IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

January 8, 2002 Session

STATE OF TENNESSEE v. YEVETTE SOMERVILLE

Direct Appeal from the Circuit Court for Henry County

No. 13115 Julian P. Guinn, Judge

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

The defendant, Yevette Somerville, was convicted of theft of property 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 failure to inquire about and preserve

potentially exculpatory evidence violated her due process rights under the United States and

Tennessee Constitutions. Having reviewed the entire record, we conclude that the loss of the

evidence did not unfairly prejudice the defendant’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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOE G. RILEY and JOHN EVERETT

WILLIAMS, JJ., joined.

Victoria L. DiBonaventura, Paris, Tennessee, for the appellant, Yevette Somerville.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General;

G. Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

On October 10, 2000, a misdemeanor citation was issued, accusing the defendant of

shoplifting at a Paris, Tennessee, Wal-Mart store and requiring that she appear in the Henry County

General Sessions Court. Subsequently, the defendant was found guilty of theft of property valued

under $500 by the general sessions court and was sentenced to eleven months, twenty-nine days,

which was suspended to 120 days, and was ordered to pay a $1000 fine and $431.58 in restitution.

She appealed the conviction to the Henry County Circuit Court, where a jury found her guilty of
1

On July 26, 1999, the defendant, under Gibson County Circuit Court Docket No. 15650, pled guilty to attempt

to possess a Schedule II controlled substance with intent to deliver, a Class D felony, and was sentenced to two years.

On April 18, 2000, the defendant, under Henry County Circuit Court Docket No. 12998, pled guilty to delivery of a

Schedule II controlled substance (.2 grams), a Class C felony, and was sentenced to four years, with 150 days to be

served in confinement and the balance in community corrections. This sentence was ordered to be served consecutively

to the two-year Gibson County sentence.

2

The defendant argues on appeal that the trial court “ordered defense counsel to accompany the assistant district

attorney to Wal-Mart to check the status of the tape.” Actually, the trial court instructed, “I want you [referring to the

prosecutor], and you take counsel with you, to familiarize yourself with that system, including the filing system.” We

do not interpret this instruction to mean that the prosecutor could not, himself, check on the status of the tape, as the

defendant complains that he did, before he and defense counsel made a joint visit to Wal-Mart to ascertain whether the

tape existed.

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theft of property valued under $500, a Class A misdemeanor. She was sentenced to eleven months,

twenty-nine days to be served consecutively to her prior felony sentences.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 preserve 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 videotape, which was recorded the day the defendant was

accused of shoplifting.2 Subsequently, the trial court overruled the motion for a new trial, and the

defendant filed a timely notice of appeal.

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

from the Henry County Circuit Court proceedings:

Majorie Gilley, an employee of Wal Mart, testified that, at

approximately 3:25 in the afternoon on October 10, 2000, she saw the

Defendant, Yevette Somerville, for the first time in the software

department. She saw the Defendant pull a bag out of a shopping cart;

walk over to the Co-Defendant, Sherry Tharpe, 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 rack 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 ladies were, the ladies would

say ‘red’ as if it were a code. She also testified that Ms. Somerville

was not giving the bags to Ms. Tharpe and that the two (2) ladies

were no further than eight (8) to ten (10) feet apart at any given time.

She testified that if people walked anywhere near the two (2) ladies,

that Ms. Tharpe would say ‘red’ and the action would stop. The

ladies moved in to several areas and changed areas 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 switched
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buggies in menswear; that Ms. Somerville stayed in menswear while

Ms. Tharpe took her buggy out the front door. Ms. Gilley testified

that she did not see Ms. Somerville talking to anyone else other than

Ms. Tharpe. She said that Ms. Tharpe went to the car, put the bags

in the car, and came back in to the store at which time she met up

with Ms. Somerville in menswear. She also testified that she met up

with the two (2) women near the front registers and testified,

specifically, that “instead of leaving as I thought they were going to,

they came back into the store.” Most of the items taken were boys

clothing, size 8, 10, 12, and 16. There was also some girls clothing

taken, mostly in size 7 and 8. 

Sherry Tharpe testified that she had been shoplifting for thirty

(30) years; that she had been caught three (3) times; and all three (3)

times she had been caught in Wal Mart. That she was on probation

at the time of this shoplifting incident for shoplifting and for this

crime, she received a sentence of 11 months and 29 days, 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 earlier 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 around her

waist inside her clothing. Sherry Tharpe testified, in detail, how

Yevette Somerville came by her house and was going Christmas

shopping and asked Sherry if 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 did not see her

do that and did not know she did that as Yevette was putting the

children in the car. When they 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 children were 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 and Yevette

found her there. Sherry told Yevette she was shopping for her niece

and nephew and her son. Yevette helped her pick out some clothing

and make sets out of them. Boys size 8 and 9, boys size 9 and 10,

and girls size 7. As Yevette matched the clothes up, she hung them

over the sides of Sherry’s shopping cart. When they were finished

picking out the clothes for Sherry, Sherry asked Yevette to take the

children and put 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 period of time they were picking out the clothes did either
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of them say the word ‘red.’ After Yevette left 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 children and found Yevette

Somerville in the toy section and tried to hurry Yevette out of the

store but Yevette insisted on continuing her shopping, and finally

gave in to Sherry’s demands to go. Yevette was headed toward the

check out counter to pay for her items. When the Wal Mart people

stopped them for shoplifting, Sherry Tharpe told Ms. Gilley and the

other Wal Mart people that Yevette had nothing to do with it. She

also told the officer, Tony Elkins, 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 Yevette Somerville at

Wal Mart that day in the toy section with Sherry Tharpe’s two (2)

children, but she did not see Sherry Tharpe.

Yevette Somerville testified that she 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 earlier 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, she was

unaware that Sherry Tharpe prepared by putting used Wal Mart bags

around her waist inside her clothing. Yevette testified that she was

arrested while at the register in the check out lane. When they 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 children

were 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 and Yevette found her there. Sherry

told Yevette she was shopping for her niece and nephew and her son.

Yevette helped her pick out some clothing and make sets out of them.

As Yevette matched the clothes up, she hung them over the sides of

Sherry’s shopping cart. When they were finished picking out the

clothes for Sherry, Sherry asked Yevette to take the children and put

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 period

of time they were picking out the clothes did either of them say the

word ‘red’. Sherry Tharpe then found Yevette Somerville in the toy

section and tried to hurry Yevette out of the store but Yevette insisted
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on continuing her shopping, and finally gave in to Sherry’s demands

to go. Yevette was headed toward the check out counter to pay for

her items. When the Wal Mart people stopped them for shoplifting,

Sherry Tharpe told Ms. Gilley and the other Wal Mart people that

Yevette had nothing to do with it. She also told the officer, Tony

Elkins, that she did it on her own and Yevette Somerville had nothing

to do with it. 

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

ANALYSIS

The defendant argues that “the failure of the State to provide exculpatory evidence to the

defense violated the Defendant’s right to a fair trial under the Due Process Clause of the

Constitution.” The State disagrees, claiming the following: the videotape was equally available to

the defendant; the State had no duty to preserve the tape; and, even if the State did have a duty to

preserve the tape, the breach is immaterial since the tape would not have been exculpatory and the

State had sufficient evidence to convict the defendant without the tape.

 

I. State’s Duty to Preserve and Disclose Exculpatory Evidence

In California v. Trombetta, 467 U.S. 479, 488-89, 104 S. Ct. 2528, 2534, 81 L. Ed. 2d 413,

422 (1984), the United States Supreme Court discussed the nature of evidence the State has a duty

to preserve: 

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

thisstandard of constitutional 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.

Id. (footnote and citation omitted). According to Trombetta, this court must consider whether the

Wal-Mart videotape would “play a significant role in the suspect’s defense.” Id. Both the State and

the defendant agree that the tape’s contents may only be speculated about, including whether the

defendant even appeared on the tape, since Wal-Mart subsequently taped over the footage recorded

on October 10, 2000, the day of the offense. Since the tape was destroyed before the State or the

defendant viewed its contents, it is clear that, from the perspective of the State, the tape did not

possess “an exculpatory value that was apparent before the evidence was destroyed.” Id. The

exculpatory value of the tape is doubtful, since the record indicated the Wal-Mart cameras were

primarily used to monitor the Wal-Mart cashiers at the check-out counters. Even if the tape did

show the defendant approaching the check-out counter on October 10, 2000, this evidence would

not necessarily have been exculpatory since the defendant could have completed the shoplifting
3

This factor presumes negligence in the loss or destruction of the evidence. Should the proof show bad faith,

the trial judge may consider such action as may be necessary to protect the defendant’s fair trial rights.

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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 be unable to obtain comparable evidence by other reasonably

available means.” Id. The tape was destroyed by Wal-Mart, and neither the State nor the defendant

ever had possession or control of it at any time. 

Previously, this court has held that “[t]he prosecution is not required to disclose information

that the accused already possesses or is able to obtain.” State v. Marshall, 845 S.W.2d 228, 233

(Tenn. Crim. App. 1992) (citing State v. Caldwell, 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 required to disclose “information which is not possessed by or under the control

of the prosecution or another governmental agency.” Id. (citing Banks, 556 S.W.2d at 90).

Ultimately, the Marshall court held that the defendant “‘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 States v. McKenzie, 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 support the defendant’s claim. First, the defendant, herself, could have

obtained the Wal-Mart videotape before it was destroyed but did not. Second, the tape was never

in the State’s possession or control; it remained in Wal-Mart’s control at all times prior to its

destruction. Third, the tape was equally accessible to the State and the defendant. Accordingly,

based on Trombetta and Marshall, we conclude that the State did not breach its duty to preserve

evidence. 

II. Discussion of the Ferguson Factors

In State v. Ferguson, 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 faith

standard, the court ultimately applied a “balancing approach” comparable 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 approach,” the court must first decide whether the State had a duty to

preserve the evidence. Id. If so, and the State breached its duty, the court must then consider three

factors:

1. The degree of negligence involved;3

2. The significance of the destroyed evidence, considered in light of

the probative value and reliability of secondary or substitute evidence

that remains available; and
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3. The sufficiency of the other evidence used at trial to support the

conviction.

Id. After the court applies these three factors to a case, it must determine whether a trial without 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 whatever other action that 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

State had a duty to preserve the potentially exculpatory evidence. Since we have already held that

the State did not have a duty to preserve evidence of the Wal-Mart videotape, our application of the

Ferguson analysis ends. We conclude that the State did not have a duty to preserve the evidence of

the videotape since it was equally available to the defendant and the State never had possession or

control of the tape. 

CONCLUSION 

Based upon the foregoing authorities and analysis, we affirm the judgment of the trial court.

___________________________________ 

ALAN E. GLENN, JUDGE