        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                April 22, 2015 Session

              STATE OF TENNESSEE v. KATHY L. BARTLETT

               Appeal from the Circuit Court for Williamson County
                  No. I-CR106759     Michael W. Binkley, Judge


                 No. M2014-01530-CCA-R3-CD – Filed July 17, 2015


A Williamson County grand jury indicted appellee, Kathy L. Bartlett, for driving under
the influence of an intoxicant. The charge was dismissed pretrial after the trial court
granted appellee‟s motion to dismiss. The State appeals the trial court‟s granting of the
motion and argues that the trial court misapplied the law relating to lost or destroyed
evidence. Following a thorough review of the record, we reverse the ruling of the trial
court, reinstate the indictment, and remand for further proceedings consistent with this
opinion.

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

ROGER A. PAGE, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ALAN E. GLENN, JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Kim R. Helper, District Attorney General; and Carlin Charles Hess,
Assistant District Attorney General, for the appellant, State of Tennessee.

Rob McKinney (at hearing and on appeal); and Brittney S. Hollis (on appeal), Nashville,
Tennessee, for the appellee, Kathy L. Bartlett.

                                       OPINION

       This case concerns the traffic stop of appellee after an officer observed her
speeding and the subsequent loss of the audio-visual recording (“the recording”)
depicting the stop. Appellee was indicted for driving under the influence of an intoxicant
(“DUI”). Due to the loss of the recording, appellee filed a motion to dismiss on May 13,
2013. The trial court held an evidentiary hearing on the motion on May 20, 2013.
                                 I. Facts from the Hearing

       On March 29, 2012, at approximately 11:57 p.m., Elliot Hamm, a patrol officer
with the Brentwood Police Department, was driving southbound on Wilson Pike in
Williamson County when he noticed a Honda Fit traveling northbound. Officer Hamm
visually estimated that the vehicle was traveling at a rate of speed over fifty miles per
hour in an area that had a posted speed limit of forty miles per hour. Officer Hamm used
his radar gun, which he had been trained to use, to confirm his suspicion. The radar gun
indicated that the Honda Fit was traveling at fifty-six miles per hour.

        Officer Hamm initiated a traffic stop, and when he approached appellee (the
driver), he smelled the odor of alcohol emanating from inside the vehicle. According to
Officer Hamm, appellee also had “bloodshot and watery eyes.” When Officer Hamm
asked appellee about the smell, she responded that she had consumed two glasses of wine
earlier in the evening. Officer Hamm testified that he had appellee perform two field
sobriety tests, both of which she performed poorly. After Officer Hamm arrested
appellee, she refused to submit to a blood-alcohol test. During transport to the jail,
appellee stated, “„What am I gonna tell my friends? Come pick my drunk a** up.‟”

      Officer Hamm explained that his car was equipped with an in-car dash camera and
a camera and microphone in the back of the car that records video and audio from the
back of the car during transport. Officer Hamm viewed the recording in his car
immediately after the arrest and then submitted it wirelessly to the police station‟s server.
However, when Officer Hamm attempted to retrieve the recording, he was told that it was
unavailable.

        William Reape, the evidence custodian for the Brentwood Police Department,
explained that the police cars capture recordings digitally and that when the officer
arrives at the police department, the officer wirelessly transmits the footage from the
patrol car to the server. Mr. Reape explained that he searched for the recording of
appellee‟s stop but was unable to find it. He even contacted the software vendor but was
unable to locate the recording. Mr. Reape postulated that a technical error occurred and
that the recording of appellee‟s stop did not transmit properly.

       After questioning by the State and appellee had concluded, the trial court asked the
witness about the reasons behind prior lost recordings. Mr. Reape explained that one of
the police department‟s servers had been failing, so information was moved from the
failing server to a new server. By doing so, some files were corrupted. Mr. Reape
explained that at the time, only six recordings out of thousands were missing and that the
problem seemed to be isolated to March 2012. Upon questioning by the court regarding
whether the recording of appellee‟s stop was “forever lost,” Mr. Reape hypothesized that
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a recovery specialist might be able to “locate something on an old server somewhere,”
although he stated that the failed server had been discarded.

        Following the hearing, the court continued the matter until our supreme court filed
its decision in State v. Merriman, 410 S.W.3d 779 (Tenn. 2013). On July 31, 2014, the
trial court filed a written memorandum and order granting appellee‟s motion to dismiss
due to the lost recording. The State now appeals the trial court‟s decision.

                                        II. Analysis

        The State argues that the trial court erred in dismissing appellee‟s case because the
trial court misapplied the factors from State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999).
Appellee responds that the trial court properly granted her motion to dismiss.

        Our supreme court has stated that “the loss or destruction of potentially
exculpatory evidence may violate a defendant‟s right to a fair trial.” Merriman, 410
S.W.3d at 784 (citing Ferguson, 2 S.W.3d at 915-16). The court “promulgate[d] . . . an
analysis in which the critical inquiry is: Whether a trial, conducted without the [lost or]
destroyed evidence, would be fundamentally fair?” Ferguson, 2 S.W.3d at 914. The
initial inquiry in this analysis is whether the State had a duty to preserve the evidence.
Merriman, 410 S.W.3d at 785. Our supreme court has explained that the State has a
“general duty to preserve all evidence subject to discovery and inspection under Rule 16
of the Tennessee Rules of Criminal Procedure and other applicable law, including Brady
v. Maryland . . . .” Id. “Although difficult to define, the State‟s duty to preserve
evidence is limited to constitutionally material evidence described as „evidence that
might be expected to play a significant role in the suspect‟s defense.‟” Id. (quoting
Ferguson, 2 S.W.3d at 917). To satisfy this standard, “the evidence must potentially
possess exculpatory value and be of such a nature that the defendant would be unable to
obtain comparable evidence by other reasonably available means.” Id. (citing Ferguson,
2 S.W.3d at 915, 918).

       If the proof demonstrates that the State had a duty to preserve the evidence and
that the State failed in that duty, the analysis then shifts to a consideration of the
following factors in deciding the consequences of the State‟s breach:

       (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


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        (3) The sufficiency of the other evidence used at trial to support the
        conviction.

Ferguson, 2 S.W.3d at 917. We review the trial court‟s determination of whether a
defendant could receive a fair trial de novo with no presumption of correctness.
Merriman, 410 S.W.3d at 792. If, after due consideration of the three Ferguson factors,
the trial court concludes that a trial without the missing or destroyed evidence would not
be fundamentally fair, the court may order dismissal of the charges. Ferguson, 2 S.W.3d
at 917. “Dismissal is, however, but one of the trial judge‟s options.” Id. The trial court
may craft a special jury instruction or grant other appropriate remedies. Id. We review
the trial court‟s choice of remedy for abuse of discretion. Merriman, 410 S.W.3d at 792.

       Neither the State nor appellee dispute that the State had a duty to preserve the
recording. Therefore, our analysis will be confined to an examination of the three
Ferguson factors.

        The first factor requires us to consider the degree of negligence involved in the
loss or destruction of the evidence. The supreme court in Ferguson stated that “[t]his
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.” Ferguson, 2 S.W.3d at 917 n.10. Both parties agree that
the Brentwood Police Department engaged in simple negligence. It is also clear from the
record that the police department did not act with bad faith,1 but rather the loss was a
result of simple negligence. Mr. Reape testified that the loss was most likely a product of
a technical glitch in the wireless transmission of the recording from the police car to the
department‟s server. Mr. Reape also testified that six prior recordings had been corrupted
during a server transfer in March 2012. There was no nefarious or dishonest intent in
these technical glitches; therefore, the loss amounted to simple negligence.

        The second Ferguson factor focuses on the significance of the lost evidence.
Ferguson, 2 S.W.3d at 918. Our supreme court construed this factor in depth in its
opinion in State v. Merriman. In so doing, the court cautioned against reducing a case to
a credibility contest between the arresting officer and the defendant when there is no
secondary or substitute evidence available. Merriman, 410 S.W.3d at 794. While it is
clear from the record that the lost recording would have captured appellee‟s performance
on the field sobriety tests, it is unclear if the recording captured appellee‟s subsequent
statement from the back seat of the patrol car, in which she stated, “„What am I gonna tell
my friends? Come pick my drunk a** up,‟” because while Officer Hamm testified that


1
 Bad faith is defined as “[d]ishonesty of belief, purpose, or motive.” Black‟s Law Dictionary (10th ed.
2014).
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his car was equipped with a camera and microphone in the back of his car, he did not
testify that this particular statement was captured by the lost recording.

        However, even assuming that the lost recording would have been probative as to
appellee‟s performance on her field sobriety tests and her statements in the back of the
police car during transport, this was not the only evidence offered of appellee‟s
intoxication. Officer Hamm testified that upon approaching appellee‟s vehicle, he
detected the odor of alcohol and observed that appellee‟s eyes were bloodshot and
watery, specifically distinguishing this case from State v. Merriman, in which the only
evidence of guilt was the defendant‟s veering into oncoming lanes of traffic and failing
field sobriety tests. Therefore, while the recording would have been probative of the
appellee‟s physical state on the night of her arrest, it did not depict or portray every item
of the State‟s inculpatory evidence. For example, as stated above, in Merriman, in which
our supreme court determined that the defendant would not receive a fair trial absent the
lost evidence, the only evidence of guilt was the defendant‟s veering into oncoming lanes
of traffic and failing field sobriety tests, both of which were captured by the lost
recording. However, in this case, the State‟s case rested on: (1) Officer Hamm‟s smelling
the odor of alcohol; (2) appellant‟s admitting that she had consumed alcohol earlier in the
evening; (3) Officer Hamm‟s observing appellee‟s bloodshot and watery eyes, (4)
appellee‟s performing poorly on field sobriety tests, and (5) appellee‟s stating, “„What am
I gonna tell my friends? Come pick my drunk a** up,‟” while in the back seat of the
patrol car. While some of this evidence would have been shown on the recording, other
evidence, like Officer Hamm‟s smelling alcohol, would not have been depicted. We also
note that unlike in Merriman, in which the video depicted the defendant‟s veering into
oncoming lanes, appellant‟s stop was the result of speeding, which would not have been
reflected on the lost recording. While we recognize that Merriman cautioned against
reducing a case to a credibility determination between the arresting officer and the
defendant, we also recognize that there was substantially more inculpatory secondary
evidence presented in this case than in Merriman; thus, the probative value of the lost
recording is diminished in comparison. Therefore, although the recording was probative,
its significance is limited due to supporting secondary evidence.

       The final Ferguson factor addresses the sufficiency of the other evidence the State
intended to use at trial to support the conviction. Without the recording, the State‟s
evidence was Officer Hamm‟s testimony that when he approached appellee‟s vehicle he
smelled the odor of alcohol and observed appellee‟s bloodshot and watery eyes. Appellee
told Officer Hamm that she had consumed wine earlier in the evening. There is no
blood-alcohol evidence because appellee refused to submit to a blood-alcohol test.
Officer Hamm testified that appellee performed poorly on two field sobriety tests and that
during transport, appellee said, “„What am I gonna tell my friends? Come pick my drunk


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a** up.‟” We conclude that this evidence, as presented at the pre-trial hearing, was
sufficient to support a conviction for DUI, even without the lost recording.2

       Based on the above analysis and our balancing of the Ferguson factors, we
conclude that appellee can receive a fundamentally fair trial without the missing
recording. We surmise that to conclude otherwise would construe Merriman as requiring
dismissal any time the State, through simple negligence, loses a recording of a stop in
which the only witnesses are the arresting officer and the defendant; we conclude that
based on the multi-factored analysis espoused in Merriman, our supreme court did not
intend such a result, and we refuse to adopt such a narrow interpretation of Merriman.

                                            CONCLUSION

       Based upon our review of the record, the arguments of the parties, and the
applicable law, we reverse the ruling of the trial court, reinstate the indictment, and
remand for further proceedings consistent with this opinion.


                                                          _________________________________
                                                          ROGER A. PAGE, JUDGE




2
    We make this determination in consideration of the following directive from the supreme court:

         We caution, however, that a trial court conducting a Ferguson analysis must assess the
         sufficiency of the State‟s evidence while being mindful that this assessment is not the
         equivalent of determining the defendant‟s guilt or innocence beyond a reasonable doubt.
         Again, Ferguson’s inquiry into the sufficiency of the State‟s evidence provides context to
         the lost or destroyed evidence, allowing the trial court to weigh the significance of the
         lost evidence in light of the other evidence and to determine an appropriate remedy, if
         one is required.

Merriman, 410 S.W.3d at 789-90; see State v. Clifford Edward Clark, alias, No. E2009-01795-
CCA-R3-CD, slip op. at 22 (Tenn. Crim. App. Oct. 24, 2011).
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