State v. Steele

2019 UT App 71
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
LORETTA R AE S TEELE,
Appellant.
Opinion
No. 20170855-CA
Filed May 2, 2019
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 H AGEN authored this Opinion, in which
JUDGES K ATE A PPLEBY and R YAN M. HARRIS concurred.
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.

State v. Steele
20170855-CA 	2 	2019 UT App 71
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

State v. Steele
20170855-CA 	3 	2019 UT App 71
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.
1. At trial, defense counsel stipulated that Steele was intoxicated.

State v. Steele
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¶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] 	stipulation.” 	On
reconsideration, she believed dismissal was a more appropriate
remedy and wished to withdraw the stipulation.
¶9 	Defense 	counsel 	asserted 	that 	the 	911 	recording 	was
exculpatory because it “allegedly contained a description of the
driver . . . [and we] don’t know if that description actually
conformed with [Steele’s appearance] or not.” Defense counsel
argued that, under State v. Tiedemann, 2007 UT 49, 162 P.3d 1106,
there 	was 	a 	reasonable 	likelihood 	that 	the 	911 	recording
contained exculpatory evidence; that the State was culpable in
failing to preserve it; and that, without it, Steele could not
present her defense.
¶10 	The 	court 	denied 	Steele’s 	request 	to 	withdraw 	the
stipulation. In light of the arguments presented, the report, and
the parties’ stipulation to avoid asking the eyewitness about the
details she might or might not have provided to dispatch, the
district court denied Steele’s motion to dismiss, focusing largely
on the lack of prejudice. It explained that “if [the eyewitness]
gave a description to the [911] operator, and we don’t know if
she did or not, . . . the officer shows up just a matter of minutes
later and she gives a description again. It would seem . . . to be
unlikely that a different description is given.” The court also
explained that the eyewitness, who would testify at trial, gave
the officer a description of what she saw and there “appear[ed]
to be no reason why that eyewitness . . . would say something
different to a [911] dispatcher one minute and a few minutes
later would say something different to a police officer.”

State v. Steele
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¶11 	At trial, defense counsel’s opening statement suggested to
the jury that the other female occupant of the SUV was actually
the 	driver, 	not 	Steele. 	As 	trial 	progressed, 	defense 	counsel
developed 	this 	theory. 	She 	first 	attempted 	to 	discredit 	the
eyewitness’s identification of Steele on cross-examination by
asking the eyewitness numerous times to provide descriptions of
the other SUV passengers, but the eyewitness could not provide
anything other than their race, gender, and that there was a child
present. 	Defense 	counsel 	further 	sought 	to 	discredit 	the
eyewitness’s identification of Steele by providing testimony from
an eyewitness identification expert. The expert testified to the
stages of memory; how memory can be affected by distractions,
stressors, 	and 	the 	suggestibility 	of 	“show 	ups”2; 	and 	the
phenomenon of “change blindness.”3 But the jury rejected the
defense’s theory and convicted Steele of both charges.
¶12 	Steele appeals the denial of her motion to dismiss.
ISSUE AND STANDARDS OF REVIEW
¶13 	Steele contends the district court erroneously denied her
motion to dismiss, arguing that her right to a fair trial was
violated 	because 	the 	State 	destroyed 	exculpatory 	evidence.
Steele’s contention presents a mixed question of law and fact.
2. A “show up” is when an eyewitness identifies a suspect in a
“single-suspect showup rather than a multi-suspect lineup.” See
State v. King, 2017 UT App 43, ¶ 28 n.4, 392 P.3d 997.
3. “Change blindness” is an individual’s “failure to notice even
substantial changes in objects or scenes[] when [his or her]
attention 	is 	otherwise 	engaged.” 	Jennifer 	K. 	Robbennolt,
Apologies and Reasonableness: Some Implications of Psychology for
Torts, 59 DePaul L. Rev. 489, 504 (2010).

State v. Steele
20170855-CA 	6 	2019 UT App 71
State v. Mohamud, 2017 UT 23, ¶ 10, 395 P.3d 133. “Whether the
State’s destruction of potentially exculpatory evidence violates
due process is a question of law that we review for correctness,
though we incorporate a clearly erroneous standard for the
necessary subsidiary factual determinations.” State v. DeJesus,
2017 UT 22, ¶ 18, 395 P.3d 111 (quotation simplified).
ANALYSIS
¶14 	Steele asserts that the 911 recording “likely recorded [the]
eyewitness’s first description of the driver,” which she contends
might have been different from the description given to the
officer when he arrived on the scene. Because such evidence
might have been exculpatory, she argues that the State’s failure
to preserve that recording “violated [her] due process right to a
fundamentally fair trial.”
¶15 	To 	determine 	whether 	“the 	State’s 	destruction 	of
potentially exculpatory evidence violates due process,” the Utah
Supreme Court has established a threshold requirement that is
followed by a balancing test. State v. DeJesus, 2017 UT 22, ¶¶ 18,
27, 395 P.3d 111. First, under State v. Tiedemann, 2007 UT 49, 162
P.3d 	1106, 	“the 	defendant 	must 	demonstrate 	a 	reasonable
probability that the lost evidence would have been exculpatory.”
DeJesus, 2017 UT 22, ¶ 27; see also Tiedemann, 2007 UT 49, ¶ 44.
This threshold showing “will be met so long as the defendant’s
proffer as to what the lost [or destroyed] evidence would have
shown is not pure speculation or wholly incredible.” State v.
Mohamud, 2017 UT 23, ¶ 20, 395 P.3d 133 (quotation simplified).
Once this threshold has been satisfied, the district court must
“determine the seriousness of the due process violation and
fashion the appropriate remedy” by balancing both: “(1) the
culpability of the State in the loss or destruction of the evidence
and (2) the prejudice to the defendant as a result of the missing
evidence.” Id. ¶ 18.

State v. Steele
20170855-CA 	7 	2019 UT App 71
¶16 	The district court’s determination that Steele could not
establish prejudice appears to assume, without deciding, that
Steele could meet the threshold requirement by demonstrating a
reasonable probability that the 911 recording would have been
exculpatory. On appeal from the denial of a motion to dismiss,
we may affirm on any basis apparent in the record. See Bailey v.
Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158 (explaining that we “may
affirm the judgment appealed from if it is sustainable on any
legal ground or theory apparent on the record” even if “such
ground or theory . . . was not considered or passed on by the
lower court” (quotation simplified)). We conclude Steele has not
satisfied the threshold requirement and therefore do not address
whether the court correctly balanced the culpability of the State
in the destruction of the evidence against the prejudice to Steele.
¶17 	In 	DeJesus, 	the 	Utah 	Supreme 	Court 	clarified 	“what
constitutes 	a 	reasonable 	probability 	for 	purposes 	of 	a
defendant’s due process right to exculpatory evidence.” 2017 UT
22, ¶ 39. The court explained that “a reasonable probability
standard defies a precise definition or quantifiable value” and
“though it is more than a mere possibility, it falls substantially
short of the more probable than not standard.” Id. (quotation
simplified). 	Ultimately, 	the 	defendant 	must 	establish 	“a
probability sufficient to undermine confidence in the outcome”
of the case. Id. (quotation simplified). In applying that standard
to the defendant’s case in DeJesus, the court concluded that the
defendant had satisfied the threshold showing of a reasonable
probability 	that 	the 	destroyed 	evidence 	would 	have 	been
exculpatory. Id. ¶ 41.
¶18 	In DeJesus, the defendant was charged with assaulting a
correctional officer after an altercation broke out between the
defendant and another inmate in a prison cell. Id. ¶¶ 4–5. The
correctional officer intervened in the altercation and after he
pushed the defendant to the ground, the defendant kicked the
officer twice, “once in the abdomen and once in the thigh.” Id.

State v. Steele
20170855-CA 	8 	2019 UT App 71
¶ 4. The prison had a video recording of the altercation and
assault, but the video was destroyed before the investigating
officer could review it and before it could be turned over to the
defense. Id. ¶¶ 4–6. The defendant moved to dismiss the assault
charge under Tiedemann, “claiming that the loss or destruction of
the 	[video 	recording] 	constituted 	a 	due 	process 	violation”
because the video recording would have shown that “if she
kicked [the officer], she did so unintentionally, merely seeking to
defend herself from” the other inmate. Id. ¶ 9.
¶19 	At the evidentiary hearing on the motion to dismiss, the
defendant provided testimony from her fiancée, a fellow inmate,
who explained that the defendant, the officer, and the other
inmate were all on the ground at the time of the assault and that
the 	other 	inmate 	remained 	on 	the 	officer’s 	back 	while 	the
defendant kicked at her, striking the officer by accident. Id.
¶¶ 12, 41. The court determined the fiancée was not credible
because she was biased. Id. ¶ 14. The State elicited testimony
from the officer, who at first said that the inmate fighting with
the defendant was six feet behind him when the defendant
kicked him, but on cross-examination the officer said the other
inmate “was on his back.” Id. ¶ 11 (quotation simplified). The
officer attempted to clarify that he “did not know precisely
where” the other inmate was standing but after he had reviewed
the video recording—prior to its destruction—“he could see that
[the other inmate] was standing four to six feet behind him.” Id.
¶¶ 5, 11 (quotation simplified). The district court denied the
defendant’s motion to dismiss, and the defendant appealed. Id.
¶ 17.
¶20 	On 	appeal, 	our 	supreme 	court 	determined 	that 	the
testimony 	of 	the 	defendant’s 	fiancée 	that 	contradicted 	the
“arguably inconsistent testimony of” the officer was “sufficient
to 	establish 	a 	reasonable 	probability 	that 	the 	lost 	[video
recording] would have been exculpatory.” Id. ¶ 44. The court
explained that the testimony of the fiancée and the officer, when

State v. Steele
20170855-CA 	9 	2019 UT App 71
taken together, “provide[d] a reasonably probable explanation of
both what the lost evidence might have shown and how that
evidence could have benefitted [the defendant].” Id. Under these
facts, 	the 	court 	concluded 	that 	the 	threshold 	showing 	was
satisfied.
¶21 	By contrast, in State v. Mohamud, 2017 UT 23, 395 P.3d 133,
an opinion issued the same day as DeJesus, our supreme court
held that another defendant challenging the destruction of a
prison video recording had not satisfied the threshold showing.
In Mohamud, the defendant “was charged with one count of
possessing a prohibited item in a correctional facility” after a
correctional officer discovered a shank on the defendant’s person
while transporting the defendant from one cell to another. Id.
¶¶ 2–5. The defendant “submitted a discovery request seeking
all 	video 	recordings 	of 	the 	event” 	and 	learned 	that 	the
surveillance video, if one existed, had been destroyed before the
charges were filed, pursuant to the facility’s thirty-day retention
policy. Id. ¶¶ 4–5.
¶22 	The defendant moved to dismiss, arguing that “a video
recording of the incident would have been exculpatory because
it could have impeached the testimony of the officers, though he
provided no further details as to what specific testimony would
have been impeached.” Id. ¶ 6. The only evidence before the
district court regarding what the surveillance video could or
would have contained came from the investigating officer who
testified that the surveillance cameras “generally record and are
on” and “they possibly could have recorded the incident, [but]
he did not know if those cameras were actually recording that
day, he never viewed any recordings for [the date in question],
and he had no knowledge whether or not there was an actual
recording made.” Id. ¶ 7 (quotation simplified). The district court
found “that there [was] not even evidence that there was a
videotape. 	There 	may 	have 	been 	a 	videotape. 	There 	is 	no
evidence the cameras were on or [whether] they were off at the

State v. Steele
20170855-CA 	10 	2019 UT App 71
time, 	nothing 	to 	indicate 	what 	the 	camera 	would 	have
[recorded].” Id. ¶ 8 (quotation simplified). The district court
denied the motion to dismiss, and the defendant appealed. Id.
¶¶ 8–9.
¶23 	On appeal, the Utah Supreme Court held that the district
court correctly denied the motion to dismiss, concluding that the
defendant 	did 	not 	satisfy 	the 	threshold 	showing 	under
Tiedemann 	that 	there 	was 	a 	reasonable 	probability 	that 	the
surveillance video would have contained exculpatory evidence.
Mohamud, 2017 UT 23, ¶ 19. Even assuming “that the alleged
video footage both existed and captured the incident at issue,”
the court held that the defendant did not establish a “reasonable
probability that it would have been exculpatory.” Id. Instead, the
defendant “proffered only speculation as to what the footage
might have shown.” Id. The defendant stated that the “video
evidence would have contradicted, discredited or called the
correctional officers’ memory into question in some way,” but he
“provide[d] 	no 	description, 	testimony, 	or 	other 	evidence
establishing what the video would have shown and how that
would 	have 	impeached 	the 	officers’ 	testimony.” 	Id. 	¶ 	22
(quotation simplified). While “[i]t is certainly true that a video
recording of the incident would have been highly probative of
what truly happened,” the court explained that “simply stating
that video recordings can be helpful to determine truth does not
establish that this particular video recording would have been
helpful to [the defendant] in the specific circumstances of his
case.” Id. ¶ 21.
¶24 	The court explained that the defendant could have made
a 	threshold 	showing 	that 	the 	destroyed 	evidence 	had 	a
reasonable probability of being exculpatory “by offering the
testimony of other inmates who witnessed the event” or he
“could have testified on his own behalf as to what the video
would have shown, which would not have waived his Fifth
Amendment right against self-incrimination.” Id. ¶ 23. But “a

State v. Steele
20170855-CA 	11 	2019 UT App 71
defendant cannot rest on the claim that the evidence could have
undermined 	confidence 	in 	a 	witness’s 	testimony 	in 	some
possible way, but must instead make some proffer as to what
testimony 	would 	have 	been 	contradicted 	and 	how 	such 	a
contradiction 	would 	have 	aided 	the 	defendant.” 	Id. 	¶ 	22.
“Although the showing required of defendants is low, there
must 	be 	something 	more 	than 	speculation 	about 	how 	the
evidence could conceivably be exculpatory,” and the defendant
offered only “speculation about potential impeachment.” Id.
¶ 24.
¶25 	Like the defendant in Mohamud, Steele has not satisfied
the 	threshold 	requirement 	under 	Tiedemann 	of 	showing 	a
reasonable 	probability 	that 	the 	911 	recording 	would 	have
contained exculpatory evidence. Steele did not provide any
evidence that the eyewitness gave a description of the driver to
dispatch when she called 911, much less that the description
would contradict the eyewitness’s testimony. Instead, she claims
only that the 911 recording “very well may include” details
about the other female passenger. The only evidence to support
this assertion was the officer’s statement that dispatch usually
asks callers for a description of the suspects. Just as in Mohamud,
where the investigator explained that cameras at the facility
“generally record and are on” but could not say whether “those
cameras were actually recording that day” or whether they
would have recorded the incident, see 2017 UT 23, ¶ 7 (quotation
simplified), whether the eyewitness gave dispatch a description
of the driver in this case is purely speculative. Indeed, the only
evidence as to what occurred during this particular call suggests
that 	no 	such 	description 	was 	given. 	The 	dispatch 	notes
contained no description of the SUV’s occupants other than the
gender of the adults and the presence of a child. Moreover, at
trial, the officer never testified that he was given a description of
the 	SUV’s occupants 	from 	dispatch; 	he 	recounted 	only 	the
description of the driver he received from the eyewitness when
he arrived on scene.

State v. Steele
20170855-CA 	12 	2019 UT App 71
¶26 	Significantly, in arguing her motion to dismiss, Steele
never asked to present any evidence outside the presence of the
jury as to whether the eyewitness gave a description to dispatch
that would have been captured on the recording.4 Unlike the
defendant in DeJesus, who elicited testimony from eyewitnesses
about what the video recording would show, 2017 UT 22, ¶ 45,
Steele never asked to present testimony from the eyewitness or
other witnesses who could have testified as to what description,
if any, the eyewitness gave to dispatch during the 911 call.5 Nor
did 	Steele 	offer 	her 	own 	testimony6 	or 	that 	of 	the 	other
occupants of the SUV to support the idea that the eyewitness
might have confused her with the other female occupant, such as
evidence that their clothing was similar or that Steele switched
places with the driver after the eyewitness called 911. Thus, even
if we were to assume that the eyewitness described the driver to
dispatch, we must further assume that the description given to
dispatch was inconsistent with the eyewitness’s testimony at
trial in order to conclude that there is a reasonable probability
4. At oral argument on appeal, Steele argued that even “the
absence 	of 	a 	description” 	on 	the 	911 	recording 	could 	be
exculpatory. Steele has not explained how the absence of a
description of Steele and the other female passenger supports
the 	defense’s 	theory 	that 	the 	911 	recording 	contained
exculpatory evidence of misidentification.
5. The court’s order accepting the parties’ stipulation to refrain
from asking the eyewitness such questions at trial would not
have precluded the admission of that evidence outside the
presence of the jury in support of the motion to dismiss.
6. In doing so, Steele “would not have waived [her] Fifth
Amendment right against self-incrimination.” State v. Mohamud,
2017 UT 23, ¶ 23, 395 P.3d 133.

State v. Steele
20170855-CA 	13 	2019 UT App 71
that the recording was exculpatory. There is no actual evidence
in this case to support either assumption.
¶27 	We note that any lost or destroyed evidence—including
the evidence here—has the potential to contain exculpatory
evidence. 	Although 	the 	threshold 	reasonable 	probability
standard presents a low bar, a defendant must provide “more
than 	speculation,” 	Mohamud, 	2017 	UT 	23, 	¶ 	20 	(quotation
simplified), and present some evidence that would explain “both
what the lost evidence might have shown and how that evidence
could have benefitted [the defendant],” DeJesus, 2017 UT 22,
¶¶ 39, 	44. 	Here, 	Steele 	has 	not 	established 	a 	reasonable
probability that the 911 recording included a description of the
driver, 	much 	less 	one 	that 	would 	have 	assisted 	her 	in
impeaching the eyewitness’s testimony at trial.
CONCLUSION
¶28 	Because 	Steele 	did 	not 	demonstrate 	a 	reasonable
probability that the lost evidence would have been exculpatory,
we affirm the district court’s denial of her motion to dismiss.