IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
FILED
September 20, 1999
STATE OF TENNESSEE, ) FOR PUBLICATION Cecil Crowson, Jr.
) Appellate Court Clerk
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.
The question 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, requires that the State’s failure to
preserve evidence that could be favorable to the defendant be
evaluated in the context of the entire record.
Accordingly, we promulgate today an analysis in which the
critical inquiry is: Whether a trial, conducted without the
destroyed2 evidence, would be fundamentally fair?3 Using this
1
Under Arizona v. Youngblood, 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.
2
“Destroyed” includes lost evidence as well as evidence which
was not preserved.
3
“Fundamental fairness” is a concept which, by necessity,
defies exact definition. As a general rule, however, a trial lacks
fundamental fairness where there are errors which call into
question the reliability of 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 fundamental
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, 86 L. Ed. 1595,
1602 (1942)(“Asserted denial[s of due process are] to be tested by
an appraisal of the totality of facts in a given case. That which
may, in one setting, constitute a denial of fundamental fairness,
shocking to the universal sense of justice, may, in other
2
analysis, we find that the appellant’s trial was a fundamentally
fair one despite the loss of the videotaped evidence. Accordingly,
and for the reasons herein stated, the judgment of the Court 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 ramp with its engine running.
Murray approached the vehicle and observed Marvin K. Ferguson, the
appellant, “slumped” over the steering wheel. Upon opening the
door and awakening Ferguson, Murray smelled a strong odor of
alcohol and noticed that Ferguson’s speech was slurred. Murray
administered two field sobriety tests: namely, heel-to-toe and
horizontal gaze nystagmus.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
station where additional field sobriety tests were apparently
conducted.5 These additional tests were recorded on a videotape
which was inadvertently “taped over” before anyone could view it.
circumstances, and in the light of other considerations, fall short
of such denial.”).
4
For a more complete description of this test, see State v.
Murphy, 953 S.W.2d 200 (Tenn. 1997).
5
Murray could not remember conducting any sobriety tests other
than those in the field, although he admitted that it was normal
departmental procedure to conduct additional tests at the police
station.
3
At trial, Ferguson’s theory was that he occasionally
suffered from vascular or 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 expert medical testimony
describing this condition and explaining that during a “spell”
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
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, 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 Brady and Agurs concerns the
prosecution’s suppression of “plainly exculpatory” evidence. This
strikes a sharp contrast to the case under review wherein the
6
Ferguson’s medical expert described scotoma as being a type
of visual disturbance followed by dizziness, hesitant speech,
nausea, and a throbbing headache.
4
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. 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)
in the 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, the 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 duty to preserve the clothing even though testing
may have been useful to the accused.
5
Several states have embraced the bad faith analysis of
Youngblood and 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]here may well be
cases in which the defendant is unable to prove that the State
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 (Stevens, J., concurring in the
result). These states have rejected a pure Youngblood analysis,
focusing instead on the materiality of the unavailable evidence in
determining whether a due process violation has occurred. See,
e.g., Ex parte Gingo, 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.2d 496 (Mass. 1991); State v. Osakalumi, 461 S.E.2d 504 (W.
Va. 1995).
6
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
faith involved; (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
Youngblood adequately protects the right to a fair trial under the
due process clause of the Tennessee Constitution. See Tenn. Const.
art. I, § 88. Although this Court has previously construed Tenn.
Const. art. I, § 8, as “synonymous with the ‘due process of law’
provisions of the federal constitution,” State ex rel. Anglin v.
Mitchell, 596 S.W.2d 779, 786 (Tenn. 1980), we have also recognized
7
The Alaska Supreme Court adopted a similar approach which
requires the court to first determine whether the state has a duty
to “preserve and make available to a criminal defendant material
evidence 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 duty to preserve was breached, the court must then
ascertain the consequences that flow from this 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. Const. art. I, § 8, provides “[t]hat no man shall be
taken or imprisoned, or disseized 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
that “this Court, as the final arbiter of the Tennessee
Constitution, is always free to expand the minimum level of
protection mandated 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
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. In this regard, proving bad faith on the part of
the police would be, in the least, extremely difficult. In
addition, the Youngblood analysis apparently permits no
consideration of the materiality of the missing evidence 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 deem 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 rejected the
Youngblood analysis in its pure form. In so doing, we adopt 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 first step in this analysis is to determine whether
the State had a duty to preserve the evidence. Generally speaking,
8
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 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.
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 in
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
may consider such action as may be necessary to protect the
defendant’s fair trial rights.
9
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.
Of course, as previously stated, the central objective is
to protect the defendant’s right to a fundamentally fair trial.
If, after considering all the factors, the trial judge concludes
that a trial without the missing evidence would not 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
may determine, under the facts and circumstances of the case, that
the defendant’s rights would best be protected by a jury
instruction.11
11
Such an instruction may contain the following language:
The State has a duty to gather, 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
through reasonably available means. The State has no
duty to 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 issue and the
production of 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. Willis, 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
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. The exculpatory
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
on the 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
on the sobriety tests, then Ferguson’s theory that medical problems
caused him to appear intoxicated would be of questionable
validity.12 Though the videotape was probably of marginal
exculpatory value, 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
may have shed light on his appearance and condition on the morning
in question, the 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 trial judge found that the tape “either could have helped
[Ferguson] or possibly could have helped the State.”
11
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 second factor addresses the significance of the
missing evidence. Given the defendant’s contention that his
medical condition caused him to appear intoxicated, the videotape
may not have been probative of intoxication. As to the
availability of 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 unavailability of the videotape, Ferguson presented his
defense in as complete a manner as was possible without the
videotape.
The third factor to consider is the sufficiency of the
convicting evidence. The arresting officer smelled alcohol on
Ferguson’s breath and concluded from his observation that
Ferguson’s physical appearance and speech were indicative of
intoxication. Additionally, the arresting officer testified about
failed on-scene field sobriety tests that were not videotaped.
12
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.
Accordingly, 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
13