395 P.3d 111 (Utah 2017), 20150460, State v. DeJesus

Docket Nº20150460
Citation395 P.3d 111, 2017 UT 22
Opinion JudgeDurrant, Chief Justice:
Party NameSTATE OF UTAH, Appellee, v. LISSETTE MARIAN DEJESUS, Appellant
AttorneySean D. Reyes, Att'y Gen., Christopher D. Ballard, Asst. Solic. Gen., Salt Lake City, for appellee. Joan C. Watt, Wesley J. Howard, Alexandra S. McCallum, Salt Lake City, for appellant.
Judge PanelCHIEF JUSTICE DURRANT authored the opinion of the Court in which JUSTICE DURHAM and JUSTICE HIMONAS joined. ASSOCIATE CHIEF JUSTICE LEE filed a concurring opinion, in which JUSTICE PEARCE joined. CONCUR BY: LEE (In Part) Associate Chief Justice Lee, concurring in part and concurring the judgment:
Case DateApril 21, 2017
CourtSupreme Court of Utah

Page 111

395 P.3d 111 (Utah 2017)

2017 UT 22

STATE OF UTAH, Appellee,

v.

LISSETTE MARIAN DEJESUS, Appellant

No. 20150460

Supreme Court of Utah

April 21, 2017

Released for Publication June 8, 2017.

Page 112

On Direct Appeal.

Third District, West Jordan. The Honorable Bruce C. Lubeck. No. 141400093.

Sean D. Reyes, Att'y Gen., Christopher D. Ballard, Asst. Solic. Gen., Salt Lake City, for appellee.

Joan C. Watt, Wesley J. Howard, Alexandra S. McCallum, Salt Lake City, for appellant.

CHIEF JUSTICE DURRANT authored the opinion of the Court in which JUSTICE DURHAM and JUSTICE HIMONAS joined. ASSOCIATE CHIEF JUSTICE LEE filed a concurring opinion, in which JUSTICE PEARCE joined.

OPINION

Page 113

Durrant, Chief Justice:

Introduction

[¶1] This case, along with State v. Mohamud,1 requires us to apply the due process analysis we set forth in State v. Tiedemann,2 which addresses the due process rights of criminal defendants when evidence has been lost or destroyed. On April 23, 2015, defendant Lissette DeJesus was sentenced to an indeterminate term of zero to five years in prison for assaulting a prison guard. She argues on appeal that a video recording of the assault was lost or destroyed by the State and that this loss of evidence violated her due process rights, requiring the dismissal of her case. She also argues that the district court applied the wrong legal standard to her claim by imposing a threshold requirement that she demonstrate a reasonable probability the evidence would have been exculpatory.

[¶2] We reaffirm today that the due process analysis set forth in Tiedemann does encompass a threshold reasonable probability requirement. Although the district court correctly recognized this threshold requirement, it erred by imposing on Ms. DeJesus an overly stringent interpretation of what constitutes a " reasonable probability" and concluding that she had failed to satisfy the threshold requirement. We also conclude that the court erred in its application of the factors set forth in Tiedemann, and upon our review of Ms. DeJesus's circumstances, we conclude that the loss of the surveillance footage was sufficiently significant to warrant the dismissal of the State's case against her. We therefore reverse the district court's decision.

Background

[¶3] On September 27, 2013, Corrections Officer Ronald Hansen was escorting inmates Samantha Dash and Fatima Kahn from their scheduled recreation time back to their cells at the Utah State Prison's women's facility. Ms. Dash shared cell 416 with Ms. DeJesus. Ms. Kahn occupied cell 415, located adjacent to Ms. DeJesus's cell. When Ms. Dash and Ms. Kahn arrived at their cells, Officer Hansen directed Ms. Kahn to stand in front of her cell door. She disobeyed the officer's order, however, stopping instead in front of Ms. DeJesus's cell door. Ms. DeJesus and Ms. Kahn began arguing. Officer Hansen's partner, who controlled the cell doors from a remote location, opened both doors before Officer Hansen was prepared. With Ms. DeJesus's door unlocked, Ms. Dash said " check this out" to Officer Hansen and pulled Ms. DeJesus's cell door open.

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[¶4] After Ms. Dash opened the door, Ms. DeJesus emerged from her cell, " swung at [Ms.] Kahn," and the two engaged in " mutual combat." Officer Hansen pulled Ms. DeJesus off of Ms. Kahn, picked Ms. DeJesus up, and carried her back into her cell. But before he could close the cell door, Ms. DeJesus moved past him and began fighting with Ms. Kahn again. Officer Hansen quickly inserted himself between the women, pushing Ms. DeJesus to the floor. While on the floor, Ms. DeJesus kicked Officer Hansen twice--once in the abdomen and once in the thigh.

[¶5] About thirty minutes after resolving the altercation, Officer Hansen reviewed surveillance footage that had captured the event. He then filed a written report of the incident and gave a copy of the report to his captain. His captain sent the report to the prison investigations unit, and Debbie Kemp, an investigator, came to the prison about an hour and a half after the incident. She asked if there was surveillance footage of the altercation and was told someone in the control room had viewed it. She asked to view the footage, but the officer who was staffing the control room at the time was new and apparently did not know how to replay the footage, preventing Ms. Kemp from viewing the recording. After being shown where the incident occurred and conducting interviews, she returned to the control room and asked that a permanent copy of the footage be made.

[¶6] After requesting a copy, Ms. Kemp waited for at least 30 days to follow up. She testified that during this time, she was asked to complete " 10 . . . background check investigation[s] . . . [within] three weeks." This unusually heavy workload forced Ms. Kemp to " put [many things] on the back burner." When she eventually followed up to see whether the prison had made a physical copy of the surveillance footage, she learned that no copy had been made. The captain informed her that " after 30 days, it goes off the camera." Accordingly, the footage of the incident was irretrievably lost.

[¶7] On January 14, 2014, the State charged Ms. DeJesus with one count of assault under Utah Code section 76-5-102.5, which provides that " [a]ny prisoner who commits assault, intending to cause bodily injury, is guilty of a felony of the third degree." Thirteen days later, on January 27, 2014, defense counsel entered his appearance and filed a general discovery request.3 Two days later, defense counsel filed a supplemental discovery request seeking a " copy of any video of the alleged incident." Approximately three months later, on May 2, 2014, the State responded that it was " unable to provide any video of the incident as none exist[s] as per the Utah State Prison."

[¶8] On June 17, 2014, the district court held the preliminary hearing. At that hearing, Officer Hansen testified about the alleged assault. He claimed that after he threw Ms. DeJesus to the ground, she " looked directly at [him] and then kicked [him]" " in [the] lower . . . abdomen and . . . in [the] . . . right thigh." On cross-examination, Officer Hansen testified about the location of Ms. Kahn, noting that she " was on my back, I don't know exactly where she was. . . . [S]he was no longer on my shoulder though, I could not see her behind me, she was behind me." Defense counsel emphasized this point, asking, " So she could've been as close as inches away but you couldn't see her?" Officer Hansen responded: " But I could not see her, no."

[¶9] Following the preliminary hearing, Ms. DeJesus moved to dismiss the charge under State v. Tiedemann, claiming that the loss or destruction of the surveillance footage constituted a due process violation. She argued that if she kicked Officer Hansen, she did so unintentionally, merely seeking to defend herself from Ms. Kahn. During oral argument on the motion to dismiss, the district court decided it needed additional evidence and scheduled the matter for an evidentiary hearing.

[¶10] At the evidentiary hearing, Ms. DeJesus called Ms. Dash to testify about the event. The State asked the court to instruct Ms. Dash about her right against self-incrimination, noting that " [s]he was originally

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charged in this case," which charge had been dismissed without prejudice. The State informed the court and Ms. Dash that, " based on her testimony today, we could refile that case." In response, Ms. Dash invoked her Fifth Amendment right against self-incrimination and refused to testify.

[¶11] Officer Hansen also testified at the evidentiary hearing. This time, he said the surveillance footage showed that Ms. Kahn was about four to six feet behind him when he pushed Ms. DeJesus to the ground. On cross-examination, defense counsel pressed Officer Hansen about the testimony he gave at the preliminary hearing that Ms. Kahn " was on his back" and he did not see where she was at the time of the assault. Officer Hansen clarified his prior testimony, noting that at the time of the altercation he did not know precisely where Ms. Kahn was standing. After viewing the surveillance footage, however, he could see that Ms. Kahn was standing four to six feet behind him.

[¶12] Ms. DeJesus also called Ms. Ataata, who identified herself as Ms. DeJesus's fiancé e, to testify. Ms. Ataata was incarcerated in an adjacent cell--417--at the time of the altercation and viewed most of the incident. She contradicted Officer Hansen's testimony, claiming that Officer Hansen, Ms. DeJesus, and Ms. Kahn " were all on the ground." She also testified that Ms. Kahn did not disengage from Officer Hansen, but remained on his back the entire time, attempting to " [s]wing" " over [Officer Hansen] to get to [Ms.] DeJesus." The district court, in its memorandum decision, noted that Ms. DeJesus was " making facial gestures and expressions of varying sorts to [Ms.] Ataata depending on what [Ms.] Ataata was saying in her testimony."

[¶13] After the evidentiary hearing, the court determined that it needed a supplemental evidentiary hearing to receive evidence from Ms. Kemp, the investigator from the prison investigation unit. It was then that Ms. Kemp testified that she attempted to view the recording while at the control unit but could not and that the prison had not preserved a physical copy of the footage. The district court asked her whether " someone has to do anything to make [the footage] disappear," to which she responded that she did not know, but that she " wouldn't think so, no."

[¶14] The district court subsequently issued a memorandum decision denying Ms. DeJesus's motion to dismiss. Applying State v....

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