22 Oct

Defendant hereby moves to compel the video that has been lost due to the bad faith actions of DDA Nicole M. Hermann and the state of Oregon.

In an informal discovery demand, Defendant has demanded production of the video from Fred Meyer. The history of this request is as follows: On the day of the alleged incident, August 14, 2019, and in the days that followed, defense counsel met personally with and then was in communication with the lead police investigator Det. Tony Cobb, who was frankly very responsive. In those first interactions at the scene, Cobb and defense counsel discussed the importance of certain pieces of video and the urgency in obtaining them. The importance of the Fred Meyer video was discussed at that time. From reports it is apparent that the task of obtaining the video was assigned to Gresham Police Detective Aaron Turnage who reported: I drove to (Fred Meyer) and spoke to an unidentified member of management. I explained I wanted to determine if any video was available for the evening of August 13, 20-19 and I provided the information from the receipt that was provided by the victim. I was told that a member of loss prevention would contact me if video was available. I was told loss prevention was not currently working and the members of management did not have access to the CCTV system.

I did not receive a call back from management or loss prevention. I called the store on several different occasions and I was never able to contact anyone who could provide information; the business was not overly helpful or accommodating to my requests.

No video was recovered from this location. Turnage’s report regarding his efforts was not discovered until the end of November. Up until then, the defense believed, based on Cobb’s testimony at grand jury, that the discovery of the recording was imminent. Following receipt of Turnage’s report, defense investigator Frederick Gove easily contacted loss prevention at Fred Meyer Hawthorne on December 17, 2019. He learned that Fred Meyer has a state-of-the-art system, that the video would have been available probably through October and that Fred Meyer policy is eager to cooperate with police. Notably, if Turnage would have just gone to the store, they would have provided him footage. The video was important to this case because Parris testified at grand jury that she and Kelley were in no way romantically involved on August 13, 2019. This video would have demonstrated the falseness of this statement. This discovery demand is made in anticipation of a motion to dismiss pursuant to Calfornia v. Trombetta, 467 US 479 (1984) and its progeny alleging that the spoliation of this evidence was in bad faith because the police were aware from the date of incident that the evidence was important, the police did not take even reasonable steps to secure it, that the government led the defense to believe that it was preserved, and that the government did not alert the defense when it became clear they were unable to secure it. CONCLUSION The court should grant defendant’s motion to compel the production of the items listed on page one above. Dated this 27 December 2019.


3 And then, finally, in regard to the 4 video surveillance, I told Your Honor that I've been 5 told that this video surveillance doesn't exist. 6 I've invited my investigator here, 7 Rick Gove, who is going to give us, I think, a 8 less-than-five-minute testimony about what he found 9 out about the Fred Meyer video. And, frankly, also 10 about the -- the 7-Eleven video that he went out and 11 investigated. 12 And I just want to make that part of the 13 record. And as I told Your Honor, you know, that's 14 fine if -- if we're being told that it's gone, that 15 we anticipate a motion pursuant to California v. 16 Trombetta talking about spoliation of evidence and 17 bad faith on the part of the -- on part of the police 18 or government investigators in that regard. 19 So I think I have to make a full -- a 20 full record regarding the motion to compel that we 21 took every step we could to get that and -- and that 22 it's not available. 23 So that's why I call Mr. Gove, is in 24 order to -- to complete that record here today. 25 That's what I have to say about the motion to compel. 20 1 I'd go ahead and call Mr. Gove if Your Honor's ready 2 for that. 3 THE COURT: Okay. He can come and sit 4 next to the DA and we can turn the microphone toward 5 him and we'll swear him in. 6 (Whispered discussion, off the record, 7 10:40 a.m.) 8 THE COURT: Please stand and raise your 9 right hand. 10 FREDERICK GOVE 11 Was thereupon called as a witness on behalf of the 12 Defendant; and, having been first duly sworn, was 13 examined and testified as follows: 14 THE CLERK: Thank you. 15 THE COURT: Okay. So, Mr. Gove. Oh, if 16 -- actually, if could state your name and spell your 17 name for the record. 18 THE WITNESS: Yes. Frederick Gove, 19 F-r-e-d-e-r-i-c-k, G-o-v-e. 20 THE COURT: And I'll hear your statement 21 regarding the video or if you want to ask questions, 22 you can do that. 23 MR. ENGLE: I'll just ask a couple quick 24 questions. 25 //// F. Gove - D 21 1 DIRECT EXAMINATION 2 BY MR. ENGLE: 3 Q So just tell us your -- your background and 4 your qualifications to be a private investigator. 5 A I have a juris doctor degree and I've been 6 a member of the Oregon State Bar since 1994. And I 7 got my investigator's license in 2001. 8 Q Are you currently licensed by the State of 9 Oregon to be a private investigator by the DP -- 10 DPST? 11 A Yes. 12 Q And, in that regard, do you -- do 13 investigations hired by me in regard to criminal 14 cases that I'm working on? 15 A Yes. 16 Q And did you do so in the case of Mr. 17 Kelley? 18 A I did. 19 Q And did you look into the availability of 20 video into both the Fred Meyer and the 7-Eleven 21 regarding this case? 22 A Yes. 23 Q And just tell us what happened, what'd you 24 find out, first in regard to the Fred Meyer. 25 A I contacted the -- the manager of their F. Gove - D 22 1 Loss Prevention Department at the Hawthorne Fred 2 Meyer on Southeast 39th. And he told me -- well, 3 first of all, I asked him if the -- I -- I talked to 4 him on mid-December, I believe December 17th. And 5 the incident date on this was August 13th or -- 12th 6 or 13th, approximately. 7 I asked him if that video would still be 8 available. He said it's not. It's only available 9 for -- for 45 to 60 days after the date of recording 10 and then it's written over or deleted. 11 I asked him if -- if someone had come and 12 asked for it, either a police officer or a private 13 investigator had come and asked for it in that time 14 period that it was available, if that would have been 15 something that they would have given. And he said it 16 would have been. 17 I asked him if he recalled if someone came 18 and asked for that surveillance. He said he didn't 19 recall because they get about one request per week 20 from Portland Police Bureau for surveillance. And he 21 said that they always comply. They never blow them 22 off or disregard their requests. 23 He said they reply with every request that 24 they get. And he did not recall any requests that 25 had come that they didn't reply to. He did mention F. Gove - D 23 1 that, at that time, they were understaffed in the 2 Loss Prevention Department and that it would have 3 been likely that if someone was just trying to call 4 them on the phone, they would not have received -- or 5 they would not have answered the phone because all 6 their staff were out on the floor. And he said they 7 don't really check their messages, so he said that 8 would not have been a good way to get in touch with 9 them. 10 And I asked him if they had come down in 11 person and -- and asked for a loss prevention 12 officer, if they would have -- one would have come to 13 meet them. He said absolutely, that they always do 14 that. So he said if someone had come asking for the 15 footage, they would have given it to them. 16 Q And can you describe what happened in 17 regard to the Plaid Pantry -- or I'm sorry, the 18 7-Eleven? 19 A Yeah. I -- I went out to the 7-Eleven just 20 a couple weeks ago. I've been trying to call them 21 without much luck and so I eventually went out there 22 and I spoke with a manager there. 23 He -- I asked him specifically if he -- 24 well, they -- the notes that I read from the police 25 officer or the detective who tried to find the F. Gove - D 24 1 surveillance said that they went to the store, but 2 were told that there was no surveillance cameras 3 operating at that particular time. 4 But they did have -- so of -- of the 5 exterior cameras, but they did have interior camera 6 footage, which was provided. So I wanted to 7 determine if -- if -- what the situation was with the 8 exterior footage. So I went and talked to the 9 manager. And, again, you know, we're talking about 10 four months after the fact. 11 So he didn't have specific memory, but he 12 did recall that at some point in the summer -- and -- 13 before I say that, he also said that they often get 14 police coming to ask for their surveillance there. 15 They're on a major intersection of Southeast Stark 16 and 168th, I believe. 17 So he said they -- the police had come at 18 some point and asked for their external footage. And 19 how he described it is their internal surveillance 20 footage is provided by the corporation. The external 21 footage is -- was put there by the franchise owner of 22 that particular store. 23 So the corporation controls the interior 24 and the franchise owner control the exterior, so 25 they're two different systems. And he said the F. Gove - D 25 1 exterior footage, the police had come and asked for 2 the entire computer that they had and they took that 3 computer. He said that they told him that they would 4 return that computer or replace it, but they 5 never did. 6 And then he said at a later date -- I asked 7 him if anyone had -- any police officers had come and 8 asked him for footage and he told the police that 9 they didn't have exterior footage, if that had 10 happened after the police had taken the camera -- or 11 the -- the computer. 12 And he said that that had happened, so that 13 computer was gone and then the police came and asked 14 for it and they had to tell them they didn't have it. 15 So, at that point, I don't know if that was the 16 situation where they came for the August 12th or 13th 17 footage, but it -- it seemed to comply with what was 18 in the officer's report. 19 Q In other words, you don't know if the one 20 where the took the device and didn't bring it back 21 was the Kelley matter or the one where they asked for 22 it and the other cops had taken it or if that was 23 completely two different machines? You're not sure? 24 A I'm not sure. And the -- the manager 25 didn't -- he didn't have any log information or any F. Gove - D 26 1 dates or any paperwork to -- to kind of pinpoint the 2 dates on it. 3 MR. ENGLE: That's all the questions I 4 have for Mr. Gove. 5 THE COURT: Do you have any questions, 6 Ms. Hermann? 7 MS. HERMANN: I don't.

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