IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

April 12, 2011 Session

STATE OF TENNESSEE v. JOSEPH STEELE

Direct Appeal from the Circuit Court for Hardin County

No. 9129 C. Creed McGinley, Judge

No. W2010-01303-CCA-R3-CD - Filed July 26, 2011

A Hardin County grand jury indicted the Defendant, Joseph Steele, for rape of a child less

than thirteen years of age. The Defendant filed a motion to dismiss the indictment because

the State had allegedly lost or destroyed a videotape of the victim’s interview with Michigan

Children’s Services. After a hearing, the trial court dismissed the indictment, and the State

now appeals the trial court’s dismissal of the indictment. After a thorough review of the

record and relevant authorities, we conclude that the trial court erred when it dismissed the

Defendant’sindictment without discussing the relevant factorsrequired by State v. Ferguson,

2 S.W.3d 912 (Tenn. 1999). We, therefore, reverse and remand to the trial court to

reconsider and make findings of fact regarding whether dismissal of the Defendant’s

indictment is appropriate in light of Ferguson.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and

Remanded

ROBERTW.WEDEMEYER, J., delivered the opinion of the Court, in which JOSEPHM.TIPTON,

P.J. and JAMES CURWOOD WITT, JR., J., joined.

Robert E. Cooper,Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney

General; Hansel J. McCadams, District Attorney General; Eddie N. McDaniel, Assistant

District Attorney General, for the Appellant, State of Tennessee.

Ryan B. Feeney, Selmer, Tennessee, for the Appellee, Joseph Steele.

OPINION

I. Facts

On May 12, 2009, Keith Amos, a police officer, swore to an Affidavit of Complaint
that alleged that the Defendant committed rape of a child. The complaint specifically

alleged:

BETWEEN 07-01-1994 AND 01-01-2000 [THE DEFENDANT] DID

COMMIT THE ACT OF RAPE WHEN HE RAPED HIS STEPDAUGHTER.

THIS INCIDENT STARTED WHEN SHE WAS A JUVENILE (07-01-1994)

AND WENT ON UNTIL 07-21-2000. THE RAPE OCCURRED . . . IN

OLIVE HILL TN. THE HOME OF [THE DEFENDANT].

On that same day, a warrant was issued for the Defendant’s arrest. The Defendant appeared

before the court in June and was released on bond. On August 25, 2009, after the

Defendant’s preliminary hearing, the General Sessions court judge bound the Defendant’s

case over to the Hardin County grand jury. On November 16, 2009, the Hardin County grand

jury indicted the Defendant on one charge of rape of a child, his stepdaughter, S.K.

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On November 23, 2009, the Defendant was arraigned. Shortly thereafter, on

December 1, 2009, the Defendant’s attorney filed several motions, including a motion

requesting that the State produce evidence against the Defendant. The Defendant filed a

motion to compel the State to produce a videotape copy of the victim’s interview with the

Michigan Children’s Services (“MCS tape”). The trial court ordered the State to produce a

copy of this videotape to the Defendant by March 2, 2010. On March 22, 2010, the

Defendant filed a motion to dismiss his indictment, with an attached memorandum of law,

on the basis that the State had failed to produce a copy of the MCS tape and asserted his

belief that the tape had been lost or destroyed. Attached to the motion was the affidavit of

Randy S. Servia, a trooper with the Michigan State Police, who swore that on October 28,

2007, S.K., who was nineteen at the time and living in Michigan, came to the Michigan State

Police and reported that the Defendant had engaged in sexual intercourse with her while she

lived with him in Tennessee. In the affidavit, Trooper Servia swore that S.K.’s original

interview was videotaped, that tape being the MCS tape, and placed into evidence with the

Michigan State Police.

In the affidavit, the trooper went on to swear that he forwarded a copy of the MCS

tape and his report to officers in Tennessee and that he confirmed they received the tape and

his report. After following up, Trooper Servia learned the case was ultimately assigned to

Detective Keith Amos with the Hardin County Sheriff’s Department. Detective Amos told

Trooper Servia that he interviewed S.K. and her mother and that the Defendant had been

charged with rape of a child.

In order to protect the victim’s privacy, this Court will refer to her by her initials only. 1

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The trial court held a hearing on the Defendant’s motion to dismiss his indictment.

At the hearing, the following evidence was presented: The Assistant District Attorney

General (“ADA”) told the court that the Michigan trooper sent the MCS tape to an employee

in the Department of Safety, who had subsequently retired. That retired employee gave the

MCS tape to another employee, who had also retired. The MCS tape, the ADA said, was

never received by Hardin County officers. The ADA said, however, that Officer Amos

personally interviewed S.K. and that his interview was the basis for the indictment against

the Defendant. Further, the victim testified in person at the Defendant’s preliminary hearing.

The Defendant’s attorney informed the trial court that the videotape was a piece of

evidence that was critical to the defense, in part because the allegations involved acts that

occurred ten to twelve years ago. The videotape, the Defendant asserted, was made at a point

in time closer to the time the sexual assault took place than S.K.’s testimony at the

preliminary hearing. Further, because certain dates and places would be at issue at trial, the

videotape could be used to cross-examine S.K. when she testified at trial. The State, the

Defendant argued, failed to satisfy its duty to preserve the evidence. The Defendant said he

was, therefore, entitled to have his case dismissed pursuant to Ferguson.

Based on the State’s failure to preserve the MCS tape, the trial court granted the

Defendant’s motion to dismiss. After so doing, the State asked if the trial court had

considered the fact that the tape did not have anything to do with the charges. The following

occurred:

THE COURT: They are saying it is material to the preparation of their

defense. You’re saying we’ve still got a person who can testify.

GENERAL McDANIEL: Who has testified.

THE COURT: Who has testified, but you can’t show what her prior statement

was. That’s what the crux of it is.

GENERAL McDANIEL: Probably, I mean I can produce the trooper that

interviewed her.

THE COURT: I think the State, particularly on a Class A felony, is under an

obligation to take steps to preserve all their evidence. The “Motion to

Dismiss” is sustained.

The trial court did not issue a written order granting the motion to dismiss. The State filed

a timely notice of appeal.

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II. Analysis

On appeal, the State contends that the trial court did not properly grant the

Defendant’s motion to dismiss because it did not properly consider the factors enumerated

in State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), and disregarded the additional evidence

that the State was prepared to present at trial to support the Defendant’s guilt. The Defendant

counters that the trial court properly dismissed his indictment.

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 constitutionally protected 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 (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 (1976).

State v. Ferguson governs claims regarding the State’s duty to preserve potentially

exculpatory evidence. 2 S.W.3d 912, 917 (Tenn. 1999). “Generally speaking, the State has

a duty to preserve all evidence subject to discovery and inspection under Tennessee Rule of

Criminal Procedure 16, or other applicable law.” Id. (internal footnote omitted). The

analysis under Ferguson is only triggered, however, if the alleged exculpatory evidence is

determined to be material. Id. To be material, the “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. Once the court determines that the evidence is material and the State

failed in its duty to preserve the evidence, Ferguson requires the trial court to consider the

following factors which bear upon the consequences of the State’s breach of its duty: (1) the

degree of negligence involved; (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 (3) the sufficiency of the other evidence used at trial to support the

conviction.” Id. (internal footnote omitted).

The facts presented in Ferguson are analogous to the facts in the case presently before

us. In Ferguson the Tennessee Supreme Court articulated the issue presented as, “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?”

Id. at 914. In so deciding, the Court stated it must determine, “Whether a trial, conducted

without the destroyed evidence, would be fundamentally fair?” Id. Ferguson involved a case

in which a defendant had been found by police slumped in the driver’s seat of a vehicle. Id.

The arresting officer conducted several field sobriety tasks, which were recorded on

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videotape, and determined from them and from other observations that the defendant was

under the influence of alcohol. Id. The videotape of the field sobriety tasks was

inadvertently “taped over” before anyone could view it. Id.

The Ferguson Court stated:

The analysis of both Brady and Agurs concerns the prosecution’s

suppression of “plainly exculpatory” evidence. This strikes a sharp contrast

to the case under review wherein the 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 flow from the

State’s loss or destruction of evidence alleged to have been exculpatory.

After a thorough analysis, the Court adopted for Tennessee a balancing approach

similar to the one espoused by the Supreme Court of Delaware in Hammond v. State, 569

A.2d 81, 87 (Del. 1989). The Court explained that the first step in the analysis is determining

whether the State had a duty to “preserve” the evidence. Id. at 917. “Generally speaking,

the State has a duty to preserve all evidence subject to discovery and inspection under Tenn.

R. Crim. P. 16, or other applicable law.” Id. (footnote omitted). However,

[w]hatever 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

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. (quoting California v. Trombetta, 467 U.S. 479, 488-89 (1984)). Only if the proof

demonstrates the existence of a duty to preserve and further shows that the State has failed

in that duty must a court turn to a balancing analysis involving consideration of the following

factors: “1. The degree of negligence involved; 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 3. The sufficiency of the other evidence used at trial to support

the conviction.” Id. (footnote omitted). If the court’s consideration of these factors reveals

that a trial without the missing evidence would lack fundamental fairness, the court may

consider several options, such as dismissing the charges or providing an appropriate jury

instruction. Id.

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This Court has previously stated that “the mere possibility of exculpatory content does

not trigger a finding that the State failed in its general duty to preserve evidence under

Ferguson.” State v. Ronnie D. Sims, No. M2004-02491-CCAR3-CD, 2005 WL 3132441 at

*8 (Tenn. Crim. App., at Nashville, Sept. 21, 2005) (citing State v. Coulter, 67 S.W.3d 3,

54-55 (Tenn. Crim. App. 2001)), perm. to appeal denied (Tenn. Mar. 20, 2006).

In the case under submission, it is not clear whether the video taped interview

contained inculpatory, exculpatory, or neutral evidence. The trial court made no specific

finding that the State had a duty to preserve the video tape and failed in this duty. Even

though the trial court stated, “I think the State, particularly on a Class A felony, is under an

obligation to take steps to preserve all their evidence,” the trial court failed to take the

additional step of engaging in the Ferguson balancing test. We are, therefore, constrained

to reverse this case and remand it for the trial court’s reconsideration. Upon remand, the trial

court should consider whether the State had a duty to preserve the videotape in light of the

Ferguson balancing test. See State v. Tommy Joe Owens, No. E2007-02296-CCA-R3-CD,

2009 WL 4931340, at *18-20 (Tenn. Crim. App., at Knoxville, Dec. 22, 2009) (concluding

defendant’s trial for aggravated child abuse trial not “fundamentally unfair” according to

Ferguson when State inadvertently lost videotapes of the interviews of the victims), Tenn.

R. App. P. 11 application denied (Tenn. May 11, 2010). Cf State v. Dustin Wayne Capps,

No. E2007-02734-CCA-R3-CD, 2009 WL 690685, at *4-5 (Tenn. Crim. App., at Knoxville,

Mar. 13, 2009) (affirming the trial court’s dismissal of the defendant’s indictment when the

State inadvertently lost a videotape of his robbing of a convenience store), no Tenn. R. App.

P. application filed.

II. Conclusion

After a thorough review of the record and the applicable law, we reverse and remand

this case to the trial court for findings in light of State v. Ferguson, 2 S.W.2d 912, 917 (Tenn.

1999).

_________________________________

ROBERT W. WEDEMEYER, JUDGE

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