The State v. Mcneil.

• Decision Date: 23 March 2011
• Docket Number: No. A10A1674.,A10A1674.
• Parties: The STATEv.McNEIL.
• Court: Georgia Court of Appeals

308 Ga.App. 633

708 S.E.2d 590

The STATE

v.McNEIL.

No. A10A1674.

Court of Appeals of Georgia.

March 23, 2011.

Patrick H. Head, Dist. Atty., Dana J. Norman, John Richard Edwards, Amelia Greeson Pray, Asst. Dist. Attys., for appellant.Kimberly Keheley Frye, for appellee.DILLARD, Judge.

Lyna Nicole McNeil was indicted on one count each of possessing cocaine, possessing less than an ounce of marijuana, and possessing an open container of alcoholic beverage in a motor vehicle. McNeil moved to dismiss these charges following the destruction of the master recording of the traffic stop that led to her arrest. The trial court granted this motion, and the State appeals the dismissal of the charges, contending that the trial court misapplied this Court's decision in State v. Miller,¹ which interpreted the Supreme Court of the United States's holdings in California v. Trombetta ² and Arizona v. Youngblood.³ We reverse the trial court for the reasons noted infra.

The record shows that McNeil was the passenger in a vehicle driven by Corey McCoy, which Cobb County Sheriff's officers observed traveling southbound on South Cobb Drive while patrolling that area. The officers noticed that McCoy's vehicle did not have a tag, and a traffic stop was initiated and ultimately made just over the county line in Fulton County.

Once the vehicle stopped, McCoy was investigated by the officers for driving under the influence, but he was ultimately arrested for driving with a suspended license. During the investigation of McCoy, the officers noticed an open beer can between McNeil's seat and the passenger-side door. At this point, however, McNeil was not arrested with McCoy. Instead, McNeil was told by the officers that she was free to leave. Nevertheless, because the officers believed McNeil was intoxicated, she was told to call a friend or family member to pick her up. Unfortunately for McNeil, the hour was late (approaching 2:30 a.m.), and those she contacted for a ride home were either unable or unwilling to comply with her request. McNeil's fate seemed to take a turn for the better, however, when one of the responding officers—who arrived after McCoy's arrest—kindly offered to drive her home; and McNeil accepted this gracious offer.⁴ Before departing, however, the officer first asked to check McNeil's purse for weapons as a safety precaution. McNeil consented to this search, and there, in plain view, the officer saw two small bags containing cocaine and marijuana on top of the purse's other contents. McNeil was then arrested and ultimately indicted on one count each of possessing cocaine, possessing less than an ounce of marijuana, and possessing the open container of alcoholic beverage that was in the vehicle.

Thereafter, at a motion to suppress hearing, McNeil questioned why a copied DVD of the traffic stop provided by the State did not contain the officers' pursuit of McCoy's vehicle or her eventual search and arrest. This mattered to McNeil because she claimed that, upon her arrest, McCoy chivalrously yelled from the patrol car that the drugs in her purse actually belonged to him. The copied DVD of the traffic stop, however, began at the Fulton County gas station where McCoy and McNeil were stopped and arrested, and it did not contain any of the officers' interactions with McNeil. According to the officers, this was because the recording was manually stopped when they believed their investigation had concluded—i.e., when McCoy was arrested and placed in the back of the patrol car. Thus, the search of McNeil's purse was not recorded.

Additionally, because the recording of the stop began after the officers activated their emergency equipment, the copied DVD also did not show any of the actual pursuit of McCoy's vehicle as it crossed over from Cobb County into Fulton County.⁵ In general, initiating the patrol car's emergency equipment will result in a “pre-record,” in which the recorder jumps back to tape what occurred in approximately the half-minute before the equipment was initiated, thereby capturing the driving infractions. And here, the officers originally believed that the patrol car's recording system had malfunctioned because the copied DVD did not contain this “pre-record” of the stop of McCoy's vehicle.

McNeil eventually subpoenaed the master DVD to compare it to the copied DVD presented by the State at the motion-to-suppress hearing. This subpoena, however, was not delivered until the Friday before McNeil's Tuesday trial date. And because it would have taken an officer hours to manually copy the master DVD (and he was already scheduled to work multiple shifts that weekend), the State simply agreed to meet with McNeil's counsel to view the master DVD at the Cobb County District Attorney's Office the evening before trial.

A few hours before the scheduled viewing of the master DVD, an officer previewed the DVD and advised the District Attorney's Office that a “pre-record” did in fact exist but had not been included in the copied DVD provided to McNeil.⁶ According to the officer, the “pre-record” showed the patrol car pulling out onto South Cobb Drive, the initiation of the stop, and the actual stopping of McCoy's vehicle at the Fulton County gas station. The officer also viewed the traffic stops recorded both before and after stopping McCoy's vehicle, and he testified that these buffering incidents had absolutely nothing to do with McNeil's case, thus showing that the officers never reinitiated the recording device after McCoy's arrest and that there was no recording of McCoy's alleged statements that the drugs in McNeil's purse belonged to him. The assistant district attorney, however, never viewed the master DVD, and prior to speaking with the officer before the meeting, he was not familiar with its contents.

When McNeil's counsel arrived at the Cobb County District Attorney's Office, there were immediate issues with viewing the master DVD. Despite the assistant district attorney's best efforts and attempts at using his computer and a DVD player, the master DVD would not play. Eventually, a tech-savvy investigator was summoned to see if he could get the master DVD to play. Upon arriving, the investigator ejected the DVD,⁷ examined it, and placed it back inside the player. He then attempted to eject the master DVD again, but instead of ejecting, the player reformatted the DVD sua sponte, erasing its content. Attempts to thereafter play the master DVD were to no avail, and the State could not explain how or why the machine reformatted the DVD. McNeil's counsel was present during the entire incident and filed an amended motion to dismiss the following day.⁸

After hearing the evidence on McNeil's motion to dismiss, the trial court explicitly stated that it did not believe the State had intentionally destroyed the master DVD in bad faith. The court, nevertheless, concluded that the master DVD could have contained material exculpatory evidence and that McNeil could not obtain comparable evidence through other reasonable means. Specifically, the trial court was concerned that it could not determine what was on the master DVD and that, if what McNeil claimed was true (i.e., that the master DVD might have shown McCoy claiming the drugs as his own and that venue was improper), this evidence would have been materially exculpatory, at least in part. For this reason, the trial court granted McNeil's motion to dismiss the State's charges against her. This appeal by the State follows.

On appeal, the State contends that the trial court misapplied this Court's holding in State v. Miller.⁹ At the outset, however, we note that our decision in Miller—which is relied upon by both parties and was relied upon by the trial court—has since been overruled by the Supreme Court of Georgia,¹⁰ and it is this decision that controls our decision in the case sub judice.

In Miller, we addressed a trial court's dismissal of charges following the State's destruction of a cell phone that a criminal defendant claimed contained contact information for potential alibi witnesses.¹¹ We affirmed the dismissal, agreeing with the trial court that the evidence was potentially exculpatory and that the State “had engaged in conscious wrongdoing and thus acted in bad faith.” ¹² Our Supreme Court disagreed with the standard we set forth in Miller,¹³ holding that the cell phone in that case did not rise to the level of constitutional materiality, which is the “threshold inquiry” in such matters.¹⁴ In order to rise to that level, the exculpatory value of the evidence must be apparent before its loss or destruction, and the evidence must be “of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” ¹⁵ Finally, our Supreme Court concluded that the cell phone's destruction in Miller was “accurately characterized as an unfortunate series of mishandlings, mistakes, and negligence by police,” such that there was no showing of bad faith by the State.¹⁶

Applying the foregoing standard in the case sub judice, we disagree with the trial court that the master DVD rose to the level of constitutional materiality; rather, the lost evidence in McNeil's case was at best potentially exculpatory.¹⁷ And while we understand the trial court's trepidation over its inability to review the master DVD,¹⁸ the record before us does not support a finding that the loss of the master DVD's contents required dismissal of McNeil's charges. First, there was testimony at the motion hearing that the master DVD's “pre-record” showed the officers' pursuit from Cobb County into Fulton County and that the master DVD did not contain anything else relevant to McNeil's arrest; thus, nothing suggests that this evidence had apparent exculpatory value.¹⁹ Second, we do not believe McNeil is unable to obtain comparable evidence. To the contrary, she may cross-examine the officers regarding the venue issue and McCoy's alleged...