State v. Mohamud
| Citation | 395 P.3d 133 |
| Decision Date | 21 April 2017 |
| Docket Number | No. 20140844,20140844 |
| Parties | STATE of Utah, Appellee, v. Khalid MOHAMUD, Appellant. |
| Court | Supreme Court of Utah |
Herschel Bullen, Salt Lake City, for appellant.
Sean D. Reyes, Att'y Gen., Christopher D. Ballard, Asst. Solic. Gen., Salt Lake City, for appellee.
Introduction
¶ 1 This case, along with State v. DeJesus ,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. Defendant Khalid Mohamud was sentenced to an indeterminate term of one to fifteen years in prison for possessing a shank in prison. He argues on appeal that a video recording of the discovery of the shank was lost or destroyed by the State and that this loss of evidence violated his due process rights and required the dismissal of the case. He also raises an ineffective assistance claim, arguing that his counsel was ineffective in stipulating to the due process analysis applicable to claims regarding evidence lost or destroyed by the State. The stipulation conceded that there is a threshold requirement that the defendant show a reasonable probability that the lost evidence would have been exculpatory. Under the due process analysis set forth in Tiedemann , we hold that Mr. Mohamud's due process rights were not violated and that his counsel did not render ineffective assistance. We thus affirm the trial court's decision.
¶ 2 On August 29, 2013, Mr. Mohamud, who was incarcerated in the Utah State Prison, was scheduled to transfer to another cell to allow another inmate to move into his former cell. There were three officers involved in the transfer: Officer Miller, who was stationed in the control room that overlooked the prison section in which Mr. Mohamud was held, and Officers Auelua and Weaver, who were standing outside of the section containing Mr. Mohamud. Mr. Mohamud was instructed to leave his cell, place his possessions in front of his new cell, enter the section shower, and lock the shower door so that the new inmate could be moved into Mr. Mohamud's former cell. Mr. Mohamud placed his possessions in front of the new cell and entered the shower, but did not close or lock the door. Officer Miller, via intercom from the control room, accordingly instructed Mr. Mohamud to approach the section door.
¶ 3 After Mr. Mohamud approached the door, Officer Auelua handcuffed him and led him through the door into a "horseshoe" area. As Officer Auelua escorted Mr. Mohamud, Officer Weaver noticed "a pretty good-sized bulge" in Mr. Mohamud's left sock. Officer Weaver asked Mr. Mohamud about the bulge. When Mr. Mohamud did not respond, Officer Weaver asked him to step up against the wall. Mr. Mohamud complied, and Officer Weaver reached down into his sock and pulled out a metal shank that could have "kill[ed] somebody." Officer Auelua testified that he saw Officer Weaver remove the shank, and Officer Miller testified that although he saw Officer Weaver reach down to Mr. Mohamud's ankle, he did not personally see the shank. Officer Miller also testified that Officer Weaver told him that Officer Weaver had found a shank in Mr. Mohamud's sock.
¶ 4 After the shank was discovered, Officers Weaver and Auelua escorted Mr. Mohamud to a holding cell. While being escorted, Mr. Mohamud asked questions like Officer Weaver took a picture of the shank and prepared a report. Subsequently, Bryan Heyborne, an investigator for the Utah Department of Corrections, was assigned to the case. As part of his investigation, Mr. Heyborne spoke with Mr. Mohamud and, among other questions, asked him whether the shank belonged to a cellmate. Mr. Mohamud said it did not. Mr. Heyborne also reviewed Officer Weaver's report, though he did not review or otherwise seek to obtain or preserve any available surveillance footage.
¶ 5 On October 11, 2013, Mr. Mohamud was charged with one count of possessing a prohibited item in a correctional facility. On November 6, 2013, counsel for Mr. Mohamud submitted a discovery request seeking all video recordings of the event. Counsel renewed this request on January 9, 2014. Soon after, the State told defense counsel that any footage that might have captured the incident would have already been recorded over. According to Mr. Heyborne's later testimony, recordings from surveillance cameras "are saved for about approximately 30 days, and then they are recorded over." Thus, by the time charges were filed—forty-three days after the incident—any footage that might have captured the incident had already been lost. In response to this information, Mr. Mohamud moved to dismiss the charges against him, arguing that there was surveillance footage that captured the incident, that it had been lost or destroyed by the State, that there was a reasonable probability the evidence would have been exculpatory because it could have impeached the State's witnesses' credibility, and that he was prejudiced by the loss of the evidence.
¶ 6 During the hearing on Mr. Mohamud's motion to dismiss, the court asked defense counsel, "Don't you have to show on behalf of Mr. Mohamud that there is a reasonable probability that the destroyed videotape would be exculpatory?" Counsel agreed that this was the standard "as laid out in Tiedemann ." Counsel argued that a video recording of the incident would have been exculpatory because it could have impeached the testimony of the officers, though he provided no further details as to what specific testimony would have been impeached. When questioned by the court about the lack of details and supporting evidence, counsel for Mr. Mohamud stated that "there is no way for us to actually proffer" evidence that the lost video would have been exculpatory "aside from Mr. Mohamud's own testimony," which would require him to "waiv[e] his right against self[-]incrimination or his right to remain silent."
¶ 7 Because Mr. Mohamud chose not to testify, the only evidence put on during this hearing was testimony from Mr. Heyborne, the investigator. He testified that "most" prison facilities have surveillance cameras, that there were some cameras in the unit where Mr. Mohamud was being held, and that these cameras generally "record[ ] and ... are on." Mr. Heyborne also testified that while he knows where some of the cameras are located, and that they possibly could have recorded the incident, he did not "know if those cameras were actually recording that day," he never "view[ed] any recordings for August 29th of 2013," and he "ha[d] no knowledge whether or not there was an actual recording made." Ultimately there was no testimony as to whether the cameras were on and recording, what the recording would have shown, or whether the recording would have contradicted the facts as alleged by the State.
¶ 8 At the end of the hearing, the court concluded that the lack of evidence showing a reasonable probability that the lost evidence would be exculpatory was the dispositive issue. The court held that defense counsel's statement that "he believes it is potentially exculpatory ... doesn't meet the standard of the case law." The court also found that Accordingly, the trial court denied Mr. Mohamud's motion to dismiss.
¶ 9 A one-day jury trial was held on August 13, 2014. The jury found Mr. Mohamud guilty of one count of transportation or possession of items prohibited in correctional and mental health facilities. The court sentenced Mr. Mohamud on September 2, 2014, to an indeterminate term of one to fifteen years in prison, to run consecutively to his other sentence. He timely appealed. After he filed his opening brief, the court of appeals certified the case to us. We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(b).
¶ 10 There are two issues on appeal: first, whether Mr. Mohamud's trial counsel rendered ineffective assistance under Strickland v. Washington3 and, second, whether Mr. Mohamud's due process rights were violated by the loss or destruction of evidence under the standard set forth in State v. Tiedemann .4 As to the first issue, " ‘[a] claim of ineffective assistance of counsel raised for the first time on appeal presents a question of law’ that the court reviews for correctness."5 The second issue, the due process question, is a mixed question of fact and law. We review the legal question involved—whether due process was violated—for correctness.6 But the underlying factual determinations on which this legal question is based will not be set aside unless "clearly erroneous."7
¶ 11 Mr. Mohamud raises two issues on appeal: first, that his trial counsel rendered ineffective assistance by stipulating to the legal test the trial court employed to determine whether Mr. Mohamud's due process rights were violated by the alleged destruction of evidence; and, second, that the court erred by not dismissing Mr. Mohamud's case because his due process rights were indeed violated by the alleged destruction of evidence. Both of these issues depend on a threshold question: What is the proper legal standard for deciding whether a due process violation occurs as a result of the destruction of evidence?
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