On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 09-06-0435.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A.A. Rodriguez and Grall.
By leave granted, defendant John Ayala, Jr. appeals from the denial of his motion to suppress testimonial evidence of admissions he made during a fifteen- to twenty-minute custodial interrogation. Although the State made a digital recording of the interrogation, the State is unable to retrieve it from the hard drive on which it was stored and does not have a copy. At the suppression hearing, defendant testified and denied making the admissions the police officers claim he made during that interrogation. The trial judge concluded that the State's loss of the recording was not intentional and defendant accepts that determination. On the other hand, he argues that the State's failure to adopt adequate procedures for preservation of recorded interrogations warrants suppression or, at a minimum, an instruction to the jurors authorizing them to draw an adverse inference.
Defendant is charged with eluding, N.J.S.A. 2C:29-2b. On the morning of May 20, 2009, a patrol officer of the Somerville Police Department was writing notes on the back of a ticket he had just issued when an all terrain vehicle (ATV) traveling on the public street without a license plate drove by him at a "high rate of speed." The officer followed the ATV and activated the police car's overhead lights to signal the driver to stop. Although the driver looked back at the police car, he kept going and accelerated. As the patrol officer followed, he saw the driver pass multiple stop signs without coming to a halt, pass other cars and drive on the wrong side of the street causing another driver to pull to the curb. When the officer caught up with defendant, he was pushing the ATV into his garage. A video camera in the officer's car was operating while the officer followed defendant's car and the State has that recording.*fn1
Defendant was arrested and interviewed at headquarters. The patrol officer and his supervising sergeant were present. Defendant does not claim a violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), or dispute that he acted knowingly and voluntarily when he waived his rights and spoke to the officers. His only objection to the admission of the officers' testimony about his admissions is the loss of the recording.
At the suppression hearing, defendant testified and denied making the admissions to which the officers present had testified. According to the patrol officer and the sergeant, defendant acknowledged that he knew the officer was signaling him to stop, knew he was obligated to comply and made "a stupid mistake" when he did not. According to defendant, he told the officers that he was at his apartment complex and had no idea anyone was near him. Defendant acknowledged saying he "made a stupid mistake" but explained that he was referring to pulling his arm away from the officer at the time of his arrest. The patrol officer and the sergeant both testified that they had not taken notes during the interview.
The officers and defendant also disagreed about the means the officers used to record the interrogation. Defendant remembered the officers using a tape recorder or tape player. He claimed the officer "pushed" a button and said he was going to record. In contrast, the patrol officer and the sergeant testified that the recording was made using a computer system known as "video oversight."
Several officers testified about the department's equipment and procedures. The computer is located outside the interview room in the dispatch area of the station and activated from that room. When an officer enters data identifying a case by number and name, he enters a "record" command and a message on the screen and a light indicate that an audio and video recording of events in the interview room is in progress. Following the interview, the data is saved to that system and stored on its server or hard drive.
The sergeant and patrolman testified that they used that video-oversight system to record defendant's interview. The sergeant recalled that either he or the dispatcher input the data and activated the recording process. But the patrol officer also testified that he entered the information and activated the system.
At the time of defendant's interview, the department did not transfer digital recordings of interviews to a DVD or make any other type of back-up copy until the prosecutor requested one. When a request was received, one of the department's detectives generally responded. Detective Edward Purcell, who was not involved in defendant's case, received the prosecutor's request for defendant's interview on June 9, 2009. He explained that the department was of the opinion that the interviews were stored on the computer's server and would be there "until the end of time."
Sometime in June, Purcell attempted but was unable to make a copy of the interview. According to Purcell, the computer was "not functioning." He testified that he advised the assistant prosecutor who had submitted the request that the department was working on it. Purcell testified that he started making audio recordings of his interrogations that month.
Officer Mark Butler, who identified himself as the person in the department who knows the most about the video-oversight system, first learned that the system was not functioning properly in August 2009. Upon returning to the station after an absence of a few days, Butler heard that the department had some problems with electrical power surges. That led him to check the servers and computers. He discovered that the ...