State v. Schmidt

• Decision Date: 07 June 2012
• Docket Number: No. 20110234.,20110234.
• Citation: 2012 ND 120,817 N.W.2d 332
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Steven Allen SCHMIDT, Defendant and Appellant.
• Court: North Dakota Supreme Court

817 N.W.2d 332

2012 ND 120

STATE of North Dakota, Plaintiff and Appellee,

v.Steven Allen SCHMIDT, Defendant and Appellant.

No. 20110234.

Supreme Court of North Dakota.

June 7, 2012.

Brian D. Grosinger, Assistant State's Attorney, Mandan, N.D., for plaintiff and appellee.

Travis W. Finck, Bismarck, N.D., for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Steven Schmidt appeals from a criminal judgment after a jury found him guilty of theft of property. We affirm, concluding the district court did not err in denying Schmidt's motion to suppress evidence and his proposed jury instruction, and the court did not abuse its discretion in denying his pre-trial motion.

I

[¶ 2] On November 1, 2010, after speaking with her financial institution, Capitol Credit Union, and noting suspicious withdrawals from her savings account, Heidi Blum notified the Mandan Police Department about two unauthorized uses of her automated teller machine (“ATM”) card. Blum claimed someone used her ATM card on October 31, 2010, at two separate locations in Mandan—Central Market and Dakota Express, a grocery store and a gas station and convenience store, respectively—to withdraw $165 from her bank account without her consent. During her conversation with Capitol Credit Union, Blum learned that Capitol Credit Union had mailed a new ATM card to her address and that it had separately mailed to the same address a corresponding personal identification number. Blum, however, had moved and no longer lived at that address. As part of the investigation, a Mandan police officer learned Schmidt and his girlfriend resided at the address where Capitol Credit Union had mailed Blum's new ATM card and corresponding personal identification number.

[¶ 3] The police officer also investigated the two locations of the alleged unauthorized uses of Blum's ATM card. The police officer learned Central Market did not have video surveillance showing its ATM. The officer asked David Mees, the owner of Dakota Express, for a copy of in-store surveillance video showing the ATM at the time of one of the suspicious withdrawals. According to the police officer, Mees informed her the video showed a white male, approximately fifty years old, walk into the store, walk to the area of the ATM, and walk out of the store while putting something into his wallet. Mees also informed the police officer he printed a still photo of the man and left it at the gas station for her to pick up. The police officer picked up the photo, but never received the video from Mees before the video surveillance system recorded over the original video.

[¶ 4] The police officer arrested Schmidt after questioning him and his girlfriend about receiving mail not addressed to them at their residence, and after obtaining the still photo from Mees, which showed Schmidt leaving Dakota Express at approximately the same time a suspicious withdrawal was made using Blum's ATM card. The State charged Schmidt with theft of property. Before trial, Schmidt moved to suppress the still photo obtained from the Dakota Express surveillance video and any testimony based upon the photo or the video, arguing the State failed to collect and preserve material, exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court denied Schmidt's motion. Schmidt also moved to limit trial testimony of the still photo only to the testimony personally recalled by Mees or ascertainable from the photo and to exclude any testimony about the surveillance video. The court denied Schmidt's motion as well as his proposed jury instruction requiring an adverse inference about the absence of the video recording at trial. A jury found Schmidt guilty of theft of property.

[¶ 5] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27–05–06. Schmidt timely appealed from the criminal judgment under N.D.R.App.P. 4(b). We have jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29–28–06.

II

[¶ 6] Schmidt argues the district court abused its discretion in denying his motion to suppress and his pre-trial motion to limit trial testimony of the still photo and exclude testimony about the surveillance video. Schmidt also argues the court erred in denying his proposed jury instruction.

A

[¶ 7] Schmidt argues the district court violated his due process rights under the North Dakota and United States Constitutions in denying his motion to suppress evidence.

[¶ 8] When we review a district court's denial of a motion to suppress evidence, “we defer to the district court's findings of fact and resolve conflicts in testimony in favor of affirmance.” State v. Smith, 2005 ND 21, ¶ 11, 691 N.W.2d 203. “We will affirm a district court's decision if ‘there is sufficient competent evidence fairly capable of supporting the trial court's findings, and the decision is not contrary to the manifest weight of the evidence.’ ” Id. (quoting City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994)). “ ‘We evaluate the evidence presented to see, based on the standard of review, if it supports the findings of fact.’ ” Id. (quoting Thompson, 520 N.W.2d at 581). Schmidt's argument implicates a constitutional due process issue, which is a question of law. See State v. Burr, 1999 ND 143, ¶ 9, 598 N.W.2d 147. Questions of law are fully reviewable on appeal. Smith, at ¶ 11.

[¶ 9] Schmidt argues, in investigating the alleged crime, the State failed to preserve and provide him evidence favorable to him under Brady, resulting in a violation of his due process rights. He claims the State failed to preserve the surveillance video from Dakota Express. He argues the State allowed the video to be destroyed, because the police officer did not take steps to preserve the video before the video surveillance system recorded over the video. Schmidt argues the video was material and exculpatory and, under Brady, the State unconstitutionally destroyed the video. Schmidt also argues the State acted in bad faith in allowing the video to be destroyed, because it was destroyed by Mees, a potential witness in the case. As a result, Schmidt argues, the court erred in admitting a still photograph taken from the video as well as any testimony about the video.

[¶ 10] In Brady, “the United States Supreme Court held that suppression by the prosecution of evidence favorable to an accused violates due process if the evidence is material to guilt or punishment.” Rümmer v. State, 2006 ND 216, ¶ 21, 722 N.W.2d 528 (quoting Syvertson v. State, 2005 ND 128, ¶ 6, 699 N.W.2d 855) (emphasis added). The suppressed “evidence is material if ‘there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ” Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (quoting United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)).

[¶ 11] Rule 16, N.D.R.Crim.P., governs discovery practices in criminal cases in North Dakota and is a reciprocal discovery rule, listing the duties and obligations of a prosecutor and a defendant when conducting discovery. “The prosecutor has a duty to preserve evidence that is material and favorable to the defendant.” State v. Steffes, 500 N.W.2d 608, 612 (N.D.1993); N.D.R.Crim.P. 16(a)(1). “A prosecutor's failure to do so may be held to violate the defendant's constitutional right to due process and a fair trial.” Steffes, at 612;N.D.R.Crim.P. 16(d)(2).

[¶ 12] In Steffes, 500 N.W.2d at 612, this Court summarized three categories of cases in which courts “have attempted to analyze an accused's right to due process when prosecutors fail[ed] to provide evidence to the defense which [was] within, or potentially within, their purview.” The three categories of cases involving the conduct of the State, which resulted in the loss of evidence, include: “(1) the [S]tate's failure to collect evidence in the first instance, (2) the [S]tate's failure to preserve evidence once it has been collected, and (3) the [S]tate's suppression of evidence which has been collected and preserved.” Id. (emphasis added).

[¶ 13] Schmidt argues the State committed a Brady violation under the second category articulated in Steffes because Mees collected the surveillance video from his gas station and the State failed to preserve the video. Schmidt's argument, however, misreads the Brady standard. Under the three categories articulated in Steffes, a Brady analysis is appropriate only in cases classified under the third category, involving “the [S]tate's suppression of evidence which has been collected and preserved.” Steffes, 500 N.W.2d at 612. In Brady, 373 U.S. at 84–86, 83 S.Ct. 1194, the prosecution suppressed material statements made by a co-defendant that would have been favorable to Brady in his defense, despite defense counsel's request for the statements. The United States Supreme Court held that “[t]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83 S.Ct. 1194. This case is not factually analogous to Brady, because the State did not suppress evidence that it had already collected and preserved. Instead, the police officer never collected the video recording from Mees in the first instance. As a result, cases like Brady and its progeny, “in which the issue centers around the state's suppression of evidence[,] are distinguishable and not precedential to [Schmidt's] case.” Steffes, at 613.

[¶ 14] It is also improper to analyze the State's actions in this case under the second category articulated in Steffes, despite Schmidt's argument to the contrary. In Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), the United States Supreme Court opined on ...