Marteze Armondo Butler v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 21, 2018
• Docket: 18A-CR-1399
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 21 2018, 11:05 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Sally Skodinski Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Marteze Armondo Butler, November 21, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1399 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Jeffrey L. Sanford, Appellee-Plaintiff. Judge Trial Court Cause No. 71D03-1710-F6-992

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1399 | November 21, 2018 Page 1 of 10 Statement of the Case

[1] Marteze Butler (“Butler”) appeals his conviction, following a jury trial, of Level

6 felony auto theft.1 Butler argues that the trial court abused its discretion when

it denied his motion to exclude the testimony of four witnesses regarding what

they observed on an unavailable surveillance video. Finding no error, we

affirm the trial court’s decision.

[2] We affirm.

Issue

Whether the trial court abused its discretion when it allowed four witnesses to testify about the contents of an unavailable surveillance video. Facts

[3] On October 20, 2017, David Thorpe (“Thorpe”) parked his car in a parking

space at a Discount Liquor store in South Bend. He left his keys, cell phone,

checkbook, and registration inside the car while he went inside the store to

purchase liquor. Thorpe left the liquor store and realized that his car was no

longer in the parking space. He went back inside Discount Liquor and told the

store clerk, Inderbut Singh (“Singh”), and the store’s security guard, Javon

1 IND. CODE § 35-43-4-2.5(b)(1) (repealed, effective July 1, 2018). The jury also found Butler guilty of Class A misdemeanor conversion, but the trial court dismissed this conviction citing “double jeopardy” reasons at sentencing. (Tr. 181).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1399 | November 21, 2018 Page 2 of 10 Scruggs (“Scruggs”), what had happened. The three men watched the

surveillance video recorded by a camera outside the store. The camera was

located on the side of the building and pointed directly at the location where

Thorpe had parked his car. In the surveillance video, Thorpe, Singh, and

Scruggs observed an individual with a distinctive hairstyle wearing a brown

jacket and blue jeans enter Thorpe’s car and drive off in it. Scruggs, who had

worked for the liquor store for nine years, recognized that the brown jacket

from the surveillance video belonged to a regular customer who lived in a

nearby apartment complex, but he could not remember the customer’s name.

[4] Thorpe called the police, and South Bend Police Department Officer Benjamin

Canarecci (“Officer Canarecci”) arrived at the store. Officer Canarecci

reviewed the surveillance video and spoke with Thorpe, Singh, and Scruggs.

Scruggs informed Officer Canarecci that he believed the individual in the video

lived in a nearby apartment complex. Neither Singh nor Scruggs were able to

download the surveillance video for Officer Canarecci that night. Singh told

Officer Canarecci that the owners of the store would download the video and

give it to the police at a later time.

[5] Officer Canarecci left the store and drove to the nearby apartment complex and

patrolled the area. He located Thorpe’s car in the apartment complex parking

lot. Thereafter, Officer Canarecci observed Butler walking in the area, wearing

the same clothes as the individual in the surveillance video. Officer Canarecci

ordered Butler to stop, but Butler kept walking, took off his brown jacket, and

threw it in the grass. Officer Canarecci arrested Butler, collected the brown

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1399 | November 21, 2018 Page 3 of 10 jacket as evidence and took Butler back to the liquor store. Singh and Scruggs

identified Butler as the individual they observed in the surveillance video

stealing Thorpe’s car.

[6] On October 23, 2017, the State charged Butler with Level 6 felony auto theft,

and Class A misdemeanor conversion. On two occasions, the State requested

the liquor store’s surveillance video, but it was informed that the store’s owners

had not given the tape to the police. Eventually, the police obtained the

surveillance video. However, the video “ended up being messed up, or [the

police] didn’t do something right.” (Tr. 65). The video was either lost or

destroyed and was not entered into evidence at Butler’s trial.

[7] On the morning of Butler’s jury trial, defense counsel filed a written motion to

exclude the testimony of Thorpe, Singh, Scruggs, and Officer Canarecci

(“State’s witnesses”) regarding their observations from the surveillance video.

Counsel specifically argued that this evidence violated Indiana Evidence Rules

1004, 1002, 403, and Butler’s federal and state constitutional rights to confront

the witnesses against him. Citing Indiana Evidence Rule 1004, the trial court

denied Butler’s motion to exclude the testimony. The trial court explained:

It’s unfortunate -- this is why cases are lost because the police in their job of investigating offenses don’t follow through. But I don’t see that the police acted in bad faith. I don’t see that the State acted in bad faith.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1399 | November 21, 2018 Page 4 of 10 (Tr. 10). Thereafter, the State’s witnesses each testified at trial and recounted

what they had seen in the recording.2 They described seeing Butler, who was

wearing a brown jacket, jeans, and had distinctive hair, enter Thorpe’s car and

drive off. The jury found Butler guilty of both counts. He was sentenced to

time served for the Level 6 felony conviction and the trial court dismissed the

Class A misdemeanor citing “double jeopardy” reasons. (Tr. 181). Butler now

appeals.

Decision

[8] Butler maintains that the trial court abused its discretion when it allowed four

witnesses to testify about the contents of an unavailable surveillance video.

Specifically, Butler contends that the State’s witnesses’ testimony was admitted

in violation of his due process rights because the State failed to preserve the

surveillance video upon which their testimony is predicated.

[9] The admission and exclusion of evidence falls within the sound discretion of

the trial court, and we review the admission of evidence only for an abuse of

discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of

discretion occurs when the trial court’s decision is clearly against the logic and

2 In open court, the trial court denied Butler’s motion to exclude. As a result, it noted his continuing objection to the witnesses’ testimony throughout the trial.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1399 | November 21, 2018 Page 5 of 10 effect of the facts and circumstances before it. Conley v. State, 972 N.E.2d 864,

871 (Ind. 2012), reh’g denied.

[10] The State argues that Butler has waived appellate review of his admission of

evidence issue because he did not object at trial on the same grounds that he

raises on appeal. We agree.

[11] “A claim of evidentiary error may not be raised for the first time on appeal but

rather must first be presented at trial[.]” Hunter v. State, 72 N.E.3d 928, 932

(Ind. Ct. App. 2017), trans. denied. “The failure to make a contemporaneous

objection to the admission of evidence at trial, so as to provide the trial court an

opportunity to make a final ruling on the matter in the context in which the

evidence is introduced, results in waiver of the error on appeal.” Brown v. State,

783 N.E.2d 1121, 1125 (Ind. 2003). Additionally, “[a]ny grounds for objections

not raised at trial are not available on appeal, and a party may not add to or

change his grounds in the reviewing court.” Hunter, 72 N.E.3d at 932.

[12] Here, Butler’s trial court objection was based on Indiana Evidence Rules 1004,

1002, 403, and federal and state constitutional rights to confront the witnesses

against him. On appeal, his challenge is based on a denial of due process.

Because Butler objected based on different grounds than he now raises on

appeal, he has waived review of his appellate argument regarding this

testimony. See, e.g., Hunter, 72 N.E.2d at 932 (holding that grounds for

objection not raised at trial are unavailable on appeal).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1399 | November 21, 2018 Page 6 of 10 [13] Waiver notwithstanding, we disagree with Butler’s argument that the admission

of the State’s witnesses’ testimony concerning their observations from the

surveillance video violated his due process rights because the State failed to

preserve the video. He contends that the surveillance video “would have been

materially exculpatory, or at the very least, potentially useful evidence and that

the State acted in bad faith in failing to preserve this evidence.” (Butler’s Br. 7).

[14] Generally, “[a]n original writing, recording, or photograph is required to prove

its content[,]” unless the Rules of Evidence or a statute provide otherwise. Ind.

Evid. R. 1002. Indiana Evidence Rule 1004 provides as follows:

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if: (a) all originals are lost or destroyed, and not by the proponent acting in bad faith; (b) an original cannot be obtained by any judicial process; (c) the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or (d) the writing, recording, or photograph is not closely related to a controlling issue.

(emphasis added) (format altered). At the outset we note that the trial court

was correct in finding that Indiana Evidence Rule 1004 was applicable. Here,

the surveillance video was either lost or destroyed and was not available for

trial. It was permissible for Thorpe, Singh, Scruggs, and Officer Canarecci to

testify about what they observed on the video because it was within their

personal knowledge. See Pritchard v. State, 810 N.E.2d 758, 760-61 (Ind. Ct.

App. 2004) (permitting the testimony recounting what witnesses saw on a jail

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1399 | November 21, 2018 Page 7 of 10 surveillance video that was unavailable at trial because the testimony was

within the personal knowledge of the witnesses).

[15] It is well settled that a criminal defendant has the right to examine physical

evidence in the hands of the State. Roberson v. State, 766 N.E.2d 1185, 1187

(Ind. Ct. App. 2002), reh’g denied, trans. denied. The State’s failure to preserve

such evidence may, under certain circumstances, constitute the denial of due

process. Id. To determine whether a failure to preserve evidence deprives the

defendant of due process, we first determine whether the evidence at issue was

“‘potentially useful evidence’” or “‘materially exculpatory evidence.’” Id.

(quoting Chissel v. State, 705 N.E.2d 501, 504 (Ind. Ct. App. 1999), trans. denied).

[16] If the evidence was only potentially useful, the defendant must establish bad

faith on the part of the State. Albrecht v. State, 737 N.E.2d 719, 724 (Ind. 2000)

(citing Arizona v. Youngblood, 488 U.S. 51, 58 (1988)), reh’g denied. “The United

States Supreme Court has described potentially useful evidence as ‘evidentiary

material of which no more can be said than that it could have been subjected to

tests, the results of which might have exonerated the defendant.’” Roberson, 766

N.E.2d at 1199 (quoting Youngblood, 488 U.S. at 57). To meet the standard of

being “materially exculpatory,” the evidence at issue “‘must both possess an

exculpatory value that was apparent before the evidence was destroyed, and be

of such a nature that the defendant would be unable to obtain comparable

evidence by other reasonably available means.’” Albrecht, 737 N.E.2d at 724

(quoting Holder v. State, 571 N.E.2d 1250, 1255 (Ind. 1991)). “Exculpatory”

evidence has been defined as “‘[c]learing or tending to clear from alleged fault

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1399 | November 21, 2018 Page 8 of 10 of guilt; excusing.’’’ Albrecht, 737 N.E.2d at 724 (quoting Samek v. State, 688

N.E.2d 1286, 1288 (Ind. Ct. App. 1997), reh’g denied, trans. denied). Unlike

merely potentially useful evidence, the State’s good or bad faith in failing to

preserve materially exculpatory evidence is immaterial. Roberson, 766 N.E.2d at

1188.

[17] Turning to Butler’s first argument, we disagree that the surveillance video was

potentially useful. Three of the State’s witnesses similarly testified about the

clothing and appearance of Butler based on their viewings of the surveillance

video, describing him as an individual with a distinctive hairstyle wearing a

brown jacket and blue jeans. Two of the State’s witnesses identified Butler the

same evening of the theft. The witnesses also positively identified Butler and

his brown jacket at trial. We cannot say that the surveillance video might have

exonerated Butler.

[18] Even assuming the surveillance video was potentially useful, Butler has failed to

carry his burden of demonstrating bad faith on the part of the State. Bad faith is

defined as being “‘not simply bad judgment or negligence, but rather implies the

conscious doing of wrong because of dishonest purpose or moral obliquity.’”

Samek, 688 N.E.2d at 1289 (quoting BLACK’S LAW DICTIONARY 139 (6th ed.

1990)). Our review of the record reveals that the handling and collection of the

evidence in this case was certainly not a perfect example of law enforcement

procedure. Indeed, even the State acknowledges that “[a]t most, [Butler] could

accuse the police of negligence in failing to ensure the preservation of the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1399 | November 21, 2018 Page 9 of 10 surveillance video.” (State’s Br. 17). However, nothing in the record suggests

any conscious doing of wrong by the State.

[19] Butler next argues that the surveillance video was materially exculpatory. We

disagree. While a defendant is not required to prove conclusively that the

destroyed evidence was exculpatory, there must be some indication that the

evidence was exculpatory. Chissell, 705 N.E.2d at 504. We cannot assume that

the destroyed evidence contained exculpatory material when the record is

devoid of such indication. Id. Here, the record is devoid of any indication that

the surveillance video was exculpatory, and Butler provides no evidence of

such.3 We conclude that the surveillance video does not rise to the level of

materially exculpatory evidence. Accordingly, we find that Butler has failed to

prove a due process violation, and we conclude that the trial court did not abuse

its discretion by allowing the State’s witnesses to testify.

[20] Affirmed.

Najam, J., and Crone, J., concur.

3 Our appellate rules require that each contention made in the argument section of an appellant’s brief “must contain the contentions of the appellant on the issues presented, supported by cogent reasoning.” Ind. Appellate Rule 46(A)(8)(a). In his brief, Butler failed to satisfy Indiana Appellate Rule 46’s requirement of providing a cogent argument by failing to provide citation to relevant authority. This hindered our review and resulted in waiver of appellate review of his argument. See Foutch v. State, 53 N.E.3d 577, 580 n.1 (Ind. Ct. App. 2016) (waiving a defendant’s sentencing argument where he failed to provide a cogent argument).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1399 | November 21, 2018 Page 10 of 10