State v. Graham

• Docket Number: A23-0412
• Decision Date: 27 November 2023
• Parties: State of Minnesota, Respondent, v. Randall Thomas Graham, Appellant.
• Court: Minnesota Court of Appeals

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State of Minnesota, Respondent,
v.
Randall Thomas Graham, Appellant.

No. A23-0412

Court of Appeals of Minnesota

November 27, 2023

This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).

Stearns County District Court File No. 73-CR-19-9380

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Renee N. Courtney, St. Cloud City Attorney, James P.A. Morrighan, Assistant City Attorney, St. Cloud, Minnesota (for respondent)

Greg A. Engel, St. Cloud, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Wheelock, Judge; and Kirk, Judge. ^[*]

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LARKIN, Judge

Appellant challenges his conviction of driving while impaired (DWI), arguing that the district court erred by denying his motion to suppress evidence of the offense and his motion to dismiss based on a due-process violation. We affirm.

FACTS

Respondent State of Minnesota charged appellant Randall Thomas Graham with two counts of second-degree DWI. Graham moved the district court to suppress the evidence against him, arguing that the evidence was obtained as the result of an illegal seizure. The district court held an omnibus hearing on Graham's motion and heard testimony from Officer Louis Etshokin, Officer Brent Fandel, Graham, and Graham's passenger.

Evidence at the hearing established that on November 3, 2019, at around midnight, Officer Fandel was dispatched to the La Playette Bar in St. Joseph to investigate a report of an intoxicated driver. The suspect vehicle was described as a white Dodge Ram. At that same time, Officer Etshokin was on routine patrol and heard Officer Fandel advise that he was investigating the report.

Officer Fandel arrived at the bar and met with the reporting party, a bouncer, who stated that Graham had stumbled before entering the bar. Officer Fandel saw Graham seated at the bar approximately 20 feet away having an alcoholic beverage. Graham did not appear to be intoxicated. Officer Fandel did not investigate further because he did not think that Graham was committing a crime.

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Not long after, Officer Etshokin saw the Dodge Ram parked near the La Playette Bar and recognized the vehicle from the earlier dispatch report. At approximately 12:50 a.m., Officer Etshokin saw the Dodge Ram being driven in St. Joseph and followed it. Officer Etshokin was looking for signs of impaired driving. He saw the vehicle cross the fog line, make a "sloppy" right turn, and cross into oncoming traffic before correcting into the proper lane. Officer Etshokin initiated a traffic stop.

Officer Etshokin approached the vehicle and made contact with Graham, who was driving. Before stopping Graham's vehicle, Officer Etshokin advised Officer Fandel that he was behind the suspect vehicle from the earlier report from the La Playette Bar. Within two minutes of initiating the traffic stop, Officer Fandel arrived to relieve Officer Etshokin, who turned the investigation over to Officer Fandel and left to respond to a medical-emergency call. During Officer Fandel's interactions with Graham, he observed indicia of intoxication and arrested him for DWI. Chemical testing revealed that Graham had a breath-alcohol concentration of 0.18.

Officer Etshokin testified that his squad car's video system automatically activates when an officer turns on the vehicle's emergency lights, and the captured footage will often include a few minutes of video prior to the activation of the lights. Officer Etshokin testified that he believed Graham's driving conduct was automatically recorded by the squad camera.

At the hearing on his suppression motion, Graham testified that he did not cross the fog line or make a wide turn. He testified that his Dodge Ram has "all the bells and whistles, " including "lane departure, " and that it therefore "cannot cross the fog line."

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After the hearing, Graham's attorney requested Officer Etshokin's squad video and asked that the record be kept open because he was not aware of the video until he heard Officer Etshokin's testimony. The district court directed the state to request a copy of the video and provide it to Graham. The state later informed the district court that the squad video did not exist and requested that the record be closed.

The district court denied Graham's suppression motion. The court credited Officer Etshokin's testimony that Graham swerved over the fog line and made a wide turn into oncoming traffic. The district court concluded that the observed traffic violation provided a lawful basis to stop Graham's vehicle.

Following the district court's ruling, Graham requested disclosures from the state regarding the St. Joseph Police Department's video retention policies. Police Chief Dwight Pfannenstein responded with a letter stating:

• I am the only one in the department that has the password that allows any deleting or modification of the camera system or its files.

• We do not currently have a policy on how long we retain footage. We currently do not delete videos from the following calls or "Event tag." We have all footage from all of our Domestics, DUIs, Traffic Citations, Traffic Accidents, Assaults, Drug Seizure, Evading, Motorist Assist, Suspicious Behavior, Medical, Burglary, Robbery, Alcohol, Open Door, Alarm, Loud Music, Other, and Agency Assist.

• The only two event tags not listed above, that get cleared out, are: test recording and traffic warning that are over one year old.

• I have been made aware that Officer . . . Etshokin has put in his report that he had squad video. The video doesn't exist. Either the event did not record as the officer thought it did or perhaps it got tagged wrong as a test recording or a traffic warning and was deleted

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after one year. I do not view each traffic warning and test recording events as there are thousands of them per year before they are deleted. If this video somehow got coded as one of these events, it would be deleted by now.

(Emphasis added.)

Chief Pfannenstein sent Graham's counsel a second letter stating:

• As stated in the previous letter, to the best of my knowledge, neither myself or the [s]ergeants viewed any video from Officer Etshokin on this incident. It is assumed the video was coded incorrectly and deleted. When deleted, it would have been done by [me].

• The St. Joseph Police Department does not keep logs of when video is taken from the squad car and transferred to storage. Due to the assumption this video was coded incorrectly, we are unable to determine a date of deletion. This information would have been deleted a year after the incident, since no requests or complaints were filed for this information. It was discovered after the initial information was sent to your office, that medicals 2019 and older were in fact deleted. The most current medical in video storage is from February l, 2020.

• [I]t is the belief that Officer Etshokin continued his squad video from this incident into the medical call and most likely labeled it a medical.

(Emphasis added.)

Graham moved the district court to dismiss the charges, arguing that the loss or destruction of the squad video constituted a due-process violation. The district court held a second omnibus hearing and received testimony from Officer Etshokin, Chief Pfannenstein, and Graham.

Officer Etshokin testified that he first learned that the video was missing just prior to the initial omnibus hearing. When asked how the video was saved, he responded, "There

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is a memory stick system which the sergeants will take out of the squad and bring into the police office and transfer it over to a master computer system." Officer Etshokin testified that his only role in ensuring that the video is properly saved is to label the video with the appropriate description type, for example, "traffic stop." He testified, "I know that there was a recording made, because I reviewed it when I wrote my report, " but "I cannot swear if I saved it under medical or under traffic."

Officer Etshokin explained that he was called to a medical call during the traffic stop. He testified that his emergency lights remained activated as he traveled to the medical call, that it was possible that he labeled the video as a medical call because he "went from the traffic stop to the medical uninterrupted, " that he believed videos from medical calls are "saved forever, " and that he did not delete the video of the stop and had no authority or knowledge regarding how to delete such videos.

Chief Pfannenstein testified that he oversees the sergeants assigned to managing, transferring, and storing videos; that he searched for and could not locate the video recording of Graham's traffic stop; and that all recordings labeled as medical calls were "deleted for 2019 to free up some space on our server." He testified that "it's to the point where test recordings, traffic warnings and medicals take up a lot of space on our internal storage, and it's my belief that after a year or two if there haven't been any complaints" then "we just delete them, " and that "[t]he only person in our department that has the password to remove the files [is] myself." He testified, "I might have deleted it if it was labeled as a test recording, as a medical or as a traffic warning."

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The district court denied Graham's motion to dismiss, reasoning that there was "an equal likelihood the squad video could have inculpated [Graham] as it could have exculpated him." The district court determined that the squad video was not destroyed in bad faith, that the exculpatory value of the evidence was not apparent "at the time of destruction, " and that Graham could obtain evidence of comparable value elsewhere.

Graham waived his right to a jury trial and stipulated to the prosecution's case, under Minn. R. Crim. P. 26.01, subd. 4, to obtain appellate...