State v. Brooks

• Decision Date: 01 December 2009
• Docket Number: No. A09A0937.,A09A0937.
• Citation: 301 Ga. App. 355,687 S.E.2d 631
• Parties: The STATE v. BROOKS.
• Court: Georgia Court of Appeals

687 S.E.2d 631

301 Ga. App. 355

The STATE v. BROOKS.

No. A09A0937.

Court of Appeals of Georgia.

December 1, 2009.

Robert D. James Jr., Solicitor-General, Sophia E. Haynes, Asst. Solicitor-General, for appellant.

Frank J. Costa, LeeAnne Anthony, for appellee.

MILLER, Chief Judge.

By order dated December 11, 2008, the trial court dismissed the State's accusation against Tameka Brooks charging her with disorderly conduct (OCGA § 16-11-39) and simple battery (OCGA § 16-5-23). The State now appeals, arguing that the trial court's order impermissibly interfered with the State's right to prosecute criminal cases. We agree and reverse.

"When . . . question[s] of law are at issue, as here, we owe no deference to the trial court's ruling[s] and apply the `plain legal error' standard of review. [Cit.]" Suarez v. Halbert, 246 Ga.App. 822, 824(1), 543 S.E.2d 733 (2000).

The record shows that Brooks was arrested on February 14, 2008 after she allegedly became involved in a fight with a student on the grounds of McNair High School. On April 25, 2008, the State filed its accusation against Brooks. Brooks entered a plea of not guilty, and the case was set for a calendar call on June 13, 2008. Prior thereto, the State provided its sentencing recommendation, which included six hours imprisonment, with credit for time served, no contact with the student involved in the fight, and anger management classes. The State also represented that it "[w]ould consider [a] hold for 6 months under the same terms" but "[w]ould not agree to expungement." At the calendar call, the case was set for trial on June 24, 2008 and later reset for June 30, 2008.

When the parties appeared on June 30, 2008, the trial court inquired what the charges against Brooks were, and Brooks' counsel advised the trial court that a police officer had reviewed a videotape of the incident and said it was inconclusive as to what happened. When the trial court began to review the State's sentencing recommendation, Brooks' counsel stated that the "sticking point" was whether Brooks would be eligible for expungement. The prosecutor stated that the State would not agree to expungement.

The prosecutor went on to advise the trial court that the student who was involved in the fight with Brooks had received a citation in recorder's court, but the citation was later "thrown out." Brooks' counsel then informed the trial court that the videotape of the incident had not been preserved and was no longer available. Upon questioning by the trial court, the officer who had viewed the videotape explained that the trial court in the student's case "threw [the videotape] out as inadmissible[, s]o, I didn't really see no sense of keeping the recording around." The officer further stated that the videotape was a digital recording that moved from frame to frame, and, in one frame, he saw the student and Brooks standing apart, and, in the next one, they were fighting. Accordingly, he could not tell from the videotape who started the fight. According to the officer, the videotape did not record what the student and Brooks said to one another.

The trial court then interviewed the student involved in the fight, Brooks, and two defense witnesses in order to get a better understanding of the incident. Thereafter, the trial court announced that it was going to place the case on judicial hold for six months and order Brooks to complete anger management classes. The trial court explained that

what concerns me is that there is some dispute about that videotape. I've had some conflicting . . . remarks about its appearance and disappearance. And it bothers me that the State would present an officer to testify who told me . . . that it doesn't exist. And before I conduct a major investigation about that evidence, including having the district attorney involved in this, with grand juries and subpoenaing and all that, I'm going to put it on a judicial hold. I think it's going to be the best for everybody.

The prosecutor claimed that the videotape did not exist because the system in place at the school "automatically records over itself." The trial court responded that the officer was "obstructing justice by not having that tape," and remarked that "[i]t could be exculpatory evidence." When the prosecutor again attempted to explain how the videotape might have been erased, the trial court remarked, "[W]ho cares, the point is, it's not here." The prosecutor also remarked that the videotape did not show who started the fight, to which the trial court responded: "I'm not even going to speculate what . . . is on that tape. . . . It could be the moon eclipsing the sun. I don't care. I just don't have it and it could be exculpatory." The prosecutor objected to the judicial hold, and the trial court advised her, "You're lucky I'm not dismissing it," and indicated that the case would be dismissed if Brooks complied with the terms of the judicial hold. The trial court admonished the officer who had viewed the videotape that the school system needed to preserve evidence relevant to criminal charges. In response to a question by the prosecutor, the officer stated that he did not erase the videotape, and the trial court stated:

No, and I'm not suggesting that you did. I'm just saying—and this is the school boards'—or the school system's way of, I guess, maybe saving money. I don't know. But all I'm asking is in a situation in which there is any kind of . . . criminal activity involved in which the DeKalb County police . . . officers have to make an arrest or issue citations, we need to have a system where you guys preserve that evidence.

The trial court subsequently entered a judicial hold order which required Brooks, among other things, to complete anger management classes and appear for a hearing on December 11, 2008. At the hearing on December 11, 2008, the trial court, over the State's objections, stated that it would dismiss the accusation against Brooks on the basis that she had completed the terms of the judicial hold. The trial court subsequently issued an order to that effect.

The trial court's order dismissing the accusation against Brooks did not specify whether the dismissal was with or without prejudice. In either event, we conclude that the trial court's order must be reversed.

Brooks argues that the trial court was authorized to dismiss the accusation with prejudice because the State violated her due process rights by failing to preserve the videotape of the incident. We disagree.

"The State's duty to preserve evidence which may be exculpatory arises from the due process clause of the U.S. Constitution." (Citation omitted.) Fincher v. State, 276 Ga. 480, 483(5), 578 S.E.2d 102 (2003). The State's bad faith failure to preserve material evidence constitutes a denial of due process (State v. Brawner, 297 Ga.App. 817, 818, 678 S.E.2d 503 (2009)), and the resulting penalties may include barring further prosecution. California v. Trombetta, 467 U.S. 479, 487, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). To determine whether a constitutional violation has been established which could warrant dismissal with prejudice,

a court must determine both whether the evidence was material and whether the police acted in bad faith. . . . To meet the standard of constitutional materiality, the evidence must possess an exculpatory value that was apparent before it was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.

(Citations omitted.) Walker v. State, 264 Ga. 676, 680(3), 449 S.E.2d 845 (1994).

Here, Brooks never filed a motion to dismiss the accusation based on an alleged due process violation, and when she appeared for trial on June 30, 2008, her counsel did not move for or request imposition of penalties on the State based on the...