Tampa DUI to Videotape or Not to Videotape

Criminal law — Driving under influence — Evidence — Videotape — Violation of mandatory videotaping policy — No error in dismissing DUI charge with prejudice based on failure to adhere to mandatory videotaping policy where record reflects that both state and defense counsel stipulated that deputy had previously stated that he “chose not to” record certain traffic stops, and state conceded that if videotaping policy was not optional state could not produce satisfactory reason for not videotaping defendant’s stop

STATE OF FLORIDA, Appellant, v. MICHAEL TERCYAK, Appellee. Circuit Court, 2nd Judicial Circuit (Appellate) in and for Leon County. Case No. 2008-AP-0025. L.T. Case No. 2007-CT-2568. March 31, 2009. An appeal from the County Court for Leon County. Augustus D. Aikens, Jr., Judge. Counsel: William N. Meggs, State Attorney, Second Judicial Circuit, and Amanda F. Allen, Assistant State Attorney, for Appellant. Frederick M. Conrad, and Edward T. Bauer, Brooks LeBoeuf Bennett Foster & Gwartney, P.A., Tallahassee, for Appellee.

[Editor’s note: Lower court order at 16 Fla. L. Weekly Supp. 429a]

(CHARLES A. FRANCIS, C.J.) The State appeals the trial court’s order granting Tercyak’s Motion to Dismiss. § 924.07(1)(a), Fla. Stat.; State v. Bjorkland, 924 So. 2d 971 (Fla. 2d DCA 2006). Having considered the record, the briefs and the applicable law, the court finds that the trial court’s order should be affirmed.

Tercyak was arrested for driving under the influence. The trial court found that “[a]lthough his patrol vehicle was equipped with a fully operational camera that possessed video and audio capabilities, [the arresting deputy] did not record” the events surrounding Tercyak’s arrest.

The trial court found that the written policy of the Leon County Sheriff’s Office, regarding the use of “in-car” camera systems, reads, in relevant part:

Utilization of In-Car Camera Systems: Deputies assigned to vehicles equipped with in-car camera systems should activate the audio and video components of the system when conducting traffic stops.

1.) Tapes, used to record traffic stops, will be placed into evidence in accordance with G.O. 83.1, if the tape is considered of evidentiary value.

2.) If the tape is not considered to be of evidentiary value, the deputy may erase the tape and reuse it, or destroy it and request a new tape.

(Emphasis retained).

During the proceedings below and on appeal, the State argues that this policy leaves the decision of whether an officer will video tape a traffic stop entirely up to the individual officer. In other words, the State asserts that it would not violate the written policy of the Leon County Sheriff to not record a traffic stop for any reason whatsoever. The trial court rejected this assertion and, for the reasons articulated below, the court finds no reversible error as to this determination.

Initially, this court would note that it will not reweigh and reevaluate the evidence presented to the trial court. “If there is any competent substantial evidence to support the trial court’s ruling it must be sustained irrespective of the reviewing court’s opinion as to its appropriateness.” Smiddy v. State, 627 So. 2d 1257 (Fla. 3d DCA 1993).

The trial court correctly noted that the term “should” is “used to express obligation or duty.” See The American Heritage Dictionary of the English Language, at 1612 (4th ed. 2000). Based on the competent, substantial evidence of the plain language of the written policy itself, the trial court found that the Leon County Sheriff’s Office has a policy of video taping traffic stops and the arresting deputy violated this policy.

During the proceedings below, the State presented the testimony of Lieutenant Steven Harrelson of the Leon County Sheriff’s Office, who testified that the policy did not require deputies to video tape traffic stops. Harrelson further testified that it “is optional for the deputy to make their own discretion to decide what they do.” By granting the instant motion to dismiss, it is clear that the trial court was not persuaded by Harrelson’s testimony. However, “the credibility of the witness and the weight of evidence presented are matters within the province of the trial judge.” State v. Polack, 598 So. 2d 150, 152 (Fla. 1st DCA 1992). Furthermore, the trial court explained that Harrelson had no role in drafting the policy, had not discussed his interpretation with the Sheriff or the arresting deputy, and has no involvement with carrying out the policy, “as videotaping traffic stops has nothing whatsoever to do with maintaining the agency’s accreditation.”

Even if the State is correct that the Leon County Sheriff’s policy does not mandate that officers record traffic stops in every circumstance, regardless of the situation the officer may find himself or herself in, there can be no doubt that the plain language of the written policy anticipates that deputies have an obligation to, as a general rule, video record traffic stops if his or her vehicle has the appropriate equipment.

Absent a stipulation, statements of counsel not made under oath are not evidence. Parkerson v. Nanton, 876 So. 2d 1228, 1230 (Fla. 1st DCA 2004). Indeed, there was little evidence before the trial court regarding the deputy’s motivation as to why he did not video tape the traffic stop. Tercyak’s counsel asserted that the arresting officer had previously stated that he simply “chose not to” record the traffic stops with no further explanation provided. Furthermore, while counsel for the State argued to trial court that it did not need to reach the deputy’s motivations for not taping the traffic stop, she further stated that “his explanation isn’t going to be satisfactory.”

Regarding Tercyak’s counsel’s statement that the arresting deputy had previously testified in administrative hearings that he simply “chose not to” record the traffic stops, the transcript reflects the following:

Mr. Conrad: So, when we asked him these questions, you know, did you have a camera? Yes. Was it operational? Yes. Why didn’t you use it? I chose not to, was his answer. And so, I guess we’ll be stipulating that that would be his testimony if he was here. Apparently, the State didn’t subpoena him and he’s not here to testify.

The Court: All right.

Ms. Cappleman: Judge, the issue is whether or not his choice not to use the camera was improper and a legal grounds for dismissal. We have an expert here from the Sheriff’s Office, or someone who is well-versed in the policies there to tell you about the policies.

The Court: All right.

Ms. Cappleman: I don’t think it’s necessary for Deputy Benedict to explain himself, or be subject to cross-examination at this juncture.

Later in the hearing, the Assistant State Attorney states:

Ms. Cappleman: [Deputy Benedict] clearly states in the DMV hearings that he does not tape because he chooses not to. He obviously believes that it’s within his discretion to make that decision to choose not to. Now why he chooses not to is what I don’t want to get into.

Subsequently, counsel for appellee stated:

Mr. Conrad: But what you don’t have is an explanation. So, you’re stuck with this statement that he makes that we stipulate to, which is just, I chose not to do it, which is nothing more than a unilateral decision.

Finally, the transcript reflects that the Assistant State Attorney stated,

Ms. Cappleman: The jury expects to see this defendant falling down drunk and they’re not going to see it. That’s why he doesn’t tape, I’m sure. But we don’t get there. And even if we do, that’s not going to be a satisfactory explanation to the defense or to Your Honor. But the fact is, he has the right to make that decision at this point. . . .

From the transcript, it appears that counsel for Tercyak indicated that the parties would stipulate that Deputy Benedict had previously testified in administrative hearings that he simply chose not to record the traffic stops. If counsel for the State did not agree to such a stipulation, it would have been incumbent upon counsel to object to the stipulation for the record. While the Assistant State Attorney argued that it was unnecessary for Deputy Benedict to explain himself, she did not object to the proposed stipulation and later referred to the stipulated statement in her own argument. Therefore, the court finds that the record reflects that both counsel stipulated that Deputy Benedict had previously stated that he simply “chose not to” record certain traffic stops.

Furthermore, the court finds that the Assistant State Attorney essentially conceded to the trial court that if the Leon County Sheriff’s Office’s policy regarding taping traffic stops was not optional, the State would not be able to produce a satisfactory reason for not video taping the traffic stop at issue.

Accordingly, because it is supported by substantial competent evidence, the court finds no reversible error as to the trial court’s factual finding that the Leon County Sheriff’s written policy obligates deputies to record traffic stops. Although the court does not hold that merely violating this policy, by itself, would not constitute sufficient grounds to dismiss criminal charges, the State conceded at the hearing that “his explanation [for not taping the traffic stops] isn’t going to be satisfactory.” Therefore, the court finds no basis for overruling the trial court’s order granting Tercyak’s Motion to Dismiss. Smiddy v. State, 627 So. 2d 1257 (Fla. 3d DCA 1993).

AFFIRMED.