1) the degree of negligence or bad faith involved,

2) the importance of the missing evidence considering the
probative value and reliability of secondary or substitute
evidence that remains available, and

3) the sufficiency of the other evidence produced at the trial to
sustain the conviction.’

The Superior Court has held that a Deberry instruction is not necessary in
instances where an MVR recording is unavailable due to a technological
malfunction.* In DeLoach, police attempted to record a DUI stop, but later
discovered the tape captured only static and ambient noise. The court held the
State had no duty to record all DUI traffic stops, and thus no duty to preserve
footage it inadvertently failed to gather.’ The court further stated that even if the
State did have a duty to record the stop, no consequences should flow from a
breach in absence of State negligence or bad faith, and substantial prejudice to
the defendant's case.* The court found there was no substantial prejudice to the
defendant because it was not clear the recording had significant probative value
in the case, and there was other evidence available to support a finding of
probable cause.’ The Court of Common Pleas engaged in identical analysis in
State v. Lanouette, 2012 WL 4857820 (Del. Com. Pl. Aug. 27, 2012)(holding
defendant not entitled to Deberry instruction where officer activated emergency

lights but MVR failed to record DUI stop because it was “a case of a

° Johnson v. State, 27 A.3d 541, 545-56 (Del. 2011) (internal citations omitted).

® DeLoach v. State, 2012 WL 2948188, at *4 (Del. Super. July 16, 2012).

7 Id.; State v. Lanouette, 2012 WL 4857820 (Del. Com. Pl. Aug. 27, 2012).

* DeLoach, 2012 WL 2948188, at *4 (citing Lunnon v. State, 710 A.2d 197 (Del. 1998)).
“Id.


interpretation of the record. Wyant’s credible testimony was that he activated his
emergency lights to initiate the traffic stop, which should have automatically
triggered the MVR system. Wyant proceeded with the good faith belief that the
MVR was recording. When Wyant could not find footage of the stop, he checked
his vehicle’s hard drive and disclosed the incident to his supervisor. Especially
significant to the Court was that after the MVR system began showing error
messages, Wyant submitted a trouble ticket detailing the problem. It is clear to
the Court that Wyant did not attempt to avoid recording the interaction, or
decide to delete the footage. Neither does the record reveal any negligence on
Wyant’s part. All of this taken together suggests that the absence of the recording
is attributable to a mechanical malfunction rather than human misdeed or
negligence. The Court cannot decide after only this Suppression Hearing
whether there is other reliable evidence to support a finding of probable cause.
The Court agrees with Defendant that a video may have been more probative
than the officer’s testimony, but believes this is an issue of weight. The Court will
consider the credibility of any testifying officers at trial.

Finally, Hunter v. State, 55 A.3d 360 (Del. 2012), decided subsequent to
DeLoach and Lanouetle, does not affect this analysis. In Hunter, the Delaware
Supreme Court found police had a duty to preserve a recording of the defendant
engaging in actions for which he was criminally charged. The Court stated

“increased diligence is required when a recording is made of an alleged event and


Tn a motion to dismiss, the Court should view the evidence presented in
the light most favorable to the State.’ Any genuine issues of material fact must be
left for the finder of fact.

Discussion

Defendant argues this case raises a Deberry v. State, 457 A.2d. 744 (Del.
1983) issue because the State failed to fulfill its duty to gather and/or preserve
the MVR video. Defendant further argues that the State’s breach warrants
dismissal of the charge against her or alternatively, that the Court should give
itself a Deberry missing evidence instruction. The State opposes the dismissal of
the case, and argues a missing evidence instruction is inappropriate to remedy a
technology malfunction.

The State has a general duty rooted in both the United States and the
Delaware Constitutions to gather and preserve evidence.‘ Claims that the State
has breached this duty must be analyzed as prescribed by Deberry. The Court
must determine

1) would the requested material, if extant in the possession of the State at

the time of the defense request, have been subject to disclosure under
Criminal Rule 16 or Brady [v. Maryland]?

2) if so, did the government have a duty to preserve the material?

3) if there was a duty to preserve, was the duty breached, and what

consequences should flow from a breach?

The consequences that should flow from a breach of the duty to gather or

preserve evidence are determined in accordance with a separate three-part
analysis which considers:

* State v. Baker, 679 A.2d 1002 (Del. Super. 1996).
* Id. at 1006.
+ Deberry v. State, 457 A.2d 744 (Del. 1983); Lolly v. State, 611 A.2d 956 (Del. 1992).


malfunctioning MVR video tape and not a situation where the State, even if it
had a duty to, negligently or in bad faith failed to collect and retain important
and potentially exculpatory evidence”).

Defendant argues this case is distinguishable from DeLoach and Lanouette,
because the Rehoboth Beach Police Department placed upon itself an affirmative
duty to gather MVR recordings. The Department’s Standard Operating
Procedure (SOP) requires police with MVRs to record “official interactions” with
the public, or articulate a reason for failing to do so." The Superior Court heard a
similar argument in Linwood. In that case, a Bridgeville Police Department officer
used a vehicle that had its MVR removed for maintenance to conduct a DUI stop.
Bridgeville Police Department SOP required officers to record traffic stops.
However, at the time, most of the department’s MVRs were broken. The
defendant in that case argued the Department SOP imposed a duty upon the
State to gather and preserve a video of the traffic stop. Since the officer did not
record the traffic stop, the defendant argued the charges against him should be
dismissed. The Superior Court held there was no duty, at law or self-imposed, to
record the DUI investigation at issue for the following reasons; first, the
defendant did not prove the Department or the Officer had a duty under the law
to record DUI investigations. Second, the SOP did not speak to situations where

an MVR was malfunctioning. In those instances, the Department's de facto policy

" Defendant’s Exhibit 1.



the defendant is subsequently charged in connection with the event.” 2
(Emphasis added). The facts in Hunter are distinguishable; in this case, the Court
finds that no recording was gathered, and then subsequently destroyed by a
State agent. Rather the MVR malfunctioned."
Conclusion

For the foregoing reasons, Defendant's motion to dismiss is DENIED, and
Defendant's motion for a Deberry instruction is DENIED.

IT ISSO ORDERED this 1b day of November, 2016.

pee

\

Vine Honorable Rogen\ary Betts Beaureg:

” Hunter, 55 A.3d at 369.
8 See State v. Wright, 2014 WL 6693953 (Del. Com. Pl. Sept. 25, 2014).


H GINAL

IN THE COURT OF COMMON PLEAS OF THE STATE OF DELAWARE
IN AND FOR SUSSEX COUNTY

THE STATE OF DELAWARE,
v.
No. C.R. 1502017085

Allison Thomas

Defendant.

Submitted October 14, 2016
Decided November 16, 2016

John Donahue, Esq., Deputy Attorney General
Eric Mooney, Esq., Attorney for Defendant

DECISION ON DEFENDANT’S MOTION TO DISMISS

Defendant Allison Thomas moves to dismiss a Driving Under the
Influence charge based upon an alleged Court of Common Pleas Criminal Rule
16 violation by the State. Alternatively, Defendant seeks a Deberry missing
evidence instruction. For the reasons discussed below, Defendant’s motion to
dismiss is DENIED, and Defendant’s motion for a Deberry instruction is

DENIED.

Procedural History and Facts

On May 9, 2016, the Court heard Defendant Allison Thomas’ motion to

preclude prosecution of a Driving Under the Influence charge. Testimony from

that hearing is as follows;



was for the officer to report the situation to a supervisor and then continue using
the assigned vehicle.

In this case, the Court finds the officers did not have a legal duty to record
the traffic stop.'' First, Defendant has not shown there is a duty at law to record
DUI investigations. Next, the SOP before the Court docs not appear to address
instances in which an MVR malfunctions. Regardless, based on the facts of this
case, it is unclear cither officer violated the SOP; Wyant has articulated a reason
he failed to record his interaction with Defendant. It is not clear this stop was an
“official interaction” for Edwards, who seems to have been on scene for safety,
rather than for investigatory purposes. Wyant testified it is not department
policy for every officer present to make MVR recordings.

Even if the State did have a duty to record and preserve the traffic stop, no
consequences should flow from this breach. The Court finds that the MVR
malfunctioned. Defendant argues the State offered no explanation why it failed
to collect or to preserve the recording, but the Court disagrees with this

"In general, the Court believes this particular Rehoboth Beach Police Department SOP imposes
an internal rule on officers, violation of which does not mean the State neglected its duty to
gather evidence “broad enough to encompass any material that could be favorable to a
defense.”See Johnson v. State, 27 A.3d 541 (Del. 2011) (internal citations omitted). Failure to abide
by certain SOPs may violate a defendant's constitutional rights. The SOPs addressing roadblocks
must be adhered to because they take the place of reasonable articulable suspicion. See generally
Delaware v. Prouse, 440 U.S. 648 (1979). When SOPs regarding proper scientific test administration
are unheeded the test results may be unreliable. See generally Hunter v. State, 55 A.3d 360 (Del.
2012). But the SOP at issue is not analogous to SOPs regarding roadblocks and administration of
scientific tests. Courts do not prescribe “exact procedures” the State must follow to fulfill their
duty. Rather “agencies should create rules for gathering and preserving evidence that are broad
enough to encompass any material that could be favorable to a defense.” johnson v. State, 27 A.3d
at 547. Presumably, then, noncompliance with this SOP does not necessarily mean a defendant's
constitutional rights have been violated. Furthermore, if the Court were to adopt Defendant's
argument, a perverse incentive might arise that the more rules an agency propagates in
furtherance of fulfilling its duty, the more susceptible it becomes to Deberry challenges.


On February 28, 2015, Rehoboth Beach Police Department officer Corporal
Wyant (“Wyant”) conducted a traffic stop and thereafter arrested Defendant for
allegedly Driving Under the Influence. The police vehicle Wyant used to conduct
the traffic stop was equipped with a mobile video recorder (“MVR”).

On the night of the stop, Wyant’s shift began at 7 p.m. on February 27,
2015. Upon taking possession of the police vehicle used that night, Wyant logged
into the MVR system. At approximately 11 p.m., Wyant activated his emergency
lights, and initiated the traffic stop at issue. An MVR automatically begins
recording when emergency lights are activated. Wyant did not notice anything
out of the ordinary to suggest the MVR system was malfunctioning at any point
before or during Defendant's traffic stop. Rehoboth Beach Police Sergeant
Edwards (“Edwards”) arrived on scene to direct traffic and provide safety
backup in a vehicle equipped with an MVR system shortly after Wyant stopped
Defendant. Wyant testified Edwards did not make a video of the stop. Edwards
did not testify.

After arresting Defendant, Wyant transported her to the Rehoboth Beach
Police Department. Wyant testified that MVR content is automatically wirelessly
extracted from the vehicle once it is in range, and placed on the police
department's server. Thereafter it is accessible to the officer on computers in the
police station.

Shortly after bringing Defendant to the police station, Wyant attempted to

access the recording on a police station computer by searching the Department



server. Wyant testified he searched for his name, which would have been
automatically embedded in any recording made while Wyant was logged into
the vehicle MVR system. Wyant was unable to find any MVR footage. Wyant
returned to the police vehicle to see if the recording was on the vehicle’s hard
drive. Once again, he did not find any footage. Wyant informed his Sergeant that
he was unable to find the MVR recording of Defendant's stop. After Defendant's
stop, Wyant’s MVR began displaying error messages. These messages occurred
with greater frequency as the night went on, and Wyant submitted a trouble
ticket to his sergeant describing the content and frequency of the messages on
February 28.'

After hearing testimony, the Court reserved its decision, and requested
the parties file further argument. Defendant submitted its briefing on June 7,
2016. The State filed on July 5, 2016. In belief that the Superior Court addressed
the same issue in State v. Linwood, C.R. $1506011514 (Del. Super. Sept. 7, 2016)
(TRANSCRIPT), the Court requested the parties supplement the record with a
copy of the transcript. Defendant filed her response on October 12, 2016, and the
State filed October 14, 2016.

Standard of review

' Defendant's Exhibit No. 2.