyed" the MVR, which could have been used to impeach their testimony, and that they acted in "bad faith" when they determined that the charges were not severe enough to warrant the MVR's preservation. The trial court denied defendant's motion noting that it had previously "ruled on this issue and that defense was able to argue this issue to the jury."
On appeal, defendant argues that he was denied due process and a fair trial by the destruction of the MVR, which was favorable to his defense. We disagree.
Defendant filed for a motion for a new trial, thus preserving this issue for review. See People v Cameron, 291 Mich App 599, 617; 806 NW2d 371 (2011). A challenge to a defendant's due-process rights is a constitutional question that this Court reviews de novo on appeal. People v Wilder, 485 Mich 35, 40; 780 NW2d 265 (2010).
"A criminal defendant can demonstrate that the state violated his or her due process rights under the Fourteenth Amendment if the state, in bad faith, failed to preserve material evidence that might have exonerated the defendant." People v Heft, 299 Mich App 69, 79; 829 MW2d 266 (2012). "Failure to preserve evidentiary material that may have exonerated the defendant will not constitute a denial of due process unless bad faith on the part of the police is shown." People v Hanks, 276 Mich App 91, 95; 740 NW2d 530 (2007) (quotation marks and citation omitted). "[T]he routine destruction of taped police broadcasts, where the purpose is not to destroy evidence for a forthcoming trial, does not mandate reversal." People v Johnson, 197 Mich App 362, 365; 494 NW2d 873 (1992). It is defendant's burden to show that the evidence was exculpatory or that the police acted in bad faith. Id. If defendant fails to carry this burden, the state's failure to preserve evidence does not deny defendant due process. Heft, 299 Mich App at 79.
In this case, there was no record of when the MVR was "washed" and no date when defendant requested its production. The only record available was the prosecution's answer to defendant's discovery request, in which it stated that it may introduce the MVR. Still, there was no indication whether the MVR had already been "washed" by that time. Moreover, regardless of when the MVR was washed, defendant failed to present any evidence that the missing MVR was exculpatory or that it was destroyed in bad faith. Battle Creek Police Officer Jeffery Johnson testified that the MVR would not have recorded anything that transpired after the defendant fled toward the woods; the camera only pointed in the forward direction of the police vehicle. Additionally, the following exchange occurred between the prosecution and Battle Creek Police Officer Benjamin Downey:
Q. And you said that if [the MVR was] not tagged or flagged at a certain point in time they delete themselves?
A. I think—I don't know if the crime lab deletes them or if they're not tagged, they get washed after a certain—I'm not sure.
Q. But that's something active that has to happen?
A. Yes.
Q. So, you wouldn't have gone—or at least you didn't go actively delete this recording?
A. No, I did not. I don't have access to it.
Q. But you did at some point review it?
A. Yes.
Q. As you discussed with [defense counsel]. I'm also going to take you back to the moment in time that you—are actually, let me touch on one other thing
with the MVR and that's the camera that sticks out the front of your vehicle, or at least that's where it's recording, correct?
A. Yes.
Q. So, it would only record where your car is pointed?
A. Yes.
Q. It wouldn't record any sort of chase outside the presence of where your car was pointed?
A. No, it wouldn't.
Q. So, it wouldn't show the defendant at the fence, jumping over the fence or anything like that?
A. No.
Q. It wouldn't show the distance that he traveled if you—(undecipherable)—map there from the fence all the way down to the water?
A. Right.
Q. It wouldn't show you having to find him under the brush or in the water, anything like that?
A. Correct.
Defendant's testimony did not refute the officer's testimony. Defendant said that when he got out of his car, he heard an engine behind him, and took off running because he was shot at "[a]bout 30 minutes" beforehand. Although defendant stated that he did not see any lights from the police vehicle, he testified that he did not turn around to look at the car. Therefore, the MVR would not have captured potentially exculpatory evidence. See Heft, 299 Mich App at 79.
Furthermore, there was no testimony or indication that the MVR was destroyed in bad faith. Officer Downey stated that MVRs get "washed" after a certain period and that he did not go and purposefully delete the recording. Additionally, Officer Johnson clarified that MVRs are saved automatically for a certain period and that the MVRs automatically delete themselves after that period is over. Although Officer Johnson testified that there were no "special steps" taken to preserve the video, he stated that he did not "go in and actively decide to delete" the MVR. Therefore, there was no evidence that the failure to preserve the videotape occurred in bad faith and reversal is not required. See Hanks, 276 Mich App at 95.
In summary, defendant failed to show that the MVR was potentially exculpatory or that the officers deliberately destroyed the MVR in bad faith. Accordingly, defendant was not denied due process and the trial court did not err in denying defendant's motion for a new trial. See id.; see also Johnson, 197 Mich App at 365.
Next, defendant argues that his trial counsel provided ineffective assistance by failing to take steps to preserve the MVR. We disagree.
This Court reviews an unpreserved claim of ineffective assistance of counsel for errors apparent on the record. People v Hieu Van Hoang, 328 Mich App 45, 63; 935 NW2d 396 (2019). "To prevail on a claim of ineffective assistance of counsel, a defendant bears a heavy burden to establish that (1) counsel's performance was deficient, meaning that it fell below an objective standard of reasonableness, and (2) but for counsel's error, there is a reasonable probability that the outcome of the defendant's trial would have been different." People v Solloway, 316 Mich App 174, 188; 891 NW2d 255 (2016).
In this case, defense counsel filed a discovery request; the prosecution responded that it may introduce the MVR. However, there was no indication as to whether it had already been washed by that time. From the record, it is unclear precisely when the MVR was "washed." But defense counsel used the absence of the MVR to question the credibility of the officers involved in the arrest. The record shows that defense counsel cross-examined each of the officers extensively regarding the failure to secure the MVR and argued during his closing argument to the jury that the officers "engaged in nonfeasance because they didn't do their job. They didn't preserve evidence, and that's what the [MVR] would have been, it would have been evidence. That would have been actual physical evidence that would have been presented to you in this case that you don't have." Defense counsel argued that "it [wa]s a huge problem for the prosecutor that this video wasn't in existence to corroborate the officers' testimony," and that it was a credibility issue. However, if the MVR would have been produced and proved that defendant fled, consistent with what both the officers and defendant testified to, defense counsel's argument likely would have been severely compromised; this is a reasonable assumption on the basis of defendant's argument that he did not know that it was the police that he was running from. This Court does not second-guess trial counsel's strategy with the benefit of hindsight. People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004).
In summary, defendant has not established that his counsel's failure to secure the MVR was so deficient that it fell below an objective standard of reasonableness and, but for such failure, there is a reasonable probability that the outcome of his trial would have been different. See Solloway, 316 Mich App at 188.
Affirmed.
/s/ Christopher M. Murray
/s/ Mark J. Cavanagh
/s/ Brock A. Swartzle