August 10, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN AYALA, JR., DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 16, 2011
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 video-oversight system was not functioning. The State produced a purchase order for a new system dated September 22, 2009.
Butler was told that defendant's interview was needed shortly before the suppression hearing. He was not sure why it could not be recovered, but he concluded that the server failed either because "the mother board failed" or "possibly the hard drives were corrupted." He further indicated that any interview recorded prior to the system going down possibly would have been lost.*fn2 The day before he testified, Butler was asked to find out if there was a way to retrieve the data. Because he thought there was a possibility that the lost interview could be recovered through a forensic examination of the hard drive, he removed and preserved the hard drives.
None of the officers was aware of any other specific interview that had been lost. In addition, no officer thought that there was a paper record of interviews that officers had attempted to memorialize using the video-oversight system.
After hearing Butler's testimony, the judge reserved decision and directed the State to have a forensic examination done. The State complied, but the expert could not access the data.*fn3
The judge rendered an oral decision on September 21, 2010. After summarizing the testimony and other evidence, the judge found that defendant was advised of, understood and knowingly and voluntarily waived his rights and spoke to the officers.
With respect to the content of the statement, the judge credited the officers' testimony and rejected defendant's version. He determined that there was "no question" defendant made the statements to which the officers testified.
The judge made the following findings pertinent to the unavailability of the recording: the officers did not intentionally destroy the recording; the recording "was destroyed by an act independent of the people who made the recording"; the evidence was lost due to "an electronic snafu or the power surge that is otherwise unexplainable"; the "error in the recording was a mechanical error and not intentional"; the officers acted in good faith and made a good faith effort to recover the recording; the "officers kept their notes";*fn4
defendant's testimony that the officers used a tape recorder was not credible; and the recording was not "essential." On those findings, the judge rejected defendant's claim that the due process clause required suppression of the officers' testimony about defendant's statements.
This court "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007). On questions of law, however, we owe no such deference. State v. Drury, 190 N.J. 197, 209 (2007).
Defendant expressly states that he is not challenging the judge's finding that the loss of the recording was "unintentional." Rather, he contends that the due process clause requires suppression of the officers' testimony about his admissions because such recordings are essential and the State should have developed procedures to guard against foreseeable loss due to computer malfunction. In the alternative, defendant urges us to direct the trial court to condition admission of this evidence on an adverse inference charge and limitation on cross-examination of defendant about his prior convictions.
The controlling legal rules governing the State's obligation to preserve evidence are founded on the fundamental fairness in criminal prosecutions that is mandated by the Due Process Clause of the Fourteenth Amendment, which includes rules governing access to evidence held by the State. See California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532, 81 L. Ed. 2d 413, 419 (1984).
Defendant's argument about the State's obligation to preserve evidence is quite similar to the one rejected by the Supreme Court in Trombetta. In that case, the Court considered loss of breath samples relevant in prosecutions for driving while intoxicated, which was attributable to a statewide practice of discarding breath samples even though they could feasibly be preserved. Id. at 482-83, 104 S. Ct. at 2530-31, 81 L. Ed. 2d at 418. There, as here, was no evidence of an intentional or calculated plan to leave the defendants without the evidence. Id. at 488, 104 S. Ct. at 2533, 81 L. Ed. 2d at 422. The Court determined that California's common practice was "without constitutional defect." Ibid.
The Court reasoned that the state's duty to "preserve" evidence "must be limited to evidence that might be expected to play a significant role in the suspects' defense." Id. at 488, 104 S. Ct. at 2534, 81 L. Ed. 2d at 422. And, the Court explained that to fall within that category, the evidence "must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. at 489, 104 S. Ct. at 2534, 81 L. Ed. 2d at 422 (emphasis added); see also State v. Marshall, 123 N.J. 1, 108 (1991) (restating the standard with no discernible alteration of its substance as evidence with "exculpatory value [which] was obvious before its destruction and of such a nature that comparable evidence would not reasonably be available").
The Trombetta Court rejected the challenge to California's practice on the ground that the breath samples did not meet either part of the two-pronged standard for evidence that must be preserved. As explained in Marshall, "[t]he Court determined that in view of the demonstrated accuracy of the California breath-analysis equipment, it was highly unlikely that preserved samples of breath would have been exculpatory, and that defendants had adequate opportunity to challenge the test results through inspection, expert testimony, and cross-examination." 123 N.J. at 108-09 (internal citations omitted).
In a subsequent decision, Arizona v. Youngblood, 488 U.S. 51, 57, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281, 289 (1988), the Court addressed a state's obligation "to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant." The Court held "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." Id. at 58, 109 S. Ct. at 337, 102 L. Ed. 2d at 289; see also Marshall, supra, 123 N.J. at 109-10 (discussing Youngblood and its rationale).
Several courts have concluded that Trombetta and Youngblood, when read together, require a defendant raising a due process challenge to show bad faith when the evidence is "potentially useful" but do not require a showing of bad faith when the evidence meets Trombetta's two-pronged standard. See generally Olszewski v. Spencer, 466 F.3d 47, 56-57 (1st Cir. 2006) (discussing these cases and noting that the Supreme Court's decisions suggest that view, but declining to decide the question because the evidence at issue did not meet the second prong of the Trombetta standard). It is not necessary for this court to address that question because we conclude that this evidence does not meet the Trombetta standard, see ibid., and a showing of bad faith is required.
We do not equate the apparent exculpatory value of a breath sample that has been subjected to testing and can be challenged on scientific grounds with the video-audio recording of a confession. The fact that the State's obligation to make this recording was based on Attorney General Guidelines and not constitutional imperative of court rule is not determinative of the apparent usefulness of such recordings to the defense. See State v. Cook, 179 N.J. 533, 560 (2004); R. 3:17(a). Given the significance of the words a defendant utters during a custodial interrogation and the demeanor of the participants, we have no question that the exculpatory value of recordings like the one at issue here is "obvious" from the moment the recording is made. It is difficult to perceive of any evidence that would be more likely to the question of guilt or innocence at trial than the video-audio recording of a defendant's statements about the crime.
Our conclusion is based on the second prong of the Trombetta standard. Defendant may have lost the opportunity to conclusively prove that he made no admission during the hearing and, on the principle of "false in one, false in all," raise a doubt about the credibility of the patrol officer. But even if the video-audio recording disclosed that he did not make any admissions during the interrogation, his silence on the point would not in itself raise a doubt about his guilt. In short, by testifying at trial and denying that he said what the officers claim he said, defendant can raise the same question of credibility. Thus, the evidence is available to him.
In Olszewski, the court concluded that an exculpatory statement prepared and destroyed by a witness through the neglect of officers who left the statement with the witness after he denounced its veracity could be recreated through the testimony of the officer who was aware of its contents. 466 F.3d at 58. On that ground, the court concluded that the second prong of the Trombetta standard was not met because defendant had a reasonable means of presenting the same evidence.
The position of the defendant in this case is somewhat different than that of the defendant in Olszewski. If the State introduces testimony about his admissions, defendant cannot raise the issue without testifying. In this circumstance, the means available to defendant is "reasonable" only if defendant is permitted, if he so elects, to testify for that limited purpose without subjecting himself to cross-examination on matters outside the scope of his testimony.
There is another matter relevant to whether the means available to defendant can be deemed "reasonable." In its brief on this appeal, the State acknowledges that evidence relevant to the production and loss of the recording would be admissible. We agree.
In addressing whether a state's loss of evidence that did not meet the Trombetta standard amounted to a denial of due process, the Supreme Court relied, in part, on the fact that the jury was instructed that it could draw and adverse inference if it determined that the state acted in bad faith. See Youngblood, supra, 488 U.S. at 54, 109 S. Ct. at 335, 102 L. Ed. 2d at 287; cf. Marshall, 123 N.J. at 109 (quoting Youngblood on this point and finding no due process violation where the State diminished the prejudice by opting not to introduce the test results it obtained through testing of a tire that limited defendant's ability to conduct tests that may have produced exculpatory evidence). If the evidence presented at trial permits an inference of bad faith such an instruction should be given.
We stress that this court's acceptance of the judge's finding that the officers' loss of the recording was not intentional or the result of bad faith is a product of our standard of review. On the evidence presented at the suppression hearing, a reasonable person crediting defendant's testimony and discrediting the officers' testimony could come to a different conclusion. We refer to the inconsistencies in the officers' testimony about activation of the recording device; the fact that Purcell claims he was unable to retrieve the recording in June but Butler testified that the power surge that affected the computer occurred in August; defendant's testimony that a tape recorder was used; and the fact that the State had no information as to recordings that were stored on the computer's server or hard drive.
For all of the foregoing reasons, we conclude that the judge did not err in denying defendant's motion to suppress for failure to preserve the recording. Our holding assumes that the trial judge will admit the State's evidence subject to conditions that give defendant a reasonable means of presenting the exculpatory evidence through his own testimony and the inference available therefrom, including an instruction on any negative inference based on bad faith that is available from the evidence adduced at trial.
Defendant raises an additional argument that is not properly before us. He contends that evidence of his prior convictions should not be admitted at trial. The trial judge has not ruled on that issue, and for that reason we will not consider it.
Defendant also contends that the trial court erred by considering his prior convictions at the suppression hearing. That claim lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2)(E). As we understand the judge's ruling on that issue, he considered the prior convictions for the limited purpose of their relevance to defendant's knowledge of the criminal justice system and the rights referenced in Miranda. Nothing in the judge's decision suggest that he discredited defendant's testimony based on defendant's 1990 conviction.
The order denying the motion to suppress is affirmed, and the matter is remanded for further proceedings in conformity with this opinion.