1 IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE, ) ) No. M1999-02437-CCA-RM-CD Appellee, ) No. 01C01-9406-CR-00207

) ) Davidson County v. ) ) Hon. J. Randall W yatt, Jr., Judge ) RICKY HILL KRANTZ, ) (First degree murder and aggravated assault ) ) Appellant. )

For the Appellant : For the Appellee : David M. Siegel Charles W. Burson Jeff Powell Attorney General of Tennessee Assistant Public Defenders and Stahlman Building Christina S. Shevalier 211 Union Street Assistant Attorney Gener al of Tennessee Nashville, TN 37201-5066 450 James Robertson Parkwa y (AT TRIAL) Nashville, TN 37243-0493 Karl Dean Victor S. Johnson, III District Public Defender District Attorney General and and Jeffrey A. DeVasher Katrin Novak Mill er Michele S. Hall Nicholas Bailey Sheila Jones Assistant District Attorneys General Assistant Public Defenders 102 Metro Courthouse Stahlman Bldg. Nashville, TN 37201 211 Union Street Nashville, TN 37201-5066 (ON APPEAL)

OPINION FILED:_______________________

AFFIRMED Joseph M. Tipton Judge

O P I N I ON 

# FILED
January 25, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk2 The Tennessee Supreme Court remanded this case to us for reconsideration of our prior holding regarding

the state’s loss or destr uction of the defendant

’s blood sample

in lig ht of State v. Ferguson , 2 S.W.3d 912 (Tenn. 1999). We previously held that the defendant’s r ight to due process w

as not violated by the state’s failure to preserv e the blood sample because the failur e did not result from bad faith on the part of the police. The bad faith s tandard is fr

om Arizona v. Young blood , 488 U.S. 55, 57-58, 109 S. Ct. 333, 337 (1988) and ha s previously been used by this court. See , e.g. , State v. Eldridge , 951 S.W.2d 755, 778 (Tenn. Crim. App. 1997). However, in Ferguson , our supreme court rejecte d the bad faith standard under the Tennessee Constitution and held that the proper inquiry

is whether a trial conducted without the evidence w ould be fundamentally fair.
The analysis underlying this inquiry requires the court to determine first whether the state had a duty to preserve the evidence. If such a duty exists, the court must consider several fact ors bearing upon the conseq uences of the state’s breach of its duty. These factors inc lude (1) the degree of negl igence involved, ( 2) the significance of the destroy ed evidence in light o

f the existence of any substitute evidence, and (3) the sufficie ncy of the other evidence us ed to support the convicti on. Id. at 917. We shall undertake this analysi s in the present case. Als o, a recounting of the evidence is necessar y to determine whether the defendant received a fundamentally fair trial.

I.

The defendant was convicted of the fir st degree felony murder of Dan Newland and the aggra vated assault of Gary D ean Harris, the offenses occurr ing at the Next Door Tavern in the early morning hours of February 1, 1993. Mr. Harris, the victim of the aggravated assault and an acquaintance of the defendant, testi fied that on January 31, 1993, Super Bow l Sunday, he visited Big O’s Tavern at appr oximately 3:00 p.m., where he drank beer, a te, and watched the football g ame. He stated that he saw the defendant at the tavern.

Mr. Harris testified that he left the first tavern an d went to the Next Door3

Tavern. He stated that the defendant arrived at some po int in the evening. He said that he spoke to the defendant and that he did not believe that the defendant w as intoxicated. Accordin g to Mr. Harris, the defendant did not have difficulty walking, and his speech was not slurred. Mr. Harris testified that he saw the defendant and Kevin Williams arm wrestling acros s the room. He said he had seen M r. Williams but not the defendant arm wrestle at the Next Door Tavern on earlier occasions. Mr. Harris testified that he then saw the defendant and Mr. Williams fighting on the floor. Mr. Harris said he did not k now how or why

the fight started.

Mr. Harris testified that he and Dan Newland helped break up the fight. He said that after the fight, the defendant left the tavern. He stated that later, as he was inside the tavern walking away from the front door, he felt a piece of wood strike him in the back. Mr. Har ris testified that he looked be hind him and saw the door of the tavern open with someone standing in the doorway holding a gun. He said he saw Mr. Williams kick the door closed, heard a gunshot, and felt the gunshot hit him in the back. Mr. Harris testified that he then lost consciousness and did not remem ber anything until he awoke in the hospital.

Jack Speakman testified that he had kn own the defendant for several years. Mr. Speakman sai d that on January 31, 1993, at appr oximately 10:30 or 11:00 p.m., he and the defendant were shooti ng pool at the Next Door Tavern when the defendant wanted to arm wrest le. Mr. Speakman stated that he told the defendant that he did not want to arm w restle but that he knew s omeone who would. He int roduced the defendant to his friend, Kevin Williams, and the defendant and Mr. Williams agreed to arm wrestle. Mr . Speakman testified that he and another man whom he did not know bet money on the first match, w hich Mr. Williams won. Mr. S peakman stated that the defendant and Mr. Williams then agreed to a sec ond match.
Mr. Speakman testified that before the second match began, the defendant grabbed Mr. Williams' hand, slapped it down on the bar, and picked up the money. Mr. Speakman said that as the defendant got up to leave, he put the defendant in a neck hold and threw hi m to the ground. He stated that Mr. Williams then grabbed the money from the defendant while th e defendant was on the floor. He tes tified that4

he was pulled off the defendant by his wife and othe rs.

Mr. Speakman testified that the defendant got up and angrily w alked out of the tavern. He said Keith Walker followed the defendant out of the tavern to talk to the defendant. Mr. Speakman testified tha t he also went outside the t avern after about fifteen to twenty seconds. H e said the defendant entered his truc k and was speaking to Mr. Walker through the truck window when he yell ed at Mr. Speakman, "I'll be bac k to kill you, you S.O.B ." Mr. Speakman said he heard the defendant say that he was g oing to go home to get a gun and ki ll everyone in the t avern. Mr. Speakman testi fied that he heard the defendant start the truck engine and th at he told the defendant that he would not be at the tavern. He sai d he walked back inside and told his wife that it w as time to leave, and the two of them left. He said they did not dri ve in the same direction a s the defendant but rather took another direction to pick up his motorcycle at a friend’s house.
Mr. Speakman testified that the defendant did not have difficulty w alking or being coordinated as he was playing pool. He stated that the defendant was capable of hitting the ball. He said the defendant did not ha ve difficulty speaking, and his speech was not slurred.Mr. Speakman testified that he di d not believe the defendant was drunk. Mr. Speakman admitted that he yelled at the defendant while outside the tavern. He conceded that he had been drinking since the start of the football game and estimat ed that h e drank se ven or eight beers. He also test ified th at he did not belie ve that the defendant was more intox icated than Mr. Newl and or Mr. Harris.

Kevin Williams testified that he ha d known the defendant for several years before the night of the shooting and that he and the defendant had arm wrest led on previous occasions. He said there was nothing extraordinary about the first arm wrestling match unti l the defendant accused him of cheating.Mr. Williams testified that he offered to wrestle the defendant ag ain, but before he could get in p osition, the defendant grabbed his hand, slammed it on the bar, grabbed the money w agered on the match, and walked toward the door. Mr. Williams state d that he saw Jack Speakman wrestle the defendant to the floor, causing the money th e defendant was holding to fall to the floor. He said someone picked up the money and handed it to him.5

Mr. Williams testified that the defendant then left t he tavern.

Mr. Williams testified that about five to ten minutes after the defendant left, he saw Mr. Speakman w alk outside. Mr. Williams said that shortly after the defendant left, Keith W alker said something to him that made him think that he sho uld leave and go home, but he said he decided to stay at the bar . He said that about thirty to forty minutes after the defendant left the tavern, he saw the tav ern door fly open, a portion of a long gun come in, and Dan Newland fall to the floor after a shot was fired. Mr. Williams testified that he went t o the door, pushed the door closed , and attempted to grab the portion of the gun barrel sticking thr ough the door. He said the g un was wrestled from his gr

asp, and a shot was fired thr ough the door, missing hi m but striking Mr. Harris in the back. He said he told his wife to go out the back door, and he quickly followed her outside. Mr. Williams said that he an d his wife went to Mr. Speakman's house. He said he could not identify the shooter because he only saw the shooter's arms and a portion of the gun.

Mr. Williams testified that the defendant did not have any difficulty walking, talking

or moving around as they were arm wrestl ing. He also stated that the defendant’s speech was not slur red. Mr. Williams conceded that on the ni ght of the offense, he had been drinking for sev eral hours while at a Super Bowl party and a lso at the tavern. He estimated that he had drunk nine beers. Mr. W illiams stated that he did not believe that he was intoxicated. He testified that no one was “falling down drunk,” including the defendant.

Martha Bryant, an employ ee of the Next Door Tavern, testified that she lived next to the tav

ern and that she was at the t avern on the night of the shoot ing. She said that although she w as not scheduled to work that night, she was hel ping an employee clean tables. She said she saw the defendant an d Kevin Williams arm wrestling, but she did not pay much attention unti l she saw Jack Speakman and the defendant on the floor surrounded by s everal people. She said s he did not see anyone strike or hit the defendant. Ms. Bryant stated that she heard the de fendant say, on his way out of the tavern, that he was going to g et a gun and kill ever yone. She said that the defendant appeared mad and upset but that she did not notice any injur ies6

sustained by the defendant. Ms. Bryant testified that she did not take the defendant’s threat seriously, although she went home immediatel y after the defendant left the tavern at a pproximate ly 10:30 p. m.

Ms. Bryant testified tha t she returned to the taver n at about 11:15 p.m. She stated tha t she was dancing with Da n Newland when she sa w a gun barrel through the door, heard two gunsho ts, and then saw Mr. N ewland and Mr. Harri s fall to the floor. She said that she was scar ed and told everyone to g et down. Ms. Bryant stated that she checked on Mr. Newland and Mr. Harris and called 9-1-1. She testified that she then saw the defendant holding “ a long-barreled gun . . ., like a shotgun.” S he said she did not see Beverly H unter, the defendant’s cousin, at the tavern that night.
Ms. Bryant testified that she believed the defendant had been dr inking but that he was able to wal k, and his speech was not slurred. In Ms. Bry ant’s opinion, the defendant did not at any time during the night of the offense act in a w ay to make her believe that he was not aware of his surroundings or unable to understand w hat was happening. Ms. Bryant conceded that she was not pay ing attention to every

thing that was going on because a big crowd was at the tavern that night.

Rita Williams, Kevin Williams' wife, testi fied that at the time of the shooting, she had known th e defendant for five or six y ears. She said she went t o the Next Door Tavern w

ith her husband on the night of the shooting, and while at the tavern, she briefly spoke to the defendant. Ms. W illiams stated that the defendant’s speech was

not slurre

d and that he di d not have any difficult y talking . Ms. Williams testified that she was not dr inking on the night of the offense.

Ms. Williams testified that she was sitting two tables away from the defendant and her husband when the arm w restling match took plac e. She said that she was not paying much attention to the match but that she recalled see ing Jack Speakman throw the defendant to the floor and tell him to let go of the money . She stated that both she and Pam, Mr. S peakman's wife, tried to cal m Mr. Speakman so he would release the defendant. M s. Williams testified that after Mr. Speakman let go of the defendant, the defendant left the tavern. She said she did not notice any blood or7

bruises on the defendant’s face. She al so stated that she did not hear the defendant say anything as he l eft.

Ms. Williams testified that approximat ely forty-five minute

s after the defendant left, she saw the door to t he tavern open and the defendant standing in the doorway with a s hotgun. She said that she then hea rd a shot and saw Dan New land fall to the floor. She stated that s he dropped to the floor and heard a sec ond shot. She recalled seeing someone els e fall to the floor, and she testified that she then went out the back door where she met h er husband. Ms. Williams stated that she a nd her husband drove t o Mr. Speakman 's house and to ld him about th e shooting.

Ms. Williams testified that she saw the defendant drinking beer and playing po ol that ni ght. In he r opinion , the def endant d id not ap pear to ha ve diffi culty standing up or playing pool. Ms. Williams stated that she saw blood on th e defendant’s face when he returned to the tav ern with the gun. She al so testified that the defendant was friends with both of the victims. She said that the defendant opened the door and fired the shot and that he was l ooking at Mr. Newl and when he shot the gun.

Keith Walker testified that he had known the d efendant for several years. He said that he was at the Next Door Tavern on J anuary 31, 1993, when the defendant and Mr. Williams were arm wr estling. Mr. Walker stated that he w as shooting pool and not paying attention to the arm wrestling. H e said that he heard a commotion, tur ned around, and saw Jack Speakman o n top of the defendant. He testified that he s aw several people surroundi ng the pair and that Mr. S peakman had to be pulled off the

defendant. Mr. Walker stated that the defendant wal ked outside the tavern and st ated that he was going to g et a gun and come back to the tav ern.

Mr. Walker testified that he f ollowed the defendant to try to calm him. He said that Mr. Speakman follow ed him out of the tavern, keeping a little distance behind him. He testified that he spoke t o the defendant outside the tavern, a nd the defendant stated a couple of times that he was going to get his gun and come back and kill Mr. Speakman and Mr. Williams. Mr. Walker said the defendant ente red his truck but8

continued to talk to him through the window. He recalled that the defenda nt and Mr. Speakman exchanged words before the defendant drove away in his truck. Mr. Walker testified that the defendant did not appear to have any difficulty t alking, walking , or driving his truc

k. He said the defendant liv ed about three miles from the tave rn.

Mr. Walker testified that after the defendant drov e away, he went ins ide the tavern and told Mr. Williams of the de fendant’s threat. Mr. Walker said that although he tried to convince him to leave, Mr. Williams stayed at the ta vern. Mr. Walker said that about twenty to thir ty minutes later, he heard a gunshot while he w as sitting at a pool table. He said he saw the defendant stand ing in the doorway with a shotgun, and the defendant had blood dri pping down one side of his face.Mr. Walker testified that the defendant then fired a sec ond shot. He stated that he w ent out the back door and around the buildin g to look for the defendant. He sai d that he saw the defendant near an outside corner of the tav ern and that he tried to calm the defendant. Mr. Walker testified that the defendant pointed the s hotgun at him but that when the defendant was distracted by someone else, he grabbed the shot gun from the defendant. Mr. Walker stat ed that the gun was a single-shot shotgun and that a single live shell was i n the chamber.

Mr. Walker testified that after he took the shot gun from the defendant, the defendant told him there was no r eason for him to be treated the w ay he had been treated in the tavern. M r. Walker said he interpreted the defendant’s statement to mean that the defendant should not have been embarrassed in that manner.

Herschell Jackson, a patr on of the Next Door Tavern, testified that he was an acquaintance of the defendan t and that he also knew Kevin Williams and Jack Speakman very well . He said he saw the defendant an d Mr. Williams arm wrestling from the other end of the bar. He said he then saw several peo ple walking tow ards the door yelling at each other. He said the defendant then left t he bar.

Mr. Jackson testified that after about an hour, he heard what sounded like someone kicking open the door, and then he heard a gunshot. He said he looked toward the door and saw the defendant standing with a shotgun. Mr. Jackson s tated9

that he moved toward the door and tried to close it, but the defendant fired at least one more shot through the door. H e testified that after the shooting , he saw Keith Walker come through the back door of the tav ern with a shotgun.
Cheatham County Deputy Sher iff Roy Briscoe testified that he responded to a 9-1-1 call at 12:32 a.m. r egarding an accident in volving the defendant’s truck on the Old Clarksvil le Highway appr oximately seven-t

enths of one mile from the Next Door Tavern. He said the defendant’s truck appeared to have run off the road, hit a barn, and turned end-over-end, l anding in the yard of a res idence. He stated that he did not observe any skid mark s. Deputy Briscoe st

ated that the driver of the tr uck was not at the scene and that there were no eyewitnesses to the accident. He testified tha t while investigating the accident scene, he overhear d a radio call for Metro Po lice to respond to a shooting at the Next Door Tavern. He said that he later received i nformation that the defendant had been arrested in rel ation to the shooting, and he st ated that he asked Metro Police to draw a blood sample from the defendant. Deputy Briscoe testified that he believed the defendant was driving under the influence of an intoxic ant because there were numerous alcoholic beverage c ontainers inside and outside the defendant’s truck.

Michael Hooper, an emergen cy medical technician, testified that at 12:47 a.m., he and his partner responded to a call regarding

a shooting at the Next Door Tavern. He said that as he was driving the ambulance on Clarksvil le Highway look ing for the tavern, he saw the defendant staggering in the middle of the highway. He stated that when he asked the defendant w hat was wrong, the defendant said that he had wrecked his truck. He stated that the defendant had cuts and b lood on his face. Mr. Hooper test ified that he then saw anot her person approaching them, and by

the time they put the defendant in the back of the ambulance, someone had reached the ambulance and told them about the shooti ng. Mr. Hooper said they then went to the tavern.
Mr. Hooper testified that w hen he first saw the defendant, the defendant was having a lot o

f difficulty walking a nd was not walking in a straight line. He said the defendant's injuries were consistent with those that would result from an auto mobile10

accident. After review

ing photographs of the defendant’s w recked truck, Mr. Hooper said that he would have expected the defendant to have been k illed or severely

injured and would not have expected him to be able to stand and walk around. He also testified tha t the defend ant appeared confused an d had a loss of e quilibrium, alth ough he did not know whether the defendant was suffering from shock. He stated that he believed the defendant “could certainly understand” what the med ical personnel were saying. Mr. Hooper explained that the defendant’s difficulty walking and talking could have been caused by injur ies sustained in the wr

eck or by being str

uck during a fight. He said he was unsure w hether the defendant had experienced a loss of consciousness. Mr. Hooper testified that he believ ed that the defendant was intoxicated.

Officer William McCall of the Metro Poli ce Department testified that he respond ed to a cal l at 12:51 a.m and t hat he was the first office r to arrive a t the Next Door Tavern after the shooting . He said that the defendant was in an ambulance and that medical personnel wer e trying to administer

treatment to the defendant, but he refused and tried to leave on t wo occasions. He stat ed that the defendant told him he had been in a fight. Officer McCall testified that the de fendant did not slur his speech but appeared coherent and seemed to under stand his questions. He said the defendant smelled like alcohol, al though he said he did not beli eve the defendant was drunk. Officer McCall identified the single-action shotgun given to him by Herschell Jackson during inves

tigation at the tavern.

Metro Police Officer Chri stine Woods testified that she was the second officer to arrive at the tav ern after the shooting. She sai d that when she asked the defendant twice if he had shot any one, the defendant responded each time by telling her that he had been involved in a wreck. She said she interpreted the defend ant’s statements as an indication that he did not want to talk about the shooting. She testified that in her opinion, the defendant was intoxicate d but not disoriented or confused. She said the defendant seemed to under stand what was happening around him. Officer Wood s conceded that she described the defenda nt as being very intoxicated in her repor t.11 Metro Police Detectiv

e David Miller tes

tified that he assisted Detecti ve Al Gray in the investi gation. He testified that on the night of the incident, he interviewed the defendant at the hospital. He sai d that the defendant appeared to have been drinking but that during the interview, the defendant did not slur his speech, appeared coherent, and seemed capable of und erstanding what was going on around him. He said the defendant gave specific answers to his ques

tions. He testified that the defendant told him during the interview that he had been in a f ight after an arm wrestling match and th at he was trying to get away when he wrecked his truck

. Detective Miller

said he requested that a blo od sample be drawn from the defendant after receiving a req uest from Deputy Briscoe for purposes of Briscoe’s inv estigation of the defendant for driving under the influence.

Metro Police Detectiv

e Alfred Gray, III, testified that he interviewed the defendant at approximately 4:00 a.m., three to three and one-half hour s after the shooting. He said the defendant appeared to understand his constitutional rights and did not appear to be intoxic ated. He said he learned duri ng his investigat ion that the defendant had obtained the shotgun from his home. Detective Gray testified that he investigated the loss

of the defendant’s blood sample but was not able to determine what happened to it.

Dr. Edmund Rutherford, the trauma surgeon who treated Mr. Harris, testified that a shotgun wou nd can be life threatening if made at close range, even if the shotgun pellets travel ed through a door. He testi fied that despite Mr. Harr is' blood alcohol content being .286 the night of the shooting, he f ound that Mr. Harris was alert and coherent. He said that the d egree of impairment for a specific blood alcohol content would be greater for persons who did not chronically use alcohol.

Dr. Julia Goodin, the Dav idson County Medical E xaminer, testified that Dan Newland receiv

ed shotgun wounds to the left ar m and upper chest and that they resulted in his death. She te stified that the shotgun was fired from a distance of between eight to twent

y feet. Dr. Goodin also te stified that Dan Newland had a blood alcohol level of .31 percent

.12 Beverly Hunter, the

defendant's cousin, testified that s he, the defendant, Mr. Harris, and another person were at the VFW drinking the afternoon of the shooting. She testified that she believ ed the defendant was drunk because he spilled his drink at the VFW. She said that after two or three hou rs of drinking, they w ent to another bar for about an hour, and then they w ent to the Next Door Tav ern. Ms. Hunter testified that she was using the pay telephone on the outside wall near the Next Door Tavern door when she saw the defendant leave the tavern follow ed by Jack Speakman and another person. She testified that she did not notice any arg uing or yelling between the defendant and anyone else. Ms. H unter conceded that she drank a l ot that night. She described the defendant as being dr unk but not “falling down drunk.” She said the defendant was coherent, was able to carry on a conv ersation, and did not stumble or fall.

II.

The defendant contends that the trial cour t should have dismissed the indictment because the state failed to preserve the blood sampl e taken from him on the evening of the shooting. He argues that he was precluded from off ering scientific evidence that most likely would have establis hed that he was intoxic ated at the time of the offense. He asserts that had he had acce ss to the blood sample for testing, the jury would have returned a v erdict of voluntary mans laughter or, at most, secon d degree murder.

The state concedes that evidence of the def endant’s intoxication would have been relevant to neg ate the specific intent requi red for the charges of first deg ree, premeditated and deliberate murder and for attempted first degree murder, the underlying felony for the felony murder charge. However, it claims that the evidence is not materially excul patory because the blood sampl e would have, at best, s hown the defendant’s blood alcohol level . It argues that such ev idence would not have negated the requisite culpable mental state because proof of intoxication alone is not a defense to a specific intent crime. That is, the state argues that proving the blood alc

ohol level of the defendant at the time of the killing would not be sufficient to neg ate the requisite specific intent without other evidence that the defendant’s intoxication depriv ed him of13

the mental capacity to form the s pecific intent required for the offenses charged.
At the pre trial hea ring on the defend ant’s mo tion to di smiss, De tective Miller from the Metro Pol ice Department testified that on F ebruary 1, 1993, Deputy Briscoe asked him to have a blood sample drawn from the defendant. Detective Miller said that drawing bl ood was not normally don e in homicide cases but that D eputy Briscoe needed a blood sample for hi s investigation of the defendant for D.U.I. with respect to the truck acci dent. Detective Mill er said that after he receiv ed the blood sample from the hospital, he gav e the sample to Detective G ray, who was i n charge of investigating the shooting. Detective Gray testified that he did no t remember receiving the blood sample from Detective Miller but that he remember ed finding the blood sample in the homicide section refrigerator and taking it to the property room in July 1993.
Officer Joy Moore of the Metr o Police Department Property Room testified regarding the handling

of blood samples. She testified that a ccording to her recor

ds, a blood alcohol kit containi ng the defendant's blood sample w as delivered to the proper ty room on July 14, 1993, by Detective Gray. S he said her records show that the blood sample was logged, and she stated that the normal procedur e would be to place the sample in the cooler until i t could be transported to the Tennes see Bureau of Investigation (T.B.I.)

Crime Laboratory. Officer Moore testified that her rec ords show that she transported the defendant's bl ood sample to the T.B.I. lab on July 27, 1993, and gave it to Mildr

ed Krice.

Mildred Kr ice, an evi dence te chnician at the T. B.I. Crim e Labora tory, testified that her records s how that the lab never r eceived the defendant's blood sample. She said that samples are delivered in a sealed box with an evidence submittal form inside the sealed box. She stated that when she receives a blood sample, she open s the seal ed box, veri fies tha t the bloo d sample is identif ied as sho wn on the evidence submittal form, e nters the data into the computer, and finally attaches a T.B.I. Crime Laboratory label to the sample. She said that if the form is missing or the sample identification does not match the form information, her procedure is to notify the delivering agency

for a correction.14 Terry Fields of the T.B.I. F orensic Division testified that blood alcohol analysis is generally conducted within about one week of its arrival at the lab. He said that blood samples that have been through the proper chain of cus tody requirements may be tested and may render accurate results for a long time, possibly year

s, after the blood sample is taken. Mr. Fields conceded that a person ’s intoxication lev el alone does not determine whether he o r she is able to function, to think clearly, or to form the intent required to commit murder.

The trial court denied the defendant’ s motion, finding that “this was an accidental loss, a negli gent loss, a careless l oss or something, but it w as not in bad faith.” The tr

ial court a lso indicat

ed that the fact

that the req uest for the s ample came from a Cheatham County deputy i nvestigating the wreck of the defendant’s truck, not from the inv

estigatin g detectiv

es who thoug ht the sample was not need ed, had some bearing on the issue. Finally, the trial court determined that other evidence existed in the case to support the defendant’s defense relative to intoxi cation.

III. Initially, we note

that voluntary intox

ication is not a defense to prose cution and conviction for the commiss ion of an offense. Tenn. Code Ann. § 39-11-503(a)

. However, evidenc

e of intoxication, voluntary or not, is admiss ible if it is relevant to negate the requisite cul pable mental state. Id.

The defendant was charged with felony murder, specifically, the reckless killing of Danny New

land during the attempt to perpetrate first degree murder. See Tenn. Code Ann. § 39-13-202(a)(2) (repealed 1995). He w as charged with the attempted intentional, premeditated, and deliberate first degree murder of Gary Dean Harris. He was also charged with aggravated assault, specifically, the intentional, knowing, or reckl ess causing of bodily i njury to Mr. Harr is by use of a deadly w eapon. See Tenn. Code Ann. § 39-13-101(a)(1 ), -102(a). The state conce des that evidence of the defendant’s intoxication w ould be relevant to the attempte d first degree murder underlying the felony murder charge and the premedit ated first degree murder char ge. We must now determine, pursuant to our supreme court’s guidance in Ferguson , whether the defendant received a fundame ntally fair trial.15 Pursuant to Ferguson , we first determine w hether the state had a duty to preserve the defendant’s blood sample. W e believe that it did. As previously discussed, the defendant ’s level of intoxica tion would have bee n material in pre paring a defense to the extent that a high blood alcohol level w ould have helped show that the defendant could not have formed the req uisite intent. We note that in denying the defendant’s motion, the trial cour t considered it significant that the detectives investigating the murder and assault charges did not request the sample; r ather it was requested by the Cheatham C ounty deputy investi gating a possible D.U .I. charge. However, although the Davidson County detectives may not have had a duty to collect the evide nce, onc e they had done so a t the requ est of th e Cheath am Count y deputy, they had a duty to preser ve the evidence they collected because it “mig ht be expected to play a significant role in the suspect’s defense.” California v. Trombetta , 467 U.S. 479, 488-89, 104 S. Ct. 2528, 2533-3 4 (1984). Having dete rmined that the state breached its duty by l osing the blood sample, w e must now determine the consequences of the state’s bre ach.

Pursuant to Ferguson , the first factor to be consider ed relates to the degree of negligence inv olved. We note that the court in Ferguson stated that this factor “presumes neglige nce in the loss or destruc tion of the evidence. Should the proof show bad faith, the trial judge may consider suc h action as may be necessary to protect the defendant’s fair trial rights.” Ferguson , 2 S.W.3d at 916 n.10. The record in the prese nt case sh ows that th e blood sa mple was ac counted for unti l it was to ha ve been delivered to Mildr ed Krice at the T.B.I. crime l ab. The evidence was either never delivered to Ms. Krice or was lost once it reached the crime lab. Nothing in the record suggests that the evi dence was intentionally or recklessly l ost or destroyed. Thus, the conduct amounts to simple negli gence.

The second factor is the significance of the missing eviden ce. Had the blood sample revealed a part icularly high l evel of alcohol, it could have bolstered the
defendant’s argument that he was too intoxicated to fo rm the requisite intent. In this respect, the missing ev idence was of some signific ance.16 On the other hand, the significance is diminished by testimony from nearly every witness that although the defendant had been drin king and was intox icated, he was coherent, in control of his motor skills, and aw are of his surroundings. Several witnesses testified that the defendant was not “falling d own” drunk. Dr. Rutherford, who treated Mr. Harris, testified that Mr. Harri s was alert and coherent despite a blood alcohol level of .286. Dr. Rutherford indicated that the degree of impairment for a specific blood alcohol lev el would depend on one’s tol erance. In addition, Terry Fields testified that one’s intoxi cation level alone does not determine their ability

to function or think clearly. This evidence diminishes the s ignificance of the missing evidence.

The third factor to consider i s the sufficiency of the convi cting evidence. No doubt exists that the defendant was the shooter. The evi dence showed that the defendant, angry over an ar m wrestling match, thr

eatened to get his gun and shoot everyone in the tav

ern. The defendant then followed throug h on his threat by driv ing to his home, getting his g un, driving back to the tavern thirty to forty minutes after making the threat, opening the door and shooting. The evidence show s that the defendant was alert and coherent enough to formul ate a plan of revenge and carr y out that plan. The evidence was suff icient as a matter of law.

Considering the foregoin g factors, we do not beli eve that the fact that the blood sample was missing denied the defendant a f undamentally fair trial or requires a new trial with s pecial instructions to the jury as suggest ed in Ferguson . No evidence exists that the state’s loss of the evid ence wa s intent ional, the missi ng evi dence is of
little significance i n light of other evidence of the defendant’s level of intoxi cation, and the convicting evi dence is sufficient.

In consideration of the foregoing and the record as a whole , we affirm the judgment of conviction.

________________________________ Joseph M. Tipto n, Judge CONCUR:17

__________________________ David G. Hayes, Judge
(Not Participating) Jerry Scott, Special

Judge