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Criminal Practice – Exculpatory Evidence – Video – Destruction of Evidence – Bad Faith

Criminal Practice – Exculpatory Evidence – Video – Destruction of Evidence – Bad Faith

State v. Absher. (Lawyers Weekly No. 10-16-0972, 29 pp.) (Rick Elmore, J.)  Appealed from Wilkes County Superior Court (Carl R. Fox, J.) N.C. App. Unpub. Click here for the full text of the opinion.

Holding: The defendant made numerous requests for specific items of evidence that were favorable to him and material to his defense, and the state failed to provide the evidence, destroyed it and then stated it could not be produced. A flagrant violation of the defendant’s constitutional rights occurred, and dismissal was appropriate.


Defendant was involved in an altercation with police and sustained serious injuries. He was charged with assault on a government official and resisting and delaying an officer in the performance of his duties.

Defendant was found guilty of both charges in district court and appealed to superior court. He moved to dismiss the charges based on the loss and destruction of exculpatory evidence by the state.

Previously defense counsel had requested video evidence of him at the police station before his admittance to the hospital. Following receipt of a letter from an assistant district attorney, defendant subpoenaed the sheriff’s department for any and all videos and any other documents relating to defendant’s arrest and any injuries he sustained. The sheriff’s department produced reports by two deputies.

Defendant sent another subpoena to the sheriff’s office requesting any and all video recordings from defendant’s intake at the jail facility following his arrest. A short time later he subpoenaed the emergency management department (EMD) seeking the same information. An EMD representative called defendant’s attorney and told him that the original video had been destroyed after images from it were selected by the sheriff’s department and a flip book was created based thereon.

The trial court dismissed the case. The state appealed.

Challenges to Findings of Fact

The state argued that the trial court erred by dismissing the prosecution against defendant because the trial court’s findings of fact and conclusions of law were unsupported and erroneous.

G.S. § 15A-954(a)(4) governs a criminal defendant’s motion to dismiss if he alleges that his constitutional rights have been flagrantly violated and there is such irreparable prejudice to the defendant’s preparation of his case that there is no remedy but to dismiss the prosecution.

If, on the defendant’s motion, a trial court makes a determination that such a violation has occurred, it must dismiss the charges against the defendant.

The state argued that there was no evidence that the video system was “maintained” by the sheriff’s department; however, an EMD representative testified that the sheriff was “directed and tasked with supervising that intake facility recording.”

The state also argued that no evidence was presented that only “points of contact” were saved at the direction of a chief deputy.

The EMD representative testified that she first learned of the video in question when the chief deputy called her and asked to view the video of a particular day and time, which corresponded to the time that defendant was in custody. The chief deputy watched the video.

When the EMD representative was eventually asked to copy the video, she did not copy the entire video; instead, she only copied the frames that showed “somebody had their hands on” defendant. The video was changed from its original form to the form where it only had hands-on contact points per the chief deputy’s discretion, according to the EMD representative’s testimony.

The government has a duty to volunteer exculpatory evidence even when it is not specifically requested when suppression of the evidence would be of sufficient significance to result in the denial of the defendant’s right to a fair trial.

Defense counsel specifically asked for all videos of defendant at the time he was being held in a holding cell prior to hospitalization. “All videos” of defendant during that time period does not mean a redacted or truncated version of the existing videos, especially without any means for defendant to verify that the missing portions were not exculpatory.

Accordingly, we hold that the applicable findings of fact were supported by competent evidence.

Challenges to Conclusions of Law

A defendant can meet his burden by demonstrating that being deprived of destroyed evidence cannot be remedied by ordering or permitting the defendant to re-create an item of evidence he did not originally create and for which he does not possess the raw materials.

Defendant never had access to the original video; it cannot be recreated by the state, much less by him. Moreover, the trial court’s findings support its conclusion that the missing video segments were material and were favorable to his defense.

Irreparable prejudice occurs when a defendant is denied material evidence favorable to his defense.

When a defendant makes numerous requests for specific items of evidence that are favorable to him and material to his defense, but the state fails to provide the evidence, destroys it and then says it cannot be produced, a flagrant violation of the defendant’s constitutional rights has occurred.

Defendant made numerous requests to see the video showing his time at the intake center followed by numerous requests for copies of that video. The state failed to provide the complete video, instead creating a modified copy that excluded 24 minutes and 17 seconds of the original video. The state destroyed the original video, which rendered producing the original video impossible. Thus, a flagrant violation of defendant’s constitutional rights occurred.

The state argued that the evidence was not destroyed in bad faith.

We hold that Arizona v. Youngblood, 488 U.S. 51 (1988), is not applicable, so no showing of bad faith was required.

Destruction of “material exculpatory evidence” does not require a showing of bad faith in order to constitute a due process violation.

The trial court found as fact that the “video could have provided videographic evidence of Mr. Absher’s injuries and could have served to contradict the testimony of the deputies as to Mr. Absher’s conduct on the night in question.” This evidence would have supported defendant’s argument that he lacked the mens rea to commit the offense charged, and it also would have provided impeachment evidence against the deputies.

The trial court properly concluded that the evidence was material, and this conclusion is supported by the trial court’s findings of fact. The trial court properly concluded that the state’s suppression of this material evidence violated due process as explained in Brady v. Maryland, 373 U.S. 83 (1963).

The state challenged the trial court’s conclusion that the destruction of evidence violated State v. Williams, 362 N.C. 628 (2008), and required dismissal. As in Williams, defendant was never in possession or control of the videographic evidence at issue, so the court could not remedy the situation by ordering or permitting defendant to recreate the missing video. Accordingly, we find support for the trial court’s conclusion that the state violated <I>Williams<P>, which required dismissal of the charges against defendant.



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