This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Antonio Francis Bragg,




Filed September 9,  2003


Randall, Judge



Hennepin County District Court

File No. 02009256



Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and


Martin J. Costello, Russell J. Platzek, Hughes & Costello, 1230 Landmark Towers, 345 St. Peter Street, St. Paul, MN 55102 (for respondent)


John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Randall, Presiding Judge, Hudson, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant argues that the state intentionally destroyed exculpatory evidence prior to trial, appellant challenges his convictions for second-degree driving while impaired under Minn. Stat. § 169A.20, subd. 1(1) (2000), and refusal to submit to chemical testing in violation of Minn. Stat. § 169A, subd. (1) (2000).  We affirm.


            Early in the morning of February 2, 2002, Officer Andrew Gifford observed appellant’s vehicle exit the I-494 westbound ramp at a “high rate of speed.”  When appellant’s vehicle approached the traffic light at the intersection of the exit ramp and Nicollet Avenue, the light was red.  Appellant’s vehicle was 3/4 of a car length through the intersection before it stopped.  Officer Gifford then observed appellant back his vehicle up and wait for the light to turn green.  When the light turned green, appellant turned left onto Nicollet Avenue.  Officer Gifford followed appellant for a short distance and ultimately stopped appellant’s vehicle.

            After approaching appellant’s parked vehicle and talking with appellant briefly, Gifford noticed the smell of alcohol coming from inside appellant’s vehicle.  Appellant had a Halls throat lozenge in his mouth, which Gifford asked appellant to remove; appellant complied.  Officer Gifford then asked appellant to step out of the vehicle.  As appellant did so, he “utilized the car door to stabilize his balance.”  As appellant walked to Gifford’s vehicle, he swayed, apparently having difficulty balancing.

            At Gifford’s request, appellant performed two field-sobriety tests.  Officer Gifford testified that appellant failed both tests.  Because appellant believed that the Halls lozenge would affect the results, he refused Gifford’s request that appellant submit to a portable breath test.  Officer Gifford arrested appellant for operation of a motor vehicle while impaired.  After appellant had been transferred to the police station, Gifford read appellant the implied consent advisory (ICA) form.  Appellant first stated that he understood each portion of the (ICA), and then said he would not submit to an Intoxilyzer test.  An audio tape of appellant’s refusal was admitted into evidence and played for the jury.[1]  While appellant was at the police station he was videotaped, without audio, pursuant to department policy.  Videotapes of persons in custody are retained for 30 days and then destroyed or recorded-over if not needed.  The videotape of appellant was recorded-over on April 4, 2002.  Gifford testified that had the tape been available, it would have revealed appellant sitting with his head upright, with his hands folded in his lap—well composed.  Gifford testified that the tape would have also revealed Gifford reading the ICA, checking off the boxes on the ICA form, recording appellant’s answers on the form, and a tape recorder next to a telephone.  Gifford testified that the tape was not retained because there was nothing extraordinary (additional criminal acts, etc…) on it, and it is department policy to record-over tapes after 30 days.

            There is evidence in the record that appellant called the Richfield police department twice and the Richfield city attorney once, between February 8, 2002, and February 19, 2002, to retrieve the videotape.  Appellant was unsuccessful in retrieving the videotape, and finally, later, it was unavailable because the police had “recorded over” it before the trial.

            Appellant moved the district court to dismiss the charges against him, arguing that the videotape contained material exculpatory evidence.  After a hearing on appellant’s motion, the district court found that, at best, the tape would have showed appellant sitting in a chair, not appearing agitated or obviously drunk, and that nothing more of value—exculpatory or otherwise—would have been revealed by the tape.  In denying the motion to dismiss, the district court found that Gifford did not intentionally destroy the tape, knowing that it contained material exculpatory evidence.


            Appellant argues that his right to due process was violated by the state’s destruction of exculpatory evidence and that the charges against him should be dismissed.  The due-process clause of the Fourteenth Amendment requires the government to deliver exculpatory evidence into "the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system."  State v. Schmid, 487 N.W.2d 539, 541 (Minn. App. 1992), review denied (Minn. Sept. 15, 1992) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2530 (1984)); see Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963) (stating that, in the interest of fairness, a criminal defendant has a constitutional right to obtain evidence material to guilt or relevant to the punishment imposed).

            Where underlying facts are in dispute, a district court’s due-process determination is a mixed question of fact and law.  See Palme v. Comm’r of Pub. Safety, 541 N.W.2d 340, 344 (Minn. App. 1995) (recognizing that when facts are in dispute, due-process claims pose mixed questions of fact and law), review denied (Minn. Feb. 27, 1996).  With mixed questions of fact and law, this court applies the “controlling legal standard to historical facts” as found by the trier of fact.  State v Wiernasz, 584 N.W.2d 1, 3 (Minn. 1998) (footnote omitted).  This court reviews the trial court’s findings of fact under the clearly erroneous standard, but independently reviews the district court’s legal determinations.  Id.  At the Rasmussen hearing, the district court is the trier of fact and although evidence may be contradictory, the trier of fact is in the best position to weigh witness credibility and determine the weight given to testimony.  State v. Henderson, 620 N.W.2d 688, 705 (Minn. 2001).

The state’s constitutional duty to preserve evidence on behalf of criminal defendants is subject to a standard of materiality.  Schmid, 487 N.W.2d at 541.  To meet this standard, evidence must (1) possess an exculpatory value that was apparent before the evidence was destroyed, and (2) be of such a nature that the defendant would not be able to obtain comparable evidence by other reasonably available means.  Id.  Additionally, unless a criminal defendant can demonstrate bad faith on the part of the state, failure to preserve potentially exculpatory evidence does not amount to a denial of due process.  Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 337 (1988), reh'g denied, 488 U.S. 1051, 109 S. Ct. 885 (1989).

            This court has delineated several factors to weigh when determining whether the destruction of evidence warrants reversal of a conviction.  Courts will consider (1) whether the destruction was intentional, (2) the possible exculpatory value of the destroyed evidence, and (3) the strength of the state's case if the evidence had been available.  State v. Harris, 407 N.W.2d 456, 460 (Minn. App. 1987), review denied (Minn. July 31, 1987); see State v. Nelson, 399 N.W.2d 629, 633 (Minn. App. 1987) (applying materiality standard and holding that exculpatory value of the evidence was uncertain because nobody viewed the tape prior to its destruction), review denied (Minn. Apr. 17, 1987); State v. Edwards, 380 N.W.2d 503, 508-09 (Minn. App. 1986) (applying materiality standard and finding no bad faith on the part of the police and no prejudice to the defendant).

Here, based largely on Officer Gifford’s testimony at the Rasmussen hearing, the district court found that there was no evidence that

Officer Gifford personally intentionally destroyed the tape; rather, the Court credits the testimony of the officer that the tape * * * was taped over pursuant to a routine policy of the Richfield Police Department.


The district court found it to be uncontroverted that the tape would have showed nothing more than appellant in a seated position and that the exculpatory value of the tape, without audio, was neither apparent nor material.

            There is sufficient evidence in the record to support the district court’s findings.  Thus, we conclude the findings are not clearly erroneous and will not be disturbed on appellate review.  SeeRobinson v. State, 567 N.W.2d 491, 495 (Minn. 1997) (stating that generally, a trial court’s findings will not be disturbed unless clearly erroneous).  This court must now apply the controlling legal standard to the facts as found by the district court to determine whether the district court erred by denying appellant’s motion to dismiss based on the destruction of evidence.  See Wiernasz, 584 N.W.2d at 3 (stating that when considering mixed questions of fact and law, this court applies the controlling legal standard to the facts as found by the trier of fact).

            Based on the district court’s findings of fact, appellant failed to meet the first prong of the materiality test as articulated in SchmidSee Schmid, 487 N.W.2d at 541 (stating that in order to prevail on due-process claim concerning destruction of evidence, defendant must show that the evidence had apparent and material exculpatory value).  Although the destroyed evidence in this case is of a nature that could not reasonably be obtained by other means—the second prong of the materiality test—the test is a two-part one and without establishing both prongs, appellant cannot pass the test.  See Id. at 3 (stating that evidence must be both exculpatory and be of such a nature that the defendant would not be able to obtain comparable evidence by other reasonably available means).

            The state offered evidence in the form of officer Gifford’s testimony that appellant exhibited several signs that he was under the influence of alcohol including driving erratically, exhibiting poor balance, and failing two field sobriety tests.  The audiotape substantially negates the possibility that the videotape contained any exculpatory evidence relevant to the test refusal itself.

            In sum, (1) the tape was not destroyed with the intent of deleting evidence; (2) the tape had no known exculpatory value to the point where its absence, by clear and convincing evidence, substantially prejudiced appellant’s case; and (3) the record does not indicate that the state’s case would have been materially weaker if the tape had been available.  See Harris, 407 N.W.2d at 460 (stating that appellate courts will consider, when determining whether the destruction of evidence warrants reversal of a conviction, (1) whether the destruction was intentional, (2) the possible exculpatory value of the destroyed evidence, and (3) the strength of the state's case even if the evidence was available).

            The district court did give the jury an adverse inference instruction regarding the state’s intentional destruction of material evidence.  Appellant simply argues that the instruction was inadequate.  For the reasons above, we do not find substantial prejudice in the state’s actions.  We are not persuaded that the jury instruction was insufficient to alleviate the claimed prejudice from the absence of the booking video.

            We make it a point to note that the state always risks reversal of a conviction when it destroys evidence that the defense could utilize at trial.  That is particularly the case with a videotape intended to preserve evidence of an arrest or other critical procedure.  On these facts, however, the district court properly dealt with the issue of the destroyed videotape, and we find no constitutional violation.

            We conclude the district court did not err by denying appellant’s motion to dismiss the charges against him.



*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art VI, § 10.

[1]  Appellant contends that it is not his voice on the tape and that he was never read the ICA.