Opinion
363088
11-30-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. LARRY CORRELL MOORE, Defendant-Appellee.
UNPUBLISHED
Kalamazoo Circuit Court LC No. 2022-000262-AR
Before: Letica, P.J., and Borrello and Rick, JJ.
Per Curiam.
The prosecution appeals by leave granted the circuit court's order affirming the district court's decision to dismiss defendant's criminal charges of attempted interference with electronic communications, MCL 750.92; MCL 750.540; and assault or assault and battery, MCL 750.81(1). The prosecution argues on appeal that the district court abused its discretion and committed clear legal error when it determined that the police officers' body-camera footage contained exculpatory evidence, that the police department destroyed the footage in bad faith, and that the loss of the evidence violated defendant's due-process right to a fair trial. For reasons set forth in this opinion, we reverse and remand to the district court for further proceedings.
People v Moore, unpublished order of the Court of Appeals, entered March 29, 2023 (Docket No. 363088).
I. BACKGROUND
This case arose from an alleged altercation between defendant and the complainant on May 16, 2021. On that date, the Kalamazoo Department of Public Safety (KDPS) responded to the scene where it was alleged that defendant punched the complainant once in the arm while defendant was attempting to "get custody" of his children. Defendant admitted to a responding officer that during the altercation with the complainant, he had grabbed her cell phone and thrown it to the ground when she indicated she would call 911. Defendant and the complainant apparently did not have a domestic relationship. There were no injuries, and no arrests were made on the scene.
Over four months later, charges against defendant for attempted interference with electronic communications, as well as assault or assault and battery, were authorized by the Kalamazoo County Prosecutor. Defense counsel submitted an evidentiary request to the prosecutor for police body-camera footage taken during the incident. The assistant prosecutor informed defense counsel that the body-camera footage was no longer available.
In response, defense counsel moved to compel production of the body-camera footage or, in the alternative if the footage was unavailable, to dismiss the charges. Defense counsel, though not specifically mentioning the case by name, essentially argued that the destruction of the body camera video before the completion of the legal proceedings against defendant violated Brady v Maryland, 373 U.S. 83, 87; 83 S.Ct. 1194; 10 L.Ed.2d 215 (1963), violated MCL 780.316, and violated KDPS policy. Defense counsel maintained that the video was necessary to prepare a complete defense because defendant denied committing the alleged conduct, the complainant's statements were the only evidence against defendant, and the video would aid in preparing for cross-examination of this witness. Finally, defense counsel argued that if the video was no longer available, then dismissal was warranted pursuant to Arizona v Youngblood, 488 U.S. 51; 109 S.Ct. 333; 102 L.Ed.2d 281 (1988), based on the bad-faith failure by the police to preserve potentially useful evidence.
MCL 780.316 provides:
(1) Except as provided in subsections (2) and (3), a law enforcement agency shall retain an evidentiary audio and video recording recorded by a body-worn camera for not less than 30 days from the date the recording is made.
(2) A law enforcement agency shall retain audio and video recordings that are the subject of an ongoing criminal or internal investigation, or an ongoing criminal prosecution or civil action, until the completion of the ongoing investigation or legal proceeding.
(3) A law enforcement agency shall retain audio and video recorded by a body-worn camera for not less than 3 years after the date the recording is made if the recording is relevant to a formal complaint against a law enforcement officer or agency.
(4) If a complaint against a law enforcement officer or law enforcement agency is made after the expiration of the retention period described in subsection (1), (2), or (3) or a law enforcement agency is unable to produce an audio and video recording related to the complaint in any criminal prosecution or civil action as a result of a technical failure or human error, this act does not create a presumption that the audio and video recording would corroborate either the prosecution's or the defendant's version of events in a criminal prosecution or the plaintiff's or the defendant's version in a civil action.
The district court held a hearing on defense counsel's motion. At the hearing, the assistant prosecutor explained that he had "not had an opportunity to reach out to the people at KDPS and try to determine exactly what happened with the videos in this case" but could "speculate as to what . . . likely occurred" based on his review of the file. Noting that the prosecutor's office had "denied" the case two or three times before finally deciding to issue charges in September 2021 after an "appeal," the assistant prosecutor hypothesized: "So I suspect that what happened was that after the case was originally denied that KDPS then let the videos expire and that's why we don't have them."
The district court granted the motion to dismiss the case, reasoning that "[a]t this point, the evidence was destroyed; and this is, frankly, crucial evidence that, again, whether inculpatory or exculpatory, the defendant should have had access to." The district court found that "there appears to be both inculpatory and exculpatory information that would've been contained within the bodycam of [the officer]." The court based this finding on the affidavit of probable cause in the case, which indicated that there were no injuries and no arrests made at the scene. The district court further indicated that defendant supposedly made inculpatory statements and that complainant made statements to the officers. Additionally, the district court opined that there needed to be "better practices in place" for the preservation of evidence under these circumstances. The case was dismissed with prejudice.
The district court denied the prosecution's motion for reconsideration, finding that "incorporating all of the prior findings made on the record at the [previous] hearing, that destroying evidence before the citizen's appeal period ran was not pursuant to MCL 780.316, as legal proceedings had not closed, and that the police agency acted in bad faith by doing so." The prosecution appealed to the circuit court, which affirmed the district court's decision.
The prosecution applied for leave to appeal in this Court, and we granted leave.
II. STANDARD OF REVIEW
"We review a trial court's decision on a motion to dismiss charges against a defendant for an abuse of discretion," which occurs "only when its decision falls outside the range of principled outcomes." People v Nicholson, 297 Mich.App. 191, 196; 822 N.W.2d 284 (2012). "A trial court's factual findings are reviewed for clear error." People v Brown, 330 Mich.App. 223, 234; 946 N.W.2d 852 (2019). A finding of fact is clearly erroneous if, after reviewing the entire record, we are left with a definite and firm conviction that the district court made a mistake. Id. This Court reviews de novo questions of law, such as the interpretation of statutes and matters of constitutional law, including alleged Brady and due-process violations. People v Al-Shara, 311 Mich.App. 560, 566-567; 876 N.W.2d 826 (2015); People v Dimambro, 318 Mich.App. 204, 212; 897 N.W.2d 233 (2016); Brown, 330 Mich.App. at 229. "A trial court necessarily abuses its discretion when it makes an error of law." Brown, 330 Mich.App. at 229 (quotation marks and citation omitted).
III. ANALYSIS
The issue before this Court is whether the district court abused its discretion by dismissing the criminal charges against defendant based on the district court's conclusion that the unavailability of the body-camera footage from the KDPS officers' interactions with defendant and the complainant on the date of the alleged offense, where the footage is apparently unavailable because it has been destroyed, constitutes a due-process violation under Brady and Youngblood.
In Brady, 373 U.S. at 87, the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." However, this case does not involve the suppression of evidence that has now come to light; instead, this case involves the failure to preserve evidence that defendant alleges is necessary to prepare his defense.
In this context, the United States Supreme Court has held that a criminal defendant must show bad faith on the part of the police in failing to preserve potentially useful evidence in order to establish a due-process violation. Youngblood, 488 U.S. at 58 ("[U]nless 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."); accord People v Heft, 299 Mich.App. 69, 79; 829 N.W.2d 266 (2012) ("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. . . . If the defendant cannot show bad faith or that the evidence was potentially exculpatory, the state's failure to preserve evidence does not deny the defendant due process."). "A [defendant bears the burden of showing that the evidence was exculpatory or that the police acted in bad faith." People v Dickinson, 321 Mich.App. 1, 16; 909 N.W.2d 24 (2017) (quotation marks and citation omitted; alteration in original).
We first consider whether defendant has met his burden to show that the missing body-camera footage was potentially exculpatory. "Evidence is favorable to the defense when it is either exculpatory or impeaching." People v Chenault, 495 Mich. 142, 150; 845 N.W.2d 731 (2014). Here, defendant has not provided any evidence that the body-camera footage would have contained any material favorable to the defense. The only evidence that was before the district court providing any indication of what may have been captured on the body-camera video was the affidavit of probable cause that was completed by one of the responding officers that supported the warrant in this case. The affidavit stated:
On 5-16-2021, PSO Colin Morgan was dispatched to [the location], in the City of Kalamazoo, County of Kalamazoo, State of Michigan, for a report of Trouble With. [sic] It was alleged that the suspect, Larry Moore, punched the victim . . . one time in the arm as he was attempting to get custody of his children. No injuries were sustained on scene. During the altercation between Moore and [the victim], Moore admitted to grabbing [the victim's] cell phone throwing it to the ground when she said she was going to call 911. [The victim] and Moore do not have a domestic relationship. No arrests were made on scene. Prosecution is desired. No arrest was made.
The district court found that the body-camera footage would have contained both inculpatory and exculpatory evidence because no injuries were observed at the scene and no arrests were made at the scene. However, this finding was based on pure speculation. There is no evidence in the affidavit describing any exculpatory evidence that would have been captured by body-camera footage of the interactions between the police and defendant and the complainant. On this record, we have no indication why the responding officers decided not to arrest anyone and we have no evidence of the exact substantive content that the body-camera video would have contained. It is also worth noting that there is no allegation that KDPS officers were present during the alleged altercation between defendant and the complainant, so there is no evidence that the actual incident may have been captured on the body-camera video.
"[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." Youngblood, 488 U.S. at 57-58 (quotation marks and citation omitted). The only assertion we can make on this record with any degree of confidence is that the body-camera video might conceivably have contained exculpatory or impeachment evidence. However, defendant has not met his burden to produce evidence from which we could affirmatively state that the body-camera video was potentially exculpatory without, as the lower courts did, resorting to speculation. The district court further erred by concluding that "this is, frankly, crucial evidence that, again, whether inculpatory or exculpatory, the defendant should have had access to." If the evidence had only been inculpatory, then defendant could not show a due-process violation based on the prosecution's failure to preserve it. Youngblood, 488 U.S. at 58; Heft, 299 Mich.App. at 79; Dickinson, 321 Mich.App. at 16.
Hence, defendant can only show that the failure to preserve this potentially useful evidence constituted a due-process violation if he can demonstrate bad faith on the part of law enforcement. Youngblood, 488 U.S. at 58. In People v Johnson, 197 Mich.App. 362, 365; 494 N.W.2d 873 (1992), this Court equated "bad faith" in the context of the suppression or loss of evidence with "intentional suppression of evidence" or the purposeful destruction of evidence in an upcoming trial. The "routine destruction" of police department recordings, "where the purpose is not to destroy evidence for a forthcoming trial, does not mandate reversal." Id. Bad faith generally cannot be established via the destruction of potentially exculpatory evidence that amounts to mere negligence. Youngblood, 488 U.S. at 58.
In this case, without any knowledge of what was contained in the video footage, the district court maintained that the footage was crucial evidence that the police should have preserved. In reaching this conclusion, the court apparently relied on the lack of bodily harm, the failure of police to arrest defendant on the scene, and the delay in bringing charges against defendant. Neither the court nor defense counsel suggested any deliberate action on the part of police to conceal the evidence from defendant. On the contrary, defense counsel accepted the prosecutor's explanation for how the evidence disappeared as reasonable. That explanation, although again speculative, suggested that the evidence had been destroyed as a result of delay and routine police procedure, not deliberate misconduct. The removal of evidence via routine police procedure does not, by itself, establish bad faith. Johnson, 197 Mich.App. at 365.
Here, the record does not support a finding that the police acted in bad faith. Defendant has not put into evidence any testimony from police officials from which we could conclude that the destruction of the body cam footage from that date was done in bad faith. We also have no evidence in the record from which we could conclude that the prosecution acted in bad faith. Accordingly, in the absence of any evidence of bad faith on the part of the police or the prosecution, defendant has failed to show a due-process violation based on the failure to preserve evidence. Youngblood, 488 U.S. at 58; Dickinson, 321 Mich.App. at 16.
Finally, to the extent that the district court relied on its conclusion that MCL 780.316 was violated, the court erred as a matter of law. Assuming without deciding that this statute was violated, the statute does not contain any language indicating that a violation of the statute entitles a criminal defendant affected by the violation to dismissal of criminal charges. "[B]ecause the statute does not specify a remedy, dismissal is not warranted for a statutory violation." People v Anstey, 476 Mich. 436, 440; 719 N.W.2d 579 (2006). Furthermore, even if the statute was violated, there is no evidence that it was violated in bad faith and defendant is not somehow entitled to a presumption that the KDPS acted in bad faith. See MCL 780.316(4) ("If . . . law enforcement agency is unable to produce an audio and video recording related to the complaint in any criminal prosecution or civil action as a result of a technical failure or human error, this act does not create a presumption that the audio and video recording would corroborate either the prosecution's or the defendant's version of events in a criminal prosecution or the plaintiff s or the defendant's version in a civil action.").
Reversed and remanded to the district court for reinstatement of the charges and further proceedings not inconsistent with this opinion. We do not retain jurisdiction.