State v. DaoustState v. Daoust
Decided: November 19, 2021
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David L. Toska, City of Toledo Prosecuting Attorney, and Christopher D. Lawrence, Assistant Prosecuting Attorney, for appellant.
Laurel A. Kendall, for appellee.
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MAYLE, J.
{¶ 1} Appellant, the city of Toledo, appeals the March 25, 2021 judgment of the Toledo Municipal Court granting a motion to suppress filed by appellee, Jalen Daoust. For the following reasons, we reverse.
{¶ 2} On August 17, 2019, Daoust was charged by complaint of obstructing official business in violation of
did obstruct and delay [Adams] by getting out of the vehicle after [Adams] attempted to initiate a traffic stop. [Adams] assisted his partner after the driver fled on foot and the vehicle was gone. * * * The defendant did impede and attempted to prevent [Adams’s] performance during his official lawful duty by attempting to leave the area in the vehicle.
{¶ 3} Daoust initially pleaded no contest to the charge. The trial court reserved its finding on the plea and referred Daoust to the probation department to be admitted into something called the “Alternatives Program.”1 Daoust twice failed to appear for the Alternatives Program. After the second failure to appear, the court set the case for a hearing on March 18, 2020, which it vacated “due to COVID19 concerns and to protect the citizens * * *.”
{¶ 4} Daoust’s next court date was on June 11, 2020, which was scheduled as a trial date. However, the docket shows that the court did not hold a trial, but allowed
{¶ 5} Daoust did not appear for the trial date on July 9. He was not apprehended on the bench warrant that the trial court issued until November 9, 2020, at which time the court set the case for trial on December 9, 2020. The trial did not proceed that day.
{¶ 6} Following the December trial date, Daoust’s attorney filed a request for discovery, in which he requested that the court order “all law enforcement personnel to preserve all evidence accumulated in the course of their investigation of this case, including, but not limited to all recordings, video, audio or otherwise * * *.” The discovery response that the city provided did not indicate that any type of audio or video recording was available for Daoust’s attorney to examine or copy.
{¶ 7} On February 4, 2021, Daoust filed a motion to suppress, alleging that the city violated his Fourteenth Amendment rights by failing to preserve “potentially useful” evidence—i.e., video footage from the arresting officers’ body cameras and dashboard camera. In his motion, Daoust explained the following events leading to his arrest, which were apparently taken from the police report of the incident.
{¶ 8} On August 17, 2019, Adams and his partner saw a car run a stop sign. The officers activated the dashboard camera in their patrol car and followed the car. When the officers caught up to the car at another stop sign, the driver fled. Daoust, who was in the passenger seat, got out of the car, but stayed nearby.
{¶ 10} The officers’ report of the arrest indicated that the patrol car’s dash camera and the officers’ body cameras were activated during the interaction, but the city did not disclose any videos in response to Daoust’s request for discovery. Daoust also claimed that the city “has indicated that body and dash camera footage from the date of the offense does not exist as the Toledo Police Department cannot find that footage.” He argued that the TPD violated its policy of retaining for three years any digital recordings that are classified as arrest evidence, and that the city violated his Fourteenth Amendment right to due process by failing to preserve relevant, exculpatory evidence.
{¶ 11} In its response, the city explained that the TPD no longer had the video footage Daoust sought because
on July 18, 2020, the computer servers that store and house all of Toledo Police dash and body cam[ video footage] suffered a catastrophe. Videos that had been tagged and saved for evidence, were deleted and lost while trying to migrate to a new “cloud” storage space. All of these videos had been tagged and saved pursuant to the Toledo Police Department manual.
Unfortunately, through no fault of anyone, this failure resulted in the destruction of an untold number of body and dash camera videos.
{¶ 12} The city argued that the loss of the videos did not amount to a violation of Daoust’s due process rights for several reasons. First, it pointed out that the videos were lost before Daoust filed his discovery request seeking to preserve the footage, making the cases Daoust cited in support of his motion distinguishable. Second, Daoust could not meet his burden of showing that the lost footage was materially exculpatory. Finally, even if the court determined that the city had the burden of proof, the city argued that, at best, the videos were potentially useful, and the hardware failure did not amount to the city destroying the videos in bad faith, so there was no due process violation. The city also pointed out that Daoust’s codefendant was in the car in the time leading up to the initial traffic stop, and was present—albeit in the backseat of Adams’s patrol car—at the time of Daoust’s arrest, which meant that Daoust had a witness who could testify to the events that led to the obstructing charge against Daoust.
{¶ 13} On March 25, 2021, the trial court held a suppression hearing. At the hearing, the city presented the testimony of Adams and sergeant James Cornell Jr., the commander of the TPD’s technical services unit.
{¶ 14} Adams confirmed that he was wearing a body camera at the time of Daoust’s arrest, and, to the best of his knowledge, the camera was working properly. After each use of the body cam, the officer is required to categorize or “flag” the type of
{¶ 15} On cross-examination, Adams said that he and his partner followed the driver when the driver fled. They arrested Daoust “less than a minute” after the driver ran from the car. He confirmed that the driver was under arrest and separated from Daoust at the point when the officers arrested Daoust, and agreed with defense counsel that the driver could not “actually testify as to what occurred that day * * *[.]” However, on redirect, Adams agreed with the prosecutor’s statement that the “other gentleman could come into court and tell the Judge exactly what happened prior to him running from that vehicle[.]”
{¶ 16} Following Adams’s testimony, the city called Cornell. He testified that he is in charge of what is, essentially, the TPD’s information technology department.
{¶ 17} Cornell first explained how patrol officers upload dash- and body-camera videos into the TPD computer system. He said that, after the camera records a video, a voice from the camera asks the officer how he wants to classify the video—for example, as arrest evidence, traffic stop, or DUI. When the officer returns to the station, he attaches the camera to a docking station, which takes the video from the camera and, at the time of Daoust’s arrest, uploaded it to computer servers maintained by the TPD. After a video is successfully uploaded to the TPD’s system, the software creates a
{¶ 18} How the officer classifies the video is important because it determines how long the TPD retains the video pursuant to its evidence-retention policy. Anything classified as “arrest evidence” is supposed to be retained for three years. Generally, after a video’s retention period passes, the system automatically deletes the file, but retains the thumbnail image with red line through it to indicate that the file existed on the system at one point, but had been deleted.
{¶ 19} When Cornell searched for videos related to the stop and arrest involving Daoust, he did not find a video or a thumbnail with a red line through it. Instead, he saw “a black background with the word G-Tech2 across it[,]” which, to him, meant “[t]rouble.” Cornell explained that
[u]nfortunately, in the latter part of 2020, with everything else we went through, we had a catastrophic disk failure of this on-site server unbeknownst to us. First and foremost, it was a hardware failure. It was not any accidental failure due to any human interaction with that. It was
just a hardware disk failure. We didn’t realize it until we had a [sic] error with disk writing, we noticed things weren’t uploading. When we checked into it, we thought we still had space. Turns out it was full. Then when we started working on it, we found we had disk failure.
As a result of the server failure, the TPD “lost some data[,]” including the dash- and body-camera videos from Daoust’s arrest. Cornell emphasized that Adams correctly uploaded and classified the video from the arrest, but the video was lost “due to the drive failure, no human interaction or anything.”
{¶ 20} On cross-examination, Cornell defined the “catastrophic failure” of the TPD storage system as “a full array failure, disk drive failure. These drives were dead; they were not recoverable. The video was not recoverable, so in my mind it’s a catastrophe and it failed because of hardware issues.” He could not say when, exactly, the video from Daoust’s arrest was deleted. He conceded that “multiple videos” were lost as a result of the hardware failure, and explained that the deleted videos were not from any specific period of time. Rather, there was “no rhyme or reason” to which videos the system chose to delete, other than the videos being stored on the hard drive that failed. Cornell also said that the TPD did not have a backup system in place at the time of the drive failure, so there were no other copies of the lost files, and there was no way for the TPD to recover the lost videos.
{¶ 22} After hearing the testimony and arguments from counsel, the trial court issued its ruling from the bench. The court explained that the state’s failure to preserve materially exculpatory evidence is a violation of a defendant’s Fourteenth Amendment due process rights. It defined materially exculpatory evidence as evidence that “is of an exculpatory value that was apparent before it was destroyed and is of such nature that the defendant would be unable to obtain comparable evidence by any other means.” The court noted that, although the burden of proving that a piece of evidence is materially exculpatory generally rests on the defendant, once the defendant files a motion to
{¶ 23} Regarding the facts of the arrest, the court found that Adams pursued Daoust’s codefendant when he fled, but was able to catch the driver “in a very short time and return to the scene and at that point [Adams] observed [Daoust’s] conduct.” Adams specifically testified that the codefendant was not “present for [Daoust’s] activity or conduct * * *.” Based on this testimony, the court determined that evidence of Daoust’s conduct could not be corroborated or obtained by other means. The court also found that Adams had his dash and body cameras on at the time of the arrest, and that he properly flagged the videos, as required by TPD policy, which triggered a three-year retention period for the videos. This led the court to conclude that Adams did not act in bad faith or in a manner that was negligent or unmindful of his duties. In short, “[i]t appears as if [Adams] did everything he was supposed to do as a road officer.”
{¶ 24} Regarding the loss of the arrest videos, the court found that, in September or October 2020, the TPD “began a migration of their video system into the Cloud and there was a catastrophic failure of such migration.” Based on Cornell’s testimony, the court found that the videos were lost
not through any bad faith of TPD; it was not through any human error or neglect by TPD; it was a catastrophic failure due to software. There is an additional issue with this being in the middle of a pandemic and, therefore,
people who mind the servers or mind this migration were simply not present because we were short-staffed, if not closed. So, certainly, the TPD in effecting this migration did not act in bad faith.
{¶ 25} The court reiterated its belief that the burden of proving that the video was not materially exculpatory was on the city, and the court “cannot find that the [city] has met that burden based on the testimony.” The court reached this determination for several reasons: (1) it was “equally possible that the video could be exculpatory or inculpatory“; (2) the video evidence was “unique” and “not obtained [sic] by any other means“; (3) “the tape would be the only possible objective evidence of [Daoust’s] conduct * * *“; and (4) regarding constitutional issues, if the trial court was “going to err, I have to err in favor of someone’s liberty—when someone’s liberty is at stake and in his favor.” The court’s ruling suppressed the entirety of Adams’s testimony.
{¶ 26} After the court issued its ruling, the city asked the court to reconsider on the basis that the court’s determination that the video was equally likely to exculpatory as it was to be inculpatory “would essentially mean the video was potentially useful, which the analysis then flows to unless bad faith is established, due process rights are not violated.” The court denied the city’s request. As a result, the city dismissed the case against Daoust, without prejudice, and informed the trial court that it would be appealing the court’s ruling.
[H]earing held on [Daoust’s] motion to suppress. Ct finds state has burden to show destroyed tape was not exculpatory. The state has failed to meet its burden. The evidence of the recording of [Daoust’s] conduct is unique & not obtainable by other means, as it would have provided the only possible objective evidence of [Daoust’s] conduct. Therefore the Ct holds that [Daoust’s] Due Process rights were violated when the state destroyed the video evidence that [Daoust] specifically requested. Motion to suppress officer’s testimony granted.
The court also noted that it was dismissing the case at the city’s request.
{¶ 28} The city now appeals, raising one assignment of error:
The trial court erred in granting Defendant’s motion to supress [sic] [.]
II. Law and Analysis
{¶ 29} In its assignment of error, the city argues that the trial court improperly shifted the burden of establishing that the video was not materially exculpatory to the city—despite the video being lost through a computer hardware malfunction before Daoust filed his motion to preserve the video—and Daoust would not be able to prove that the contents of the lost video are materially exculpatory.
{¶ 31} Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. The trial court acts as the trier of fact. Although we must accept any findings of fact that are supported by competent, credible evidence, we conduct a de novo review to determine whether the facts satisfy the applicable legal standard, and this independent review is done without deference to the trial court. State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, 10 N.E.3d 691, ¶ 7, citing Burnside at ¶ 8; State v. Jones-Bateman, 6th Dist. Wood Nos. WD-11-074 and WD-11-075, 2013-Ohio-4739, ¶ 9.
{¶ 32} Our decision in this appeal turns on which party had the burden of proof related to the missing video evidence.
{¶ 33} Lost or destroyed evidence in criminal cases is classified into two types: materially exculpatory and potentially useful. Evidence is materially exculpatory if its
{¶ 34} On the other hand, evidence is potentially useful if “no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” Arizona v. Youngblood, 488 U.S. 51, 57, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). For destruction of potentially useful evidence to rise to the level of a due process violation, the defendant must show bad faith on behalf of the state. Powell at ¶ 76. Bad faith generally requires something more than bad judgment or negligence; it requires dishonesty, conscious wrongdoing, ulterior motive, or ill will. Id. at ¶ 81.
{¶ 35} In the normal case of lost or destroyed evidence, the defendant bears the burden of showing that the missing evidence was materially exculpatory, or, if the evidence was only potentially useful, of showing that the state acted in bad faith. Powell at ¶ 74, 77. However, we have recognized a narrow exception to this general rule. In cases where the defendant makes a specific request to have the evidence preserved, and the evidence is lost or destroyed after the prosecution is put on notice of the defendant’s request, the burden of proof shifts to the state to show that the evidence was not materially exculpatory. State v. Benton, 136 Ohio App.3d 801, 805, 737 N.E.2d 1046 (6th Dist.2000), citing Columbus v. Forest, 36 Ohio App.3d 169, 173, 522 N.E.2d 52 (10th Dist.1987); State v. Nastick, 2017-Ohio-5626, 94 N.E.3d 139, ¶ 11 (9th Dist.), quoting State v. Glunt, 10th Dist. Franklin No. 09AP-962, 2010-Ohio-3024, ¶ 10 (“‘[I]n cases where a defendant has made a specific request for preservation of a particular piece of evidence and the evidence has been subsequently lost or destroyed, whether inadvertently or not, the burden shifts to the state to show that the evidence was not material.‘“); but see State v. Beavers, 2012-Ohio-6222, 986 N.E.2d 516, ¶ 12-26 (2d Dist.) (rejecting the burden-shifting approach created by Forest as unsanctioned by either the Supreme Court of Ohio or the Supreme Court of the United States). Stated in the obverse, “when the request [to preserve evidence] occurred after the video was destroyed, the defendant has the burden to prove the missing evidence is materially exculpatory.” State v. Fornshell, 1st Dist. Hamilton No. C-180267, 2021-Ohio-674, ¶ 39 (Zayas, J., concurring).
{¶ 36} Daoust’s case does not fall into this narrow exception. It is undisputed that Daoust filed his motion to preserve the video from his arrest in December 2020. It is also undisputed that the hard drive malfunction that resulted in the video being deleted from the TPD servers happened sometime before September or October 2020, when that malfunction was discovered while the TPD was migrating its data to a cloud-based
{¶ 37} By shifting the burden to the city, the trial court applied the wrong legal standard in reaching its decision on Daoust’s motion to suppress. Thus, the trial court erred in suppressing Adams’s testimony. See State v. Burns, 2d Dist. Montgomery No. 28633, 2020-Ohio-2848, ¶ 12-13 (trial court’s application of wrong legal standard in determining motion to suppress was reversible error).
{¶ 38} In this case, the trial court’s error resulted in the party who must ultimately present evidence sufficient to show that he is entitled to relief—i.e., Daoust—participating in the suppression hearing under the mistaken belief that he was not the one required to make a case. Under these circumstances, we must remand the case so that the trial can hold a new suppression hearing at which Daoust has the opportunity to prove that his due process rights were violated by the inadvertent deletion of the arrest video.
{¶ 39} The city’s assignment of error is well-taken.
III. Conclusion
{¶ 40} Because the trial court improperly placed the burden of proving the exculpatory character of the video on the city—rather than on Daoust—it applied the wrong legal standard in reaching its decision to suppress Adams’s testimony regarding his arrest of Daoust. Therefore, the March 25, 2021 judgment of the Toledo Municipal Court is reversed, and this matter is remanded to the trial court. On remand, the court should hold another suppression hearing so that Daoust has the opportunity to present any additional evidence he may have to support his burden of showing that the deleted video was either materially exculpatory or that it was potentially useful and destroyed in bad faith. Daoust is ordered to pay the costs of this appeal pursuant to
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
Christine E. Mayle, J.
Myron C. Duhart, J.
CONCUR.
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This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.