IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED DECEMBER 1994 SESSION July 17, 1997
Cecil Crowson, Jr. Appellate C ourt Clerk
D 5 STATE OF TENNESSEE, 5 Appellee 5 No. 03C01-9406-CR-00235 5 vs. K WASHINGTON COUNTY 5 5 Hon. Lynn W. Brown, Judge MARVIN K. FERGUSON, 5 Appellant 5 (DUI) E
FOR THE APPELLANT: FOR THE APPELLEE:
Dennis Tomlin Charles W. Burson Attorney at Law Attorney General & Reporter 627 Second Avenue, South Nashville,TN 37210 Christina S. Shevalier Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493
David Crockett District Attorney General
Joe C. Crumley,Jr. Asst Dist. Attorney General P.O. Box 38 Jonesborough, TN. 37659
OPINION FILED: _______________________
AFFIRMED
Robert E. Burch Special Judge
OPINION The appellant was convicted by a jury of the criminal
offense of driving a motor vehicle while intoxicated (second
offense). The trial court sentenced the appellant to eleven
months, twenty-nine days in the county jail, suspended after
service of forty-five (45) days, and fined him one thousand eight
hundred dollars.
Appellant presents seventeen issues for review by this
court. Appellant has failed to include in his brief any argument
relating to issue numbers 6, 9, 11, 12, 13, 14, 15, 16, and 17.
Accordingly, these issues are waived. Rule 10(b) Rules of the
Court of Criminal Appeals. In addition, Appellant has failed to
cite any authority whatever in his argument concerning issues 7
and 8. These issues are also waived. Rule 10(b) Rules of the
Court of Criminal Appeals; State v. Dickerson 885 S.W.2d 90
(Tenn. Crim. App. 1983).
The remaining issues are:
1). Did the trial court err in refusing to dismiss the
indictment on the ground that there was no probable cause for the
arrest of the appellant for the offense of driving under the
influence of an intoxicant?
2, 3, 4 and 10). Were the appellant’s constitutional
and statutory rights violated by the jailing of Appellant without
a written order and the failure of the arresting officer to take
the appellant without unnecessary delay before a committing
magistrate so that the appellant could be examined in his present
state of sobriety by the magistrate; told of his right to a
breath alcohol test and allowed to be released from jail in order
to obtain a blood alcohol test on his own?
5). Were Appellant’s constitutional rights violated by
the destruction and/or suppression of the video tape made of the
2 Appellant on the night of his arrest when the attorney for
Appellant had requested that same be preserved?
We find that Appellant’s failure to preserve any record of a
hearing and ruling on the motions concerning the first two issues
constitutes a waiver of any error. The final issue is not found
to constitute reversible error. Accordingly, we affirm.
FACTS
Officer Murray of the Johnson City Police Department was on
patrol when he encountered a van parked on the apron on the on-
ramp to Interstate 181 with its engine running. It was
approximately 4 a.m. and the driver appeared to be slumped over
the steering wheel. The officer approached the vehicle and woke
up the driver, who was Appellant. The officer noticed a strong
smell of an alcoholic beverage about Appellant and also noticed
that Appellant’s speech was slow and “sort of slurred”. Field
sobriety tests were administered to Appellant, which he failed to
perform satisfactorily. Appellant was arrested and taken to the
police station where he refused a breath alcohol test. When at
the police station, Appellant apparently performed additional
field sobriety tests while being video taped. The video tapes
were inadvertently taped over before they could be viewed by
counsel for the defense.
ANALYSIS
In his first issue presented for review, Appellant submits
that the trial court erred in refusing to dismiss the indictment
in this case because there was no probable cause for the arrest
of the defendant for D.U.I..
Appellant filed a motion to dismiss the indictment or
suppress the evidence on July 9, 1993, three days after
indictment. The technical record contains no ruling of the trial
court on said motion. The transcript of the trial likewise
3 contains no such ruling. Motions to dismiss based upon defects
in the institution of the prosecution and motions to suppress are
required to be raised before trial. Rule 12(b) Tenn. R. Crim. P.
If these motions are not raised prior to trial, they are waived.
Rule 12(f) Tenn. R. Crim. P. The mere filing of a motion to
suppress is not sufficient to raise an issue for the court to
decide. The proponent must bring the motion to the attention of
the trial judge and obtain a ruling thereon; otherwise the issue
is waived. State v. Burtis, 664 S.W.2d 305 (Tenn. Crim. App.
1983); Tenn. R. Crim. P. 12(f). In this case, the defendant never
sought a ruling on his motion.
In addition, if the record contains no ruling by the trial
court on the motion, the trial court cannot be found in error.
See State v. Walker 910 S.W.2d 381 (Tenn. 1995).
The issue is waived.
Delay in appearance before a magistrate
In issues 2, 3, 4 and 10, Appellant complains that the
police incarcerated him without a written order and then delayed
in taking him before a magistrate resulting in a loss of his
opportunity to be advised of his right to a blood test in
sufficient time to have a meaningful test done or to be released
(apparently on bail) within a time which would have allowed him
to have a blood test done on his own.
The motion to dismiss was filed on July 9, 1993. No hearing
of the motion appears in the transcript. No ruling of the trial
court appears in the transcript. No order denying the motion to
suppress appears in the technical record. The facts upon which
Appellant’s motion is based have never been established by proof.
Allegations contained in pleadings are not evidence. State v
Roberts 755 S.W.2d 833 (Tenn. Crim. App. 1988).
As has been stated in reference to issue number 1, above,
the failure of the appellant to raise this issue prior to trial
4 and obtain a ruling thereon amounts to a waiver of the issue.
State v. Burtis, 664 S.W.2d 305 (Tenn. Crim. App. 1983). We are
well aware that the trial court stated, on page 178 of the trial
transcript, that the matter of the defendant going before a
“judge or clerk or anything like that” had already been ruled on.
The problem is that the hearing and the ruling of the trial
court, if they occurred, have not been preserved in the record on
appeal. As far as this court is concerned, the hearing and
ruling never occurred. We certainly cannot review the same for
correctness. The failure of counsel to include these proceedings
in the record have precluded any appellate review.
Destruction of Video Tape
In his fifth issue presented for review, Appellant submits
that the inadvertent erasure of the video tape of Appellant’s
booking and performing field sobriety tests constitutes a
violation of Appellant’s constitutional right to due process of
law in that material evidence concerning this case has been
destroyed.
No record of a pre-trial hearing and ruling on this exists
either; however, the trial judge allowed proof to be developed
and arguments made concerning this issue during the trial. The
ruling of the trial judge can be found in the record of the
trial. We must assume, therefore, that the trial judge allowed
this motion to be made during the trial and held that relief from
the waiver provision of Rule 12(f), Tenn. R. Crim. P., should be
allowed in this instance. Accordingly, we will deal with the
merits of Appellant’s issue presented on appeal.
There are two types of instances in which the state can be
sanctioned for loss or destruction of video or audio tapes which
are material to the subject matter of the trial. The first is
the loss or destruction of the taped statement of a witness to
which a defendant is entitled under the Tennessee Jencks Act
5 (Rule 26.2 Tenn. R. Crim. P.). This may result in the state
being in violation of Rule 26.2. The sanctions for said
violation are set out in the Rule as follows:
(e) Sanction for Failure to Produce Statement. If the other party elects not to comply with an order to deliver a statement to the moving party, the court shall order that the testimony of the witness be stricken from the record and that the trial proceed, or, if it is the attorney for the state who elects not to comply, shall declare a mistrial if required by the interest of justice.
In a situation involving loss/destruction of a recording of
Jencks material, there exists a higher burden upon the State to
preserve the evidence. The State must use due diligence in
obtaining a statement and providing it to a defendant. State v
Cannon 661 S.W.2d 893, 899 (Tenn. Crim. App. 1983). This duty
extends not only to material in the prosecutor’s immediate
custody, but also to statements in the possession of law
enforcement officers participating in the case. State v Hicks 618
S.W.2d 510,514 (Tenn. Crim. App. 1981). In cases involving
Jencks material, the imposition of sanctions do not necessarily
rest upon a showing of bad faith. Any intentional withholding or
destruction of statements may be viewed as a violation of Rule
26.2 for which appropriate sanctions may be applied. State v Jim
Inman (unreported) No. 03C01-9201-CR-00020 Tenn. Crim. App. at
Knoxville, opinion filed November 23, 1993.
The second type is the denial to a defendant of due process
of law by the State losing or destroying evidence which might
exculpate the defendant. This line of cases is based upon Brady
v. Maryland 83 S.Ct. 1194, 1197, 373 U.S. 83,88, 10 L.Ed 2d 215
(1963).
Since this case involves a video tape which was not a
recording of Appellant’s statement, this issue concerns the
second type of case. The cases dealing with failure to comply
6 with the Tennessee Jencks Act do not apply.
In this second type of case, there are two types of
loss/destruction dealt with by the court. If the material is
known to have been favorable to the accused on a material matter,
the good or bad faith of the police is not relevant. As was
stated in Brady v Maryland 83 S.Ct. 1194, 1197, 373 U.S.83,88, 10
L.Ed.2d 215 (1963):
We now hold that the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good or bad faith of the prosecution.
In addition, the failure of the prosecution to preserve
evidence which is potentially useful (as opposed to favorable) to
the defendant may constitute a denial of due process of law, if
the defendant can show bad faith on the part of the police.
Arizona v Youngblood 488 U.S. 51, 109 S.Ct. 333, 337, 102 L.Ed.2d
281(1988). It should be noted that our examination does not
involve failure of the prosecution to disclose the existence of
evidence to the defense. See, e.g., United States v Bagley 473
U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Our examination
relates to the loss or destruction of evidence which is known to
have existed although its specific contents may or may not be
known.
In a situation involving loss/destruction of known
exculpatory evidence by the prosecution, the burden is (and
should be) upon the defendant to establish that the undisclosed
evidence would have been exculpatory. In the case of evidence
which is potentially useful to the defendant, the burden is upon
the defendant to establish both that the evidence was potentially
useful and that the police acted in bad faith. This is a
reasonable burden when the character of the disposed evidence is
The reasonableness of such a requirement disappears,
7 however, where the character of the undisclosed evidence cannot
be determined because it has been lost or destroyed. Because of
the fact of the loss/destruction by the police, it is difficult
or impossible to determine what appeared on the tape. We have
been unable to find any Tennessee cases involving such a
situation which do not involve Jencks material. Other states and
federal circuits hold that a defendant need only show that the
disposed evidence was clearly material to the issue of guilt or
innocence (not that it would have been exculpatory). See, e.g.,
State v. Booth 295 N.W.2d 194, 19 ALR 4th 498 (Wisc. App. 1980)
and U.S. v Bryant 439 F.2d 642, 648 (D.C. Cir 1971). This seems
to be a reasonable requirement.
If the accused establishes the materiality of the disposed
evidence and also establishes the bad faith of the police in
disposing of same, the rule is the same as with known evidence
which has been destroyed. The police, by their conduct, have
shown that the evidence would have been favorable to the accused
and a violation of due process has occurred. See Arizona v
Youngblood 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d
281(1988).
What remains, then, is the situation in which the bad faith
of the police has not been established in the loss/destruction of
evidence, the content of which is not known, but which would have
been clearly material to the issue of guilt or innocence.
There are situations, of course, in which evidence is
disposed of by the police without any bad faith whatever. An
example is the case of State v Inman, supra. In Inman, it was
discovered that the T.B.I. typing pool routinely erased audio
tapes of interviews with witnesses after the same had been
transcribed. The court found this practice to be ill-advised but
not bad faith on the part of the T.B.I. The case was decided
upon principles pertaining to Jencks Act statements; however,
this court did examine this practice in light of due process.
8 The principle of Arizona v Youngblood was discussed along with
the principle suggested in the concurrence by Mr. Justice Stevens
and that suggested in Mr. Justice Blackmun’s dissent but this
court adopted no specific rule pertaining to this situation. It
was held that since bad faith was not found and there was no
indication that the tapes contained material, exculpatory
information which was not otherwise brought out at trial, there
was no due process violation under any of the principles
contained in the Youngblood opinion. The case was actually
decided on principles pertaining to Jencks material, as it should
have been.
In the case before us, however, the evidence is not Jencks
material. The due process issue is dispositive. A rule for
evaluating violations of due process in these cases should be
adopted. What is the role of the police with regard to
preservation of evidence?
Although bad faith is not present, it is the police who are
handling this evidence. One of the main functions of the police
when a crime has been committed is to gather and preserve
evidence. This function is discharged just as surely if the
evidence is favorable to the accused as it is if it is
incriminating. The police must preserve material evidence
regardless of its character.
On the other hand, we do not intend to require the police to
gather and preserve every piece of evidence pertaining to a crime
whether material or not. Neither do we impose a duty to
anticipate the usefulness of evidence to defense counsel and
preserve that which might be of use to the defense. The police
do not have “an undifferentiated and absolute duty to retain and
preserve all material that might be of conceivable evidentiary
significance in a particular prosecution”. Arizona v Youngblood
488 U.S. 51, 109 S.Ct. 333, 337, 102 L.Ed.2d 281(1988).
Having defined the limits of the obligations of the police
9 in this respect, it appears that the standard set out in the
dissent in Youngblood best accomplishes the goal of preservation
of material evidence without imposing an unreasonable burden upon
the police. The inquiry of the trial court in this situation
should be focused upon:
1). the materiality of the evidence;
2). the potential of the evidence to exculpate, if that
can be determined; and
3). the existence of other evidence on the same point
of contention.
See Arizona v Youngblood 488 U.S. 51, 67-70, 109 S.Ct. 333,
342-3(1988).
We now examine the case at bar using these criteria.
The arresting officer testified that Appellant was given two
field sobriety tests at the scene and that he could not remember
taped field sobriety tests being given at the station; however,
it was standard procedure to do so. According to the officer,
Appellant failed both field sobriety tests administered at the
scene. The appellant’s physician was called to testify that
Appellant’s injuries would cause him to appear intoxicated and
would hamper his performance of the field sobriety tests.
Appellant testified that the officer only gave him a horizontal
gaze Nystagmus test at the scene and gave him two taped field
sobriety tests at the police station. The appellant further
testified that the officer told him that Appellant had
satisfactorily performed the tests administered at the station.
The video tape obviously contained the appellant performing
field sobriety tests and going through the booking procedure. A
video tape of the appellant performing field sobriety tests and
talking to the officers would have been instructive to the jury
of the issue of Appellant’s intoxication, which is an essential
element of the offense of D.U.I. The tape would have been
material.
10 The potential of the contents of the tape to exculpate is
doubtful. Appellant testified that he successfully performed the
field sobriety tests recorded on the tape and that the officer
acknowledged that he had done so. However, Appellant introduced
medical testimony to establish that his injuries would have
prevented him from successfully accomplishing field sobriety
tests. Appellant’s physician testified that Appellant’s balance
was affected by his vascular headaches. Appellant himself
testified that his injuries, particularly those to his knee,
would have hindered his ability to successfully perform a field
sobriety test. If the video tape showed Appellant performing
poorly, the cause of the performance could be either intoxication
or injury. If the video tape showed Appellant performing
satisfactorily, Appellant’s testimony concerning his injuries
would have become questionable. Appellant himself admitted that
he appeared to be intoxicated but offered an explanation for so
appearing. We see little or no potential for exculpation in the
missing evidence.
Finally, we note that there exists other evidence on this
point of contention (the intoxication of the appellant). The
officer gave field sobriety tests at the scene and testified
concerning Appellant’s performance thereof. He also testified
concerning the odor of an alcoholic beverage on Appellant’s
breath and Appellant’s physical appearance and speech being
indicative of intoxication. Appellant had an opportunity to
avail himself of a breath alcohol test but refused same. The
appellant introduced evidence of his sobriety and of a medical
explanation of his appearance of intoxication.
In short, the evidence contained on the tape was material to
an issue in the case. The evidence contained little or no
potential to exculpate the appellant. There was ample other
evidence from which the sobriety, or lack thereof, of Appellant
could be determined. Based on these factors, we find no
11 deprivation of Appellant’s right to due process.
12 The issue is without merit.
The judgment of the trial court is affirmed.
_________________________
Robert E. Burch,
Special Judge
CONCUR:
(SEE CONCURRING OPINION)
Gary R. Wade, Judge
Joseph M. Tipton, Judge
13 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED AT KNOXVILLE July 17, 1997
Cecil Crowson, Jr. Appellate C ourt Clerk DECEMBER 1994 SESSION
STATE OF TENNESSEE, * C.C.A. # 03C01-9406-CR-00235
Appellee, * W ASHINGTON COUNTY
VS. * Hon. Lynn W. Brown, Judge
MARVIN K. FERGUSON, * (DUI)
Appellant. *
CONCURRING OPINION
I concur in the result. I write separately only to note that this court has
followed the majority opinion in Arizona v. Youngblood, 488 U.S. 51 (1988); thus, I
do not believe we should now adopt a conflicting view. In Hershel Clark v. State,
No. 02C01-9112-CR-00273, slip op. at 12 (Tenn. Crim. App., at Jackson, June 2,
1993), our court followed the Youngblood majority. In Clark, the defendant alleged
that the state failed to preserve certain of a rape victim's clothing. Id. at 12. There
was also proof that the state probably never had possession of any of the items. Id. Our court concluded as follows:
From a due process perspective, when it is not shown that the evidence in issue is, in fact, materially exculpatory, but, instead, is shown that it might be materially exculpatory, it is usually necessary to show that the evidence no longer exists and that the state had an improper hand in the lack of its preservation. See Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333 (1988). No such showing was made in this case.
Id. See also State v. Jerry Dwayne Cammuse, No. 01C01-9107-CR-00216, slip op.
at 13 (Tenn. Crim. App., at Nashville, Apr. 29, 1992) (quoting Youngblood's majority
opinion with approval). Permission to appeal was denied in the Cammuse case on
September 14, 1992. In my view, there was no due process violation here because the
defendant has failed to show any bad faith on the part of the state. While I concur
in the result, I believe the majority opinion in Youngblood to be the better course.
__________________________________ Gary R. Wade, Judge
16 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
Cecil Crowson, Jr. STATE OF TENNESSEE, ) Appellate C ourt Clerk ) Appellee, ) No. 03C01-9406-CR-00235 ) ) Washington County v. ) ) Honorable Lynn W. Brown, Judge ) MARVIN K. FERGUSON, ) (DUI) ) Appellant. )
I concur in the result, as well. As for the issue of
destruction or loss of potentially exculpatory evidence, I think
we should not use this case to resolve any potential issue about
the extent to which Arizona v. Youngblood, 488 U.S. 51, 109 S.
Ct. 333 (1988), defines the due process considerations to be
applied under the Tennessee Constitution. This is because, as
Judge Burch concludes, the defendant does not prevail under any
of the Youngblood standards.
I do recognize that this court has recently followed the
majority opinion in Youngblood in several unpublished opinions
that have focused on the lack of bad faith by the state. See
State v. Fabien Eldridge, No. 01C01-9504-CC-00106, Putnam County
(Tenn. Crim. App. May 7, 1997); Robert Lloyd Wiggins v. State,
No. 03C01-9606-CC-00191, McMinn County (Tenn. Crim. App. Mar. 20,
1997); State v. Jerry Douglas Franklin, No. 01C01-9510-CR-00348,
Davidson County (Tenn. Crim. App. Feb. 28, 1997). However, I am
17 not ready to concede that due process under the Tennessee
Constitution requires bad faith on the part of the state in all
instances. In fact, our supreme court has shown that the
fundamental fairness requirement in a criminal prosecution is not
limited to circumstances involving state action. See State v.
Gray, 917 S.W.2d 668, 673 (Tenn. 1996) (pre-accusatorial delay
may bar prosecution without any state related cause). Also, I
note that the majority of states to consider Youngblood in
relation to their state constitutions have rejected the majority
opinion. See, e.g., State v. Morales, 657 A.2d 585, 594-95
(Conn. 1995) (listing states and noting that only Arizona and
California had, at that time, agreed with Youngblood).
Our supreme court has recognized that due process is
flexible and calls for such procedural protections as the
particular situation demands. Gray, 917 S.W.2d at 673. This
case certainly does not call for any protection beyond
Youngblood. Thus, I would hesitate to use this case to test the
limits of Youngblood against the limits of our state
constitution.
_____________________________ Joseph M. Tipton, Judge