State v. Ferguson

• Decision Date: 20 September 1999
• Docket Number: 98-00029
• Citation: 2 S.W.3d 912
• Parties: STATE OF TENNESSEE, Appellee, v. MARVIN K. FERGUSON, Appellant NO. 03-IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE FILED:
• Court: Tennessee Supreme Court

STATE OF TENNESSEE, Appellee v MARVIN K. FERGUSON, Appellant

NO. 03-S-01-9803-CR-00029

IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE

FILED: September 20, 1999

WASHINGTON COUNTY

HON. LYNN W. BROWN, JUDGE

For Appellant:

DENNIS L. TOMLIN, Hendersonville, TN

For Appellee:

JOHN KNOX WALKUP, 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

FOR PUBLICATION

AFFIRMED

BIRCH, J.

OPINION

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 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, Aslumped@ 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 Ataped over@ before anyone could view it.

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 Aspell@ 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 Aplainly 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. 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 Aunless 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.

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 A[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).

Several of these states have determined that due process claims arising out of lost or destroyed evidence must be evaluated using a Abalancing@ 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 Asynonymous 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 that Athis 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, 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,...