Lead Opinion
Appellant Terrence Melvin Koonce was convicted by a jury of driving under the influence (“DUI”), in violation of D.C.Code § 50-2206.11 (2012 Repl.).
I. Factual and Procedural Background
Late in the evening on November 2, 2012, appellant was involved in a multi-car accident on the 1400 block of Varnum Street, Northwest, Washington, D.C. The SUV appellant was driving collided with a Nissan Maxima, which in turn collided with a black Volkswagen, and the Volkswagen then crashed into a Honda Accord. Four cars were involved in this initial collision. Appellant then continued to drive westbound on Varnum Street, and when he attempted to turn north, the SUV collided with a Dodge pickup truck.' Appellant’s SUV spun the truck around, and the SUV collided with yet another car, traveling northbound. This collision left appellant’s SUV immobile, as the SUV became “locked into the left rear quarter panel” of the pickup truck. Appellant’s SUV had sustained significant damage to the front end and was missing a tire on the passenger side of the vehicle. The SUV appeared to have traveled some distance without the tire, driving on its rim.
Mr. Lloyd Bing, who lived on Varnum Street, left his home upon hearing the initial collision, observed appellant attempt to drive away from the scene of the accident, and saw the subsequent collisions. After appellant’s SUV came to a stop when it became locked with the Dodge pickup truck, Mr. Bing approached appellant’s SUV and called 9-1-1. He believed appellant was intoxicated based on his speech and movements. Metropolitan Police Department (MPD) officers responded to the scene of the accident, and testified that appellant “swayed back and forth,” had “slurred speech,” and a “strong odor of alcohol emanating from [his] breath.” Appellant was also “argumentative and belligerent.” Police officers found two open bottles in appellant’s car; one of vodka, and one of cranberry juice. The vodka bottle was removed, photographed, and discarded. MPD Officer Clifton Murphy testified at trial, while observing photographic evidence of the vodka bottle, that the seal had been broken and the bottle was approximately ninety-percent full.
At the scene of the accident, MPD Officer Oxenrider-Murphy
Appellant’s defense at trial focused largely on the government’s lack of evidence to prove his guilt beyond a reasonable doubt. Appellant also argued that the government failed to preserve important evidence, such as the vodka bottle recovered from appellant’s SUV and video recordings of appellant at the police station from the night appellant was brought to the Fourth District station, in violation of MPD General Orders. Appellant explained his appearance and actions at the scene as the result of having just been injured in a “major [car] accident.” It was appellant’s contention that the responding police officers mistakenly assumed he was intoxicated and took no steps to determine whether appellant was-suffering from injuries associated with the car accident.
The jury found appellant guilty of driving under the influence. He filed a timely appeal.
II. The Government’s Obligation to Preserve Discoverable Evidence
We have repeatedly recognized that the “government has -a general duty to preserve discoverable evidence under [Superior Court Criminal Rule] 16(a)(1)(C) and long-established case law.” Williams v. United States, 77 A.3d 425, 437 (D.C.2013) (quoting Bean v. United States, 17 A.3d 635, 638 (D.C.2011)).
When breach of a discovery rule has occurred, the trial court has authority to fashion an appropriate sanction. See Sheffield v. United States, 397 A.2d 963, 967 (D.C.1979) (citing Cotton v. United States, 388 A.2d 865, 869 (D.C.1978)). The imposition of sanctions, however, is not automatic, and the form of sanction imposed “may vary with the degree of culpability found.” Id. (citing Cotton, 388 A.2d at 870). We review the trial court’s decision to impose sanctions for abuse of discretion. Ferguson v. United States, 866 A.2d 54, 59 (D.C.2005); Gethers v. United States, 684 A.2d 1266, 1272 (D.C.1996). For sanctions short of dismissal for a due process violation, the trial court weighs three factors: “(1) the degree of [government] negligence or bad faith involved; (2) the importance of the evidence lost; and (3) the evidence of guilt adduced at trial in order to come to a determination that will serve the ends of justice.” United States v. Day, 697 A.2d 31, 35 (D.C.1997) (alteration in original) (quoting Cotton, 388 A.2d at 869).
A. The Defense Request and the Discovery Violation
In this case, defense counsel made a discovery request on December 7, 2012, the thirty-fourth day after appellant was arrested on November 2, 2012. The letter requested tangible evidence that is “material to the preparation of [appellant’s] defense or is intended for use by the government in its case in chief or was obtained from or belonged to the [appellant], pursuant to Super. Ct.Crim. R. 16.” This request clearly covered the bottle of vodka that officers said was found in appellant’s car. The defense letter also requested video of appellant “at the station.” The government did not produce the bottle or any video because it had not preserved them.
It is evident that a bottle of liquor found in the automobile of a person arrested for DUI is discoverable under Rule 16(a)(1)(C) because it is “material to the preparation of the defense” and because it “belonged”
Neither the bottle nor any of the station house video, however, was preserved as potentially discoverable evidence. The bottle of vodka found in appellant’s car was discarded and it appears that no attempt was made to preserve it.
We agree with the motions judge that the government’s failure to preserve and produce the requested evidence was a discovery violation. The government does not contest that if it had the items, they would have been discoverable. Rather, the government contends it had no obligation to preserve them. With respect to the bottle, the government’s argument is that its duty to preserve is limited to evidence “expected to play a significant role in the suspect’s defense” or that presented “an exculpatory value that was apparent before the evidence was destroyed,” citing Trombetta, 467 U.S. at 488, 104 S.Ct. 2528. As we have discussed, this is the standard under the Due Process Clause, which is significantly more stringent than the government’s discovery obligation under Rule 16’s broad test of “materiality” and, in any event, Rule 16 expressly covers an item seized by the government, such as the bottle in this case, that belonged to the defendant. We also disagree with the government’s assertion that “an officer might decline to preserve a bottle and its contents because he saw no need to do so, as indeed the officer here seemed to believe.” The government’s discovery obligations are measured by the standards set out in Rule 16, not the subjective notions of what an individual officer might “seem to believe.” See also note 14 infra.
With respect to the video, the government’s contention is that there is “nothing inherently wrong” with the practice of recording over the video every thirty days and that there existed “every opportunity to request the video sooner.” This contention is belied by the record in this case. The defense hand-delivered to the government a specific request for the station house video thirty-four days after appellant was arrested. The request alerted the government to the police department’s practice of periodically recording over previously recorded material, and requested immediate action on the request.
The record in this case demonstrates that these practices do not align with the government’s obligation to preserve evidence to which appellant was entitled. “The Rule 16 duty to disclose includes an obligation to preserve vital evidence within the government’s possession before prosecution begins.” Myers, 15 A.3d at 690. This is not to say that the government has an obligation to preserve every scrap of evidence that could turn out to be material in a case. Brown v. United States, 372 A.2d 557, 560 (D.C. 1977). Determining whether there is an obligation to preserve evidence depends on a reasonable expectation that it will fall within the scope of evidence that is discoverable under Rule 16, Jencks or the Constitution’s Due Process Clause. That is an assessment that the government needs to undertake, on a systemic basis, taking into account the discovery potential of evidence it routinely collects or captures (whether on video or by other means) and the steps needed to preserve it.
With respect to videos of DUI/OWI ar-restees, such as appellant, a determination of their potential as discoverable evidence is fairly straightforward. District of Columbia law creates a presumption of intoxication if a properly informed arrestee refuses to submit to testing. D.C.Code § 50 — 1905(b); see supra note 2. The law expressly provides that evidence of a defendant’s refusal to submit samples for chemical testing may be presented to the jury. See D.C.Code § 50-1905(c) (2012 Repl.). It is, therefore, to be expected that such evidence will be presented as part of the government’s case, as occurred at appellant’s trial. Moreover, it is also customary in DUI/OWI cases for the government to present the testimony of officers and other witnesses about their observations of the defendant’s appearance, speech and actions as a basis from which to infer intoxication and impairment. Therefore, in the statutory and evidentiary context of DUI/OWI prosecutions, it takes
It is for the government to establish procedures and practices to preserve such evidence. Technology and available resources will undoubtedly play a part in the government’s determination. However, a reasonable amount of time has to be allowed for the defense to make a discovery request, and for the government to respond to those requests. And it is critical that the police and the prosecutor’s practices not be viewed in isolation, but as an integrated system that is capable of responding to reasonably timely defense .requests for discoverable evidence.
In this regard, we also note that the practices that have come to light in this case are inconsistent with MPD policy as expressed in two General Orders that were introduced into evidence at appellant’s trial. “The policy of the Metropolitan Police Department is to preserve all material, which may constitute evidence, or may otherwise be pertinent in a subsequent criminal judicial proceeding.” MPD General Order 601.2 “Preservation of Potentially Discoverable Material” (Feb. 3, 2004) at Part II. “Policy.” Under the MPD’s General Order, “potentially discoverable material” is defined to “include[], but is not necessarily limited to, such items as tangible documents, reports, video/audio tapes, transcripts of video/audio tapes, and photographs.” Id. at Part III. “Definitions” (emphasis added). Potentially discoverable evidence is to be preserved “until the entire investigative jacket or case folder is disposed of,” or, “[i]f no criminal judicial proceeding has been initiated, the material shall be preserved for a period of three years from the date such material was first obtained.” Id. at Part V.B (1) & (2). See also MPD General Order 304.8 (Apr. 16, 1991) (“Members and/or investigators are reminded that the identification and collection of evidence should be a team effort, and that no item of evidence should be overlooked.”).
Even though the government failed in its obligation to preserve and produce the requested video and liquor bottle, as we explain in the next section, we conclude
B. Sanction for Discovery Violations
1. The Video at the Police Station
Appellant’s argument concerning the video is two-fold: (1) the government’s failure to preserve discoverable evidence in the form of video of his time in the police station violated his due process protections; and (2) the trial court’s choice of sanction levied on the government for its failure was an abuse of discretion.
Before trial, the defense sought to dismiss the case due to the government’s failure to preserve and produce the video. The motions judge found that the video recording of appellant while he was detained at the police station was material to the defense and was therefore discoverable under Rule 16, but that the government’s failure to preserve and produce the video was not the result of bad faith, as there was no “willful refusal” to preserve the requested evidence. Thus, although the judge found that the government’s failure to turn over the video was a discovery violation, dismissal was “too drastic a remedy.” The court’s finding that the government did not act in bad faith in this case is not plainly wrong, and is supported by sufficient evidence in the record of what appears to have been routine (even if ill-considered) practices. As there was no bad faith on the part of the government, appellant’s right to due process was not violated and dismissal was not required. See Youngblood, 488 U.S. at 58, 109 S.Ct. 333.
Our inquiry continues, as appellant argues that the sanction levied on the government by the trial court for the discovery violation was inadequate and constitutes an abuse of discretion. In this case, the trial court denied appellant’s request to instruct the jury to infer that the destroyed video supported appellant’s defense that he was not intoxicated. Instead, the trial court instructed the jury that a request for video from the station was made, but the video had been destroyed in accordance with MPD practice to record over video after thirty days, leaving it to the jury to draw its own conclusions.
The trial court’s instruction conveyed objective, impartial information about what had occurred and permitted the jury to “consider these facts and give them whatever significance [the jury] deem[s] appropriate in determining whether the government has proved its case beyond a reasonable doubt.” Given the trial court’s finding that the government’s failure to meet discovery obligations with respect to the video, though negligent, was not willful, and the other evidence in the case, we conclude that the sanction imposed by the trial court was “just under the circumstances.” Gethers, 684 A.2d at 1272 (citation omitted).
C. The Liquor Bottle.
Appellant contends that the trial court abused its discretion when it declined to sanction the government for failing to preserve the vodka bottle officers claimed to have found in appellant’s car. Appellant sought sanction in the form of suppression of the photographs taken of the bottle which showed that the seal was
Testimony at trial established that police officers found a bottle of Grey Goose vodka on the floor of appellant’s car, with the seal broken. Officer Murphy photographed the bottle, but did not preserve the bottle itself; instead, he just “threw it out.” Although the act of discarding the bottle itself was deliberate, the record does not support that the police acted in bad faith, for the purpose of preventing appellant from examining the bottle and its contents or making evidentiary use of the bottle at trial. See Bean, 17 A.3d at 638 (holding, on plain error review, that failure to preserve the bottle of alcohol did not violate defendant’s due process rights in prosecution for possession of an open container of alcohol when nothing in the record suggested bad faith on the part of the police); see also Cantizano v. United States, 614 A.2d 870, 873 (D.C.1992) (no bad faith when a police officer told an assault victim she could dispose of a paper towel used to wipe off substance defendant smeared on her face). Rather, as government counsel stated at trial, the officers “didn’t think about it” and the bottle was not kept or listed on the police property books.
Furthermore, while the discovery of the liquor bottle in appellant’s car corroborated other evidence presented by the government, it was not central to the government’s proof. The case turned on whether appellant was intoxicated, not on whether he had an open container of liquor in his car. Cf. Workman v. United States, 96 A.3d 678, 681-82 (D.C.2014) (reversing conviction for possession of open container of alcohol for insufficient evidence where only photographs of a tequila bottle in defendant’s car were admitted into evidence to support government’s case but police failed to secure bottle or testify as to its contents). In addition to photographs of the bottle, the government presented independent, substantial evidence of appellant’s intoxication. The jury heard testimony from multiple police officers, from a citizen-responder, and appellant’s own voice in the background of a 9-1-1 call, about the multi-car accident and appellant’s condition to support a finding that appellant had driven his car while intoxicated. Thus we do not believe that the “ends of justice” would be served by remanding for a new trial without the photographs as a sanction for the failure to preserve the bottle of vodka. Day, 697 A.2d at 36. Appellant has given no reason “to conclude that the availability of the [vodka] bottle would have made any difference in the outcome” of the trial. Bean, 17 A.3d at 638.
We also hold that the trial court did not abuse discretion when it admitted photographs of the vodka bottle into evidence. See Strozier v. United States, 991 A.2d 778, 783-84 (D.C.2010). The jury heard the testimony of two officers who saw the bottle in appellant’s car, and was made aware that the officers did not test its contents and discarded the bottle. The jury was also informed that the officers were familiar with two General Orders of
III. Criminal Jury Instruction No. 6.401 DUI-Refusal
Appellant’s final argument is that the trial court erred when it gave a jury instruction for “DUI refusal,” because appellant “never gave knowing, voluntary, and informed refusal to blood or chemical tests.” “Where an objection to a jury instruction was preserved at trial, we review the trial court’s decision to give the instruction for abuse of discretion.” Headspeth v. United States, 86 A.3d 559, 565 (D.C.2014) (citing Wheeler v. United States, 930 A.2d 232, 238 (D.C.2007)). The “central question for this court is whether [the instruction] is an adequate statement of the law, and whether it is supported by evidence in the case.” Wheeler, 930 A.2d at 238.
The trial court informed counsel for both parties that it would give the “instruction on DUI refusal [as it] appears in the red book,” and, as the defense had requested, did not instruct the jury about the rebutta-ble presumption created by D.C.Code § 50-1905(b). See supra note 2.
Under D.C.Code § 50-1905(c), an arres-tee’s refusal to submit specimens for chemical testing is admissible in a proceeding “arising as a result of the acts alleged to have been committed by the person before the arrest.” Thus, Criminal Jury Instruction for the District of Columbia, No. 6.401 (5th ed. Rev.2013), is appropriate when the jury has heard evidence that the defendant was asked to submit specimens for chemical testing and “may have refused to do so.” That is the instruction that was given in this case.
The government presented evidence that appellant refused to submit specimens for testing. There was testimony at trial that after appellant was arrested, he was placed in a holding cell, and Officer Oxen-rider-Murphy asked appellant if he was willing to provide a sample of his urine. Appellant “stated he wasn’t.” Officer Ox-enrider-Murphy then “asked if [appellant] was choosing to refuse because he stated that he wasn’t going to do any of it.” Appellant then “stated he refused.” Officer Oxenrider-Murphy left appellant to retrieve the Implied Consent Form, which
The instruction that was given did not direct the jury to infer that appellant had, in fact, refused. Rather, it reflected that the government had presented some evidence suggesting that appellant had refused to submit specimens for chemical testing. It permitted, but did not mandate, the jury to make reasonable inferences if it found that a request was made and that appellant had refused to submit to testing. Based on the evidence presented at trial, the trial court did not abuse its discretion when it gave jury instruction No. 6.401.
In sum, for the foregoing reasons we hold that there was no abuse of discretion or error requiring reversal of appellant’s DUI conviction.
The judgment of the trial court is
Affirmed.
. A separate charge of operating while impaired ("OWI”), in violation of D.C.Code § 50-2206.14 (2012 Repl.), was dismissed nolle prosequi.
. Officer Muiphy and Oxenrider-Murphy are married.
. Officer Oxenrider-Murphy testified that the Implied Consent Form is a standardized form that must be read to each individual who is arrested on the suspicion of driving under the influence in the District of Columbia. It is unclear exactly what information the Implied Consent Form contains, as there is no copy in
. "In the District of Columbia, the duty to preserve discoverable evidence dates back at least forty years, to the leading case of United States v. Bryant, 439 F.2d 642 (D.C.Cir.1971)." Myers v. United States, 15 A.3d 688, 690 (D.C.2011).
. Evidence in the possession of MPD is considered to be within the "custody or control” of the government. Robinson v. United States, 825 A.2d 318, 327 (D.C.2003).
. Where material, exculpatory evidence in the possession of the government is not preserved and disclosed to the defense, the Due Process Clause is violated, regardless of whether the government acted in good faith or bad faith. See Youngblood, 488 U.S. at 57, 109 S.Ct. 333 (referring to Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)). Materiality, for this purpose, means that the missing evidence “would have made a different result reasonably probable.” Kyles v. Whitley, 514 U.S. 419, 441, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).
.Although Rule 16 does not specifically list "video” as a discoverable item, it identifies "recorded statements made by the defendant ... within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government,” Super. Ct. Civ. R. 16(a)(1)(A), and "photographs, tangible objects ... within the possession, custody or control of the government....” Super. Ct.Crim. R. 16(a)(1)(C). We have little difficulty concluding that a video — a recordation of a succession of images that may or may not be accompanied by audio — comes within the purview of items that are discoverable evidence under Rule 16. See Myers, 15 A.3d at 690-91 (video from recording device on bus); United States v. Henriquez, 731 F.2d 131, 137 (2d Cir.1984) ("twenty-four hour continuously running tape recordings” of communications); United States v. Yevakpor, 419 F.Supp.2d 242, 252 (N.D.N.Y.2006) (video taken during border stop and search); State v. Allen, 2008 Me.Super. LEXIS 251 at *7, *10 (Me.2008) (video of blood alcohol level test conducted at county jail of person arrested on suspicion of DUI); see also Robinson, 825 A.2d at 321 (audio recording of telephone call made from prison).
. There was testimony at trial (and the jury was instructed) that MPD police stations have video cameras continuously recording both outside and inside the station. Defense counsel’s request, however, was not framed in terms of the location of the recording equipment but of its subject. Officer Clifton Murphy testified that there are fixed police cameras in each police station, including the Fourth District station where appellant was taken. He replied affirmatively when asked whether those cameras would capture images of "people being arrested who are brought into the station,” "during the booking process,” and “from the eellblock.”
. Because the video was destroyed there is no way to know whether it would have, in fact, been helpful to the defendant. Exculpatory value is obviously important in the due process analysis and in the determination of what is an appropriate sanction when evidence is lost or undisclosed. But it is not determinative of whether evidence is material and therefore discoverable under Rule 16.
. When asked what happened to the bottle of vodka he photographed, Officer Murphy, who was summoned to administer field sobriety tests, testified as follows:
*1016 I — I didn’t take it from the vehicle. I took a picture of it. I had left and there were still officers on the scene. We don’t usually take bottles of liquor as evidence just because they are liquid and they’re perishable items, so. And there’s a lot of — in order to — to take evidence that is a liquid, there’s a lot of different things you have to do, so it wasn’t — you know, it wasn't — I got a picture of it so I didn’t think I needed to take it.
. Government counsel explained to the trial court that when a particular video is recorded over is not a fixed date, but occurs "as space allows,” and that "space typically only allows until that thirty-day point." Thus, according to government counsel, it is possible that the-video might be available for a few additional days.
. The relevant portion of defense counsel's written request stated as follows:
I also request a copy of all videos taken of my client. This includes any videos taken of my client at the station. Many stations have surveillance cameras that would have captured images of my client. I request that all such videos be preserved so that I may view them. I will note that many surveillance camera tapes are only kept for a short period of time, so immediate action is necessary to preserve such evidence. Unless otherwise informed within ten business days of this letter, I will assume that there are no recorded police communications relevant to this case.
(bolding in original) (italicized emphasis added).
. The trial court commented on the handling of defense discovery requests:
[W]e have a very busy misdemeanor U.S. Attorney’s Office. I’m not excusing not looking into this, but, you know, these Ross-ser letters don’t get read the instant that they come in; and obviously, they don’t get studied. There are a lot of Rosser letters that come with all these cases.
And, for sure, it would have been the right thing to ... immediately — upon somebody becoming aware of [defense counsel’s] request, to take action to do something about it, 'cause I think it was a good request on [defense counsel's] part, in terms of representing your client, and thoughtful in that it would have been good for the government to see whether they could find these recordings so that they could produce the tapes. And, unfortunately, that didn’t happen.
. We note that there is no exception in these General Orders for liquids. Moreover, General Order 601.01 requires recordation of "all property that comes into the custody of a member of the department." General Order 601.01, Part I.B. ("PD Form 82 — Property Book”) & Part I.C. ("PD Form 81 — Property Record”). It provides for separate recordation and packaging of full bottles of alcohol depending on whether the seal is intact or missing/broken. Id. at Part I.D. (“Special Instructions”). Property taken at the time of arrest that is evidence of a crime is to be so identified in the Property Book, kept separate from other property taken from the arrestee, and marked "in a manner that does not deface or alter its appearance.” Id. at Part III.F. ("Evidence and Suspected Proceeds of Crime”).
. The trial court gave the following instruction:
*1020 As you have heard, videotapes are continuously recorded outside and inside the Fourth District station.
According to the government, these videotapes are recorded over approximately 30 days after they are first recorded. The videotapes are not recorded over until at least after 30 days.
The defendant was arrested on November 2nd, 2012 and taken to the Fourth District station. On December 7, 2012, defense counsel delivered to the Office of the Attorney General for the District of Columbia a discovery letter that included within it a request that the videotape at the Fourth District station from November 2nd, 2012 be preserved. The videotape from November 2nd, 2012 no longer exists and has not been viewed by any counsel. There is no information about exactly when the videotape from November 2nd, 2012 was recorded over. You may consider these facts and give them whatever significance you deem appropriate in determining whether the government has proved its case beyond a reasonable doubt.
. As the trial court observed, "[t]he fact is that a request was made. It’s possible that this videotape was still in existence at that time or soon thereafter, and because nobody did anything to preserve it, it doesn't exist now.”
. Appellant did not testify. Thus, there was no evidence to question that the bottle’s contents were anything other than what the label indicated. To the contrary, other evidence supported that the bottle was filled with vodka. Officers testified that there was also a bottle of cranberry juice in appellant’s car, which, the jury could find, was meant as a mixer for the vodka. Appellant told the officers at the scene that "it was his birthday and his girlfriend was with him and that she wouldn’t come along.”
. The government argues that this claim is waived under the "invited error” doctrine because defense counsel "agreed” with the trial court's proposed course of action. Appellant contends, however, that defense counsel’s agreement was to the court’s decision not to instruct the jury about the statutory rebuttable presumption, but not to the instruction itself. We need not resolve counsel's disagreement, nor need we apply plain error review, for we perceive no error at all.
. The trial court instructed as follows:
You have heard evidence that het defendant, at the time of his arrest, was asked to submit to chemical testing of his blood, urine or breath for the purpose of determining blood alcohol content and may have refused to do so. It is up to you to decide whether [there was] such a request and whether he refused to obey that request. If you find that he did refuse to submit to a request for chemical testing, you may consider his refusal as tending to show his feelings of guilt, which you may, in turn, consider as tending to show actual guilt. On the other hand, you may also consider that he may have refused for reasons that are fully consistent with innocence in this case. If you find that the defendant refused to submit to chemical testing, you should give the evidence as much weight as in your judgment it deserves.
Concurrence Opinion
concurring in the judgment:
I agree that the trial court did not abuse its discretion in responding to the government’s failure to produce in discovery (1) a liquor bottle that officers testified they found in the car Mr. Koonce had been driving; and (2) police-station video that may have depicted Mr. Koonce’s condition after Mr. Koonce was arrested. I also agree that the trial court did not abuse its discretion in instructing the jury about Mr. Koonce’s refusal to submit samples for chemical testing. I therefore concur in the judgment. I write separately, however, because I cannot join the court’s discussion of the question whether the police had a duty to preserve the police-station video.
My reservations about the court’s discussion of that question are in large part procedural. First, the discussion is unnecessary to the resolution of the appeal, given the court’s holding that the trial court did not abuse its discretion in selecting the appropriate sanction for any discovery violations. Second, the parties have not briefed the question whether the government had a duty to preserve the police-station video. Rather, they essentially take as a given the trial court’s finding of a discovery violation. Third, whether, and if so in what circumstances, the government has a duty under Rule 16 of the Superior Court Rules of Criminal Procedure to preserve police-station surveillance video is a question of first impression in this court, and the opinion for the court in this case does not cite pertinent authority from other jurisdictions addressing the question. Fourth, as I briefly explain infra, the question seems to me more difficult than is
Given the foregoing, I am not inclined to add extended dicta of my own about whether the police violated a duty to preserve video evidence in this case. I do, however, have three brief observations. First, I tentatively agree with the court’s suggestion that whether the police have a duty under Rule 16 to preserve a given item of potential evidence turns on whether, at the relevant time, the police reasonably should have appreciated a sufficient likelihood that the item would be discoverable in a prosecution. Cf. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988) (assessing due-process claim, Court refuses to “impos[e] on the police an undifferentiated and absolute duty to retain and preserve all material that might be of conceivable evidentiary significance in a particular prosecution[,]” and instead adopting standard that “limits the extent of the police’s obligation to preserve evidence to reasonable bounds”); California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) (under Due Process Clause, duty to preserve evidence does not arise unless evidence “possess[ed] an exculpatory value that was apparent before the evidence was destroyed”); Gerlich v. United States Dep’t of Justice, 404 U.S.App.D.C. 256, 265-66, 711 F.3d 161, 170-72 (2013) (in civil litigation, party has duty to preserve records “likely relevant” to reasonably foreseeable future litigation). My views on this point are tentative, however, because the parties have not briefed the point, the court in this case does not cite pertinent authority, and my quick search has not located clear authority on the point from this court or other courts.
Second, assuming that the duty to preserve an item turns on whether the police should reasonably have appreciated a sufficient likelihood that the item would be discoverable, the issue then becomes what degree of likelihood is sufficient. The parties have not briefed that issue, the court in this case does not cite pertinent authority on the issue, and my quick search has not shed meaningful light on the issue.
Third, assuming that we knew what degree of likelihood is sufficient, the next issue would be whether the police should reasonably have understood that police-station video in this case was sufficiently likely to be discoverable. I have reservations about both the legal and the factual aspects of the court’s brief discussion of that issue. On the legal side, the court relies primarily on a case involving police-
In sum, the court’s opinion unnecessarily addresses in dicta an important question of first impression, without the benefit of briefing by the parties. I also have substantial reservations about the court’s discussion of the question. I therefore respectfully concur only in the judgment.