State v. Hamilton, ___ N.C. App. ___, 822 S.E.2d 548 (Dec. 4, 2018)

The court rejected the defendant’s argument that the trial court erred by denying his motion for sanctions for failure to preserve and disclose a blank recording of an arranged call between an informant and the defendant. Under the discovery statutes, officer Moody should have documented his efforts to preserve the conversation by audio recording and provided the blank audio file to the District Attorney’s Office to be turned over to the defendant in discovery. The court noted that when human error occurs with respect to technology used in investigations “[th]e solution in these cases is to document the attempt and turn over the item with that documentation, even if it appears to the officer to lack any evidentiary value.” However, failure to do so does not always require dismissal or lesser sanctions. Here, the trial court considered the materiality of the blank file and the circumstances surrounding Moody’s failure to comply with his discovery obligations. In denying sanctions, it considered the evidence presented and the arguments of counsel concerning the recording. The trial court found Moody’s explanation of the events surrounding the recording to be credible. On this record, the trial court did not abuse its discretion in denying sanctions.