### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON January 8, 2002 Session
STATE OF TENN ESSEE v. YEVETTE SOMERVILLE
Direct Appeal from the Circuit Court for He nry County No. 13115 Julian P. Guinn, Judge

No. W2001-00902-CCA-R3-CD - Filed February 11, 2002

The defenda

nt, Yevette

Somerville , was con

victed of theft of p roperty valued under $500 , a Class A misdemeanor, and was sentenced to eleven months, twenty-nine days in the county jail. As her sole issue on appeal, the defendant argues that the State’s f ailur e to inquire about and preserve potentia lly exculpatory evidence violated her due proc ess rights under the Unit ed States and Tennessee Constitutions. Having reviewed the entire record, we conclud e that the loss of the evidence did not unfairly prejudice the defenda nt’s case. Accordingly, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

A LAN E. G LENN , J., delivered the opinion of the court, in which J OE G. R ILEY and J OHN E VERETT W ILL IAMS , JJ., joined.
Victoria L. DiBonaventura, Paris, Tennessee, for the a ppellant, Yevette Somerville.

Paul G. Summers, A

ttorney G eneral and Repor

ter; Bra den H. Bou cek, Ass istant Atto rney Ge neral; G. Robert R adford, District Attorney General; and Steven L. Gar rett, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

On October

10, 2000, a

misdemea

nor cita tion was is sued, ac cusin g the de fendant of shoplifting at

a Paris, Tennesse e, Wal- Mart stor e and re quiring th at she ap pear in the Henr y County General Sessions Court. Subsequently, the defendant was found guilty of theft of property valued under $500 by the general sessions c ourt and w as sente nced to e leven mon

ths, twent y-nine da ys, which was suspended

to 120 days, and was ordered to pay a $1000 fine and $431.58 in restitution. She appealed the conv

iction to th

e Henry County Circ

uit Court, w

here a j ury found

her guilty o f1 On July 26, 1999, t he defendant, under Gibson County Circuit Court Docket No. 15650, pled guil ty t o att empt to possess a Schedule II controll ed subst ance wit h int ent t o deli ver, a Clas s D fel ony, and w as sentenc ed to tw o year s. On April 18, 2000, the de fendant , under Henry County C irc uit Cou rt Docket No . 12998, pled gu ilty t o delivery of a Sch edu le II c ontrol led s ubsta nce (. 2 grams), a Clas s C fel on y, and was se ntence d to f our year s, with 150 da ys t o be served in conf

inementand the b alanc e in com mu nity c orre ction s. Th is senten ce w as ord ered to be serve d co nsec utive ly to the two-year Gibson County sentence.

2 The defe nda nt arg ues o n ap pea l that the trial cou rt “ord ered defe nse c oun sel to ac com pan y the assista nt d ist rict attor ney to Wal-Mart to che ck the st atus of t he ta pe.” Actual ly, the t ria l cour t i nstr

ucted, “I want

you [re ferr ing t o the prosecutor], and you take c oun sel w ith yo u, to famili arize yours elf wit h that s ystem, incl uding the fi ling sys tem.” We do not in terpre t this instru ction to m ean that the pro secu tor co uld n ot, him self, ch eck on th e status o f the tap e, as the defendant

comp lains that he did, before he an d de fense cou nsel m ade a joint v isit to Wal-Mart to as cert ain whet her the tape exis ted.
-2- theft of property valued under $500, a Class A misdemeanor. She was sentenced to eleven months, twenty-n ine days t o be serv ed conse cutively to her pr ior felon y sentenc es. 1

On January 10, 2001, the defendant filed a motion for a new trial, claiming insufficiency of the evidence and arguing that the State failed to inquire about or pre serve a potentially exculpatory Wal-Mart surveillance videotape. The trial court stayed the motion for a new trial so that inquiry could be made as to the status of the videot ape, which w as recorded the day the defenda nt was accused of shoplifting. 2 Subsequently, the trial court overruled the motion for a new trial, and the defenda nt filed a timely noti ce of ap

peal.

The defendant provided the following Statement of Facts in lieu of a copy of the transcript from the Henry Coun

ty Circuit C ourt proc eedings: Majorie Gilley, a n employe e of Wal

Mart, te st ified that, at approximately3:25 in

the afternoon on October 10, 2000, she saw the Defend ant, Yevet te Somerville, for the first time in the software departm ent. She saw the Defendant pull a bag out of a shopping

cart; walk over to the Co-Defendant, Sherry Th arpe, and hand her the empty bag; that Ms. Somerville had clothes folded on the sides of the shopping cart that

she had removed from the hangers off the r ack of clothing; that

Ms. Tharpe handed the bag to Ms. Somerville and then turned away while Ms. Somerville put the folded clothes in the bag. If anyone drew near to where the two la dies wer e, the ladie s would say ‘red’ as if it were a code. She also testi fied tha t Ms. Somer

ville
was not giving the bags to Ms. Thar pe and that the two (2) ladies
were no further than eight (8) to ten (10) feet apart at any given time. She testifie d that if

people walked anywhere near the two (2) ladie s, that Ms. Tharpe would say ‘red’ and the action would stop. The ladies moved in to several areas and changed a reas whenever
someone wearing a blue smock (a Wal Mart employee) came by and would say the word ‘red.’ They tied the bags up and then s wit ched-3- buggies in menswe ar; that M s. Somervi lle stayed in menswea r while Ms

. Tharpe took her buggy out the front door. Ms. Gilley testified that she did notsee Ms. Somerville talking to anyone else other than Ms. Tharpe. She said that Ms. Thar pe wentto the car, put the bags i n the car , and ca

me back in to the sto

re at whi ch ti me she me t u p withMs. Somerville in

menswear. She also testified that she met up withthe two (2) women near the front registers and te s tifi ed, specifically, that “instead of leaving as I thought they were going to, they c ame back into the store.” Most of the items taken we re boy s clothing, size 8, 10, 12, and16. Ther e was als o some girls clothing taken, mostly in size 7 and 8. Sherry Tharpe testified that shehad been shoplifting for thirty (30) years; that she had been caught three (3) times; and all three (3) times she had b een cau ght in Wal Mart. That she was on probation at the time of this shoplifting incident for shoplifting and f or t his crime, she rec eived a s entence of 11 month s and 29 da ys, all suspended but

120 days. That Yevette Somerville did not have any idea that Sherry Tharpe was going to steal or shoplift that day. Yevette Somerville had come by Sherry Tharpe’s house ear lier that day to ask her if she wanted to go to Wal Mart and Sherry said she did. While Yevette Somerville was helping the children in to the car, Sherry Tharpe prepared by putting used Wal Mart bags a round her waist inside he

r clothing . Sh erry Tharpe testified, in detail, how Yevette Somerville

came by he r house and was going Christmas shopping and aske d Sherry i f she wanted to go. Sherry Tharpe was getting ready and getting the children ready. She went in the kitchen and put the bags around her waist. Yevette Somerville

didnot see her do that and did not know she did that as Yevette wa s puttin g the children in the car. When the y got to Wal Mart, each one of them got
a shopping cart

outside. The boy rides in a shopping cart and he uses
a wheel chair. Both childre n we re in Sherry’s cart and Yevette had to go back to the car to get her billfold. Sherry and the children went
on in to Wal Mart. Sherry went to the children’s section a nd Yevet te found her there. Sherry told Yevette she was shopping for he r niece and nephew and

her son. Yevette helped her pick out some clothing and make set s out of the

m. Boys si ze 8 and 9, b oys size 9 and 10, and girls size 7. As Yevette matched the clothes up, she hung them
over the si des of Sherry’s shopping cart. When they were finished pick ing out the clothes for Sherry, Sherry asked Yevette to take t h e children and p ut them in Yevette’s shopping cart. Yevette left the
area to do her own shopping and Sherry insisted that Yevette take the children with her and told her she would find her later on. At no time during the periodof time they were picking out the clothes did either-4- of them say the word ‘red.’ After Yevette le ft the area, Sherry took the bags out

of her waist band and put the clothes in the bags. Then Sherry went out the front door and put the things in the car. She then went back in to

the store to get the

chil dren a nd found Y evette Somerville

in the to y section and tried to hurry Yevette out of the store but Yevette insisted on continui ng h er shopping, and f inally gave in to Sherry’s demands to go. Yevette was headed toward th e check out counter to pay for her items. When the Wal Mar t people stopped themfor shoplifting, Sherry Tharpe told Ms. Gilley and the other Wal Mart people that Yevette had nothi ng to do with it. She also told the officer, Tony E l kins, that she did it on her own and Yevette Somerville had nothing to do with it.

Cleo Somerville

testified that she saw Yevette Somerville at Wal Mart that day in the card section, but did not see Sherry Tharpe.

Patrice Tharpe testified that she saw Ye vett e Somerville at Wal Mart that day in the toy section with Sherry Tharpe ’s tw o (2) children, but she did not see Sherry Tharpe.

Yevette Somerville

testifie d that sh e di d not have any idea that Sherry T

harpe w as going to

steal or s hoplift tha

t day. Yevette Somerville

had come by Sherry T

harpe’ s house ea

rlier tha t day to as k her if she wante d to go to Wa l Mart and

Sherry sa

id she did. While Yevette Somervill e was helping the children in to the car, she was
unawarethat Sherry Tharpeprepared by putting used Wal Mart bags aroundher waist inside her clothing. Yevette t estified that she was arrested while at t he regis ter in

the chec k out lane . When the

y got to Wal Mart, ea

ch one of them got a

shopping c art outs ide. The boy rides in a shopping cart and he uses a wheel chair. Both childre n were in Sherry’s cart and Yevette had to go back to the c ar to get her billfold. Sherry and the children went on i n to Wal Mart. Sherry went to the children’s section and Yevette found her there . Sherry told Yevette she was shopping for her niece a nd nephew and her

son. Yevette helped he r pick out some clothing a

nd make se

ts out of the

m. As Yevette matched

the clothes up, she hung them over the sides of Sherry’s shopping cart. Wh en the y were finished picking out the clothes for Sherry, Sherry asked Yevette to take the c hildren and put themin Yevett

e’s shopp ing cart

. Yevette left the a rea todo her own shopping and Sherry insisted that Yevette take the children with her and told her she would findher later on. At no time during the period of time they were picking ou t the clot hes did either of them say the word ‘red’. Sherry Tharpe then found Yevette Somerville in the toy section and triedto hurry Yevette out of the store but Yevette insisted-5- on continuing her shopping, andfinally gave in to Sherry’s demands to go. Yevette was headed towar d t he check out counter to pay for her items. When the Wal Mart people stopped them for shoplifting, Sherry Thar pe told Ms. Gilley and the other Wal Mart people that Yevette had nothing to do wi th it. She also told the officer, Tony Elkins, that she did it on her own andYevette Somerville had nothing to do with it.

The record does not reflect that a request was made for the potentially exculpatory videotape

. ANALYSIS

The defend ant argu es that “ the failu re of the State to pr

ovide exc ulpatory evidenc e to th e defense violated the Defen dant’s r ight to a fair trial under the Due Process Clause of the Constitution.” The State

disagrees, claiming the following: the video tape wa s equally availab le to the defendant; the State had no duty to preserve t he tap e; and, e

ven if the State did h ave a du

ty to preservethe tape, the breach is immaterial since the tape would not have been exculpatory a nd the State had sufficient evidence to convict the defenda nt without the tape. I. State’s Duty to Preserve and Disclose Exculpatory Evidence

In Californ

ia v. Trom

betta , 467 U.S. 479, 488-89, 104 S. Ct. 2528, 2534, 81 L. Ed. 2d 413, 422 (1984), the United States Supreme Court discusse d the natu

re of ev idence t he State has a duty to prese rve:
What ever

duty the Constitution imposes on the States to pres erv e 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 st andard o f constitu

tional mat eriality , evidenc e must both posses s an exculpatory val ue that was apparent before the evidenc e was destroyed, and be of such a nature that the d

efenda nt would be

unable to obtain co mparabl e evidence by othe r reaso nably ava

ilable me ans.
Id. (footnote and citation omitted). According to Trombett a , this court must consider whether the Wal-Mart videotap e would

“play a significant role in the suspect’s defense.” Id. Both the State and the defenda

nt ag ree that the tape’s contents may only be speculated a bout, including whether the defendant even appeared on

the tape , since W al-Mart

subseque ntly taped over the footage recorde d
on October 10, 2000, the day of the of fense. Sinc e the tape was destroyed before the State or the defendant viewed its contents, it is clea r th at, from the perspective of the State, the tape did not possess “an exculpatory value that was apparent bef ore the evidence was destroyed.” Id. Th e e xculpatory value of the tape is doubtful, since the record indicated the Wal-Mart ca

meras wer e primaril y used to monitor the Wal-Mart cashi er s at the c heck-ou t counter s. Even if

the tape did show the defendant approaching the chec k-out counter on October 10, 200 0, this e vidence would notnecessarily have been ex culpator y since the defendant could have completed the shoplifting3 Th is fact or presumes negligence i n the los s or dest ructi on of the evidence. Should the proof show bad fai th, the trial judge m ay con sider such action as m ay be n ecessary to protect the d efend ant’s fair trial rights.
-6- offense prior to approaching the check-out counter. In addition, it is doubtful that the tape was “of such a nature that the defendant would beunable to obtain co mparabl e eviden ce by othe r reaso nably availab le means.” Id. The tape was destroyed by Wal-Mart, and ne ither the State nor the defendant ever had possession or control of it at any time. Previously, this cour

t has held that “[t]he

prosecu tion is not required

to disclose information that the accused already possesses or is able to obtain.” State v. Ma rshall , 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992) (citing State v. Ca ldwell , 656 S.W.2d 894, 897 (Tenn. Crim. App. 1983); Banks v. State , 556 S.W.2d 88, 90 (Tenn. Crim. App. 1977)). Additionally, the court held that the prosecution is not req

uired to d isclose “ informat

ion which is not possessed by or under the control of the prosecution or another gover nmental agency.” Id. (citing Banks , 556 S.W.2d at 90). Ultimately, the Marshall court held that the defenda nt “‘must bear the responsibility of [his] failure to seek its discovery’” if the evidence is accessible to both the prosecutor and the defendant. Id. (quoting United Sta

tes v. McK

enzie , 768 F.2d 602, 608 (5th Cir. 1985), cert. denied , 474 U.S. 1086, 106 S. Ct. 861, 88 L. Ed. 2d 900 (1986)).

The facts do

not suppor t the defendant’s claim. First, the defendant, herself, could ha ve obtained the Wal-Mart videotape before it was destroyed but did not. Second, the tape was never in the Stat e’s posse ssion or c ontrol; it r emained in Wal-Ma

rt’s con trol at all times prio

r to its destruction. Third, the tape was equally accessible to the State and the de fendant. Accordingly, basedon Trombett

a and Ma rshall , we c onclude that the State did not breach its duty to preserve evidence.

II. Discussion of the Ferguson Factors

In Statev. Fergu son , 2 S.W.3d 912, 914 (Tenn. 1999), the Tennessee Supreme Court identified the considerations that should be utilized in ascertaining the effect of loss or destruction by the State of potentially exculpatory evidence in its custody. After considering a bad fait h standard, t he co urt ultimately applied a “balancing approach” compa rable to the one used by the Delaware Supreme Court in Hammond v . State , 569 A.2d 81, 87 (Del. 1989). Id. at 917.

Under this “balancing approac

h,” the c ourt must f

irst decide w hether t he State h ad a duty t

o preservethe evidence. Id. If so, and the State breached its duty, the court must then consider three factor s: 1. The degree of negligence involved; 3

2. The significanceof the destroyed evidence, considered in light of the probative value and reliability of secondary or substitute evidence that remains available; and-7- 3. The sufficiency of the other ev idence us ed at trial to support the conviction.

Id. After the court a

pplies the se three

factor s to a cas e, it

must determine whether a trialwithout the evidence at issue would be fundamentally fair. Id. If the trial would not be fundamentally fair, then the court may dismiss the charges against the defendant or take w hatever ot

her action t hat will protect the defendant’s right to a fair trial. Id.

In the instant case, we need only answer the initial inquiry posed by Ferguson , whether the Statehad a

duty to preserve the potentially exculpatory evidence. Since w e have already held that the State did n ot have a

duty to preserve evidence of the Wa l-Mart videotape, our application of the Fergusonanalysis ends. We conclude that the Sta

te did not have a duty to preserve the evidence of the videotape since it was equally available to the defenda nt and the State never had possession or control of the tape.
CONCLUSION

Based upon the foregoing authorities and analysis, we affirm the judgment o f the tria

l court.

___________________________________ ALAN E. GLENN, JUDGE