State v. Mylett, ___ N.C. App. ___, 799 S.E.2d 419 (Apr. 18, 2017)

In this assault on a government officer case, no Brady violation occurred when recordings from police body cameras were reviewed by the defendant’s original trial counsel and then destroyed pursuant to the police department’s evidence retention schedule. The defendant’s original trial counsel reviewed the video recordings but opted not to obtain copies or use the footage at the defendant’s district court trial. The defendant was convicted and appealed for trial de novo to superior court. In the meantime, the original recordings were destroyed in accordance with the police department’s evidence retention schedule. The defendant’s new trial counsel moved for a continuance to allow time for counsel to prepare a motion to dismiss, arguing that such a remedy was warranted because the recordings had been destroyed and thus were unavailable for use by the defense. The trial court denied the motion. The defendant was convicted and appealed. The court stated: “Defense counsel’s decision not to make or preserve copies of the videos — regardless of counsel’s reason for declining to do so — cannot serve as a basis for arguing a Brady violation was committed by the State.”