                                                                                          11/15/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                              September 19, 2018 Session

    STATE OF TENNESSEE v. TERRY CRAIGHEAD AND SINEAD ST.
                            OMER

                Appeal from the Circuit Court for Rutherford County
                   Nos. F-75398A, F-75398B Royce Taylor, Judge
                     ___________________________________

                           No. M2017-01085-CCA-R3-CD
                       ___________________________________


The State appeals the trial court’s order dismissing the charges against the Defendants,
Terry Craighead and Sinead St. Omer, for two counts of felony murder, aggravated child
abuse, and aggravated child neglect. The trial court found that the State failed to collect
and preserve certain evidence in accordance with the mandates of State v. Ferguson, 2
S.W.3d 912 (Tenn. 1999). We conclude that the State’s failure to collect evidence did
not result in a Ferguson violation and that the trial court erred in dismissing the charges.
Accordingly, we reverse the trial court’s judgments, reinstate the indictment, and remand
for further proceedings in accordance with this opinion.

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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which TIMOTHY L.
EASTER and J. ROSS DYER, JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Jennings H. Jones, District Attorney General; and Hugh Ammerman and Allyson Abbott,
Assistant District Attorneys General, for the appellant, State of Tennessee.

Brad W. Hornsby (at trial), Rachel A. Hitt (at trial), and Heather G. Parker (on appeal),
Murfreesboro, Tennessee, for the appellee, Terry Craighead.

Gerald L. Melton, District Public Defender, and Jeffrey S. Burton, Assistant District
Public Defender, for the appellee, Sinead St. Omer.
                                         OPINION

                     FACTUAL AND PROCEDURAL HISTORY

        The Defendants’ charges stem from the death of their five-month-old daughter on
November 18, 2013. The State alleged that the Defendants failed to provide the victim,
who had multiple health issues and required a feeding tube, with proper nutrition and care
and that the victim died of starvation as a result. Prior to trial, the Defendants each filed a
motion to dismiss, contending that the State’s failure to collect the victim’s feeding tube
and pump and to preserve the information from the pump violated State v. Ferguson.
The Defendants attached a manual for a Kangaroo Joey Eternal Feed and Flush Pump and
alleged that the feeding pump maintained a seventy-two-hour history of the times and the
amounts which the victim was fed. The Defendants maintained that the information
stored in the feeding pump would have established that they did not deprive the victim of
nutrition as alleged by the State and would have supported their claim that the victim’s
failure to thrive was due to natural causes.

       During a hearing on the morning of the trial, LaVergne Police Detective Kevin
Stolinsky testified that on November 18, 2013, he was assigned to investigate the
victim’s death and responded to the Defendants’ room at a weekly rental motel. When he
arrived, emergency medical personnel had moved the victim out of the room and were
performing CPR on her. Ms. St. Omer informed Detective Stolinsky of the victim’s
medical issues, and Detective Stolinsky stated that he initially believed that the victim’s
death was the result of her medical issues.

       The Defendants lived in the motel room with the victim and their other child.
Detective Stolinsky testified that the room was disorganized and not clean and that
alcohol bottles were in the room. As a result, he did “an immediate DCS referral.” He
observed a machine in the corner of the room, which Ms. St. Omer identified as the
victim’s feeding pump. The police officers did not collect the feeding pump or any other
evidence from the room and only took photographs of the room.

       Detective Stolinsky testified that the case did not become “a full blown
investigation” until he received the preliminary autopsy report from the medical
examiner’s office. The preliminary autopsy report was faxed to his office during the late
afternoon hours on November 20, and he did not review it until the following morning.
Upon reviewing the report, Detective Stolinsky contacted Dr. Adele Lewis, the medical
examiner, who advised him that he may need to obtain the feeding pump as evidence.
Because it would take a few days to obtain medical documents through a subpoena, he
asked Dr. Lewis about companies that may have supplied the feeding pump, and Dr.
Lewis mentioned Apria Healthcare (“Apria”). After Detective Stolinsky contacted Apria
                                             -2-
and faxed a written request, an Apria employee called Detective Stolinsky later that day
and confirmed that Ms. St. Omer was a client. Detective Stolinksy testified that he was
informed that the device had been retrieved from the Defendants’ home, sanitized, and
sent to another person for use.

       On cross-examination, Detective Stolinsky testified that although the crime scene
technician photographed the feeding pump, he did not believe it was necessary to seize
the feeding pump or that he had probable cause to do so. He explained that at the time,
he was not conducting a criminal investigation. He said officers were required to take
photographs in all cases involving a child’s death and provide them to the Child Fatality
Review Team in order to complete the Sudden Unexplained Infant Death Investigation
(“SUIDI”) report and “try to figure out if it’s co-sleeping and so forth.”

       Detective Stolinsky stated that when he spoke to Dr. Lewis, she told him that
feeding pumps may retain information and asked him to obtain the information from the
victim’s feeding pump if possible. He did not speak to the Defendants on November 21
about whether they still had the feeding pump because he understood that Apria had
retrieved the pump. At the conclusion of the hearing, the trial court took the Defendants’
motions under advisement until additional proof was presented at trial.

        According to the evidence presented at trial, the victim was born in June 2013 and
remained hospitalized at Vanderbilt Children’s Hospital for approximately two months.
She was diagnosed with tetralogy of fallot, a heart condition, and DiGeorge Syndrome, a
congenital malformation which can result in a spectrum of clinical symptoms, including
cardiac and immunity issues. The victim underwent heart surgery during the first week
of her life and had a total of three heart catheterizations during the course of her life. She
needed an additional heart surgery but died before the surgery could be performed.

        The victim was fed formula through a nasogastric (“NG”) feeding tube, which
entered through her nose and went down the back of her throat and into her stomach. Ms.
Kayla Clary, a pediatric dietician who oversaw the victim’s nutrition at the hospital,
testified that the victim’s average weight gain during her initial hospitalization was ten
grams per day, which fell within the low range but was typical for an infant’s initial
hospital stay during which the infant undergoes surgery. Prior to the victim’s discharge,
Ms. Clary instructed the Defendants on an advanced feeding plan for the victim using a
high caloric density formula. The plan required that the victim be fed through a feeding
tube four times a day at three-hour intervals and receive a continuous overnight feeding
for eight to ten hours. For the nighttime feedings, the Defendants were instructed to
replenish the formula in the feeding bag every four hours. A durable medical equipment
company supplied the feeding pump, the formula, the tubing, and the syringes to the
Defendants. The Defendants received a Kangaroo Joey feeding pump, and Ms. Clary
                                            -3-
stated that she was unaware that the feeding pump retained information prior to the
initiation of the Defendant’s criminal case.

       From September 5 to September 11 of 2013, the victim was hospitalized for the
failure to thrive. When discharged, the victim weighed 3.55 kilograms and gained an
average of twenty to twenty-five grams each day. Ms. Clary provided the Defendants
with a written advancement plan that continued the victim’s daytime feeding regiment
and continuous nighttime feeding regimen. During a doctor’s appointment two days
following the victim’s discharge, she weighed 3.66 kilograms and had an average weight
gain of thirty-nine grams per day.

       The Defendants missed multiple doctor appointments for the victim on six
different days between September 27 and November 15. They took the victim to an
emergency room on October 6 when they were unable to reinsert the victim’s feeding
tube after it came out. They did not seek any other medical treatment for the victim after
October 6.

       On the morning of November 18, 2013, Lieutenant Konrad Kaul and Officer
Zendel Cody Murphy responded to the Defendants’ room at the motel, which was located
near the police department, following a 9-1-1 call reporting that the victim was not
breathing. Lieutenant Kaul saw the victim lying on the foot of the bed and picked her up.
He stated that the victim was very small and that he believed that she was one month old
or younger. The victim was warm and slightly stiff, and Lieutenant Kaul felt “lots of
bones.” Officer Murphy testified that the victim was wearing a onesie that was too big,
that her eyes and face were sunken in, and that she did not appear “real” but looked like a
doll. Lieutenant Kaul was unable to feel the victim’s heart beating and performed CPR
on the victim until emergency medical personnel arrived. Mr. Donald Matthew Tidwell
of the LaVergne Fire Department, who assisted in transporting the victim to the hospital,
described the victim as very pale and cyanotic in that she had a blue tinge on her
fingertips due to the lack of oxygen. The victim’s eyes were sunken in, and her bone
structure could be seen in her rib cage, arms, legs, and jaw line.

      Officer Murphy spoke to Ms. St. Omer about victim’s health conditions and her
medications. Ms. St. Omer stated that she woke up at 3:00 a.m. to check on the victim.
She woke up again around 5:30 a.m. and saw that the victim’s feeding tube was out. Ms.
St. Omer stated that after reinserting the feeding tube, she went back to sleep. The victim
was not responsive when Ms. St. Omer checked on her at 8:00 a.m.

       Lieutenant Kaul described the Defendants’ room as “disheveled” with “clutter.”
Officer Murphy described the Defendants’ room as dirty and observed food and liquor
bottles in the room, including a liquor bottle at the end of the bed near the victim. Mr.
                                           -4-
Tidwell observed trash, food, and clothes lying around the Defendants’ room. He also
saw an I.V. pole with a monitor and an empty bag on the I.V. pole with tubing attached.

       Ms. Kristine Keeves, the crime scene and evidence supervisor with the La Vergne
Police Department, was dispatched to the scene and took photographs of the Defendants’
room. She identified the photographs that she took at trial and testified to her
observations based upon the photographs. Upon arriving, she observed a “no smoking”
sign on the door advising that oxygen tanks were inside the room. An alcohol bottle was
in a bag next to the heating and air unit, which was set on eighty-nine degrees. On top of
a bed were a blanket, pizza boxes, and a line of oxygen tanks. Oxygen tanks, piles of
clothes, shoes, toiletries, food boxes, trash, and liquor bottles were strewn throughout the
room. On the nightstand were food, a wine glass containing yellowish liquid, another
cup containing yellowish liquid, partially empty baby bottles, a bottle of tabasco sauce, a
liquor bottle, baby food jars, and a plastic container. The plastic container contained
various papers, bottles of medication, a package of cigarettes, tubing, and hypodermic
needles. Various items, including a package of cigarettes, were on top of the dresser. A
car seat with staining toward the bottom was inside the bassinet, and a piece of pizza
crust and a French fry were underneath the car seat.

       An empty oxygen tank and an I.V. pole with a bag and monitor were next to the
bassinet. Ms. Keeves stated that the bag on the I.V. pole appeared to be empty and that
there was white residue along the bottom of the bag and inside the tube. A feeding chart
and a medication chart were taped to the wall above the nightstand, but the blank spaces
meant to record feedings and medication were not filled out. There were cans of formula,
oxygen tanks, diapers, a baby’s bath, and cleaning supplies on shelves near the
refrigerator.

       After taking photographs of the Defendants’ room, Ms. Keeves and Detective
Stolinsky went to the hospital where Ms. Keeves took photographs of the victim. Ms.
Keeves testified that the victim was very thin, that her ribs were showing, and that her
eyes were sunken. The skin on the on the victim’s arms and legs was wrinkled and “just
kind of hanging.”

       On cross-examination, Ms. Keeves agreed that she was taking photographs of an
apparent crime scene. She stated that Detective Stolinsky only instructed her to
photograph the room and never instructed her to collect any evidence. She did not collect
the machine attached to the I.V. stand and did not know what it was. She did not test the
substance inside the wine glass and noted that beer bottles in the room appeared to be
closed. She did not take a sample of the yellowish stain on the car seat for testing and did
not collect the containers of powdered formula. She did not know how many cigarettes

                                           -5-
were missing from the packages and did not recall seeing any lighters or ashtrays in the
room.

       On redirect examination, Ms. Keeves testified that when she went to the scene, she
was not told that the case was a murder investigation. She was told that a child was not
breathing and was being transported to the hospital. She stated that she typically was
dispatched to take photographs whenever an infant died. She acknowledged that she was
aware that the case involved a murder investigation within two or three days of the
victim’s death and that Detective Stolinsky never asked her to return to the scene to
collect evidence.

        Detective Stolinsky testified that he was dispatched to the scene and that the
victim had been transported to the hospital by the time he arrived. He said the
Defendants’ room was in “disarray,” and he observed liquor bottles and empty pizza
boxes in the room. He also saw a medical apparatus at the head of the bed, which he
believed to be an oxygen machine because he saw a tank next to it. He testified that the
policy of the police department in every infant death was to photograph the scene and
that criminal charges would not necessarily result from the infant’s death. He explained
that the photographs and the autopsy report must be submitted to medical professionals
so they can attempt to determine the reason that infants die while sleeping.

       Detective Stolinsky spoke to Ms. St. Omer in the hospital and said she was upset
and seemed knowledgeable about the victim’s medical conditions. At the time, he
believed that the victim had died as a result of natural causes. Ms. St. Omer assisted
Detective Stolinsky in completing the SUIDI form. She said the victim had lost weight
over the last seven days. She maintained that she last saw the victim alive at 4:30 a.m.
and that she found the victim unresponsive at 8:00 a.m. in the bassinet. She stated that
the victim was warm to the touch but that her hands were cool. She denied that the
victim experienced vomiting or diarrhea within the seventy-two hours prior to her death
and related the victim’s medical issues and her abnormal weight gain and loss. She
reported feeding the victim formula in a bottle and a small amount of rice within the past
twenty-four hours.

       The preliminary autopsy report was sent to Detective Stolinsky’s office on
November 20, and he reviewed the report the next day. He contacted Dr. Lewis about the
report because he did not understand some of the terminology. At that point, he began to
believe that the victim’s death was not the result of her medical issues. When Dr. Lewis
asked about a feeding pump, Detective Stolinsky said he saw medical equipment in the
Defendants’ room but did not know whether a feeding pump was there. Dr. Lewis
advised him that the newer feeding pumps had memory and that he needed to determine
whether he could obtain a history of the victim’s feedings from the pump. Detective
                                          -6-
Stolinsky testified that he did not know whether the victim’s feeding pump retained
information for a period of time or whether the pump could detect the substance that was
flowing through the feeding tubes. He asked Dr. Lewis what medical facility she
believed would have provided the pump, and Dr. Lewis informed him that Apria was one
of the biggest medical supply companies in the area.

        Detective Stolinsky spoke to an Apria employee on the same day after sending a
letter via facsimile requesting the information. He asked the employee whether Apria
had retrieved their medical equipment, and the employee confirmed that Apria’s
equipment had been retrieved from the Defendants. Detective Stolinsky testified that he
mistakenly understood that Apria retrieved the feeding pump but that he later learned that
Apria did not supply the feeding pump to the Defendants. Detective Stolinsky operated
on his mistaken belief throughout the course of the investigation until just prior to his
testimony at trial. He stated that upon speaking to the Apria employee, he abandoned any
attempt to recover the victim’s feeding pump. He maintained that he was unaware that
the feeding pump was in the Defendants’ room when the room was being photographed
by the crime scene technician.

       Detective Stolinsky and another officer interviewed the Defendants separately at
the police department on December 17, 2013, approximately one month after the victim’s
death. Mr. Craighead told the officers that a medical equipment company had recently
retrieved the remaining medical equipment. Mr. Craighead denied knowing that the
victim’s medical appointments had been missed. He said he never received any calls
regarding the appointments, and he was unsure whether the medical providers contacted
Ms. St. Omer regarding the appointments. He noted periods of time when the service to
Defendants’ cellular phones had been disconnected.

       Mr. Craighead told the officers that the victim’s health began to decline three or
four days before her death. He explained that although the victim always looked
unhealthy, her skin began to sag more in the days leading up to her death. The victim
was fussier and was pulling her feeding tube out. Mr. Craighead stated that the victim
had started some oral feedings and that Ms. St. Omer had fed the victim soft baby food.
The officers showed Mr. Craighead photographs which they stated showed the formula
dried up in the victim’s feeding bags, and Mr. Craighead informed the officers that the
victim had to drink a special formula that was thick and “cakey.” Mr. Craighead
admitted that he and Ms. St. Omer made a mistake in failing to take the victim to see a
doctor upon noticing the decline in her health. He explained that he was working, was
drinking alcohol, and was “in a bad place.”

      Ms. St. Omer told the officers that the victim’s health differed daily during the
course of her life. The victim vomited often and had a feeding tube. Ms. St. Omer
                                          -7-
acknowledged missing medical appointments for the victim and explained that those
appointments were stored in her cellular phone, which had stopped working. She saw a
significant decrease in the victim’s weight in the last week prior to her death. During that
last week, the victim refused to drink from a bottle, was eating baby food, and was
vomiting. Ms. St. Omer stated that nevertheless, the victim was taking some feedings,
and she believed she could help her by utilizing the methods previously taught to her by
medical professionals. The Defendants decided on the Friday before the victim’s death to
take her to the doctor on Monday, but the victim died before they did so.

       On cross-examination, Detective Stolinsky testified that he returned to the
Defendants’ room on November 21 after he had spoken to Dr. Lewis and the employee
from Apria. He believed Ms. St. Omer was standing outside, and she signed an
authorization allowing the officers to obtain the victim’s medical records. Detective
Stolinsky did not believe that the feeding pump was in the room based upon his
conversation with the Apria employee. He agreed that in hindsight, he should have
verified whether the feeding pump was in the Defendants’ room.

       Detective Stolinsky acknowledged that he had a duty to collect evidence reflecting
criminal behavior. He explained that the officers did not collect evidence from the
Defendants’ room on the day of the victim’s death because they were “working this as a
natural death case.” He stated that he did not return to the Defendants’ room to collect
evidence three days later, after receiving the preliminary autopsy report, because the
chain of custody of the evidence “would have been completely blown” by that time.
Detective Stolinsky did not collect the victim’s prescribed medication from the
Defendants’ room to determine whether the victim was actually receiving the medication.
He did not research the dates in which the victim’s formula was delivered and determine
the amount of formula that remained at the time of the victim’s death.

       Ms. Madalyn Adams, a child protective service investigator with DCS, arrived at
the Defendants’ room while police officers were still at the scene. She offered testimony
regarding the state of the Defendants’ room that was consistent with testimony of the
police officers at trial. She stated that she noticed a feeding pump in the room and a
feeding bag which contained a powdered substance and no moisture. She did not recall
seeing any notations on the victim’s feeding schedule on the wall.

       Ms. Adams spoke to the Defendants at the hospital, and they offered information
similar to the information they provided to Detective Stolinsky during their interviews
one month later. The Defendants acknowledged consuming alcohol while celebrating
their anniversary on the day prior to the victim’s death, and Mr. Craighead admitted using
cocaine and marijuana during the week prior to the victim’s death. While Ms. St. Omer

                                           -8-
admitted to using marijuana sometime prior to the victim’s death, her drug screen was
negative for all substances.

       On cross-examination, Ms. Adams acknowledged sending an email to Detective
Stolinsky on November 19, which stated that the Defendants’ room was processed as a
crime scene by the police department. On redirect examination, Ms. Adams testified that
although her email said it was a crime scene, neither Detective Stolinsky nor anyone else
had told her that the room was processed as a crime scene.

       Dr. Adele Lewis, a forensic pathologist, performed the victim’s autopsy. She
determined that the cause of the victim’s death was starvation with DiGeorge Syndrome
and acute bronchopneumonia or pneumonia in the lungs as contributory causes of death.
She concluded that the manner of the victim’s death was homicide. She explained that
contributory causes of death are those things that a person may die with but not
necessarily of.    She testified that the victim’s congenital heart defect, acute
bronchopneumonia, and DiGeorge Syndrome were not the immediate causes of her
death.

        Dr. Lewis stated that it was “pretty obvious” that the victim was malnourished
based on her appearance. The victim’s weight at her death at the age of five months was
the same as her birth weight. She had bilious fluid in her stomach that came from her
gallbladder, no fluid in her small intestines, and a small amount of green liquid in her
rectum. The victim had some hair growing on her forehead, which Dr. Lewis stated can
be a reaction of malnutrition. The victim also had elevated levels of protein in the fluid
of her eye, which is indicative of dehydration. Her eyes were sunken, and her skin did
not have normal elasticity. While generally food products and stool can be seen
throughout the intestines, the victim’s intestines were empty and decompressed. Dr.
Lewis stated that although the victim had some stool in her rectum, this only suggested
that the victim may have been fed intermittently, but she was not fed a sufficient amount.
Dr. Lewis also stated that some of the liquid or stool in the rectum could have been the
result of shedding of the cells lining the inside of the intestine. The victim had elevated
vitreous, nitrogen, and creatinine levels indicative of moderate dehydration.

       Dr. Lewis testified that if the victim had an abnormality in her intestines or was
incapable of gaining weight, she would not have concluded that the manner of the
victim’s death was homicide. Dr. Lewis noted that the victim demonstrated that she was
capable of gaining weight because she gained weight while hospitalized for failure to
thrive and gained weight at home following her discharge. She estimated that the process
of the victim’s failing to receive adequate nutrition and hydration that led to her death
lasted at least one week.

                                           -9-
       Dr. Lewis viewed photographs of the Defendants’ room and said the victim’s
feeding bag attached to the pump appeared to be empty. She recalled advising a police
officer that it might have been possible for an employee of the feeding pump
manufacturer to examine the device and determine whether it had been recently used. Dr.
Lewis stated, “That was just an educated guess on my part.” She did not know what
information would have been retained in the feeding pump or the time period in which
the information would have been retained. She explained that she based her belief on the
fact that most medical equipment has a computer that retains information for a period of
time.

       On cross-examination, Dr. Lewis testified that she would have considered
information from the feeding pump showing that the victim had been fed in accordance
with the medical provider’s orders for a period of time to be important. She stated that
had the victim been fed as required with the correct formula and continued to
demonstrate an incapability of gaining weight, she would have found that the manner of
death was “undetermined” rather than homicide.

      At the conclusion of the State’s proof, the trial court denied the Defendants’
motions for a judgment of acquittal on the charges. The trial court granted the
Defendants’ prior request for a mistrial based upon improper testimony regarding Mr.
Craighead’s selling drugs.

        The trial court also granted the Defendants’ motions to dismiss the charges based
upon a Ferguson violation. The trial court acknowledged that the State may not have a
duty to collect any evidence but that the pattern jury instruction presumed that the police
would gather and preserve relevant evidence. The trial court found that when the
Defendants’ room was photographed, the police officers should have been aware of that
the case possibly involved charges of child neglect based upon the condition of the
Defendants’ room. The trial court also found that the officer should have been aware of
possible felony murder charges due to the presence of evidence of neglect in the death of
a child less than eight years old. The trial court noted that none of the evidence at the
scene was collected, that the State indicated a pattern of neglect based on the appearance
of the room, and that witnesses testified at trial about the inferences to be drawn from the
photographs, including the possibility of dried formula in the feeding bag.

       The trial court found that while there may not have been any exculpatory evidence
stored in the feeding pump, the feeding pump was relevant and should have been
collected and preserved to allow the defense an opportunity to determine if relevant
evidence was stored on the machine. The trial court also found that the police officers
should have secured the scene until they obtained a preliminary autopsy report. As a

                                           - 10 -
result, the trial court dismissed the Defendants’ charges. The State filed a notice of
appeal.

                                       ANALYSIS

       The State contends that the trial court erred in dismissing the Defendants’ charges
based upon the State’s failure to collect the feeding machine and preserve information on
the machine. The State maintains that it did not have a duty to collect the evidence and
that the evidentiary value of the feeding machine was not established. Ms. St. Omer
responds that the trial court’s ruling was not limited to the State’s failure to collect and
preserve the feeding machine and its information but encompassed the State’s failure to
collect and preserve any of the items in the Defendants’ room related to the victim’s care.
The Defendants further respond that the evidence possessed potential exculpatory value
and that the State had a duty to collect and preserve the evidence.

       In State v. Ferguson, our supreme court held that “the loss or destruction of
potentially exculpatory evidence may violate a defendant’s right to a fair trial.” State v.
Merriman, 410 S.W.3d 779, 784 (Tenn. 2013) (citing State v. Ferguson, 2 S.W.3d 912,
915-16 (Tenn. 1999)). Upon determining that the due process clause under the
Tennessee Constitution was broader than the due process clause under the United States
Constitution, the Tennessee Supreme Court rejected the “bad faith” analysis adopted by
the United States Supreme Court which provided 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 784-85 (quoting Arizona v.
Youngblood, 488 U.S. 51, 58 (1988)). Rather, the court in Ferguson adopted a balancing
approach requiring the trial court to determine “‘[w]hether a trial, conducted without the
[lost or] destroyed evidence, would be fundamentally fair.’” Id. at 785 (quoting
Ferguson, 2 S.W.3d at 914).

       Whenever a Ferguson claim is raised, the trial court must first determine “whether
the State had a duty to preserve the evidence.” Id. “[T]he 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 meet the constitutionally material evidence 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. (footnote omitted).

       If the proof establishes that the State had a duty to preserve the evidence and that
the State failed in its duty, the court must conduct a balancing analysis, considering the
following factors:
                                           - 11 -
       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.

Ferguson, 2 S.W.3d at 917 (footnote omitted). The trial court must balance these factors
to determine whether a trial would be fundamentally fair absent the missing evidence.
Merriman, 410 S.W.3d at 785. If the trial court concludes that a trial would be
fundamentally unfair absent the missing evidence, “the trial court may then impose an
appropriate remedy to protect the defendant’s right to a fair trial, including, but not
limited to, dismissing the charges or providing a jury instruction.” Id. at 786.

        This court reviews the trial court’s decision regarding the fundamental fairness of
a trial conducted without the missing evidence de novo. Id. at 791. The trial court’s
findings of fact are conclusive on appeal unless the evidence preponderates against them.
See id. (citations omitted). This court reviews the trial court’s remedy for a Ferguson
violation under the abuse of discretion standard. Id.

       On appeal, the State focuses upon whether it had a duty to seize and preserve the
feeding machine. However, in dismissing the Defendants’ charges, the trial court not
only focused upon the State’s failure to seize and preserve the feeding machine but also
found that the State failed to seize and preserve any evidence from the Defendants’ room
while utilizing photographs of such evidence at trial to support the allegations of child
neglect.

        During oral argument before this court, the State contended that the officers were
not conducting a criminal investigation on the date of the victim’s death and did not have
probable cause to seize any evidence from the Defendants’ room at that time. The State
based its contentions upon Detective Stolinsky’s testimony that at the time, he believed
the victim died of natural causes based upon her medical history. However, the detective
acknowledged that the officers were conducting an investigation into the circumstances
of the victim’s death. After the victim was transported from the scene, the officers
remained inside the Defendants’ room, and a crime scene technician was dispatched to
the scene to document the condition of the room through photographs. Multiple officers
testified at trial regarding the condition of the victim, including testimony that her bones
were protruding through her skin, she did not appear to have any fat on her, and she did
                                           - 12 -
not appear to be real. A photograph of the victim following her death that was entered as
an exhibit at trial supports the officers’ description of the victim. Detective Stolinsky
interviewed the Defendants at the hospital following the victim’s death regarding the
circumstances that led to her death and when she was last fed.

       The officers also testified regarding the condition of the Defendants’ room. After
a DCS referral was made, Ms. Adams went to the scene, testified to observing what she
considered to be deplorable conditions, and communicated to the police about her
observations. Ms. Adams believed that the officers were conducting a criminal
investigation as evidenced by her e-mail to Detective Stolinsky the following day. The
actions of the officers on the day of the victim’s death and the facts and circumstances of
the case belie the State’s claim that the officers were not conducting a criminal
investigation at the time. We conclude that based on the facts and circumstances, the
State had probable cause to believe that the Defendants committed child neglect and,
thus, could have obtained a search warrant for the Defendants’ room following the
victim’s death. See State v. Henning, 975 S.W.2d 290, 294 (Tenn. 1998) (defining
probable cause necessary for the issuance of a search warrant as “a reasonable ground for
suspicion, supported by circumstances indicative of an illegal act”).

      Regardless, the State maintains that it had no duty to collect the evidence. The
Defendants respond that Ferguson recognizes that the State has a duty to “gather”
evidence but that the evidence in this case was under the State’s control while the officers
conducted the investigation in the Defendants’ room following the victim’s death.

       In Ferguson, the Tennessee Supreme Court did not impose a duty upon the State
to collect evidence but addressed the State’s duty to preserve evidence. See Ferguson, 2
S.W.3d 912. Ferguson involved the State’s failure to preserve a video recording of the
defendant’s performing field sobriety tests at a police station following his arrest for
driving under the influence. Id. at 914-15. In reaching its decision, the court in Ferguson
discussed two opinions from the United States Supreme Court: California v. Trombetta,
467 U.S. 479 (1984), and Youngblood, 488 U.S. 51. Trombetta involved the State’s
failure to preserve samples of a defendant’s breath-analysis test, and Youngblood
addressed the police officer’s failure to refrigerate semen-stained clothing collected from
a sodomy victim which precluded testing of the clothing. See Trombetta, 467 U.S. at
481; Youngblood, 488 U.S. at 58. Neither case addressed the State’s duty to collect the
evidence but addressed the State’s failure to preserve the evidence once it was collected.

      Our supreme court in Ferguson included in a footnote a jury instruction that a trial
court may employ upon finding that the State’s destruction of evidence violated a
defendant’s constitutional right to a fair trial. 2 S.W.3d at 917 n.11. The jury instruction
provides in part, “The State has a duty to gather, preserve, and produce at trial evidence
                                           - 13 -
which may possess exculpatory evidence.” Id. The court cited to Trombetta and State v.
Willits, 393 P.2d 274, 276 (Ariz. 1964), in support of the instruction. However, neither
Trombetta nor Willits addressed whether the State has a duty to collect evidence but
addressed the State’s failure to preserve evidence already in the State’s possession. See
Trombetta, 467 U.S. at 481; Willits, 393 P.2d 276-78 (holding that the trial court erred in
failing to instruct the jury that if the jury determined that the State destroyed evidence
whose contents or quality are at issue, the jury may infer that the evidence did not support
the State’s interests).

        On numerous occasions, this court has held that a law enforcement officer’s
failure to collect certain items from a crime scene did not result in a Ferguson violation.
See e.g., State v. Joshua Hunter Bargery, No. W2016-00893-CCA-R3-CD, 2017 WL
4466559, at *62-64 (Tenn. Crim. App. Oct. 6, 2017), no perm. app. filed (holding that the
State’s failure to collect a bloody towel, fruit punch cans, blood stain samples, and
fingerprints did not violate Ferguson because the State had no duty to collect such items);
State v. Mario Hubbard, No. W2016-01521-CCA-R3-CD, 2017 WL 2472372, at *6-8
(Tenn. Crim. App. June 7, 2017), no perm. app. filed (concluding that the State did not
have a duty to preserve surveillance footage from a crime scene when officers failed to
collect the footage); State v. Cordell Bufford, No. W2013-00841-CCA-R3-CD, 2014 WL
2129526, at *12-13 (Tenn. Crim. App. May 20, 2014) (rejecting the defendant’s claim
that “the State should have collected more evidence because that evidence might have
been exculpatory” (emphasis in original)); State v. Brock, 327 S.W.3d 645, 698-99 (Tenn.
Crim. App. 2009) (holding that the State did not have a duty to collect fingerprint
evidence and a bloody footprint from the crime scene); State v. Yevette Somerville, No.
W2001-00902-CCA-R3-CD, 2002 WL 1482730, at *4-5 (Tenn. Crim. App. Feb. 11,
2002) (concluding that the State did not have a duty to preserve surveillance footage from
the scene of a Wal-Mart for a shoplifting charge when the State never had possession or
control over the footage).

        In concluding that the State’s failure to collect evidence from a crime scene does
not rise to the level of a Ferguson violation, this court has recognized that

       “the State is not required to investigate cases in any particular way: Due
       process does not require the police to conduct a particular type of
       investigation. Rather, the reliability of the evidence gathered by the police
       is tested in the crucible of a trial at which the defendant receives due
       process. Moreover, [i]t is not the duty of this Court to pass judgment
       regarding the investigative techniques used by law enforcement unless they
       violate specific statutory or constitutional mandates.”



                                           - 14 -
Brock, 327 S.W.3d at 698-99 (quoting State v. Tony Best, No. E2007-00296-CCA-R3-
CD, 2008 WL 4367529, at *13 (Tenn. Crim. App. Sept. 25, 2008)) (internal citations
omitted).

        The Defendants rely upon this court’s opinion in State v. Clifford Edward Clark to
support their claim that the police officers had a duty to collect evidence from the
Defendants’ room. No. E2009-01795-CCA-R3-CD, 2011 WL 13165164 (Tenn. Crim.
App. Oct. 24, 2011). In Clifford Edward Clark, the defendant was charged with various
offenses stemming from his shooting a red light camera. Id. at *1-5. The defendant
argued that his charges should have been dismissed because the traffic camera housing,
which he maintained was in the custody and control of the State, was no longer available
for testing. Id. at *6. During the hearing, the State averred that police officers took
photographs of the traffic camera housing and retained the equipment inside the housing,
and the company that owned the camera housing took custody of the housing and
disposed of it. Id. at *12. The State further argued during the hearing that although the
housing was never in the State’s custody, the State took photographs of the housing and
its bullet holes. Id. On appeal, this court addressed the issue of whether the State had a
duty to retain the evidence and concluded that the State had a duty to preserve the camera
housing and that its failure to do so violated Ferguson. Id. at *13-15. However, this
court did not address whether the State had a duty to collect or seize the evidence. See id.
at *11-13. Rather, the analysis assumes that the State or an arm of the State had
possession of the camera housing at some point and failed to maintain it.

        We conclude that this court’s opinion in Brock that an officer’s failure to collect
evidence from a crime scene owned, operated, or maintained by a private citizen does not
violate Ferguson controls. See Brock, 327 S.W.3d at 698-99; see also Tenn. Sup. Ct. R.
4(G)(2) (“Opinions reported in the official reporter…shall be considered controlling
authority for all purposes unless and until such opinion is reversed or modified by a court
of competent jurisdiction.”). The Defendants have not shown that the investigative
techniques used by law enforcement violated “‘specific statutory or constitutional
mandates.’” Brock, 327 S.W.3d at 699 (quoting Tony Best, 2008 WL 4367529, at *13).
We hold that the police officers had no duty to collect evidence from the Defendants’
room and, therefore, no duty under Ferguson to preserve such evidence. Accordingly,
the trial court erred in dismissing the Defendants’ charges.

        The State is required to prove its case beyond a reasonable doubt, and we
recognize that the failure to gather physical evidence at a crime scene often weakens the
State’s ability to prove its case. Accordingly, on remand, the Defendants may test the
reliability of the State’s evidence at trial by examining the State’s witnesses about any
relevant deficiencies of the investigation and arguing any shortcomings in the
investigation against the standard of reasonable doubt.
                                           - 15 -
                                  CONCLUSION

      Upon reviewing the record and the applicable law, we reverse the trial court’s
dismissal of the Defendants’ charges, reinstate the indictment, and remand for further
proceedings.




                                  ___________________________________________
                                  JOHN EVERETT WILLIAMS, PRESIDING JUDGE




                                        - 16 -
