State v. Crass, M2021-00528-CCA-R3-CD

CourtCourt of Appeals of Tennessee. Court of Criminal Appeals of Tennessee
Writing for the CourtROBERT L. HOLLOWAY, JR., JUDGE
Docket NumberM2021-00528-CCA-R3-CD
Decision Date22 November 2022



No. M2021-00528-CCA-R3-CD

Court of Criminal Appeals of Tennessee, Nashville

November 22, 2022

Session May 11, 2022

Appeal from the Circuit Court for Williamson County No. W-CR190604 Joseph A. Woodruff, Judge

The Williamson County Grand Jury indicted Tony Dale Crass, Defendant, with driving under the influence (DUI), DUI per se, and possession of a firearm while under the influence. Defendant moved to suppress the evidence, arguing that the State did not have probable cause or reasonable suspicion for the traffic stop and that video evidence of Defendant's driving was erased and deleted as a result of a malfunctioning recording system in Tennessee Highway Patrol (THP) Trooper Joey Story's patrol car. The trial court concluded that the loss of video evidence constituted a violation of the State's duty to preserve potentially exculpatory evidence recognized in State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), and deprived Defendant of the right to a fair trial. The trial court granted the motion to suppress and dismissed the indictment, and the State appealed. We conclude that the video was not lost or destroyed by the State, (2) that a Ferguson violation is not applicable to a suppression hearing based on reasonable suspicion or probable cause for a traffic stop, (3) that the trial court misapplied the "degree of negligence" Ferguson factor by equating perceived public policy decisions on the part of the State to negligence, and (4) that Defendant's right to a fair trial can be protected without dismissal of the indictment. We reverse the judgment of the trial court, reinstate the indictment, and remand for further proceedings.

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

Herbert H. Slatery III, Attorney General and Reporter; Richard D. Douglas, Senior Assistant Attorney General; Kim R. Helper, District Attorney General; and Jamie Pulido, Assistant District Attorney General, for the appellant, State of Tennessee.


Patrick T. McNally and Joseph W. Fuson, Nashville, Tennessee, for the appellee, Tony Dale Crass.

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER and JOHN W. CAMPBELL, SR., JJ., joined.



a. November 6, 2020 Suppression Hearing

On January 3, 2019, THP Trooper Joey Story was returning to his home in Rutherford County after working security at the Governor's residence. While he was traveling behind a white pickup truck on Highway 96 in Williamson County, he observed the truck cross over the right shoulder line of the road ("the fog line"). Trooper Story's patrol car was equipped with a Mobile Video System ("the MVS") that continuously records and deletes until the system is activated, at which time the system preserves what is being recorded and what had been recorded during the thirty seconds prior to activation. Trooper Story could manually activate the MVS to begin audio and video recording by pushing a button on his belt or by pushing a button on the camera, or the system would automatically begin recording when the vehicle's emergency lights were activated. Trooper Story testified that he pressed the button on his belt to wirelessly activate the MVS within thirty seconds of the truck's crossing the fog line. Trooper Story continued to follow the truck. He said that the truck crossed the fog line at least three more times before the driver turned right into a driveway and shut off the truck's lights. Trooper Story testified:

I watched him turn into the driveway. And it may have been a delayed reaction of why that I didn't turn right in, but I was watching him and then got almost pass (sic) the driveway before I initiated my lights.[1] And then when I did I come back (sic) and made the U-turn and come back (sic). I watched him turn into the driveway. I watched him pull to the edge of the driveway, shut his -- shut the lights off of the vehicle

Trooper Story turned around and proceeded back to where Defendant was parked. As he approached the driveway, Trooper Story activated his emergency lights and pulled


in behind the truck. When asked by defense counsel why he did not follow Defendant when Defendant turned into the driveway, Trooper Story said that he "couldn't tell you why [he] passed it."

After pulling in behind Defendant, Trooper Story contacted dispatch and asked that another trooper be sent to the scene to handle the investigation, explaining that he did not want to handle a case in Williamson County. Trooper David Green came to the scene and completed the DUI investigation. On the audio recording at the scene, Trooper Story can be heard telling Trooper Green that Defendant "crossed the fog line and I mean he liked to have hit that low shoulder." After completing the investigation at the scene, Trooper Green transported Defendant from the scene and prepared the affidavit of complaint, which stated in pertinent part: "On January 3, 2019, at approximately 10:17 p[.]m[.], THP Trooper Story observed a vehicle fail to maintain its lane of travel near the 4400 block of Hwy 96."

Although Trooper Story thought that the MVS began recording when he pressed the button on his belt, the camera did not activate and continued deleting the thirty seconds of rolling video. Trooper Story explained that, "[o]nce [he] attempted to start it, which is a simple push of the button, it should have started. It was a malfunction in the unit, hence one reason why [they] changed camera systems."

During cross-examination, Trooper Story explained that his main focus was on Defendant's driving habits and that he was not watching the head unit to see ifit came on. He stated that: "I thought that the unit c[a]me on. It's never really give[n] me a problem in the past." The following dialogue concerns Trooper Story's failure to mention that he manually tried to activate the MVS when asked during the preliminary hearing if he had dashcam video of Defendant's driving:

Q. At the time you said that you didn't manually start your video
A. No, I didn't manually -- with the evidence that was presented by watching the video, I didn't start the video.
Q. But you didn't even make any mention -- you didn't say anything about well I tried to start it or thought it was going -- you know, I had the belt, I could hit the button -- you didn't mention any of that.
A. Well, you didn't ask that. You asked did I manually start it. And it was actually I did not start it.

The trial court also questioned Trooper Story about when he became aware of the fact that the video did not activate when he pressed the button on his belt. Trooper Story


agreed that it was "quite some time" before he actually watched the video, and he stated that he did not remember "whether it has been [his] interaction with the State when [the prosecutor] brought up actually that [they] were going to have the initial hearing." He added that because he did not make the arrest, he "never looked back . . . on it" and "just tagged it" so that Trooper Green could access it.

After Trooper Story testified that Defendant crossed the fog line at least four times, he was asked if he remembered telling Defendant that he pulled him over "because he crossed the line one time." Trooper Story answered, "I don't remember -- I just make reference to crossing the line and about the shoulder. I don't recall the - how many times I said that he crossed the line[.]" When questioned about the affidavit of complaint prepared by Trooper Green that stated that Defendant failed to maintain his lane of travel near the 4400 block, Trooper Story said that he had not looked at or read the affidavit of complaint and did not know why the affidavit of complaint stated that.

Near the end of the first hearing, Defendant moved to amend his motion to suppress to raise "the evidence preservation issue." Defendant argued that he did not know "until Trooper Story's testimony today" that Trooper Story had attempted to activate the video recording system by pressing the button on his belt. In granting Defendant's request to amend his motion to suppress to raise a Ferguson violation, the trial court reasoned:

So[,] I think that there is a negligent failure to preserve the evidence, but it is not Trooper Story's negligence. It's the failure of the Department of Safety to provide reliable equipment that turns on when it is supposed to when the trooper who as he said is paying attention to the driving habits of the vehicle in front of him, paying attention to other things that are going on around him, trying to operate his own vehicle safely. He does what he's trained to do, he hits the button on his belt to turn it on and it doesn't turn on.

The trial court continued the hearing. Defendant filed an amended motion to suppress adding as grounds that the State failed to preserve the video evidence.

b. April 9, 2021 Hearing

At the subsequent hearing, Trooper Story again said that he pushed the button on his belt to activate the video "within [thirty] seconds of witnessing the [first] lane infraction." Trooper Story agreed that, if the recording system had functioned properly when he pressed the button on his belt, it would have captured and saved video showing


Defendant's driving. When asked if he knew why the video did not record, Trooper Story explained, "Best likelihood is the old and dated equipment that we had."

During cross-examination, Trooper Story agreed that he was familiar with the Tennessee Department of Safety and Homeland Security ("TDS") "General Order" concerning MVS, a copy of which was then entered as Exhibit 2. Trooper Story agreed that he was a commissioned member ("Member") subject to provisions of the General Order.

The stated purpose of the General Order was to "establish policy and...

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