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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 13-CT-0494

                    TERRENCE MELVIN KOONCE, APPELLANT,

                                        v.

                       DISTRICT OF COLUMBIA, APPELLEE.

                         Appeal from the Superior Court
                           of the District of Columbia
                                (CTF-18919-12)

                   (Hon. Franklin A. Burgess, Motions Judge,
                       Hon. Ronna L. Beck, Trial Judge)

(Submitted October 31, 2014                               Decided March 19, 2015)

      Nicholas Q. Elton was on the brief for appellant.

       Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim,
Solicitor General, Rosalyn C. Groce, Deputy Solicitor General, and Janice Y.
Sheppard, Assistant Attorney General, were on the brief for appellee.

      Before BLACKBURNE-RIGSBY and MCLEESE, Associate Judges, and RUIZ,
Senior Judge.

      Opinion for the court by Senior Judge RUIZ.

      Concurring opinion by Associate Judge MCLEESE at page 30.

      RUIZ, Senior Judge: Appellant Terrence Melvin Koonce was convicted by a

jury of driving under the influence (“DUI”), in violation of D.C. Code § 50-
                                         2


2206.11 (2012 Repl.).1 Appellant contends that the trial judge committed errors

requiring reversal of the conviction by:     (1) failing to impose an appropriate

sanction after finding that the government did not preserve video evidence that was

subject to discovery; (2) failing to suppress photographs of a liquor bottle the

police claimed to have found in appellant’s car as a sanction for not preserving the

bottle itself; and (3) giving a DUI testing refusal jury instruction. Although we

agree with appellant’s claim that he should have been able to obtain the requested

video and liquor bottle through discovery, we conclude that the trial court did not

commit error in the actions it took in response to the government’s failure to

preserve and produce these items of evidence, or in instructing the jury. Therefore,

we affirm appellant’s conviction.



                    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

      1
        A separate charge of operating while impaired (“OWI”), in violation of
D.C. Code § 50-2206.14 (2012 Repl.), was dismissed nolle prosequi.
                                         3


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
                                         4


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-Murphy2 asked

appellant to submit to a series of field sobriety tests. Appellant stated “[I am] not

as drunk as they think I am,” and refused to submit to the field tests after being

informed that he could lose his license for up to one year if he did not agree to be

tested. When asked again, appellant “very loudly and belligerently” responded by

saying “[r]evoke it for six months.” Appellant was asked three times to submit to a

field sobriety test. Appellant was arrested and taken to the MPD Fourth District

station where he was placed in a holding cell. Officer Oxenrider-Murphy asked

appellant if he would provide a urine sample; appellant stated he would not.

When asked if he was refusing to provide a sample, appellant responded in the

affirmative. Officer Oxenrider-Murphy left to retrieve the chemical/blood testing

Implied Consent Form,3 but upon returning, the officer found that appellant was


      2
          Officer Murphy and Oxenrider-Murphy are married.
      3
           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
the record, but according to Officer Oxenrider-Murphy, the form “gives [arrestees]
. . . information,” and informs them of “their rights.” The District of Columbia
Code requires that before police collect specimens for chemical testing from
                                                              (continued . . .)
                                          5


asleep.   Various attempts to wake appellant, including “yelling” for “several

minutes” and administering a “sternum rub” were unsuccessful. There were fixed

cameras located in the cellblock, but the video from the night of appellant’s arrest

no longer existed on the date of trial.



      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

(. . . continued)
persons suspected of driving under the influence, “the law enforcement officer
shall advise the operator of the motor vehicle about the requirements [under the
law].” D.C. Code § 50-1904.02 (d) (2012 Repl.). District of Columbia law
provides that persons arrested on reasonable suspicion of driving while intoxicated
who are involved in a collision, “shall submit two specimens for chemical testing
of his or her blood, breath, or urine for determining alcohol or drug content,” § 50-
1904.02 (a)(2), unless the person objects to blood collection on valid religious or
medical grounds. § 50-1904.02 (b). An arrestee who refuses to submit to testing
must “be informed that failure or refusal to submit to chemical testing” will lead to
revocation of the arrestee’s driver’s license for a period of twelve months. D.C.
Code § 50-1905 (a)(1)(A) (2012 Repl.). Moreover, if a person under arrest refuses
to submit a specimen for chemical testing and has been previously convicted of
driving under the influence of alcohol or a drug, “there shall be a rebuttable
presumption that the person is under the influence of alcohol or a drug or any
combination thereof.” § 50-1905 (b).
                                          6


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)).4 Documents

and tangible objects “within the possession, custody or control of the government”5

are discoverable if “material to the preparation of the defendant’s defense.” Super.

Ct. Crim. R. 16 (a)(1)(C). Under Rule 16 the threshold of materiality “is not a high


      4
         “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. 2013).
      5
         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).
                                         7


one; the defendant need only establish a reasonable indication that the requested

evidence will either lead to other admissible evidence, assist the defendant in the

preparation of witnesses or in corroborating testimony, or be useful as

impeachment or rebuttal evidence.” Tyer v. United States, 912 A.2d 1150, 1164

(D.C. 2006) (citation omitted) (internal quotation marks omitted). However, to

show that a failure to preserve discoverable evidence that is “potentially useful to

the defense” violates due process, appellant must also establish that the

government acted in bad faith. Arizona v. Youngblood, 488 U.S. 51, 58 (1988)

(cited in Williams, 77 A.3d at 437). Bad faith of constitutional magnitude is shown

if the “evidence . . . possess[es] an exculpatory value that was apparent before the

evidence was destroyed, and [is] of such a nature that the defendant would be

unable to obtain comparable evidence by other reasonably available means.”

California v. Trombetta, 467 U.S. 479, 489 (1984).6           The trial court has

“considerable discretion in determining ‘the degree of negligence or bad faith

involved’ in the failure to preserve evidence.” Tyer, 912 A.2d at 1165 (quoting

Battocchi v. Washington Hospital Center, 581 A.2d 759, 767 (D.C. 1990)). We


      6
         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 (referring to Brady v. Maryland, 373 U.S. 83, 87
(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 (1995).
                                          8


will disturb the trial court’s findings that the government did not act in bad faith or

was not grossly negligent only if those findings are “plainly wrong or without facts

to support [them].” (Emanuel S.) Davis v. United States, 641A.2d 484, 494 (D.C.

1994) (alteration in original) (quoting D.C. Code § 17-305 (a) (2012 Repl.)).




      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).
                                          9


      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” to the defendant.

Similarly, video7 of a person just arrested for driving under the influence or


      7
          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
                                                               (continued . . .)
                                          10


operating a vehicle while impaired is material in that it may assist in showing

whether the person was acting in a way consistent with intoxication or impairment.

In this case, our focus is on the request by defense counsel for video recordings of

appellant at the station where appellant was taken shortly after he was arrested.8 In

making his argument to the judge for an instruction with a negative inference

against the government to be drawn from the spoliation of the video evidence,

defense counsel pointed, in particular, to the materiality to the defense of video that

would show appellant “walking in straight, without aid of anybody else, without




(. . . continued)
(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).
      8
          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
cellblock.”
                                        11


falling over, falling into the police station.”9 Such evidence could have been used

to counter the officers’ testimony that appellant appeared to be intoxicated

(walking off-balance, bloodshot eyes, slurring his words, and urinating on himself)

at the scene of the car crashes.    Moreover, video taken while appellant was

detained in the cellblock was material to the defense in light of the officers’

testimony that appellant refused to submit samples for chemical testing and was so

unresponsive in the cellblock that he could not be roused—even after the officers

yelled at him and rubbed his sternum—for the purpose of reading and signing the

Implied Consent Form.      In closing argument and in rebuttal, the prosecutor

referred to appellant’s refusal to submit to testing and his “deep sleep” in the

cellblock as evidence that he was “impaired by alcohol.”



          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




      9
         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.
                                         12


it.10 The video was apparently available for a period of approximately thirty days

before it was recorded over, although that appears to have been a result of the

technological capability of the recording system rather than any considered effort

to preserve discoverable evidence.11 Government counsel could not say for sure

when it was recorded over and whether it had been available when the defense

request was received, but it had been destroyed by the time of trial.



      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
      10
         When asked what happened to the bottle of vodka he photographed,
Officer Murphy, who was summoned to administer field sobriety tests, testified as
follows:

             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.
      11
          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.
                                         13


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. 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,
                                         14


and requested immediate action on the request.12 The government, however, did

not act on the defense request until shortly before trial, by which time the police

department replied that the video was no longer available because it had not been

requested “within the thirty-day preservation period.”13 Thus, it appears that there



      12
           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).
      13
           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 Rossser 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
                                                              (continued . . .)
                                         15


is a possibility that the video could have been recovered and turned over to the

defense if the government had acted more expeditiously in responding to the

request. However, it also appears that in light of the delay in responding to the

defense request, the video likely would have been recorded over by the police

department even if the request had been made within the police department’s

thirty-day window. In short, the combination of the police department’s practice

of recording over video every thirty days or so and the prosecutor’s practice in the

handling of discovery requests prevented the preservation of discoverable evidence

that was promptly requested by the defense.



      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

60. 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


(. . . continued)
               whether they could find these recordings so that they could
               produce the tapes. And, unfortunately, that didn’t happen.
                                         16


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 arrestees, 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 a small, logical step to conclude that video that

captures a suspect’s appearance, speech or actions soon after arrest and that records

when the suspect is being informed of his rights under the statute and asked to
                                         17


submit to testing will be material to the defense and must be preserved for

disclosure. Cf. State v. Ferguson, 2 S.W. 3d 912, 917-18 (Tenn. 1999) (holding

that state had duty to preserve station house video depicting administration of

sobriety tests). In light of the record in this case and the government’s arguments

on appeal, we are constrained to agree with appellant that, “in analyzing the

systemic steps taken to preserve the tapes, it is clear that the consideration of the

potential discoverable material therein is nearly nonexistent.”



      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
                                         18


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.”).14 In sum,

had the existing MPD policies been followed, the evidence requested by counsel

should have been available for appellant’s defense. The problem is not with the

      14
          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”).
                                         19


MPD’s policy on preservation of discoverable evidence, but with its non-

implementation.



      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 that there was no due process violation and that the trial judge did not

abuse discretion in its choice of sanction for a discovery violation.       That the

destruction of evidence in this case was not intended to thwart defense requests

may suffice, as we hold infra, to support a finding that the government did not act

in bad faith. But once the government is on notice of its obligations with respect to

foreseeably discoverable items of evidence in DUI/OWI cases that are likely to be

in its possession, and aware of the negative impact that current practices have on

its ability to satisfy those obligations, lack of “willfulness” ceases to be a defense

to sanction for failure to preserve discoverable evidence. See Robinson, 825 A.2d

at 332 (upholding trial court sanction for non-preservation of tape recording where

“government was afforded the opportunity but failed to carry its ‘heavy burden’ to

explain the failure to secure and preserve the tape recording so it could comply

with its duty of disclosure”); Henriquez, 731 F.2d at 137-38 (noting, with respect

to Coast Guard’s routine erasure for reuse of “twenty-four hour continuously

running tape recordings” of communications, that the court “will look with an

exceedingly jaundiced eye upon future efforts to justify non-production of a Rule
                                         20


16 or Jencks Act statement by reference to ‘department policy’ or ‘established

practice’ or anything of the like” and that “sanctions will normally follow” where

destruction is deliberate “unless the Government can bear the heavy burden of

demonstrating that no prejudice resulted to the defendant”).



      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
                                           21


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.



      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.15




      15
           The trial court gave the following instruction:

              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
                                                            (continued . . .)
                                        22



      We conclude that the trial court did not abuse discretion in its choice of

sanction. The “range of available sanctions is extremely broad, the only real

limitation being that a sanction must be ‘just under the circumstances.’” Gethers,

684 A.2d at 1272 (quoting (Angel) Davis v. United States, 623 A.2d 601, 605 (D.C.

1993)). The trial court considered evidence that the police department had in place

a practice that could lead to the destruction of video evidence after a thirty-day

period, and that the government could not determine whether the video taken on

the night appellant was arrested had actually been recorded over at the time it was

requested by defense counsel. The court also took note of the fact that defense

counsel had acted expeditiously in making a specific request for video in a Rosser

(. . . continued)
               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.
                                          23


letter, and had alerted the government to the need for prompt attention, but that the

government delayed acting on the request until shortly before trial, several months

after the request was received.16       Such actions, the trial court found, were

negligent, but the lack of a “willful act” by the government to deny the requested

items of evidence to the defense persuaded the court that a negative inference

against the government was not warranted.           Importantly, the trial court also

considered that other facts in evidence—the officers’ testimony of what they

observed and audio of the 911 call that captured appellant’s voice—permitted the

jury to conclude that the destroyed video footage would not support appellant’s

defense.



      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




      16
          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.”
                                         24


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

broken and the bottle was ninety-percent full.



      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);
                                          25


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
                                           26


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 638.17 Applying the standard established in Cotton,

the trial court did not abuse its discretion in declining to suppress photographs of

the bottle of vodka as a sanction for the destruction of the bottle itself. 388 A.2d at

869.



       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 the MPD which call for the prompt

identification and collection of evidence and the preservation of discoverable

evidence. On this record and in light of the purely corroborative evidentiary value

in this case of the presence of the vodka bottle in appellant’s car, we see no reason


       17
           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.”
                                         27


to upset the trial court’s implicit determination that the danger of unfair prejudice

did not substantially outweigh the photographs’ probative value.



             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 238.18



      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

      18
          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.
                                           28


requested, did not instruct the jury about the rebuttable presumption created by

D.C. Code § 50-1905 (b). See supra note 2.



      Under D.C. Code § 50-1905 (c), an arrestee’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.19



      19
           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.
                                        29


      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 Oxenrider-Murphy asked

appellant if he was willing to provide a sample of his urine. Appellant “stated he

wasn’t.” Officer Oxenrider-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 gives arrested individuals notice of “their rights”

and “information.” When the officer returned to the holding cell, appellant “was

asleep.” Officer Oxenrider-Murphy “called for several minutes, trying loudly to

wake him up.” When appellant did not respond, Officer Oxenrider-Murphy was

assisted by Officer Hampton, who “went in and actually gave [appellant] a sternum

rub, to try and wake him up.” Appellant woke briefly, and “proceeded back to

sleep.” Appellant’s argument that he did not refuse to submit specimens for testing

because he did not actually sign the Implied Consent Form is unavailing. Officer

Oxenrider-Murphy’s testimony provided a sufficient basis from which the jury

could find that appellant refused to submit samples for chemical testing.

Moreover, the government put forward substantive evidence that appellant’s lack

of responsiveness when the officers attempted to present the form to him for

signature was due to voluntary intoxication. We have held that one may not utilize

alcohol to achieve a state of voluntary unconsciousness, and then rely on lack of
                                           30


consciousness as a basis for avoiding chemical or blood tests. See District of

Columbia v. Olney, 399 A.2d 84, 86 (D.C. 1979).



      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.




      MCLEESE, Associate Judge, concurring in the judgment: I agree that the trial

court did not abuse its discretion in responding to the government’s failure to
                                           31


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 reflected in

the opinion of the court. Well settled principles argue against deciding difficult
                                           32


questions of first impression that are unbriefed and unnecessary to the disposition

of the case. See, e.g., National Aeronautics & Space Admin. v. Nelson, 562 U.S.

134, ___, 131 S. Ct. 746, 756 n.10 (2011) (“It is undesirable for us to decide a

matter of this importance in a case in which we do not have the benefit of briefing

by the parties . . . .”); Local 144 Nursing Home Pension Fund v. Demisay, 508 U.S.

581, 592 n.5 (1993) (dicta that are “uninvited, unargued, and unnecessary to the

Court’s holdings” are inconsistent with doctrine of judicial restraint); United States

v. Adams, 740 F.3d 40, 43 (1st Cir.) (“This prudential approach makes eminently

good sense: . . . [d]iscretion is often the better part of valor, and courts should not

rush to decide unsettled legal issues that can easily be avoided.”) (internal

quotation marks omitted; brackets in Adams), cert. denied, 134 S. Ct. 2739 (2014);

Crown EMAK Partners, LLC v. Kurz, 992 A.2d 377, 398 (Del. 2010) (“[I]t is

unnecessary for this Court to decide that issue, because a decision either way

would not alter the result we have reached nor would a gratuitous statutory

interpretation resolving this difficult issue be prudent.”).



      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
                                          33


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 (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

(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
                                         34


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-station video depicting officers administering a field-sobriety test.

State v. Ferguson, 2 S.W.3d 912, 917-18 (Tenn. 1999).             It seems obvious,

however, that the police should realize the need to preserve video depicting a

police-administered test directed at creating evidence of guilt or innocence. It

seems less obvious whether, and if so in what circumstances, the police should

reasonably be expected to appreciate the need to preserve general police-station

surveillance video. The parties have not briefed that issue, the court does not cite

any case addressing the issue, and my quick search has not uncovered any such

case.    On the factual side, the court’s discussion appears to imply that the

unpreserved video would have depicted Mr. Koonce walking into the police

station, refusing to submit samples for chemical testing, and lying unresponsive in

the cellblock. In fact, the record on this point consists only of general testimony

that there are cameras in the pertinent police station that capture images of
                                         35


defendants being brought into the station, images during the booking process, and

images from the cellblock. There was no testimony about how comprehensive the

cameras’ coverage might be or what specifically would likely have been depicted

in this case. And given the absence of an indication that sound was recorded, it is

not clear that police-station video would in any event have shed light on whether

Mr. Koonce refused to submit samples for chemical testing.



      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.
