From Casetext: Smarter Legal Research

State v. Hutchinson

Court of Appeals of Texas, Fifth District, Dallas
Mar 17, 2005
No. 05-04-01514-CR (Tex. App. Mar. 17, 2005)

Opinion

No. 05-04-01514-CR

Opinion Issued March 17, 2005. DO NOT PUBLISH. Tex.R.App.P.

On Appeal from the 422nd Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 22642-422. Reversed and Remanded.

Before Justices BRIDGES, FRANCIS, and LAGARDE

The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.


OPINION


This is a State's interlocutory appeal pursuant to article 44.01(a)(5) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon 2004-05). The sole issue on appeal is whether the trial court abused its discretion in granting appellee's motion to suppress because of the State's inability to produce a videotape of the "stop" of appellee. The videotape had been destroyed by the Kaufman County Sheriff's Department, pursuant to departmental policy, 120 days after the date of the alleged offense, and before any trial court order on discovery or subpoena by appellee. Concluding the trial court did abuse its discretion, we reverse the trial court's order and remand this case to the trial court.

Appellee applied for a subpoena duces tecum that included the videotape; however, the court's file contained no executed return on the subpoena, and Bailey testified he had not been subpoenaed. Defense counsel argued to the trial court the videotape should have been supplied to him under the normal discovery. The trial court stated, "we signed a discovery order on July 6th in this case; and if that videotape existed on July 6th, it should have been delivered to [the defense]." At the October 7, 2004 hearing the State informed the trial court the videotape was destroyed after being retained for 120 days. July 6, 2004, was more than 120 days from the February 22, 2004 date of arrest; therefore, presumably the videotape did not exist on July 6, 2004.

Factual and Procedural Background

Facts developed at the September 29, 2004 hearing on appellee's motion to suppress show the following: On February 22, 2004, Kaufman County deputy sheriff Roy Bailey, a uniformed patrol supervisor with approximately five years' experience in law enforcement and one-and-a-half years' experience with the sheriff's department, was on duty in a marked squad car. In the early morning hours, Bailey responded to a theft and criminal mischief complaint. After clearing the original complaint, but while still on patrol "within a mile or so" of the site of the complaint, Bailey saw a parked vehicle, with only its parking lights on, in the driveway of a gated residence owned by someone the officer knew. Appellee was in the driver's seat of the vehicle which was parked on the street side of the gate. Bailey stopped and approached the vehicle. Shortly after he approached the vehicle, Bailey saw a male walking from the residence on the other side of the gate where there was a little trailer house. Neither appellee nor the male had a driver's license or any other identification. Appellee verbally identified herself to Bailey as Karla Waynette Hutchinson and the male verbally identified himself as David Self. Based on prior dealings, Bailey recognized the male as David Self and knew he did not live at that address. Self informed Bailey he had an outstanding warrant. After confirming the outstanding warrant, Bailey arrested Self pursuant to that warrant. Bailey continued to talk to appellee, who by this time was outside the car. When Bailey asked appellee if she would consent to a search of her vehicle, appellee verbally consented to a search. When Bailey opened the door to the vehicle, he saw a black cigarette container in plain view next to the center console. Inside that container were cigarettes, a "crack smoking pipe," "like rolling papers" and a small bag. The bag had residue in it, which Bailey believed to be methamphetamine, a controlled substance. When Bailey asked appellee about the items, appellee denied they were hers and "believed" they had been put there by somebody else who had been in her vehicle prior to Bailey's contact with her. Bailey asked appellee if she smoked, and if so, what type cigarettes she smoked. Appellee responded that she smoked Marlboro reds, the same type of cigarettes that were in the case. After finding the suspect items, Bailey arrested appellee. At her request, Bailey contacted appellee's husband and released the vehicle, as well as other non-contraband personal items, to him at the scene. The residue was later determined to be methamphetamine, a controlled substance. Appellee was charged with possession of methamphetamine. Bailey specifically testified that his contact with the occupant of the vehicle was based on his reasonable suspicion that criminal activity was occurring. Specific facts comprising his reasonable suspicion were: the early 3:30 hour of the morning; a shoeless person dressed in "pajama like clothing" behind the steering wheel of a car with only its parking lights on parked in the private driveway of a residence which Bailey knew to be owned by someone else; and Self, whom the officer recognized from previous dealings, walking from the direction of the residence on the other side of the gate. When asked about her attire, appellee told Bailey she had come from home to get cough syrup for her child and was returning home. During cross-examination, defense counsel asked if Bailey had reviewed any notes before coming to testify. Bailey responded that he had reviewed his offense report and had brought it with him; however, he had left it in his car. Bailey later testified he had no personal notes. When asked by defense counsel if he had received a subpoena, Bailey responded that he had been out of town or the office for about a week, and had not been subpoenaed. Bailey was present because he had received a call from "the chief" to be in court. After discussing whether the case would be continued until defense counsel had an opportunity to review the offense report, the trial court asked Bailey if there was a videotape of the "stop." When Bailey replied there was a videotape, the trial judge indicated that the defense had subpoenaed that as well. The State informed the court it had no knowledge of a videotape until Bailey's immediate testimony about the videotape. Defense counsel argued he should have been given the videotape under "normal discovery," and that he would like to review the videotape. After further discussion and defense counsel's assertion he could not properly cross-examine Bailey without viewing the videotape, defense counsel stated: "It's the defense's contention, your Honor that the detention itself was unlawful, and I believe that we can show that from the officer's report itself." The trial judge then reset the case until October 7, 2004, for the State to produce the videotape to defense counsel. On October 7, 2004, when the suppression hearing reconvened, defense counsel told the trial court he had learned the videotape had been taped over or destroyed. Defense counsel then requested the trial court to grant his motion to suppress because
the defendant has been irrevocably harmed by the failure of the State to produce the evidence under the evidentiary principles of spoliation of evidence, and the failure to produce. Under those principles, your Honor, when the State fails to produce evidence in its possession, every part of that evidence that could be presented is inferred against the State and in favor of the defendant and every intendment is in favor of the defendant.
If that tape had been presented, your Honor, it would clearly show that the facts and circumstances surrounding that detention offer no facts that would support reasonable suspicion for the detention. Therefore, the detention was unlawful.
Without offering any evidence, defense counsel requested the trial court grant his motion to suppress. The State made the following arguments in response: The videotape was never logged into evidence, and prior to Bailey's testimony, the State had no knowledge a videotape existed. The five-year retention period for evidence did not apply because the videotape was not evidence, but, rather, was made pursuant to article 2.135 of the code of criminal procedure, a statute that exempts law enforcement from certain racial profiling reporting requirements. See Tex. Code Crim. Proc. Ann. art. 2.135 (Vernon Supp. 2004-05). Pursuant to article 2.135, the State was only required to retain video or audio documentation of a traffic or pedestrian stop for at least ninety days after the date of the stop. In fact, the videotape in this case was retained for 120 days. The defense presented no evidence showing the videotape would reveal any exculpatory evidence. Following counsels' arguments, the trial court granted appellee's motion to suppress, specifically stating in its order:
The Court finds that 1) a video tape of the defendant was made by law enforcement at the time of the arrest[,] 2) that the State of Texas was unable to produce the video tape, and 3) the defendant alleges that the video tape contains exculpatory and/or mitigating evidence. Based upon the inability of the State of Texas to produce the video tape in question, the Court is of the opinion that the motion to suppress should be granted.

Standard of Appellate Review

The standard of appellate review of a trial court's ruling on a motion to suppress is a mixed one: both deferential and de novo. We give almost total deference to the trial court's determination of historical facts, especially when the findings are based on an evaluation of credibility and demeanor. See Manzi v. State, 88 S.W.3d 240, 243 (Tex.Crim.App. 2002); Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). When the trial court makes explicit findings of fact, we will not disturb those findings as long as they are supported by the record. See Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990). When the judge does not make explicit findings of fact, we review the evidence in a light most favorable to the trial court's ruling. See Walter v. State, 28 S.W.3d 538, 540 (Tex.Crim.App. 2000). The application of search and seizure law, however, to those historical facts is reviewed de novo. See Carmouche, 10 S.W.3d at 327; Guzman, 955 S.W.2d at 89.

Analysis

On appeal, the State first contends the doctrine of spoliation of evidence does not apply in a criminal case. The State further asserts that even if the doctrine applies, it provides appellee no relief because any presumption raised by the failure to preserve the videotape disappeared as soon as Bailey testified. In response, appellee correctly contends the State had the burden at the suppression hearing of showing the detention and warrantless arrest of appellee were lawful. Appellee contends further that the trial court did not abuse its discretion by implicitly finding the State failed to meet its burden of showing reasonable suspicion to detain appellee. Finally, appellee argues that the "presumptions and inferences emanating from the failure of the State to produce material evidence it had destroyed [ i.e. the videotape] precluded the State from meeting its burden of proof." The facts here are essentially undisputed inasmuch as the defense offered no evidence. We must decide whether the trial court correctly applied search and seizure law to the undisputed facts; thus, we review the ruling de novo. A prosecutor has an affirmative duty to turn over material, favorable evidence to the defense. McFarland v. State, 928 S.W.2d 482, 511 (Tex.Crim.App. 1996) (per curiam) (citing Brady v. Maryland, 373 U.S. 83 (1963)). This case, however, does not involve the State's failure to turn over evidence in its possession. Thus, it is not a Brady case. The government is also constitutionally required to preserve evidence that might be expected to play a significant role in the suspect's defense. See Little v. State, 991 S.W.2d 864, 866 (Tex.Crim.App. 1999) (citing Arizona v. Youngblood, 488 U.S. 51 (1988); California v. Trombetta, 467 U.S. 479 (1984); United States v. Binker, 795 F.2d 1218 (5th Cir. 1986)). Rules concerning preservation of evidence are generally matters of state, not federal constitutional law. See United States v. Augenblick, 393 U.S. 348, 352-53 (1969). This case involves the failure to preserve the videotape, not the failure to turn over a videotape the State had in its possession. Thus, this case is controlled by the "failure to preserve" cases. To be entitled to relief under "failure to preserve evidence" cases, appellee must show a violation of due process. See Youngblood, 488 U.S. at 56-57. "Whenever 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, 467 U.S. at 486. To show a due process violation, appellee must prove bad faith on the part of law enforcement in failing to preserve potentially useful evidence. Youngblood, 488 U.S. at 57-58 (holding 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). In 2001, Texas passed legislation prohibiting racial profiling by peace officers, codifying law enforcement policy on racial profiling, and requiring reports by peace officers for traffic and pedestrian stops. See Tex. Code Crim. Proc. Ann. arts. 2.131-.134 (Vernon Supp. 2004-05). Article 2.135 provides an exemption from the reporting requirements of articles 2.133 and 2.134 for law enforcement agencies using video and audio equipment. See Tex. Code Crim. Proc. Ann. art. 2.135. The State contends it is pursuant to this exemption that Bailey's police vehicle was equipped with a video camera and transmitter-activated equipment that produced the videotape in question in this case. Bailey testified that "they pull videos like open record . . . they're all retrieved through secretaries and things like that. . . . And the video's upon request, I believe open records." The defense presented no evidence to the contrary, nor does appellee challenge the State's representation on appeal. In relevant part, subsection (b) of article 2.135 provides:
[A] law enforcement agency . . . shall retain the video and audio or audio documentation of each traffic and pedestrian stop for at least 90 days after the date of the stop. If a complaint is filed with the law enforcement agency alleging that a peace officer employed by the agency has engaged in racial profiling with respect to a traffic or pedestrian stop, the agency shall retain the video and audio or audio record of the stop until final disposition of the complaint.
Tex. Code Crim. Proc. Ann. art. 2.135(b). The evidence presented at the suppression hearing showed the videotape in this case was retained for 120 days. There is no evidence that a racial profiling complaint was filed which would have operated to extend the required ninety-day retention period. Thus, the record reflects compliance with the statutory retention requirements of article 2.135(b). Just as in Trombetta, there is no evidence in this case showing that law enforcement destroyed the videotape in a calculated effort to circumvent the disclosure requirements of Brady. Rather, the undisputed evidence shows the videotape was destroyed pursuant to departmental policy and consistent with state law. See Killian v. United States, 368 U.S. 231, 240-41 (1961) (officers would be acting in good faith and in accord with their normal practice). Even appellee admits that intentional destruction of the videotape does not show bad faith. The trial court did not make an explicit finding of bad faith, nor can such a finding be implied because there is no evidence in the record to support such a finding. Appellee presented no evidence at the suppression hearing, relying, instead, only on cross-examination of the State's one witness, Bailey, the arresting officer. There being neither an explicit finding of bad faith nor evidence to support an implicit finding of bad faith, no violation of due process is shown. See Youngblood, 488 U.S. at 57-58. Although appellee is correct that the State had the burden at the suppression hearing to show reasonable suspicion, appellee is incorrect that the State did not meet its burden. Bailey testified to the facts surrounding his initial approach of appellee's vehicle. And at appellee's request, the trial court took judicial notice of the officer's offense report. The evidence reflected objective reasonable suspicion to investigate activity occurring on private property in the early morning hours. Such investigation, in turn, resulted in appellee's consent to search her vehicle. And that search, in turn, resulted in the finding of methamphetamine, a controlled substance. Because the trial court erred in applying the law of search and seizure to the undisputed facts, it abused its discretion in granting appellee's motion to suppress. We resolve the State's issue in its favor. We reverse the trial court's order and remand this case to the trial court for further proceedings consistent with this opinion.


Summaries of

State v. Hutchinson

Court of Appeals of Texas, Fifth District, Dallas
Mar 17, 2005
No. 05-04-01514-CR (Tex. App. Mar. 17, 2005)
Case details for

State v. Hutchinson

Case Details

Full title:THE STATE OF TEXAS, Appellant v. KARLA WAYNETTE HUTCHINSON, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 17, 2005

Citations

No. 05-04-01514-CR (Tex. App. Mar. 17, 2005)