County Criminal Court: CRIMINAL PROCEDURE – Dismissal – The trial court properly granted Appellee’s motion to dismiss finding that the officers acted in bad faith by not videotaping the DUI investigation of Appellee.  Affirmed.  State v. Schiedenhelm, No. CRC09006627CFAWS, (Fla. 6th Cir.App.Ct. March 4, 2011).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

STATE OF FLORIDA,     

                        Appellant,

                                                                        UCN:              512009CF006627A000WS

v.                                                                     Case No:       09-6627-CFAWS

                                                                        Lower No:    09-445MMAWS

 

KEVIN P. SCHIEDENHELM,                                           

                        Appellee.                                                      

_____________________________/

Appeal from Pasco County Court

County Judge Anne Wansboro

 

Chris Sprowls, A.S.A.

for Appellant

 

Matthew R. Easterwood, Esq.

for Appellee

 

 

 

ORDER AND OPINION

 

            The State appeals the trial court’s order granting Appellee’s motion to dismiss.  In a well-written and thoughtful order, Judge Wansboro dismissed Appellee’s four counts finding that the officer acted in bad faith by not videotaping the DUI investigation.  The State argues that Appellee did not have a due process right in the police department’s standard operating procedures, there was insufficient evidence to establish that the officer knew the evidence was exclupatory, and that Appellee did not meet its burden of establishing bad faith.  This court finds that the trial court properly dismissed the case and affirms the trial court’s order as set forth below.

FACTUAL BACKGROUND

Officer Jerry Kirkpatrick with the New Port Richey Police Department was the DUI officer called to investigate an accident involving Appellee on January 21, 2009.  At the hearing on the motion to dismiss, Officer Kirkpatrick testified that no video was made of the investigation because either he did not have a camera in his car or the camera was not working.  The report did not indicate why a video was not made.  Officer Kirkpatrick could not remember which car he was driving, but he was assigned a Dodge Charger that was equipped with a camera system.  After refreshing his memory by looking at a copy of his deposition, Officer Kirkpatrick did not think that he was driving the Dodge Charger, rather a marked cruiser that likely was not equipped with a camera system. 

            Officer Kirkpatrick knew about the standard operating procedure in General Order 58, which he believed stated that if the equipment is not working, the shift supervisor needed to be notified.  New Port Richey Police Department’s General Order C-58 V(A)-(H) states:

A.         Officers with in car video equipment will record all events surrounding the stop    and arrest of a suspect, traffic stop, pursuits, and field sobriety testing.

B.         Officers will ensure that their in-car video equipment (including audio) is activated            during every stop.

C.         Officers will inspect and check in-car video equipment in their assigned vehicle at            the beginning of each shift as follows:

            a.         Begin record audio/video

            b.         Play back video to ensure equipment is working

D.         Officers will be held accountable for all video equipment-including microphones.             Officers will report any missing or inoperative equipment immediately to the shift       supervisor.

E.         If the in-car video equipment is not functioning properly, the shift supervisor will notify the Patrol Commander.  Officers shall not attempt to repair the in-car video            equipment.  All hardware repairs will be made by the manufacturing or           designated repair facility.

F.         During video recording traffic stops, officers should be aware of the distance     between them, and positioning of the violator vehicle and patrol vehicle.  The           officer should make every attempt to ensure his/her contact with violator is being       recorded.

G.         When conducting a DUI investigation, all field sobriety testing will be videotaped.            If the violator is arrested for DUI and refuses to submit to a breath test, implied           consent will be videotaped.

H.         While recording a DUI investigation, officers will properly use street lighting, low beam headlights, and spotlight to illuminate the testing area.  Front emergency      lighting will be turned off during the testing, unless required for officer safety.  

           

Officer Kirkpatrick explained that if his shift supervisor was already aware of an equipment issue, it was unnecessary to inform the supervisor again that the equipment was still down.  There were situations when it was not possible to notify the shift supervisor.  Officer Kirkpatrick testified that he understood the standard operating procedure to state that an officer only has to inform the supervisor if available.  At times, officers are called upon to deal with an emergency the moment their shift begins, rendering it impossible to inform the shift supervisor immediately at the start of a shift. 

At the hearing, defense counsel asked Officer Kirkpatrick whether there was a minimum of five to ten police cruisers at the scene.  He responded, “Yes, sir.  There were several.”  Officer Kirkpatrick did not know whether one of those vehicles had an operating camera in it; it was possible, but he did not know with complete certainty.  Officer Kirkpatrick would agree that if there is a camera system that they are to use it, and that is what he would have done if he had one that was operational.  The camera system in his Charger sometimes malfunctioned, although he was not sure that he was even driving it.  If a video were to have been created, it would have included Officer Kirkpatrick’s initial interactions, Appellee’s field sobriety exercises, his statement that he was too drunk to continue, Appellee’s slurred speech, and whether Appellee defecated in his pants.

On cross-examination by the State, Officer Kirkpatrick testified that the incident occurred ten months prior and he has since conducted twenty to fifty investigations in every shift since.  Officer Kirkpatrick testified that he was not in his assigned Charger that night, but a marked car.  Some marked cars have video systems, but all do not.  Officer Kirkpatrick did not know whether or not the car he was driving had a video system or not.  The marked cars had the old VHS mobile vision camera in them, many of which were broken because it was difficult to repair them due to their age and outdated parts.  The Chargers, however, have the updated digital video systems.  The older VHS systems do not have to be turned on; that is the same for the newer systems too.  The video begins when the emergency lights are turned on and will date back thirty seconds.  An officer would not have to and could not manually turn on a switch. 

On that night, Officer Kirkpatrick would have turned on his lights because he was responding to an injury crash.  When the emergency lights are on, the video is automatically on.  Had Officer Kirkpatrick been in his Charger that night, the video would have been on and recording because the emergency lights were on.  It would have recorded the initial contact with Appellant and the field sobriety exercises.  Appellant’s eyes were bloodshot, watery, and glassy.  His breath smelled of alcohol.  Officer Kirkpatrick stopped the field sobriety exercises because Appellant stated that he was too drunk to continue.  No videos were taken of any portion of the investigation.  Sometimes an officer would not know that his video system was not working until the investigation was completed and the officer went back to look at the video.  Officer Kirkpatrick testified that he did not intentionally try to shut off his video. 

On redirect, Officer Kirkpatrick testified that he was trained to use the digital video systems in the Charger.  The video systems in the Chargers did not have a direct upload to the department’s server.  To upload the video to the server, the officer has to hit the send button.  The video would be saved regardless of what the officers did.  An officer would need administrative rights to delete any video.  Although officers check their equipment each time they start their shifts, the video system could still blow fuses or suddenly stop working during their shifts.  It was an ongoing problem with which Captain Baker was constantly addressing.  The only reason a video would not be made was if the equipment was not working.

A disinterested witness, Corey Garcia, witnessed the traffic crash at Highway 19 and Troublecreek.  He provided a written statement to the police.  One law enforcement officer on the scene arrived driving a Dodge Charger and parked it in the northbound left turn lane at the intersection.  Mr. Garcia could not remember whether it was parked there the entire time.  Mr. Garcia testified that he saw two individuals (the passenger and the driver) get out of the car that crashed.  An individual involved in the traffic crash was taken to the Denny’s parking lot on the southeast corner of the intersection to perform field sobriety exercises.  There were several officers around him.  Mr. Garcia did not know which cars belonged to which officers. 

Kyle Bauld, the passenger in Mr. Garcia’s car, testified that shortly after the crash, he noticed several law enforcement officers arrive at the scene.  One officer, who performed the field sobriety exercises, was driving a Charger and parked it on the northbound left turn lane.  The field sobriety exercises occurred on the southeast corner of the intersection in the Denny’s parking lot.  There were two other police vehicles in the Denny’s parking lot during that time.  The individual was handcuffed, walked across a portion of the street, and placed in the back of the Charger still parked in the intersection.  The Charger was parked there the entire time.  Mr. Bauld was only familiar with Dodge Chargers in that he heard that they are DUI officers’ cars, but he did not know how the gadgets inside work or its technology.  He also provided a written statement.    

Appellee testified that he rear-ended a Honda Accord at the corner of US 19 and Troublecreek.  He was wearing his seatbelt and the airbag deployed.  Appellee lost consciousness for an uncertain amount of time at impact.  He was not sure how he got out of the car, but Appellee took another fall in the Denny’s parking lot.  He fell, hit the wall, and smacked his head on the sidewalk.  Appellant lost consciousness again for an unknown amount of time. 

Appellee heard Officer Kirkpatrick say that he had slurred speech.  He was sure that his speech was slurred that night because it is always slurred due to his lack of any teeth for the past sixteen years.  Appellee does not have any false teeth or dentures.  Appellee also heard Officer Kirkpatrick assess his performance on the walk-and-turn test.  Appellee agreed that he stumbled because he got dizzy.  Appellee heard Officer Kirkpatrick tell the other officers that he said he was too drunk to continue, but Appellant denied ever saying that. 

After the walk-and-turn test, Appellee was placed under arrest.  He was not asked to perform any other field sobriety exercises.  After being handcuffed, Appellee was taken to Officer Kirkpatrick’s Dodge Charger parked in the turning lane at US 19 and Troublecreek.  He remained in that car until Officer Kirkpatrick transported him to jail.  Appellee denied being drunk that night.  He had two beers and one shot of tequila during a two and a half to three hour period.  Appellee left work at 8 o’clock that night.  He was almost home when he stopped at US 19 and Moog Road where he played pool and drank.  The passenger in his car was also drinking and had an open container, which would have spilled when Appellant crashed. 

Appellee heard Officer Kirkpatrick’s testimony and that there was no videotape made.  Appellee believed that if a videotape were to have been made, it would have shown that he was sober and only suffering from a head injury.  If the case were to go trial, the videotape would have helped his case. 

On February 23, 2009, Appellee was charged with three counts of DUI with property damage and one count of Second Refusal to Submit to a Breath Test.  Appellee filed a motion to dismiss based on his violation of rights from material exculpatory and impeaching evidence having been lost or destroyed by law enforcement to his prejudice, on September 21, 2009.  After the hearing on the motion, Judge Wansboro entered an order granting Appellee’s motion to dismiss, on November 9, 2009.  The State filed a timely notice of appeal.

 

   

LAW AND ANALYSIS

            A trial court is in the best position to evaluate the credibility of witnesses, and appellate courts are obligated to give great deference to the findings of the trial court. Porter v. State, 788 So. 2d 917, 923 (Fla. 2001).  As such, an appellate court must interpret evidence and reasonable inferences in a manner most favorable to upholding the trial court’s ruling.  Smith v. State, 28 So. 3d 838 (Fla. 2009).  An appellate court may not substitute its judgment for that of the trier of fact and reevaluate the evidence.  Id., at 857.  If there is any competent evidence to support the trier of fact’s factual determination, it must be sustained.  Id. 

            While it was undisputed that no videotape was made of the DUI investigation, the trial court made other factual findings.  The trial court specifically found that Officer Kirkpatrick was driving his Dodge Charger.  The Dodge Charger had in-video equipment at the time, but it was uncertain whether or not the video equipment was operational.  Significantly, the trial court further determined that Officer Kirkpatrick parked and left his Dodge Charger facing a direction in which the field sobriety exercises could not have been captured on video—and that Officer Kirkpatrick made no effort to use the video cameras in any of the law enforcement vehicles present.  The record in this case supports the trial court's findings establishing bad faith, which cannot be ignored by this Court.

The State argues that Appellee had no due process right in the New Port Richey Police Department’s standard operating procedures.  The issue is not whether Appellee has due process rights in NPRPD’s standard operating procedure; rather, it is whether the violation of the standard operating procedures affects Appellee’s right to fundamental fairness in his criminal prosecution.  The trial court correctly ruled that the violation affected Appellee’s right to fundamental fairness.  Under the due process clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fairness, guaranteeing that criminal defendants be afforded a meaningful opportunity to present complete defenses.  California v. Trombetta, 467 U.S. 479 (1984).   An accused’s due process rights are implicated and violated when an agency’s evidence gathering and collecting policy is not followed due to the bad faith actions of that agency’s officers.  See, e.g.,  Smiddy v. State, 627 So. 2d 1257 (Fla. 3d DCA 1994); State v. Betts, 659 So. 2d 1137 (Fla. 5th DCA 1995).  Appellee’s due process rights were affected by the bad faith actions of Officer Kirkpatrick during his DUI investigation.

After a law enforcement agency establishes a policy regarding the gathering of evidence, it has a duty to comply with that policy.  State v. Powers, 555 So. 2d 888 (Fla. 2d DCA 1990).  New Port Richey Police Department’s policy is clear and unconditional that DUI investigations be recorded.  It is the burden of the New Port Richey Police Department to conduct their investigations pursuant to their standing policy absent compelling reasons. Since the New Port Richey Police Department established this mandatory policy, Officer Kirkpatrick was required to record his investigation of Appellee.  Officer Kirkpatrick, however, made no attempt to record the field sobriety exercises and purposefully parked his cruiser in a position that could not capture the investigation.  The bad faith violations of the New Port Richey Police Department’s mandatory policy resulted in a violation of the Appellee’s due process rights and warranted dismissal.  See, State v. Powers, 555 So. 2d 888 (Fla. 2d DCA 1990).  It is therefore,

 

            ORDERED AND ADJUDGED that the trial court’s order granting Appellee’s motion to dismiss is hereby AFFIRMED.

 

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 4th day of March 2011.

            Original order entered on March 4, 2011 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.