Judge finds investigator’s act in gross negligence, but not in bad faith

Superior Court Associate Judge Joseph N. Camacho has found a police officer’s deletion of an interview with an alleged victim of a domestic violence involving her husband, who happened to be a Rota police officer, was a result of gross negligence but not in bad faith.

In his order on Monday denying defendant Police Officer George Ayuyu Barcinas’ motion to dismiss the charges against him, Camacho also ruled that the audio recording was not apparently exculpatory at the time it was deleted.

The judge added that since Barcinas has other reasonably available means to obtain the information, the court finds that there has been no due process violation because of a police officer’s failure to preserve the audio recording of his interview with the alleged victim.

The Office of the Attorney General alleged that on June 5, 2015 on Rota, Barcinas pinned his wife to the ground and placed her in a headlock. He allegedly grabbed his wife’s keys from her car’s ignition against her will preventing her from leaving his property.

Barcinas also allegedly used physical force to struggle with and prevent the victim from calling law enforcement after she informed him of her intention to do so.

The bench trial of the 35-year-old Barcinas on charges of assault and battery, disturbing the peace, and interfering with a domestic violence report was initially set for March 4, 2016.

The day before the bench trial, counsel for both parties learned that a responding police officer in this case deleted an audio recording of the statement of the alleged victim.

Before the scheduled bench trial could begin on March 4, Barcinas, through counsel assistant public defender Tillman Clark, orally moved to dismiss the case due to destruction of evidence.

Barcinas later filed his motion to dismiss for destruction of evidence. The government, through assistant attorney general Shannon Foley, opposed the motion.

Camacho then vacated the bench trial and set an evidentiary hearing and motion hearing at the Rota Courthouse last June 20.

At the June 20 hearing, Rota DPS police officer Joseph Quitugua Camacho testified that he responded to an incident of domestic violence at the residence of defendant Barcinas on Rota.

Officer Camacho interviewed the alleged victim, who was with his father, inside his police vehicle.

Officer Camacho recorded the interview with his mobile phone. He testified at the hearing that he told the victim that he would delete the recording once he was finished with it.

After the interview, Officer Camacho proceeded to DPS Rota Central and wrote his report. He testified that he accurately typed all of the information from the victim’s interview into his written report and did not omit any information.

Officer Camacho testified that the victim appeared shaken during the interview. The victim also testified that she was shaken during the interview.

The victim’s demeanor was not noted in Officer Camacho’s written report.

After he finished the interview, Officer Camacho deleted the audio recording. He was not asked by anyone in DPS, nor by the alleged victim, to delete the recording.

Rather, Officer Camacho testified that he deleted the recording to fulfill his promise to the alleged victim—that he would delete the recording once he was finished with his report.

Officer Camacho testified that he had been trained to take notes using a note pad and pen in the police academy.

Officer Camacho testified he did not know if there was any standard procedure for recording interviews with mobile phones.

The alleged victim testified that she had the opportunity to review Officer Camacho’s written report, and that it was word-for-word what she told the officer on the night of the incident.

Barcinas, through counsel assistant public defender Tillman Clark, argues that Officer Camacho’s destruction of the audio recording of the interview with the alleged victim is a violation of his due process under the Due Process Clause of the 14th Amendment of the U.S. Constitution.

Clark argues that Camacho deleted the recording in bad faith because he deleted an audio recording of the alleged victim “pursuant to personal considerations designed to protect the alleged victim and not under his duty to preserve relevant and material evidence related to a criminal investigation.”

In denying defendant’s motion to dismiss, Judge Camacho pointed out that based on Officer Camacho’s testimony, his motivation in recording and subsequently deleting the audio recording was to avoid having to interview the victim more than once.

Judge Camacho said Officer Camacho promised the alleged victim that he would delete the audio recording, without any prompting from her.

The judge noted that Officer Camacho’s misplaced loyalties led him to deviate from his duty to collect and preserve evidence.

The judge said Officer Camacho intentionally deleted the audio recording to keep a promise he made to the alleged victim.

Despite this, Judge Camacho said, the court cannot find bad faith on behalf of the officer when he deleted the audio recording.

Based on the testimony presented to the court at the evidentiary hearing, the judge said Officer Camacho did not realize that the recording could be useful to Barcinas, although he did realize this in hindsight.

“Although the court cannot find bad faith in this particular instance, the court cautions law enforcement officers against letting personal considerations interfere with police investigations,” the judge said.

The judge said Officer Camacho’s actions skirt the line of bad faith; however, his actions are more correctly viewed as gross negligence rather than outright bad faith.

Judge Camacho said based on the testimony of Officer Camacho and the alleged victim, the audio recording did not seem to possess any exculpatory value.

The judge noted that the alleged victim testified that Officer Camacho’s written report was a word for word account of her statement.

Judge Camacho said no testimony or evidence presented to the court indicating that either witness was lying or concealing a portion of the alleged victim’s statement.

Thus, the judge said, there is nothing on the court record indicating that the audio recording had an exculpatory nature apparent at the time it was destroyed.

Judge Camacho said based on the testimony at the evidentiary hearing, it is clear that any missing information from the audio recording can be provided through one of the three individuals present in the vehicle at the time of the interview.