State v. Nixon, A22A0406

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtHODGES, JUDGE.
PartiesTHE STATE v. NIXON.
Docket NumberA22A0406
Decision Date30 June 2022

THE STATE
v.

NIXON.

No. A22A0406

Court of Appeals of Georgia, First Division

June 30, 2022


BARNES, P. J., BROWN and HODGES, JJ.

HODGES, JUDGE.

Kenneth Nixon was indicted on two counts of aggravated assault. He moved to dismiss these charges following the loss of a video from a Ring doorbell system, which he contends would have provided exculpatory evidence supporting his assertion that he was acting in self-defense. After a hearing, the trial court granted his motion, and the State appeals the dismissal of the charges. The State contends that the trial court erred in (1) improperly finding that the Ring video was constitutionally material and that it had exculpatory value apparent to law enforcement prior to its loss; (2) finding that the information in the video could not be obtained by other reasonably available means; and (3) failing to determine whether law enforcement

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acted in bad faith by not preserving the Ring video. For the reasons that follow, we reverse.

The record shows that on August 28, 2019, two investigators with the Douglas County Sheriff's Office were called to investigate an alleged stabbing. One investigator went to the home where the stabbing allegedly occurred, and the other went to the hospital where two alleged victims, Keith Hunter and Dennis Edwards, had been taken for treatment. Hunter and Edwards are the adult sons of Nixon's girlfriend, Katrina Walker. Walker and Nixon had been living with Hunter and Edwards' uncle, and the stabbing allegedly occurred at the uncle's home.

When investigator Melinda Wright went to the home, she found Nixon sitting on a power box in front of the house. She observed "a knot on his head and a swollen jaw." The sheriff's office's investigative report described the injuries as "superficial." Nixon told Wright that he had borrowed a car belonging to Edwards, that Edwards did not like it, and that what began as a verbal altercation ended in a physical altercation. Nixon denied stabbing the other men. He told the investigator he had been upstairs moving a television when one of the men hit him in the face and the other "jumped in[.]"

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Edwards, however, told the investigator that Nixon, his mother's boyfriend, had stabbed him and Hunter. Edwards denied that he and Hunter ever got "physical" with Nixon. Hunter told police that he and Edwards were standing outside the home when a male, whom he had never seen before, approached and without provocation, stabbed him and his brother. The sheriff's office's investigative report, however, stated that no blood was found in the driveway and that blood was found on the closet door outside Nixon's room, where Nixon said the altercation occurred. No weapon was found. Both Hunter and Edwards had stab wounds in their lower right abdomen areas.

The uncle's residence, where the incident allegedly occurred, had a Ring doorbell system with a camera which recorded some of the men's interactions outside the house. Wright, along with another investigator, Darrell Black, watched the Ring video, with the uncle's permission, on the uncle's cellphone. The video was not continuous, as it was motion-activated.

The uncle e-mailed the video to Black, and Black looked at his phone and saw that he had received an e-mail, but he did not view it at that time. The video was emailed on September 1, 2019. That same day, Black began uploading evidence to the sheriff's department's operating system, which is used for all reports and evidence.

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Black indicated in his report that he intended to download the Ring video and enter it into evidence. He downloaded photographs and other evidence from discs, thinking "that the Ring video was on there[,]" but, in fact, did not download the Ring video. Black testified this was a "[l]ack of experience and just being new to investigations and just making [a] human error mistake."

In January 2020, the State contacted Wright seeking a copy of the Ring video, and Wright responded that "the video is in evidence." Wright then asked Black to check on the video and thought no more about it until October 2020, when both Nixon and the State requested the video. Black looked for the video on his computer, his desktop, an external drive, and in his e-mail folders, including those for deleted e-mails. He did not have it, and realized he had not logged it in to evidence. He testified that his usual practice was to "bulk delete" e-mails when his inbox got full, and that he did not observe anything on the Ring video that made him think it should be deleted.

After realizing that the Ring video could not be found, Wright unsuccessfully attempted to contact the uncle, and a sheriff's department IT specialist searched the department's e-mail server, but the video could not be located. The sheriff's department had switched to a new computer system in October 2020, and "the old

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hard drives from all the previous computers which would have retained the e[-]mail had been destroyed[,]" making the e-mail "unrecoverable."

Nixon then moved to dismiss the charges against him, contending that the lost Ring video would have provided exculpatory evidence supporting his assertion that he was acting in self-defense. The trial court granted Nixon's motion to dismiss the charges, and the State filed the instant appeal.

1. The State first argues that the trial court erred in granting the motion to dismiss because it improperly found the Ring video to be constitutionally material, in that it had exculpatory value apparent to investigators before it was lost. Finding error, we agree.

Our review of a trial court's dismissal of an indictment based upon whether a "due process violation occurred as a result of the [State's] destruction of the [evidence] is a mixed question of law and fact. We review the court's factual conclusions under the clearly erroneous standard and the court's legal conclusions de novo." United States v. Revolorio-Ramo, 468 F.3d 771, 772, 774 (II) (11th Cir. 2006); see also State v. Scott, 344 Ga.App. 744 (811 S.E.2d 457) (2018) (finding that "[w]hen considering an appeal of a trial court's order on a motion to dismiss and/or quash an indictment, we review the trial court's interpretations of law and application of the

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law to the facts de novo and its findings of fact for clear error" in case addressing dismissal of indictment based upon claims that the State violated defendant's rights under Garrity v. New Jersey, 385 U.S. 493 (87 S.Ct. 616, 17 L.Ed.2d 562) (1967), which involves 14th Amendment protections against coerced confessions).[1]

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In evaluating whether a defendant's constitutional right to due process was violated when the state failed to preserve evidence that could be exculpatory, a court must determine both whether the evidence was material and whether the police acted in bad faith in failing to preserve the evidence. 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.

(Citation omitted.) Ash v. State, 312 Ga. 771, 787 (4) (865 S.E.2d 150) (2021); see also State v. Mussman, 289 Ga. 586, 590 (2) (713 S.E.2d 822) (2011) (applying this test where the State failed to preserve evidence that "could have been exculpatory, but where it is not known that the evidence would have been exculpatory," and reversing Court of Appeals determination that the State had committed a due process violation, where, assuming without deciding that the lost evidence was material, there was no evidence of bad faith) (emphasis omitted); State v. Miller, 287 Ga. 748, 754 (699 S.E.2d 316) (2010) (finding that the "threshold inquiry" is "whether the subject evidence is so material to the defense that it is of constitutional import" and that the exculpatory value of such evidence must, inter alia, be apparent before it is lost or destroyed).

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At the hearing on the motion to dismiss, Black testified that he recalled the video showing Hunter and Edwards in a verbal argument with Nixon, but that the video "did not show anything physical that I saw[,]" nor did it show any of the men threatening each other. The sheriff's office's investigative report stated that the video showed Hunter and Edwards confront Nixon in the driveway and begin arguing. Black testified that the video showed all three men go into the residence, with Hunter and Edwards following Nixon. Black could hear yelling but could not understand what they were saying because "[t]he audio was inaudible."[2] Once the brothers were

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outside, Black could hear the uncle telling them to get out of his house. He saw the uncle, outside the house, look at Hunter's injuries and tell Edwards to drive Hunter to the hospital. Black testified that the video did not impact his investigation, but merely corroborated what Edwards had told him about the argument, the driving of the car, and the men going into the house. Black's interpretation of the video "at the time did not make or break the case."

Wright testified that after she watched the video, "I felt we had enough probable cause to show that Mr. Nixon had stabbed the two boys." She testified that she could see on the video that Edwards was "very vocal about being upset" that Nixon had used his car, that she could hear a "verbal argument," and that she saw Nixon enter the residence with the other two men "behind him; they're just arguing." Then the video showed Edwards and Hunter taking clothes out of the house, and the investigator saw Edwards and Hunter coming out. Hunter "is holding his side and [Edwards] is saying, 'He stabbed my brother, Bro. He stabbed my brother.'" Then the uncle "told those boys to go to the hospital." Wright testified that the video was significant to her because it told the story of the crime, and...

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