COURT RULES THAT POLICE MUST MAKE GOOD FAITH EFFORT TO RELEASE VIDEO TAPES WHICH ARE TIMELY REQUESTED

“it was prejudicial to Wilson for his counsel not to be able to investigate the (POLICE) “pool” car’s use log, despite her attempts to obtain a copy of it well before trial. “

This case suggests police falsehoods. Some detention centers are not cooperative in perserving video of the intake procedures of a defendant. One must applaud the Court of Appeals for realizing that actual attempts to destroy evidence useful to a defendant is a growing practice.

Wilson v. Commonwealth (Ky. App., 2012) December 7, 2012

One month prior to trial, Wilson’s defense counsel requested discovery in the form of in-car audio/video from both police “pool” cars and exculpatory evidence in the form of a list of any individuals who were in Officer Shelton’s squad car within the twenty-four hour period preceding Wilson’s arrest. The trial court ordered the Commonwealth to answer the request in writing within ten days. The day after the court’s deadline, with no response from the Commonwealth, defense counsel filed a Kentucky Rule of Criminal Procedure (RCr) 7.24(9) motion to dismiss. The trial court, sua sponte, gave the Commonwealth three additional days to comply, excusing the prosecutor’s failure to comply with the court’s order as due to having “a lot of back to back trials.”

Nineteen days after the court’s original deadline and closing in on the trial date, the Commonwealth faxed defense counsel a response indicating that it had no knowledge of the identity and charges of the information requested; that defense counsel was equally situated regarding access to that information; and provided defense counsel with a list of Officer Shelton’s arrests from Courtnet. The day before trial, the prosecutor informed defense counsel whom he saw in another court division that there were no in-car audio/videos.

On the day of trial, defense counsel filed a motion to dismiss the indictment based on the Commonwealth’s failure to comply with the court’s order.

Defense counsel noted that the Courtnet information provided by the Commonwealth was not in compliance, as it did not provide a list of persons in Officer Shelton’s “pool” car in the twenty-four hours before Wilson’s arrest. Defense counsel alternatively requested a hearing in which Officer Shelton could testify and answer questions about why the Commonwealth had failed to seek the information from Officer Shelton, despite his response that there was a “pool” car log available.

The Commonwealth responded, arguing that it had complied with the three-day extension period, even though it had not. The Commonwealth further argued that it had complied with a request for copies of the uniform citations although defense counsel could have done it herself; it could not respond more timely to the in-car audio/video request because its paralegal was out; it did not have to turn over anything in response to the request for the “pool” car list because it was not exculpatory; Officer Shelton was mistaken when he said the Commonwealth had asked him about the log the day before trial because the Commonwealth had not done so; and alternatively, defense counsel could get the log herself through an open records request.

In ruling on defense counsel’s motion to dismiss or for a continuance, the trial court held that the above issues were proper questions for cross-examination or that defense counsel could subpoena Officer Shelton, but found that the Commonwealth had complied with the court’s order. Additionally, the trial court noted that the log was not “that important to this case or to the overall

We agree with Wilson that an officer’s statement that he routinely checks his patrol or pool cars for maintenance, safety, and the existence of any weapons or drugs is not conclusive evidence that the officer properly checked the patrol or pool car at issue in the instant case.

Particularly, we agree with Wilson’s arguments that Officer Hidrogo and Officer Shelton had conflicting testimony about the events leading to Wilson’s arrest. Thus, Officer Shelton’s credibility was at issue in this case, and it was prejudicial to Wilson for his counsel not to be able to investigate the “pool” car’s use log, despite her attempts to obtain a copy of it well before trial. We find this particularly persuasive in light of the fact that no in-car audio/videos were available. The trial court’s denial of a continuance after the Commonwealth’s continued delays in producing the evidence was an abuse of discretion, as there was a reasonable probability that the outcome of Wilson’s trial would have been different had he been able to present evidence that prior occupants of the “pool” car left the drugs inside. At the very least, Wilson should have been afforded time to develop an argument concerning such a theory, and the Commonwealth’s refusal to provide the court-ordered discovery prevented him from doing so.

Because our ruling on this issue is determinative of the case in its entirety, we do not need to consider the other arguments Wilson makes in his brief.

Based on the above finding of an abuse of discretion, we vacate the judgment of the Jefferson Circuit Court and remand this case to the court for a new trial.

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