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State v. Steele

Court of Appeals of Utah

May 2, 2019

State of Utah, Appellee,
v.
Loretta Rae Steele, Appellant.

          Third District Court, Salt Lake Department The Honorable Keith A. Kelly No. 155900375

          C. Sue Crismon, Attorney for Appellant

          Simarjit S. Gill and Curtis M. Tuttle, Attorneys for Appellee

          Judge Diana Hagen authored this Opinion, in which Judges Kate Appleby and Ryan M. Harris concurred.

          OPINION

          Hagen, Judge.

         ¶1 Loretta Rae Steele was convicted of driving under the influence and leaving the scene of an accident. At trial, after the jury had been empaneled, Steele moved to dismiss the case, claiming that the State's failure to preserve a recording of a 911 call made at the time of the accident (the 911 recording) violated her due process rights. The district court denied the motion, concluding that Steele did not establish that she was prejudiced by the destruction of the 911 recording. Steele was ultimately convicted by a jury and now appeals, challenging the denial of her motion to dismiss. We conclude Steele has not made the necessary threshold showing of a reasonable probability that the 911 recording contained exculpatory evidence. Accordingly, we affirm.

         BACKGROUND

         ¶2 At around 9:00 p.m. on the night of the accident, a woman (the eyewitness) was about to enter her apartment building when she heard a vehicle crash into a parked car. The eyewitness walked toward the SUV that caused the crash and asked if anyone needed medical assistance. The driver, a woman, got partway out of the SUV to inspect the damage, allowing the eyewitness to see the driver "from her waist up." The driver "demanded" the eyewitness help her separate the vehicles. The eyewitness refused. The eyewitness asked again if anyone needed medical assistance, but the driver merely repeated her demand for help separating the vehicles. The eyewitness ignored the request and called 911.

         ¶3 While the eyewitness called 911, the SUV's three passengers-a man, a woman, and a child-got out and walked away from the scene. The eyewitness was certain that at least one of the passengers exited from the passenger side of the SUV, but she was not certain if all passengers had exited from that side. The driver stayed behind and attempted to start the SUV and separate the vehicles by herself. When her attempts failed, the driver walked away in the same direction as the passengers who had already left.

         ¶4 While the eyewitness was on the phone with 911 dispatch, she kept an eye on the SUV and all of its occupants. Within five minutes of the 911 call, an officer arrived at the scene. The eyewitness told the responding officer that the driver of the SUV was a Native American woman, was wearing a black-and-white-striped shirt, appeared intoxicated, and left on foot.

         ¶5 The responding officer and his police dog have special training in tracking people fleeing on foot. After the officer had his dog smell around the SUV and inside the driver's side of the passenger compartment, the dog tracked the scent and led the officer to a woman who was wearing a black-and-white-striped shirt and otherwise matched the eyewitness's description. The woman identified herself as Loretta Steele.

         ¶6 The officer walked Steele back to the scene of the accident and noticed she "[had] a hard time walking," her speech was "slurred," and she had "glassy, glazed eyes."[1] Still at the scene, the eyewitness confirmed to the officer that Steele was the driver of the SUV. During the search incident to the arrest, the officer found the keys to the SUV in Steele's possession. The passengers were not located.

         ¶7 The State charged Steele with driving under the influence and leaving the scene of an accident involving property damage. Almost two years later, the case went to a jury trial. After the jury had been empaneled, defense counsel moved to dismiss the case based on an alleged due process violation that resulted from the State's failure to preserve the 911 recording of the eyewitness's call to dispatch. Defense counsel explained that she had discovered only the week before that the 911 recording requested during discovery had yet to be disclosed. Two days before trial, she was informed that the recording was destroyed in accordance with the standard one-year record retention policy for recordings of 911 calls. The day before trial, the State sent defense counsel a computer-aided dispatch report (the report) made by the dispatcher who answered the eyewitness's call. In the report, there was no description of the SUV's occupants, other than noting the gender of the adults and the presence of a child. The report also provided the time the eyewitness called dispatch and the time the responding officer arrived on the scene, which was within five minutes of the call being placed.

         ¶8 Given the destruction of the recording, the State and defense counsel agreed not to question the eyewitness about what she told dispatch when she called 911. The parties had informed the district court of the stipulation before jury selection, and the court had already entered an order in limine excluding that evidence. In making her oral motion to dismiss after the jury was empaneled, defense counsel explained that she was experiencing "angst about [her] ...


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