IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE,
v.
MARTHA MINGUCHA,

Defendant

Submitted:

Decided:

Erik Towne, Esquire
Deputy Attomey General
820 N. Frcnch Street, 7th Floor
Wilmington, DE 19801
Attorney for the State of Delaware

\/\./VV\/\/\./

Case No. 1609002481

March 17, 2017
March 23, 2017

Richard Zemble, Esquire

4 E. 8th Street, Suite 400

Wilmington, DE 19801
Attomey for Defendant

MEMORANDUM OPINION AND ORDER
ON DEFENDANT’S MOTION TO SUPPRESS

The defendant, Martha Mingucha (hereinal°cer the “Defendant”), brings this motion to
suppress evidence in connection With a Driving Under the Influence (“DUI”) investigation. On
January 31, 2017, the Court suppressed the contents of a Mobile Video Recording (hereinai°cer
the “MVR”). The Defendant followed the suppression of the MVR With the instant Motion to
Suppress. Specifically, the Defendant seeks to prevent the State from offering testimony
concerning the events depicted in the MVR. The Court accepted briefing on the matter and

reserved decision. This is the Final Decision of the Court on the Defendant’s Motion to

Suppress.

PROCEDURAL HISTORY

On September 4, 2016, the Defendant was arrested and charged with a DUI offense and
other related charges. The State, in responding to a timely discovery request from the Defendant,
provided all relevant discovery, with the exception of an MVR depicting the DUI investigation.
On November 2, 2016, at case review, this Court ordered the State to provide the Defendant with
a copy of the MVR by November 23, 2016. As of December 21, 2016, the State had not
provided the MVR, prompting the Defendant to file a Motion to Suppress.

On January 31, 2017, a hearing was convened on the Motion. This Court entered an
Order, styled as a discovery sanction pursuant to Court of Common Pleas Criminal Rule 16,
prohibiting the State from utilizing the MVR in its case-in-chief and allowing the Defendant to
utilize the MVR for impeachment or as affirmative evidence in her defense.l However, the State
was permitted to introduce testimony from the arresting officer concerning the events depicted in
the MVR. Following the hearing, the Defendant submitted a letter memorandum requesting the

State be prohibited from introducing the officer’s testimony.

PARTIES’ CONTENTIONS
The Defendant raises three grounds for suppressing the officer’s testimony. First, the
Defendant argues the State’s failure to provide the MVR should be treated as a violation under
Deberry. Second, the Defendant argues the officer’s testimony is violative of the Best Evidence
Rule, as the MVR is the best evidence of what transpired during the DUI investigation. Third,
the Defendant argues the allowance of testimony after suppressing the MVR will reward the

State and encourage it to withhold evidence in future DUI cases.

 

l The Defendant was provided a copy of the MVR at the hearing.
2

ln response, the State first argues Deberry is inapplicable because the MVR was not lost
or destroyed and Was, in fact, provided to the Defendant, albeit late. Second, the State contends
the MVR was not withheld in bad faith and the Best Evidence Rule does not require suppression
of independently valid methods of introducing evidence. Third and finally, the State argues there
would be no benefit to purposely withholding an MVR in the future, as the State often prefers to

utilize video evidence to highlight a defendant’s impairment in ways testimony cannot convey.

DISCUSSION
Preliminarily, neither party has presented case law where a court considered suppressing
testimony in connection with an MVR - or equivalent evidence - for a discovery violation,2
However, in State v. Montalvo,3 this Court addressed the precise issue of a defendant seeking to
suppress an officer’s testimony following suppression of an MVR.4 While the Court denied the
suppression motion in Momalvo, the defendant in that matter did not raise the same arguments as
the Defendant in the matter sub judice. Therefore, the Court will address each of the three

grounds in this matter seriatim and will not rely upon Mom‘alvo in reaching its decision.

 

2 The Defendant cited to State v. Shugara', 2004 WL 844186 (Del. Com. Pl. Feb. 24, 2004). However, the cited
opinion was limited to whether the appeal could go forward. It appears the Defendant intended to cite to the
unpublished opinion in State v. Shugard, Del. Com. Pl., Case No. 0302017363, Beauregard, J. (June 21, 2005). The
Court has been unable to locate, and the Defendant did not provide, a copy of the latter opinion. As stated by this
Court in State v. Wicks, 2007 WL 2318652 (Del. Com. Pl. Aug. 8, 2007), “Judge Beauregard found that the State's
failure to preserve the video tape in the DUI case caused the defendant to be “severely prejudiced” by the lost
evidence. In the instant case, no evidence was lost[.]” Id. at *3. In the present case, the MVR was not lost or
destroyed, thereby rendering Shugard distinguishable on the facts.

3 2015 WL 4496068 (Del. Com. Pl. Jul. 9, 2015) (Danberg, J.).

4 The primary difference between Montalvo and this matter is one of notice. In Montalvo, the first indication an
MVR existed did not occur until the day of trial. Here, the Court ordered the production of the MVR at case review.
While the Court views the violation of a Court Order as a more serious violation, the Court has not determined
whether this fact alone requires suppression of more than the MVR itself

3

I. Deberry v. State5

The Defendant argues Deberry supports suppressing testimony concerning the events
depicted in the MVR. Deberry is applicable when the State has lost or destroyed exculpatory
evidence when it had the affirmative duty to preserve such evidence.6 If the State breached its
duty to preserve the evidence, then the Court must determine:

(l) 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.

This three-part test reveals a flaw in the Defendant’s argument: the test specifically looks for the
existence of evidence alternative to that which was lost or destroyed. In this matter, the
existence of the officer’s testimony would alleviate the need for relief under Deberry for a lost or
destroyed MVR.

Without even reaching the question of whether a discovery violation constitutes a
violation under Deberry, the Defendant cannot succeed under the applicable test. On the first
factor, neither side has indicated the State’s failure was due to bad faith; by all accounts, the
failure to produce the MVR appears to be the product of negligence On the second and third
factors, Deberry specifically requires this Court to determine the sufficiency of secondary or
substitute evidence - the very thing the Defendant is attempting to suppress. The testimony of
the officer is expected to be credible and Sufficient; any deficiencies will be addressed at the trial
stage and cannot be determined in this pretrial proceeding Accordingly, the Defendant cannot

rely upon Deberry to justify suppression of the officer’s testimony. Therefore, the Motion

cannot succeed on this ground.

 

5 457 A.zd 744 (De1. 1983).
6 See DeLoach v. State, 2012 WL 2948188, at *3 (Del. Super. Jul. l6, 2012).
7 1a at *3-4.

4

II. The Best Evidence Rule

Delaware’s Best Evidence Rule is codified in Delaware Rules of Evidence 1002-04, and
generally holds the original document is preferable to other evidence of its contents; such
evidence is allowed, inter alia, when the original has been lost, provided it was not lost in bad
faith.8 For the purposes of the Best Evidence Rule, which does not list video recordings, the
MVR constitutes a photograph.9

In State v. Grivas,lo the Superior Court examined an officer’s testimony on the results of
an intoxilyzer test. Grivas provides instruction on two relevant matters. First, the Court noted
the State’s ultimate objective was to prove the defendant’s blood alcohol concentration, albeit
through the occurrence of an event.ll The intoxilyzer printout contained not only the BAC, but
also the internal calibration checks. Therefore, the preferred method of proving the defendant’s
BAC was through the printout and not through the officer’s testimony of the BAC as conveyed
through the printout.12 Second, the Court permitted the officer’s testimony after determining the
intoxilyzer card was lost and was not lost due to any bad faith on the part of the State.13 This
finding was sufficient even in the face of the defendant’s reduced ability to cross examine the
officer on the other contents of the intoxilyzer card.14

Likewise, in State v. Wicks, this Court addressed an MVR which failed to capture the
entirety of an encounter due to misalignment of the video equipment. In Wicks, the defendant

offered a similar argument concerning the Best Evidence Rule. The Court disagreed:

 

8 See Deputa v. Tingle, 2010 WL 8250820, at *2 (Del. Super. Oct. 27, 2010). While DRE 1004 lists four exceptions
for allowing secondary methods to prove the contents of a recording, only the first exception is applicable here.

9 see DRE1001(2).

10 1997 wL 127005(De1. super. Feb. 3, 1997).

ll See id. at5.

12 See id.

13 See id. at *6.

14 See id.

The Court finds wholly inapplicable the argument that a misaligned video tape of

a defendant’s performance of a field coordination test violates the Best Evidence

Rule. The original document or police video is before the Court and is not “1ost”

or “damaged”. The Court also finds that the misaligned video footage does not

prohibit the investigating trooper in this case to offer oral testimony as secondary

evidence on his actual observations of the defendant15

In the case sub judice, the MVR is not independent proof of the Defendant’s sobriety or
lack thereof, as is an intoxilyzer printout. Grivas applied the Best Evidence Rule specifically
because the intoxilyzer card was proof of intoxication, rather than the occurrence of an event in
question. Here, the actions depicted on the MVR are properly construed as events which are
evidentiary in nature, rather than as definitive proof of intoxication. As the State correctly noted
in its brief, the MVR is incapable of conveying some of the relevant evidence, such as any odors
of alcohol or observations occurring outside the view of the MVR. Those observations are not
only the best evidence, but are in fact the sole evidence on such matters.

Conceming Wicks, the Court notes the instant matter is distinguishable from an
incomplete recording. Furthermore, because the recording in Wicks failed to capture parts of the
field Sobriety tests, and was thus unavailable for either side, the Violation was arguably more
severe than the violation here. The Defendant is able to utilize the MVR for her own benefit.
Indeed, the defendant in Wicks had a greater argument suggesting the video was “lost or
damaged” than does the Defendant here, yet the Court nevertheless found such arguments
insufficient to warrant the requested relief.

The Best Evidence Rule does not require suppression of the officer’s testimony. DRE
1004 specifically states “[t]he original is not required, and other evidence of the contents of a

writing, recording or photograph is admissible if . . . [a]ll originals are lost or have been

destroyed, unless the proponent lost or destroyed them in bad faith[.]” First, the originals were

 

15 Wicks, supra, at *4.

not lost or destroyed - they were merely not produced in a timely manner. While that is not to
say the State is blameless or the violation is minor, such actions do not squarely fall within the
rule. Second, the delay in production was not the result of bad faith. A plain reading of Rule
1004 thus holds the testimony is admissible when the party responsible for the unavailability of
the original did not act in bad faith. The Rule allows for admissibility when any of the four
exceptions apply. As the first exception applies, the alternative evidence is admissible under the
Best Evidence Rule.

III. Preventing Future Discovery Violations

Lastly, the Defendant argues suppression is required to prevent the State from being
rewarded for its discovery violation. This argument appears to be premised on the belief the
State may choose to withhold an MVR When it would prefer to limit its evidence to an officer’s
testimony. The State responded to this argument by suggesting the State “would always prefer to
play an MVR in addition to the officer’s testimony[.]” What the State does not address, and
what underlies the Defendant’s argument, is the circumstance where an officer’s testimony may
not match the MVR. In such circumstances, presumably, the State will never provide the MVR
(because, if it does, the MVR will be available to the defense for cross examination). The
sanction of suppression may well be insufficient in such cases.

The Court, however, does not find a more severe sanction is required to prevent future
misconduct. The Court has broad discretion to resolve violations of Rule 16.16 This discretion
exists to allow the Court to enter unique and individualized sanctions appropriate to the violation

at hand, which is what the Court did by suppressing the MVR.17 If the State should decide to use

 

16 see Service v. s¢aze, 2015 wL 1234489, ar *3 (Del. Mar. 17, 2015).
17 -
See id.

7

this ruling as justification for engaging in bad faith actions in the future, then the State will
necessarily suffer the consequences of such an action when and where appropriate18
A sanction under Rule 16 is appropriate for remedying prejudice to the Defendant and not
to hypothetical future defendants.19 The Defendant has not alleged any prejudice beyond that
which is felt by every criminal defendant Under the circumstances of this precise matter and the
conduct of the State in this particular case, the Defendant has not demonstrated the sort of
conduct that justifies a more drastic sanction.20
CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED this 23rd day of March, 2017,

that Defendant’s Motion to Suppress is DENIED.

 

Cc: Charrnar Jones, judicial Case Manager

 

18 The Court must note Delaware maintains high standards for its attorneys and expects all attorneys to act
professionally, responsibly, and ethically, regardless of whether the attorney believes he or she may gain an
advantage through bad faith tactics. In the absence of evidence, the Court will not presume such violations on the
part of the Attorney General’s office or any other officer of the court. Such violations must necessarily be dealt with
if and when they occur, under the precise circumstances of such violations, and not under a presumption of future
misconduct

1° see sutherland v. state, 2007 wL 71129, at *3 (Dei. Dec. 11, 2006) (“The trial court acted well within its
discretion in refusing the more drastic remedy of suppressing the evidence in favor of relief that allowed [the
defendant] a full opportunity to review the tape and to prepare her defense with knowledge of its contents.”).

20 “The Court recognizes that a harsh sanction could potentially deter future discovery violations. However, the
Court will not impose such a sanction here because the Defendant has failed to demonstrate the significant prejudice
required.” State v. Wright, 2011 WL 826357, at *5 (Del. Com. Pl. Feb. 28, 2011).

8

