State v. Jamie Bone

VERMONT SUPREME COURT Case No. 24-AP-076
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org

Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

SEPTEMBER TERM, 2024

State of Vermont v. Jamie Bone* } APPEALED FROM:
} Superior Court, Essex Unit,
} Criminal Division
} CASE NO. 21-CR-04404
Trial Judge: Justin P. Jiron

In the above-entitled cause, the Clerk will enter:

Defendant entered a conditional guilty plea to driving under the influence (DUI). She
appeals from the denial of her motion to suppress. We affirm.

In charging defendant with DUI, the State alleged the following. In May 2021, around
6:00 a.m., police received a call regarding a woman passed out in her vehicle. The woman
(defendant) was evaluated by emergency personnel but drove away before police arrived. Police
questioned defendant at her home and observed signs of intoxication. Defendant was processed
for DUI at the police barracks and her breath test result was .092% approximately two hours
after operation.

Defendant moved to suppress the evidentiary test result. Defendant was provided with
copies of videos from the police officer’s dashboard camera but she argued that suppression was
required because law enforcement failed to preserve video footage of her DUI processing at the
police barracks. The State opposed the motion. It argued that the law did not require that DUI
processing be recorded. Instead, the applicable statute provided that if a recording was made, it
needed to be preserved for a certain period. See 23 V.S.A. § 1203(j). The State argued that no
video was created in this case and thus, it could not be produced. Even if one had been created
and lost, the State asserted that suppression would not be warranted as defendant made no
showing that the video would be favorable to her.

At a hearing on the motion, defendant relied on deposition testimony of the investigating
officer and the administrative clerk of the police barracks. The court was unpersuaded by
defendant’s argument and denied her motion. It made the following findings. The
administrative clerk could not find a video of defendant’s DUI processing or locate any
definitive proof that such a video was ever made. The clerk produced everything he could find
in the evidence library regarding defendant’s case. The clerk stated that the officer investigating
the case was responsible for recording the DUI processing, downloading the video, and making a
CD or DVD of the video. He indicated that videos in the evidence library were available for
fifty-eight days after they were created.

The officer who arrested and processed defendant stated that he could not remember if he
made and downloaded a video of defendant’s processing at the barracks. He said that he
normally made and downloaded videos onto a CD or DVD, and then made the video available to
the clerk. The officer could not delete videos on his own. The officer also stated that sometimes
the system was down. Based on this information, the court found that if a video was made and
accessible, the officer would likely have given the video to the clerk shortly after processing
defendant. If there was a video within the evidence library, the system would have deleted it by
the time that the clerk was asked to confirm its existence in this case. The court found no
evidence of bad faith.

The court ultimately determined that defendant failed to show that a video of her
processing was made. At most, the trooper could state only that his general practice was to make
a video when processing a DUI defendant. He could not recall, however, if he actually made
such a video when processing defendant. Without proof that a video was made, the court could
not require a party to disclose such evidence or penalize a party for losing it. The court
explained that the law and the rules of evidence did not require that a video of a defendant’s
processing be made; they required only that a video be preserved if it was made. The court was
also unpersuaded by defendant’s generalized assertion that her constitutional rights were
violated. The court thus denied defendant’s motion to suppress. This appeal followed.

Defendant argues that the court erred in finding that no processing video was made. She
cites evidence that she believes supports her position, such as the trooper’s testimony that it was
his habit to make such videos. Defendant also refers to the clerk’s testimony as to how long
videos are retained and speculates that the video was created but no longer accessible due to the
passage of time. Assuming this argument fails, defendant cites to a concurring opinion in State
v. Hayes in support of her assertion that the failure to make a recording does not absolve the
State. 2016 VT 105, ¶ 33, 203 Vt. 153 (Robinson, J., concurring) (arguing that, as general
matter, videorecording of roadside stops should not be excluded from general rule that “a failure
to collect evidence (that officers have no statutory or constitutional duty to collect) may be so
negligent with reference to reasonable policing norms and so prejudicial as to warrant further
consideration by the Court”). Assuming that the evidence did exist and was lost, defendant
argues that she established a reasonable probability that the evidence would have been favorable
and that a balancing of relevant factors set forth in State v. Bailey, 144 Vt. 86 (1984), warrants
suppression here.

“On appeal from denial of a motion to suppress, we review the trial court’s legal
conclusions de novo and will uphold its findings of fact unless clearly erroneous.” State v.
Therrien, 2011 VT 120, ¶ 5, 191 Vt. 24. “Under the clearly erroneous standard, [this Court] will
uphold the [trial] court’s factual findings unless, taking the evidence in the light most favorable
to the prevailing party, and excluding the effect of modifying evidence, there is no reasonable or
credible evidence to support them.” State v. Nault, 2006 VT 42, ¶ 7, 180 Vt. 567 (mem.)
(citation omitted).

Defendant fails to show that the court’s finding regarding the video is clearly erroneous.
The officer testified that it was his habit to make a processing video, and it was likely he did so
based on his habit and experience. But he could not remember if he made a video in this case,
and he acknowledged that sometimes he forgot to do so in other cases. The clerk was unable to

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locate any definite proof that the recording was ever made. It was for the trial court to weigh the
evidence and make a factual determination whether such a video was made. The trial court
determined in this case that the evidence was insufficient to support a finding that the video was
made, and we leave it to the trial court to weigh the evidence and assess the credibility of
witnesses. See id.; see also Meyer v. United States, 638 F.2d 155, 158 (10th Cir. 1980) (stating
that “evidence of habit or routine was to be weighed and considered by the trier of the facts in
the same manner as any other type of direct or circumstantial evidence,” and “weight to be given
to any testimony depends upon the particular circumstances”). The clerk’s testimony about how
long videos are maintained in the system does not undermine the court’s finding that no video
was created. Nor does the concurring opinion in Hayes assist defendant. The majority
recognized in Hayes that “there is no legal duty to record roadside stops,” and it thus concluded
that the “officer’s failure to record the stop was not negligent.” 2016 VT 105, ¶ 16. The
concurring opinion disagreed with the majority’s rationale, arguing that the Court should
recognize that there might be circumstances where “a failure to collect [video] evidence (that
officers have no statutory or constitutional duty to collect) [is] so negligent with reference to
reasonable policing norms and so prejudicial as to warrant further consideration by the Court.”
Id. ¶ 33 (Robinson, J., concurring). The reasoning in the concurrence is not binding on this
Court, nor is there any showing that the facts here would fall within the type of case that
concerned the concurring Justice.

Because we conclude that the court did not err in finding that no video was created, we
do not reach defendant’s remaining arguments.

Affirmed.

BY THE COURT:

Paul L. Reiber, Chief Justice

Harold E. Eaton, Jr., Associate Justice

Nancy J. Waples, Associate Justice

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