The defendant, Jeffrey Bernier, appeals his conviction for driving while intoxicated. He argues that the trial court erred in denying his motion to dismiss for loss or destruction of evidence – namely, a booking video. We affirm.
The following facts are found in the limited record before us. On August 6, 2010, the defendant was stopped in Hampton Falls after a Hampton Falls police officer observed that his radar indicated that the defendant was driving twenty miles per hour over the speed limit. When he came to the defendant's truck, the officer observed that the defendant's face was flushed, "his eyes were red and watery, " and his speech was slurred. He also noticed an odor of alcohol as he spoke with him. When asked if he had been drinking, the defendant first said no but after subsequent questioning admitted that he had had three beers. Based upon the defendant's operation of his vehicle, the odor of alcohol, his admission that he had consumed alcohol, his performance on field sobriety tests and the police officer's conversations with and observations of the defendant, the police officer determined that he was "impaired and driving under the influence" and arrested him. Because the Hampton Falls Police Department does not have a booking area or an Intoxilyzer, the officer transported the defendant to the Seabrook Police Department for booking.
Three days later, on August 9, 2010, the defendant went to the Hampton Falls Police Department and requested a copy of his arrest report. By letter dated August 23, 2010, to the Rockingham County Attorney's Office, the defendant's counsel requested "all discovery in accordance with Rule 2.10 regarding Mr. Bernier's arrest and/or the charges pending." The letter went on to request, inter alia, "any and all video, photographic and audiotape evidence from this case" (bolding and capitalization omitted). On August 24, 2010, the Rockingham County Attorney's office mailed a discovery package to defense counsel; it did not include the booking video. Although we have not been provided with a copy of a transcript of the Administrative License Suspension hearing held in this case, the defendant represents in his brief that the hearing took place on September 24, 2010, at which time the arresting officer testified about the existence of the booking video.
More than a month later, on November 3, 2010, defense counsel filed a motion for discovery, including production of any video made at the time of the defendant's booking. It appears that a hearing was held on the defendant's motion for discovery; we have not been provided with a transcript of that hearing. The trial court's order noted that "the video at issue is erased every 90 days." Upon subsequent investigation, the prosecutor determined that defense counsel's August 23, 2010 letter had not been received by the County Attorney's Office and that the booking video had been erased. Defense counsel then filed a motion to dismiss, arguing that the video was material evidence and that its loss was prejudicial to him. The trial court denied the motion, finding no bad faith or culpable neglect on the part of the State. The court found: "Defendant knew as of September 24, 2010 that Officer Fowler had not requested that any video be preserved and did not specifically request the video until November 3, 2010. At that time, the State attempted to obtain the video but it had been destroyed."
In determining whether the loss of apparently relevant evidence has resulted in a denial of due process, the State has the burden to demonstrate that it acted both with good faith, in the sense that it was free of any intent to prejudice the defendant, and without culpable negligence. State v. Bruce, 147 N.H. 37, 40 (2001). If the State carries its burden, the defendant may not claim relief unless he demonstrates that the lost evidence was material, to the degree that its introduction would probably have led to a verdict of not guilty, and that its loss prejudiced him by precluding the introduction of evidence that would probably have led to a verdict in his favor. Id.
Based upon the record before us, we conclude that the trial court correctly found no bad faith or culpable negligence on the part of the State. The defendant argues that the trial court's ruling unfairly shifted the burden to him "to take affirmative action to ensure video evidence is preserved and made available by the [S]tate under Rule 2.10." He also argues that the trial court's decision "would require all discovery requests be made by certified mail, and necessitate extensive discovery motion practice in the district courts to ensure that relevant evidence is preserved." We are unpersuaded that the trial court's ruling in this case would have such ramifications. Because the defendant has not provided a transcript of the hearing on his motion for discovery, we assume that the trial court's findings are supported by the evidence. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004). In addition, the defendant avers in his brief that he was aware that there was a booking video at least as early as September 24, 2010, but took no additional steps to preserve it. Requiring a defendant to follow up on an earlier discovery letter that had already received a comprehensive response but that did not include the video does not shift the burden in the bad faith or culpable negligence analysis. Rather, it insures that in cases such as the one before us, requests for evidence have been received and completely answered. Had the trial court not believed that the State had not received the August 23 letter, its conclusion might well have been different.
Nor has the defendant carried his burden to demonstrate that the loss of the video would probably have affected the verdict. The evidence before the trial court included: (1) when stopped, the defendant first denied having had anything to drink and then admitted that he had had three beers; (2) he swerved twice into the center lane of traffic and then back to his travel lane; (3) he had a flushed face and red and watery eyes; (4) the arresting officer detected an odor of alcohol; (5) he failed three field sobriety tests and refused to take a breath test. On cross-examination, the arresting officer testified that the defendant did not exhibit signs of impairment at the booking station, where they arrived 45-50 minutes after the initial stop. Accordingly, to the extent that the booking video might have provided favorable evidence for the defendant, it would have been cumulative to the arresting officer's testimony. See id. at 41 (crucial point in evaluating prejudice suffered by defendant is whether the loss of physical evidence eliminates whatever exculpatory value evidence may have had); State v. Giordano, 138 N.H. 90, 95 (1993) (State's misplacement of twelve photographs did not prejudice defendant, as other evidence provided same facts as photographs would have supplied).
HICKS, CONBOY and LYNN, JJ., ...