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State v. Richardson

Superior Court of New Jersey, Appellate Division

October 4, 2017

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
EUGENE RICHARDSON, Defendant-Appellant.

          Submitted May 16, 2017

         On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 14-07-0587.

          Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief).

          Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Danielle R. Pennino, Assistant Prosecutor, of counsel and on the brief).

          Before Judges Fisher, Ostrer and Vernoia.

          OPINION

          OSTRER, J.A.D.

         Lacking a valid driver's license, defendant was caught giving a false name during a traffic stop for a motor vehicle violation. The officer arrested defendant for hindering apprehension and took him down to the station. While in the booking room, the arresting officer searched defendant more thoroughly. The officer testified that once defendant removed his shoes he noticed a bulge in defendant's sock. He felt it. Drugs, he thought, and asked defendant to remove his sock, which revealed multiple packets of heroin.

         The booking room's two motion-sensitive video cameras likely recorded the search. Yet, at defendant's jury trial on the drug possession charge - the hindering charge was not pursued - the State's case rested only on the officer's word. That is because the State allowed the booking room tape to be destroyed, despite defense counsel's prior written request that the State preserve and produce it.

         The trial court denied his timely request to instruct the jury that it could draw an adverse inference from the tape's destruction. The trial court also denied defendant's pre-trial request to bar evidence that defendant hindered apprehension. The jury ultimately found defendant guilty of possessing heroin, and the court sentenced defendant, a repetitive offender, to a five-year term of imprisonment, with a two-year period of parole ineligibility.

         Defendant presents two significant issues on appeal. First, was defendant entitled to an adverse inference charge to remedy the police's routine destruction of the video where the defense expressly requested it be preserved? We conclude he was. In particular, we hold that when the State refuses a defendant's diligent pre-indictment request to preserve and produce recordings, which the State or its law enforcement agencies created and are directly relevant to adjudicating an existing charge, the defendant is entitled to an adverse inference charge. Second, did the court err in how it handled the evidence of hindering apprehension? We conclude it did. The evidence was inadmissible under N.J.R.E. 404(b) for its proffered purpose and, in any event, the court's instruction was inadequate. As these errors were not harmless, we reverse the conviction, and do not reach defendant's challenge to his sentence.

         Before addressing each issue presented on appeal, we briefly review its procedural background.

         I.

         A.

         We begin with the destruction of evidence. Five days after defendant's arrest, his attorney sent the prosecutor a discovery demand, which asked the State to preserve and produce "all video tapes, audio tapes or photographs, including but not limited to police vehicle video tapes, 911 tapes, police and emergency personal [sic] dispatch tapes, [and] booking room tapes . . . ." (Emphasis added). The letter also "request[ed] that all evidence be preserved, protected and produced, " and that "the State inform defense counsel in a timely fashion should the State learn that any evidence . . . relevant to this case . . . is about to destroyed . . . .[1] The State did not respond, nor did it notify the police to preserve the booking room tapes.

         At trial, the defense did not elicit evidence regarding its letter. Rather, it focused on the arresting officer's independent decision not to preserve the recording. A sergeant confirmed at trial that the cameras would have recorded a suspect held in the bench area where defendant was searched. However, the recordings were routinely overwritten after thirty days.

         The arresting officer testified that he took no steps to preserve the recording. He claimed he only requested preservation of tapes to record incidents he did not see; therefore, there was no reason for him to request the tape's preservation. Yet, the sergeant testified officers could request the preservation of tapes "for almost any reason, " and often did. He added that officers typically requested videos of incidents they did observe, noting that officers preserved tapes to refresh their recollection at trial. As the arresting officer did not request the video, it was erased thirty days after defendant's arrest.

         The grand jury indicted defendant less than a month after the erasure.[2] By that point, there was no recording for the State to produce. In justifying its inaction, the prosecutor later contended her office had no responsibility to produce any discovery pre-indictment, although she essentially conceded the case had been referred to her office by the time defense counsel served the letter requesting preservation of the booking room recording.[3] She said that defense counsel could have submitted the discovery request directly to the police department. The prosecutor also noted that the request was a "form letter, " and suggested that whether the recordings possessed evidence material to the defense was speculative.

         Defendant moved before trial to dismiss the indictment on the ground that destruction of the videorecording violated his right to due process. The court denied the motion, finding the police did not act in bad faith.[4] That decision is not before us.

         The court reserved decision on defense counsel's alternative request for an adverse inference jury instruction. However, when counsel renewed the request at trial, a different judge denied it.

         The court held there was no binding authority that required the State to preserve the recordings in response to a letter to the prosecutor's office. Noting the prior finding of no bad faith, the judge stated he would have viewed the matter differently had defense counsel sent the request directly to the police. The judge stated that an adverse inference charge would "tell[] the jury the police did something wrong, " which the court declined to do. When defense counsel renewed the request before summations, the court added that defense counsel had thoroughly examined the issue at trial and could address it in closing.

         The defense did. The absence of video was a major theme of the short trial. The defense's sole witness was the sergeant in charge of preserving booking room recordings. The defense highlighted the absence of the surveillance footage, and focused on the arresting officer's decision not to preserve the video, despite the sergeant's testimony that officers often did. In summation, the defense referred to cases in the news of police misconduct and misrepresentations ultimately belied by bystanders' recordings. The prosecutor responded that the officer was not required to preserve the recording and that there was no evidence of "foul play." The prosecutor contended that reference to the lost recording was a "smoke screen" and that the officer's observation of drugs met the State's burden.

         As his first point on appeal, defendant contends:

THE TRIAL JUDGE ERRED IN FAILING TO PROVIDE JURORS WITH AN ADVERSE-INFERENCE OR CURATIVE INSTRUCTION AFTER THE STATE FAILED TO PRESERVE THE VIDEOTAPE OF THE ALLEGED CRIME, ...

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