# FILED September 20, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

STATE OF TENNESSEE, ) FOR PUBLICATION ) Appellee, ) FILED: September 20, 1999 ) v. ) WASHINGTON COUNTY ) MARVIN K. FERGUSON, ) HON. LYNN W. BROWN, JUDGE ) Appellant. ) NO. 03-S-01-9803-CR-00029

For Appellant: For Appellee: DENNIS L. TOMLIN JOHN KNOX WALKUP Hendersonville, TN Attorney General and Reporter MICHAEL E. MOORE Solicitor General MICHAEL W. CATALANO Assistant Attorney General Nashville, TN JOE C. CRUMLEY, JR. District Attorney General Johnson City, TN

OPINION

AFFIRMED BIRCH, J.1 Under Arizona v. Youngblood , unless a criminal defendant can

showbad faith on the part of the police, fai lure to p reserve potentiallyus eful evidence does not constitute a denial of due process of law.

2 “Destroyed” includes lost evidence as well as evidence which was not preserved.

3 “Fundamental fairness” is a concept which, by n e cessity, defies exact definition. As a general rule, however, a trial lacks fundamental fairness where there are errors which call into question the reliabilityof the outcome. See Lofton v. State , 898 S.W.2d 246, 248 (Tenn. Crim. App. 1994); see also Watkins v. State , 216 Tenn. 545, 552-53, 393 S.W.2d 141, 144 (1965) (“A fu ndamental principle of Anglo-American law is that a person accused of a crime is entitled to a fair and impartial trial by his peers.”); Betts v. Brady , 316 U.S. 455, 462, 62 S. Ct. 1252, 1256 , 8 6 L. Ed. 1595, 1602 (1942)(“Asserted denial[s of due process are] to be tested by anappraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the unive rsa l sense of justice, may, in other 2 The ques tion presented for our determination is: What
are the factors which should guide the determination of the consequences that flow from the State’s loss or destruction of evidence which the accused contends would be exculpatory? The State urges that we adopt the bad faith analysis announced in Arizona v. Youngblood , 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). 1 Two reasons prompt us to reject this analysis: (1) we find, under the circumstances, that the due process principles of the Tennessee Constitution are broader than those enunciated in the United States Constitution; and (2) fundamental fairness, as an element of due process, requir es that the State’s failure to preserve evidence that could be favorable to the defen dant be evaluated in the context of the entire record.

Accordingly, we promulgate today an analysis in which the critical inquiry is: W hether a trial, conducted without the destroyed 2 evidence, would be fundamentally fair? 3 Us ing thiscircumstances, and in the light of other considerations, fall short

of such denial.”).

4 For a more complete description of this tes t, see State v. Murphy , 953 S.W.2d 200 (Tenn. 1997).

5 Murraycould not remember conducting any sobriety tests other thantho se in the field, although he admitted that it was normal departmental procedure to conduct additional tests at t he police station. 3 analysis, we find that the appel lant’s trial was a fundamentally fair one despite the loss of the videotaped evidence. Accordingly, and for the reasons herein stated, the judgment o f the Cour t of Criminal Appeals is affirmed.

I

At or near four o’clock on the morning of November 18, 1992, Officer Edwin A. Murray of the Johnson City Police Department observed a van parked on an I-181 r amp with i ts engine running. Murrayapproached the vehicle and observed Marvin K. Ferguson, the appellant, “slumped” o ver the steering wheel. Upon opening the door and awakening Ferguson, Murray sm ell ed a strong odor of alcohol a nd noticed that Ferguson’s speech was slurred. Murray administered t wo fie ld sobriety tests: namely, heel-to-toe and horizontal gaze nysta gmus. 4 Concluding from these tests and from his other observations that Ferguson was under the influence of an intoxicant, Murray arrested him and transported him to the police stationwhere additio na l field sobriety tests were apparently conducted. 5 These additional tests were recorded on a video tap e which was inadvertently “taped over” before anyone could view it.6 Ferguson’s medical expert described scotoma as being a type

of vi su al disturbance followed by dizziness, hesitant speech, nausea, and a throbbing headache. 4 At trial, Ferguson’s theory was that he oc casio nally suffered from vascular o r migraine-type headaches that included scotoma , 6 which affected his vision and coordination. He testified that he had suffered just such a headache prior to his arrest. To support his theory, Ferguson presented exp e rt medical testimony d escribing this condition and explaining that during a “sp ell ” Ferguson’s conduct could be perceived by a layperson as the result of alcohol intoxication.

II

The Due Process Clause of the Fourteenth Amendment to the United States Constitution provides for every defendant the right to a fair trial. To facilitate this right, a defendant has a constitutionallyprotected privilege to request and obtain from the prosecution evidence that is either material to guilt or relevant to punishment. Brady v. Maryland , 373 U.S. 83, 87, 83 S. Ct. 1194, 1196, 10 L. Ed. 2d 215, 218 (1963). Even in the absence of a specific request, the prosecution has a constitutional duty to turn
over exculpatory evidence that would raise a reasonable doubt about
a defendant’s guilt. United States v. Agurs , 427 U.S. 97, 110-11, 96 S. Ct. 2392, 2401, 49 L. Ed. 2d 342, 353-54 (1976).

The analysis of both Bradyand Agurs concerns the prosecution’s suppression of “plainlyexculpatory” evidence. This strikes a sharp contrast to the case under review wherein the5

existence of the destroyed videotape was known to the defense but where its true nature (exculpatory, inculpatory, or neutral) can never be determined.

The question that we address today is what consequences flowfrom the State’s loss or destruction of evidence alleged to have been excul patory . Ferguson alleges that his due process rights were violated by the destruction of the videotape of the field sobriety tests administered at the police station. On the other hand, the State’s contention is that because the evidentiary nature of the videotape can never be known, the appropriate analysis should inquire into the State’s bad faith (or lack of it) inthe destruction of the evidence. See Arizona v. Youngblood , 488 U.S. at 57-58, 109 S. Ct. at 337, 102 L. Ed. 2d at 289.

Youngblood is the leading federal case regarding the loss
or destruction of evidence. In Youngblood , the police’s failure to refrigerate a sodomy victim’s semen-stained clothing precluded testing, th e result of which might have exonerated the accused. The United States Supreme Court held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. at 58, 109 S. Ct. at 337, 102 L. Ed. 2d at 289. Thus the Court concluded that the State had no constitutional dut y to preserve the clothing even though testing may have been useful to the accused.6 Several stat es have embraced the bad faith analysis of Youngbloodand found that a similar showing of bad faith is required under their respective constitutions. See , e.g. , Collins
v. Commonwealth , 951 S.W.2d 569 ( Ky. 1997); State v. Drdak , 411 S.E.2d 604 (N.C. 1992); State v. Ortiz , 831 P.2d 1060 (Wash. 1992) (holding that no analytic basis existed to interpret Washington’s due process clause more broadly than the federal provisions); accord State v. Copeland , 922 P.2d 1304 (Wash. 1996). The Georgia Supreme Court has agreed that to establish a due process violation a defendant must prove bad faith, but the court also required the trial court to consider the materiality of the lost or destroyed evidence. Walker v. State , 449 S.E.2d 845, 848 (Ga. 1994).

Other states have recognized that “[ t]he re may well be
cases in which the defendant is unable to prove that the Sta te acted in bad faith but in which the loss or destruction of evidence is nonetheless so critical to the defendant as to make a criminal trial fundamentally unfair.” Youngblood , 488 U.S. at 61, 109 S. Ct. at 339, 102 L. Ed. 2d at 291 (Stev ens, J., concurring in the
res ult). These states have rejected a pure Youngblood analy sis , focusing instead on the materialityof the unavailable evidence in determining whether a d ue process violation has occurred. See , e.g. , Ex parte Gin go , 605 So. 2d 1237 (Ala. 1992); Thorne v. Department of Pub. Safety , 774 P.2d 1326 (Alaska 1989); State v. Matafeo , 737 P.2d 671 (Haw. 1990); Commonwealth v. Henderson , 532 N.E.2 d 496 (Mass. 1991); State v. Osakalumi , 461 S.E.2d 504 (W. Va. 1995).7 The Alaska Supreme Court adopted a similar approach which

requires the court to first determine whether the state has a duty to “preserv e and make available to a criminal defendant material ev ide nce which may prove important in the preparation of the accused’s defense.” Thorne v. Department of Pub. Safety , 774 P.2d at 1330. If the dutyto preserve was breached, the court must then ascertainthe consequences that flow fromth is breach, which is determined by the degree of culpability on the part of the state, the importance of the evidence lost, the prejudice suffered by the accused, and the evidence of guilt adduced at the trial or hearing. Id. at 1331.

8 Tenn. Cons t. art. I, § 8, provides “[t]hat no man shall be takenor imprisoned, or dis sei zed of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land.” 7 Several of these states have determined that due process claims arising out of lost or destroyed evidence must be evaluated using a “balancing” approach. As an example, the Delaware Supreme Court, after having determined that the state breached a duty to preserve evidence, employed a balancing approach which focuses on the following three factors: (1) the degree of negligence or bad faithinvolved; (2) the importance of the missing evidence, considering the probative value and reliability of secondary or substitute evidence that remains available; and (3) the sufficiency of the other evidence used at trial to sustain the conviction. Hammond v. State , 569 A.2d 81, 87 (Del. 1989). 7

We now must determine whether the bad faith analysis of Youngbloodadequately protects the right to a fair trial under the due process clause of the Tennessee Constitution. See Tenn. Const. art. I, § 8 8
. Al though this Court has previously construed Tenn. Const. art. I, § 8, as “synonymous with the ‘due process of law’ provisions of th e fede ral constitution,” State ex rel. Anglin v. Mitchell , 596 S.W.2d 779, 786 (Tenn. 1980), we have also recognized8

that “this Court, as the f inal arbiter of the Tennessee Constitution, is always free to expand the minimum level of protectionmandated by the federal constitution.” Burford v. State , 845 S.W.2d 204 , 207 (Tenn. 1992). Thus, we will examine Youngblood and explain why we reject its analysis.

According to Youngblood , unless a criminal defendant can showbad faith on the part of the police, fail ure to pr eserve potentiall yu seful evidence does not constitute a denial of due process of law. In this regard, proving bad faith on the part of the police would be, in the least, extremely difficult. In addition, the Youngbloodanalysis apparently permits no considerationof the materiality of the missing ev idence or its effect on the defendant’s case. The conclusion is that this analysis substantially increases the defendant’s burden while reducing the prosecution’s burden at the expense of the defendant’s fundamental right to a fair trial.

Because we de em the preservation of the defendant’s fundamental right to a fair trial to be a paramount consideration here, we join today those jurisdictions which have rejecte d t he Youngbloodanalysis in its pure form. In so doing, we adopt for Tennessee a balancing approach similar to the one espoused by the Sup reme Court of Delaware in Hammond v. State , 569 A.2d 81, 8 7 (Del. 1989).

The first step in this analysis is to determine whether the State had a duty to preserve the evidence. Generally speaking,9 See , e.g. , Brady v. Maryland , 373 U.S. at 87, 83 S. Ct. at

1196, 10 L. Ed. 2d at, 218 (1963); United States v. Agurs , 427 U.S. at 110-11, 96 S. Ct. at 2401, 49 L. Ed. 2d at 353-54 (1976).

10 This factor presumes negligence in the loss or destruction of the evidence. Should the proof show bad faith, the trial judge mayconsider such action as may be necessary to protect the defendant’s fair trial rights. 9 the State has a duty to preserve all evidence subject to discovery and inspection under Tenn. R. Crim. P. 16, or other applicable law. 9 It is, however, difficult to define the boundaries of the State’s duty to preserve evidence. This difficulty is recognized in California v. Trombetta , 467 U.S. 479, 488-89, 104 S.Ct. 2528, 2533-34, 81 L.Ed.2d 413 (1984). It held:

Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of cons titutiona l materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.
If the proof demonstrates the existence of a duty to preserve and further shows that the State has failed in that duty, the analysis moves to a consideration of several factors which should guide the decision regarding the consequences of the breach. Those factors include:

1. The degree of negligence involved; 10 2. The significance of the destroyed evidence, considered in11 Such an instruction may contain the following language: The State has a duty to ga ther , preserve, and produce at trial evidence which may possess exculpatory value. Such evidence must be of a nature that the defendant would be unable to obtain comparable evidence throughreasonably available means. The State has no dutyto gather or indefinitely preserve evidence considered by a qualified person to have no exculpatory value, so that an as yet unknown defendant may later examine the evidence. If, after considering all of the proof, you find that the State failed to gather or preserve evidence, the contents or qualities of which are in is sue and the produc tion o f which would more probably than not be of benefit to the defendant, you may infer that the absent evidence would be favorable to the defendant. See State v. Wil lis , 393 P.2d 274, 276; See also California v. Trombetta , 467 U.S. 479, 489, 104 S. Ct. 2528, 2534, 81 L. Ed. 2d 413, 422 (1984). 10

light of the probative value and reliabilityof secondary or substitute evidence that remains available; and 3. The sufficiency of the other evidence used at trial to support the conviction.
Of course, as previously stated, the central objective is to protect the defendan t’s right to a fundamentally fair trial. If, after considering all the factors, the trial jud ge con cludes that a trial without the missing evidence woul d n ot be fundamentally fair, then the trial court may dismiss the charges. Dismissal is, however, but one of the trial judge’s options. The trial judge may craft such orders as may be appropriate to protect the defendant’s fair trial rights. As an example, the trial judge maydetermine, under the facts and circumstances of the case, that the defendant’s rights would best be protected by a jury instruction. 1112 The trial judge found that the tape “either could have helped

[Ferguson] or possibly could have helped the State.” 11 III

We now examine the case under submission in light of the considerations mentioned above. Initially, the question is whether the State had a duty to preserve the videotape. T he ex culpatory nature of the evidence has considerable significance in resolving that question. The exculpatory value of the videotape is, in our view, tenuous. If the videotape showed Ferguson performing poorly
onthe sobriety tests at the police station, then the cause of the poor performance could either be intoxication, as urged by the State, or a medical condition, as urged by Ferguson. If, on the other hand, the videotape showed Ferguson performing satisfactorily
onthe sobrietytests, then Ferguson’s theory that medical problems caused him to appear intoxicated would be of questionable validity. 12 Though the videotape was probably o f ma rginal exculpatoryvalue, it was at least “material to the preparation of the defendant’s defense” and might have led the jury to entertain a reasonable doubt about Ferguson’s guilt. Because the videotape mayhave shed light on his appearance and condition on the morning inquestio n, t he State had a duty to preserve the videotape as potentially exculpatory evidence. In erasing the tape before the defendant had an opportunity to view it, the State breached this duty. Therefore, we must determine what consequences should flow from this breach of duty.12 The first factor to consider in determining consequences is the degree of negligence involved. Unquestionably, Ferguson has failed to prove the State acted in bad faith in the destruction of the evidence. The only conclusion remaining is that the evidence
was negligently destroyed, and we think the conduct was simple negligence, as distinguished from gross negligence.

The s econd factor addresses the significance of the missing evidence. Giv en t he defendant’s contention that his medical condition caused him to appear intoxicated, the videotape maynot have been probative of intoxication. As to the availabilityof secondary evidence probative of the intoxication issue, Ferguson adduced expert medical testimony. His expert witness explained why the physical effects of his condition would have looked like intoxication to the officer. Ferguson testified about how his condition affected his balance and coordination, and he related long-term problems with his lower extremities. In spite of the unavailab ilit y of the videotape, Ferguson presented his defense in as complete a manner as was possible without the videotape.

The third factor to consid er is the sufficiency of the convicting evidence. The arrest ing officer smelled alcohol on Ferguson’s br eath and concluded from his observation that Ferguson’s physical appear ance a nd speech were indicative of intoxication. Additionally, the arresting officer testified about failed on-scene fiel d so briety tests that were not videotaped.13

Thus, the evidence adduced was sufficient, as a matter of law, for conviction.

Thus, it is abundantly clear to us that Ferguson was not hindered in the full and complete exposition of his theory to the jury. We conclude that he received a fundamentally fair trial and that he experienced no measurable disadvantage because of the unavailability of the videotaped evidence.

Accord ingly, the judgment of the Court of Criminal Appeals is affirmed, and the costs are taxed against the appellant.

______________________________ ADOLPHO A. BIRCH, JR., Justice CONCUR: Anderson, C.J. Holder, Barker, JJ. Drowota, J., not participating