Opinion
No. COA11-27
Filed 19 July 2011 This case not for publication
Appeal by defendant from judgment entered 10 November 2010 by Judge F. Lane Williamson in Lincoln County Superior Court. Heard in the Court of Appeals 25 May 2011.
Attorney General Roy Cooper, by Assistant Attorney General Joseph E. Elder, for the State. Mary March Exum for defendant-appellant.
Lincoln County Nos. 09 CRS 52063, 09 CRS 5766.
Because defendant failed to show bad faith on the part of law enforcement and failed to show any exculpatory value in the evidence lost, the trial court's ruling which denied defendant's motion to continue the case did not amount to a violation of defendant's due process rights or preclude his ability to prepare an "adequate" defense. Accordingly, we affirm the judgment of the trial court.
On 10 August 2009, defendant Tyson LaSalle was indicted on charges of possession with intent to manufacture, sell, and deliver cocaine, and the sale and delivery of cocaine. Defendant was subsequently indicted on the charge of attaining habitual felon status.
At trial, the State presented evidence that, on 11 June 2009, Detective Jason Munday of the Lincoln County Police Department, used a confidential informant to set up a controlled drug buy with defendant. During the transaction, the informant was accompanied by an undercover officer who wore audio and video recording equipment. After the transaction, the surveillance recording was turned over to the Det. Munday. However, prior to trial, the video was lost and deemed unrecoverable by the prosecutor. Defendant made a pre-trial motion to continue the matter to "give the state a few more weeks, months to find the video and audio recordings." After listening to the arguments of counsel, the trial court denied the continuance. A trial commenced during which the informant, the undercover officer, and Det. Munday testified. Defendant did not present any evidence. After the close of the evidence, and the denial of defendant's motions to dismiss, a jury found defendant guilty of possession with intent to sell or deliver cocaine, sale of cocaine, and obtaining habitual felon status. The trial court entered judgment in accordance with the jury's verdicts and sentenced defendant to a consolidated sentence of 127 to 162 months in the custody of the North Carolina Department of Correction. Defendant appeals.
On appeal, defendant argues that the trial court erred by allowing the case to proceed to trial when the video recording of the alleged drug transaction was lost and could not be recovered. Defendant contends that while it is unknown whether the video tape contained exculpatory evidence, law enforcement's failure to produce the video amounted to a violation of defendant's due process rights as well as precluded his ability to present an adequate defense. We disagree.
Standard of Review
"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." State v. Hunt, 345 N.C. 720, 725, 483 S.E.2d 417, 420 (1997) (quoting Arizona v. Youngblood, 488 U.S. 51, 58, 102 L. Ed. 2d 281, 289 (1988), quoted in State v. Mlo, 335 N.C. 353, 373, 440 S.E.2d 98, 108 (1994)).
In Hunt, the defendant was indicted and convicted of first-degree murder. During the investigation of the crime, the defendant confessed. Pursuant to a consent search of the defendant's residence, law enforcement officers seized items such as a bag of household garbage, a black-handled knife, a bottle of Canadian Mist, an ABC store receipt, and clothing the defendant wore the night of the murder. However, before the commencement of the trial, these items were misplaced and were not provided to the defendant. Id. at 724, 483 S.E.2d at 420. The defendant argued that the loss or destruction of the articles seized from his home amounted to a violation of his rights to due process and a fair trial under the Fourteenth Amendment to the United States Constitution and Article I, Sections 19 and 23 of the North Carolina Constitution. Id. at 725, 483 S.E.2d at 420. Citing Arizona v. Youngblood, 488 U.S. 51, 58, 102 L. Ed. 2d 281, 289 (1988), our Supreme Court determined that the record on appeal supported the trial court's finding that there was no showing of bad faith or willful intent on the part of law enforcement and noted that the defendant failed to demonstrate that the missing evidence had any exculpatory value. Hunt, 345 N.C. at 725, 483 S.E.2d at 421. The Court held that the State's failure to preserve and provide the articles seized from the defendant's residence during discovery did not violate the defendant's due process rights or deny the defendant a fair trial. Id.
Similarly, here, defendant argues that law enforcement's failure to produce the video amounted to a violation of his due process rights as well as his right to present an "adequate" defense; however, defendant does not contend bad faith on the part of law enforcement and does not argue the missing evidence had any exculpatory value. Moreover, at trial, the confidential informant who purchased the drugs from defendant, testified as to how he became a confidential informant, that he was instructed by law enforcement to set-up a purchase of drugs from defendant, how the drug transaction was set-up, and what transpired during the transaction and shortly thereafter. The undercover police officer, who witnessed the transaction, testified that the informant gave defendant $60.00, and, in exchange, defendant gave the informant what was later identified as cocaine. Taking into consideration our case law, see Hunt, et al, as applied to the evidence presented in the record, the State's failure to produce the video during discovery did not amount to a violation of defendant's due process rights or ability to present an "adequate" defense. Accordingly, defendant's argument is overruled.
Affirmed.
Judges GEER and BEASLEY concur.
Report per Rule 30(e).