     IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT   KNOXVILLE
                                                    FILED
                        DECEMBER 1994 SESSION
                                                      July 17, 1997

                                                   Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk



                                  D
                                  5
STATE OF TENNESSEE,               5
            Appellee              5   No. 03C01-9406-CR-00235
                                  5
      vs.                         K   WASHINGTON COUNTY
                                  5
                                  5   Hon. Lynn W. Brown, Judge
MARVIN K. FERGUSON,               5
            Appellant             5   (DUI)
                                  E




FOR THE APPELLANT:                        FOR THE APPELLEE:

Dennis Tomlin                             Charles W. Burson
Attorney at Law                           Attorney General & Reporter
627 Second Avenue, South
Nashville,TN 37210                        Christina S. Shevalier
                                          Assistant Attorney General
                                          Criminal Justice Division
                                          450 James Robertson Parkway
                                          Nashville, TN 37243-0493

                                          David Crockett
                                          District Attorney General

                                          Joe C. Crumley,Jr.
                                          Asst Dist. Attorney General
                                          P.O. Box 38
                                          Jonesborough, TN. 37659




OPINION FILED: _______________________



AFFIRMED

Robert E. Burch
Special Judge



                                OPINION
     The appellant was convicted by a jury of the criminal

offense of driving a motor vehicle while intoxicated (second

offense). The trial court sentenced the appellant to eleven

months, twenty-nine days in the county jail, suspended after

service of forty-five (45) days, and fined him one thousand eight

hundred dollars.

     Appellant presents seventeen issues for review by this

court.   Appellant has failed to include in his brief any argument

relating to issue numbers 6, 9, 11, 12, 13, 14, 15, 16, and 17.

Accordingly, these issues are waived. Rule 10(b)    Rules of the

Court of Criminal Appeals.    In addition, Appellant has failed to

cite any authority whatever in his argument concerning issues 7

and 8.   These issues are also waived.   Rule 10(b) Rules of the

Court of Criminal Appeals; State v. Dickerson 885 S.W.2d 90

(Tenn. Crim. App. 1983).

     The remaining issues are:

           1). Did the trial court err in refusing to dismiss the

indictment on the ground that there was no probable cause for the

arrest of the appellant for the offense of driving under the

influence of an intoxicant?

           2, 3, 4 and 10). Were the appellant’s constitutional

and statutory rights violated by the jailing of Appellant without

a written order and the failure of the arresting officer to take

the appellant without unnecessary delay before a committing

magistrate so that the appellant could be examined in his present

state of sobriety by the magistrate; told of his right to a

breath alcohol test and allowed to be released from jail in order

to obtain a blood alcohol test on his own?

           5). Were Appellant’s constitutional rights violated by

the destruction and/or suppression of the video tape made of the




                                 2
Appellant on the night of his arrest when the attorney for

Appellant had requested that same be preserved?

     We find that Appellant’s failure to preserve any record of a

hearing and ruling on the motions concerning the first two issues

constitutes a waiver of any error.       The final issue is not found

to constitute reversible error.       Accordingly, we affirm.



                                FACTS

     Officer Murray of the Johnson City Police Department was on

patrol when he encountered a van parked on the apron on the on-

ramp to Interstate 181 with its engine running.       It was

approximately 4 a.m. and the driver appeared to be slumped over

the steering wheel.   The officer approached the vehicle and woke

up the driver, who was Appellant.       The officer noticed a strong

smell of an alcoholic beverage about Appellant and also noticed

that Appellant’s speech was slow and “sort of slurred”.         Field

sobriety tests were administered to Appellant, which he failed to

perform satisfactorily.    Appellant was arrested and taken to the

police station where he refused a breath alcohol test.         When at

the police station, Appellant apparently performed additional

field sobriety tests while being video taped.       The video tapes

were inadvertently taped over before they could be viewed by

counsel for the defense.



                               ANALYSIS

     In his first issue presented for review, Appellant submits

that the trial court erred in refusing to dismiss the indictment

in this case because there was no probable cause for the arrest

of the defendant for D.U.I..

     Appellant filed a motion to dismiss the indictment or

suppress the evidence on July 9, 1993, three days after

indictment.   The technical record contains no ruling of the trial

court on said motion.   The transcript of the trial likewise

                                  3
contains no such ruling.    Motions to dismiss based upon defects

in the institution of the prosecution and motions to suppress are

required to be raised before trial. Rule 12(b) Tenn. R. Crim. P.

If these motions are not raised prior to trial, they are waived.

Rule 12(f) Tenn. R. Crim. P.     The mere filing of a motion to

suppress is not sufficient to raise an issue for the court to

decide. The proponent must bring the motion to the attention of

the trial judge and obtain a ruling thereon; otherwise the issue

is waived. State v. Burtis, 664 S.W.2d 305 (Tenn. Crim. App.

1983); Tenn. R. Crim. P. 12(f). In this case, the defendant never

sought a ruling on his motion.

     In addition, if the record contains no ruling by the trial

court on the motion, the trial court cannot be found in error.

See State v. Walker 910 S.W.2d 381 (Tenn. 1995).

     The issue is waived.

             Delay in appearance before a magistrate

     In issues 2, 3, 4 and 10, Appellant complains that the

police incarcerated him without a written order and then delayed

in taking him before a magistrate resulting in a loss of his

opportunity to be advised of his right to a blood test in

sufficient time to have a meaningful test done or to be released

(apparently on bail) within a time which would have allowed him

to have a blood test done on his own.

     The motion to dismiss was filed on July 9, 1993.      No hearing

of the motion appears in the transcript.      No ruling of the trial

court appears in the transcript.       No order denying the motion to

suppress appears in the technical record.      The facts upon which

Appellant’s motion is based have never been established by proof.

Allegations contained in pleadings are not evidence. State v

Roberts 755 S.W.2d 833 (Tenn. Crim. App. 1988).

     As has been stated in reference to issue number 1, above,

the failure of the appellant to raise this issue prior to trial


                                   4
and obtain a ruling thereon amounts to a waiver of the issue.

State v. Burtis, 664 S.W.2d 305 (Tenn. Crim. App. 1983).     We are

well aware that the trial court stated, on page 178 of the trial

transcript, that the matter of the defendant going before a

“judge or clerk or anything like that” had already been ruled on.

The problem is that the hearing and the ruling of the trial

court, if they occurred, have not been preserved in the record on

appeal.   As far as this court is concerned, the hearing and

ruling never occurred.   We certainly cannot review the same for

correctness.   The failure of counsel to include these proceedings

in the record have precluded any appellate review.

     The issue is waived.

                      Destruction of Video Tape

     In his fifth issue presented for review, Appellant submits

that the inadvertent erasure of the video tape of Appellant’s

booking and performing field sobriety tests constitutes a

violation of Appellant’s constitutional right to due process of

law in that material evidence concerning this case has been

destroyed.

     No record of a pre-trial hearing and ruling on this exists

either; however, the trial judge allowed proof to be developed

and arguments made concerning this issue during the trial.     The

ruling of the trial judge can be found in the record of the

trial.    We must assume, therefore, that the trial judge allowed

this motion to be made during the trial and held that relief from

the waiver provision of Rule 12(f), Tenn. R. Crim. P., should be

allowed in this instance.   Accordingly, we will deal with the

merits of Appellant’s issue presented on appeal.

     There are two types of instances in which the state can be

sanctioned for loss or destruction of video or audio tapes which

are material to the subject matter of the trial.     The first is

the loss or destruction of the taped statement of a witness to

which a defendant is entitled under the Tennessee Jencks Act

                                 5
(Rule 26.2 Tenn. R. Crim. P.).     This may result in the state

being in violation of Rule 26.2.      The sanctions for said

violation are set out in the Rule as follows:

               (e) Sanction for Failure to Produce
          Statement. If the other party elects not to
          comply with an order to deliver a statement
          to the moving party, the court shall order
          that the testimony of the witness be stricken
          from the record and that the trial proceed,
          or, if it is the attorney for the state who
          elects not to comply, shall declare a
          mistrial if required by the interest of
          justice.


     In a situation involving loss/destruction of a recording of

Jencks material, there exists a higher burden upon the State to

preserve the evidence.    The State must use due diligence in

obtaining a statement and providing it to a defendant.         State v

Cannon 661 S.W.2d 893, 899 (Tenn. Crim. App. 1983).      This duty

extends not only to material in the prosecutor’s immediate

custody, but also to statements in the possession of law

enforcement officers participating in the case. State v Hicks 618

S.W.2d 510,514 (Tenn. Crim. App. 1981).      In cases involving

Jencks material, the imposition of sanctions do not necessarily

rest upon a showing of bad faith.      Any intentional withholding or

destruction of statements may be viewed as a violation of Rule

26.2 for which appropriate sanctions may be applied. State v Jim

Inman (unreported) No. 03C01-9201-CR-00020 Tenn. Crim. App. at

Knoxville, opinion filed November 23, 1993.

     The second type is the denial to a defendant of due process

of law by the State losing or destroying evidence which might

exculpate the defendant.    This line of cases is based upon Brady

v. Maryland 83 S.Ct. 1194, 1197, 373 U.S. 83,88, 10 L.Ed 2d 215

(1963).

     Since this case involves a video tape which was not a

recording of Appellant’s statement, this issue concerns the

second type of case.     The cases dealing with failure to comply



                                  6
with the Tennessee Jencks Act do not apply.

     In this second type of case, there are two types of

loss/destruction dealt with by the court.    If the material is

known to have been favorable to the accused on a material matter,

the good or bad faith of the police is not relevant.       As was

stated in Brady v Maryland 83 S.Ct. 1194, 1197, 373 U.S.83,88, 10

L.Ed.2d 215 (1963):

             We now hold that the suppression by the
             prosecution of evidence favorable to the
             accused upon request violates due process
             where the evidence is material either to
             guilt or to punishment, irrespective of the
             good or bad faith of the prosecution.


         In addition, the failure of the prosecution to preserve

evidence which is potentially useful (as opposed to favorable) to

the defendant may constitute a denial of due process of law, if

the defendant can show bad faith on the part of the police.

Arizona v Youngblood 488 U.S. 51, 109 S.Ct. 333, 337, 102 L.Ed.2d

281(1988).    It should be noted that our examination does not

involve failure of the prosecution to disclose the existence of

evidence to the defense. See, e.g., United States v Bagley 473

U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).    Our examination

relates to the loss or destruction of evidence which is known to

have existed although its specific contents may or may not be

known.

     In a situation involving loss/destruction of known

exculpatory evidence by the prosecution, the burden is (and

should be) upon the defendant to establish that the undisclosed

evidence would have been exculpatory.    In the case of evidence

which is potentially useful to the defendant, the burden is upon

the defendant to establish both that the evidence was potentially

useful and that the police acted in bad faith. This is a

reasonable burden when the character of the disposed evidence is

known.

     The reasonableness of such a requirement disappears,

                                  7
however, where the character of the undisclosed evidence cannot

be determined because it has been lost or destroyed.    Because of

the fact of the loss/destruction by the police, it is difficult

or impossible to determine what appeared on the tape.    We have

been unable to find any Tennessee cases involving such a

situation which do not involve Jencks material.   Other states and

federal circuits hold that a defendant need only show that the

disposed evidence was clearly material to the issue of guilt or

innocence (not that it would have been exculpatory). See, e.g.,

State v. Booth 295 N.W.2d 194, 19 ALR 4th 498 (Wisc. App. 1980)

and U.S. v Bryant 439 F.2d 642, 648 (D.C. Cir 1971).    This seems

to be a reasonable requirement.

     If the accused establishes the materiality of the disposed

evidence and also establishes the bad faith of the police in

disposing of same, the rule is the same as with known evidence

which has been destroyed.   The police, by their conduct, have

shown that the evidence would have been favorable to the accused

and a violation of due process has occurred. See Arizona v

Youngblood 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d

281(1988).

     What remains, then, is the situation in which the bad faith

of the police has not been established in the loss/destruction of

evidence, the content of which is not known, but which would have

been clearly material to the issue of guilt or innocence.

     There are situations, of course, in which evidence is

disposed of by the police without any bad faith whatever.    An

example is the case of State v Inman, supra.   In Inman, it was

discovered that the T.B.I. typing pool routinely erased audio

tapes of interviews with witnesses after the same had been

transcribed.   The court found this practice to be ill-advised but

not bad faith on the part of the T.B.I.   The case was decided

upon principles pertaining to Jencks Act statements; however,

this court did examine this practice in light of due process.

                                  8
The principle of Arizona v Youngblood was discussed along with

the principle suggested in the concurrence by Mr. Justice Stevens

and that suggested in Mr. Justice Blackmun’s dissent but this

court adopted no specific rule pertaining to this situation.      It

was held that since bad faith was not found and there was no

indication that the tapes contained material, exculpatory

information which was not otherwise brought out at trial, there

was no due process violation under any of the principles

contained in the Youngblood opinion.   The case was actually

decided on principles pertaining to Jencks material, as it should

have been.

     In the case before us, however, the evidence is not Jencks

material.    The due process issue is dispositive.   A rule for

evaluating violations of due process in these cases should be

adopted.    What is the role of the police with regard to

preservation of evidence?

     Although bad faith is not present, it is the police who are

handling this evidence.    One of the main functions of the police

when a crime has been committed is to gather and preserve

evidence.    This function is discharged just as surely if the

evidence is favorable to the accused as it is if it is

incriminating.    The police must preserve material evidence

regardless of its character.

     On the other hand, we do not intend to require the police to

gather and preserve every piece of evidence pertaining to a crime

whether material or not.    Neither do we impose a duty to

anticipate the usefulness of evidence to defense counsel and

preserve that which might be of use to the defense.    The police

do not have “an undifferentiated and absolute duty to retain and

preserve all material that might be of conceivable evidentiary

significance in a particular prosecution”. Arizona v Youngblood

488 U.S. 51, 109 S.Ct. 333, 337, 102 L.Ed.2d 281(1988).

     Having defined the limits of the obligations of the police

                                 9
in this respect, it appears that the standard set out in the

dissent in Youngblood best accomplishes the goal of preservation

of material evidence without imposing an unreasonable burden upon

the police.    The inquiry of the trial court in this situation

should be focused upon:

            1). the materiality of the evidence;

            2). the potential of the evidence to exculpate, if that

can be determined; and

            3). the existence of other evidence on the same point

of contention.

     See Arizona v Youngblood 488 U.S. 51, 67-70, 109 S.Ct. 333,

342-3(1988).

     We now examine the case at bar using these criteria.

     The arresting officer testified that Appellant was given two

field sobriety tests at the scene and that he could not remember

taped field sobriety tests being given at the station; however,

it was standard procedure to do so.     According to the officer,

Appellant failed both field sobriety tests administered at the

scene.   The appellant’s physician was called to testify that

Appellant’s injuries would cause him to appear intoxicated and

would hamper his performance of the field sobriety tests.

Appellant testified that the officer only gave him a horizontal

gaze Nystagmus test at the scene and gave him two taped field

sobriety tests at the police station.     The appellant further

testified that the officer told him that Appellant had

satisfactorily performed the tests administered at the station.

     The video tape obviously contained the appellant performing

field sobriety tests and going through the booking procedure.       A

video tape of the appellant performing field sobriety tests and

talking to the officers would have been instructive to the jury

of the issue of Appellant’s intoxication, which is an essential

element of the offense of D.U.I.      The tape would have been

material.

                                 10
     The potential of the contents of the tape to exculpate is

doubtful.    Appellant testified that he successfully performed the

field sobriety tests recorded on the tape and that the officer

acknowledged that he had done so.     However, Appellant introduced

medical testimony to establish that his injuries would have

prevented him from successfully accomplishing field sobriety

tests.   Appellant’s physician testified that Appellant’s balance

was affected by his vascular headaches.    Appellant himself

testified that his injuries, particularly those to his knee,

would have hindered his ability to successfully perform a field

sobriety test.   If the video tape showed Appellant performing

poorly, the cause of the performance could be either intoxication

or injury.   If the video tape showed Appellant performing

satisfactorily, Appellant’s testimony concerning his injuries

would have become questionable. Appellant himself admitted that

he appeared to be intoxicated but offered an explanation for so

appearing.   We see little or no potential for exculpation in the

missing evidence.

     Finally, we note that there exists other evidence on this

point of contention (the intoxication of the appellant).     The

officer gave field sobriety tests at the scene and testified

concerning Appellant’s performance thereof.    He also testified

concerning the odor of an alcoholic beverage on Appellant’s

breath and Appellant’s physical appearance and speech being

indicative of intoxication.   Appellant had an opportunity to

avail himself of a breath alcohol test but refused same. The

appellant introduced evidence of his sobriety and of a medical

explanation of his appearance of intoxication.

     In short, the evidence contained on the tape was material to

an issue in the case. The evidence contained little or no

potential to exculpate the appellant.    There was ample other

evidence from which the sobriety, or lack thereof, of Appellant

could be determined. Based on these factors, we find no

                                 11
deprivation of Appellant’s right to due process.




                               12
     The issue is without merit.

     The judgment of the trial court is affirmed.



                                        _________________________

                                             Robert E. Burch,

                                             Special Judge




CONCUR:


(SEE CONCURRING OPINION)

Gary R. Wade, Judge




(SEE CONCURRING OPINION)

 Joseph M. Tipton, Judge




                               13
          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                                                 FILED
                                   AT KNOXVILLE                     July 17, 1997

                                                                Cecil Crowson, Jr.
                                                                 Appellate C ourt Clerk
                            DECEMBER 1994 SESSION




STATE OF TENNESSEE,                *      C.C.A. # 03C01-9406-CR-00235



              Appellee,            *      W ASHINGTON COUNTY



VS.                                *      Hon. Lynn W. Brown, Judge



MARVIN K. FERGUSON,                *      (DUI)



              Appellant.           *




                              CONCURRING OPINION



              I concur in the result. I write separately only to note that this court has

followed the majority opinion in Arizona v. Youngblood, 488 U.S. 51 (1988); thus, I

do not believe we should now adopt a conflicting view. In Hershel Clark v. State,

No. 02C01-9112-CR-00273, slip op. at 12 (Tenn. Crim. App., at Jackson, June 2,

1993), our court followed the Youngblood majority. In Clark, the defendant alleged

that the state failed to preserve certain of a rape victim's clothing. Id. at 12. There

was also proof that the state probably never had possession of any of the items. Id.
Our court concluded as follows:

             From a due process perspective, when it is not shown
             that the evidence in issue is, in fact, materially
             exculpatory, but, instead, is shown that it might be
             materially exculpatory, it is usually necessary to show
             that the evidence no longer exists and that the state had
             an improper hand in the lack of its preservation. See
             Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333
             (1988). No such showing was made in this case.

Id. See also State v. Jerry Dwayne Cammuse, No. 01C01-9107-CR-00216, slip op.

at 13 (Tenn. Crim. App., at Nashville, Apr. 29, 1992) (quoting Youngblood's majority

opinion with approval). Permission to appeal was denied in the Cammuse case on

September 14, 1992.
              In my view, there was no due process violation here because the

defendant has failed to show any bad faith on the part of the state. While I concur

in the result, I believe the majority opinion in Youngblood to be the better course.



                                          __________________________________
                                          Gary R. Wade, Judge




                                          16
          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT KNOXVILLE               FILED
             DECEMBER 1994 SESSION
                                                       July 17, 1997

                                                     Cecil Crowson, Jr.
STATE OF TENNESSEE,          )                       Appellate C ourt Clerk
                      )
     Appellee,        )      No. 03C01-9406-CR-00235
                      )
                      )      Washington County
v.                    )
                      )      Honorable Lynn W. Brown, Judge
                      )
MARVIN K. FERGUSON,          )     (DUI)
                      )
     Appellant.       )



                           CONCURRING OPINION



     I concur in the result, as well.      As for the issue of

destruction or loss of potentially exculpatory evidence, I think

we should not use this case to resolve any potential issue about

the extent to which Arizona v. Youngblood, 488 U.S. 51, 109 S.

Ct. 333 (1988), defines the due process considerations to be

applied under the Tennessee Constitution.        This is because, as

Judge Burch concludes, the defendant does not prevail under any

of the Youngblood standards.



     I do recognize that this court has recently followed the

majority opinion in Youngblood in several unpublished opinions

that have focused on the lack of bad faith by the state.            See

State v. Fabien Eldridge, No. 01C01-9504-CC-00106, Putnam County

(Tenn. Crim. App. May 7, 1997); Robert Lloyd Wiggins v. State,

No. 03C01-9606-CC-00191, McMinn County (Tenn. Crim. App. Mar. 20,

1997); State v. Jerry Douglas Franklin, No. 01C01-9510-CR-00348,

Davidson County (Tenn. Crim. App. Feb. 28, 1997).        However, I am


                                   17
not ready to concede that due process under the Tennessee

Constitution requires bad faith on the part of the state in all

instances.    In fact, our supreme court has shown that the

fundamental fairness requirement in a criminal prosecution is not

limited to circumstances involving state action.     See State v.

Gray, 917 S.W.2d 668, 673 (Tenn. 1996) (pre-accusatorial delay

may bar prosecution without any state related cause).    Also, I

note that the majority of states to consider Youngblood in

relation to their state constitutions have rejected the majority

opinion.   See, e.g., State v. Morales, 657 A.2d 585, 594-95

(Conn. 1995) (listing states and noting that only Arizona and

California had, at that time, agreed with Youngblood).



     Our supreme court has recognized that due process is

flexible and calls for such procedural protections as the

particular situation demands.     Gray, 917 S.W.2d at 673.   This

case certainly does not call for any protection beyond

Youngblood.     Thus, I would hesitate to use this case to test the

limits of Youngblood against the limits of our state

constitution.



                                 _____________________________
                                 Joseph M. Tipton, Judge




                                  18
