                  IN THE SUPREME COURT OF TENNESSEE
                             AT NASHVILLE
                                 October 2, 2012 Session

             STATE OF TENNESSEE v. ANGELA M. MERRIMAN

              Appeal by Permission from the Court of Criminal Appeals
                         Circuit Court for Warren County
                     No. F12979     Larry B. Stanley Jr., Judge


                 No. M2011-01682-SC-R11-CD - Filed August 16, 2013


The defendant was arrested for driving under the influence, reckless endangerment with a
motor vehicle, reckless driving, driving on a suspended license, and violation of the implied
consent law. The arresting officer recorded his pursuit and stop of the defendant’s vehicle
using video recording equipment installed in his patrol vehicle, but the video recording was
subsequently lost. The defendant filed a motion to dismiss alleging that the State’s failure
to preserve potentially exculpatory evidence would deprive her of a fair trial. Following a
pre-trial evidentiary hearing, the trial court conducted an analysis under State v. Ferguson,
2 S.W.3d 912 (Tenn. 1999), and dismissed several of the charges. The Court of Criminal
Appeals affirmed the trial court’s judgment, concluding that the trial court did not abuse its
discretion in dismissing the charges. State v. Merriman, No. M2011-01682-CCA-R3-CD,
2012 WL 524474, at *3 (Tenn. Crim. App. Feb. 17, 2012). We granted the State permission
to appeal. We apply a de novo standard of review and determine that, based on this record,
the trial court did not err by finding that it would be fundamentally unfair to require the
defendant to go to trial without the video recording. We also conclude that the trial court did
not abuse its discretion in choosing dismissal as an appropriate remedy for the State’s loss
of the video recording.

                     Tenn. R. App. P. 11 Appeal by Permission;
                 Judgment of the Court of Criminal Appeals Affirmed

J ANICE M. H OLDER, J., delivered the opinion of the Court, in which G ARY R. W ADE, C.J., and
C ORNELIA A. C LARK, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Gordon W. Smith, Associate Solicitor
General; Benjamin A. Ball, Assistant Attorney General; Lisa S. Zavogiannis, District
Attorney General; and Darrell Julian, Assistant District Attorney General, for the appellant,
State of Tennessee.
Dan T. Bryant, District Public Defender, and L. Scott Grissom, Assistant Public Defender,
McMinnville, Tennessee, for the appellee, Angela M. Merriman.

                                               OPINION

                                   I. Facts and Procedural History

        On November 18, 2010, Officer Robert Hammond of the McMinnville Police
Department was traveling eastbound on West Main Street in McMinnville, Tennessee, when
he observed a westbound vehicle driven by Angela M. Merriman veering into his lane of
traffic from the center turn lane. Officer Hammond activated the video equipment in his
patrol car, turned around, and initiated a traffic stop of Ms. Merriman’s vehicle.

        After Ms. Merriman exited the vehicle, Officer Hammond attempted to administer
field sobriety tests to Ms. Merriman. Another officer, Sergeant Jones, arrived after the stop
of Ms. Merriman’s vehicle and was present during her performance of the field sobriety tests.
Ms. Merriman informed Officer Hammond that she had health problems but agreed to
attempt the tests. Officer Hammond first conducted the Horizontal Gaze Nystagmus
(“HGN”) test.1 A second, unspecified field sobriety test ended when Ms. Merriman indicated
her knee was “going out.” Officer Hammond administered a final, unspecified test that he
believed Ms. Merriman could attempt even with her health issues.

        Officer Hammond placed Ms. Merriman under arrest and arranged for transportation
of Ms. Merriman’s two minor children, who were passengers in her vehicle. While Officer
Hammond was reading the implied consent form to Ms. Merriman, she advised him she had
taken Valium and hydrocodone earlier in the day. Ms. Merriman signed the implied consent
form acknowledging her refusal to submit to a blood test. See Tenn. Code Ann.
§ 55-10-406(a)(1) (2012) (stating that any person driving a motor vehicle in Tennessee is
presumed to have given consent to testing to determine whether alcohol or drugs are present
in their blood).

       On February 18, 2011, a Warren County grand jury indicted Ms. Merriman on one
count each of driving under the influence of an intoxicant or drug accompanied by a child
under eighteen years of age, reckless endangerment with a motor vehicle, reckless driving,
driving on a suspended license, and violation of the implied consent law. A trial was
scheduled for July 15, 2011.


        1
         The Horizontal Gaze Nystagmus (“HGN”) test is a standardized field sobriety test that tracks eye
movements to gauge whether a suspect may be driving under the influence. State v. Murphy, 953 S.W.2d
200, 201-02 (Tenn. 1997) (holding that the HGN test is a scientific test that must satisfy the requirements
of Rules 702 and 703 of the Tennessee Rules of Evidence to be admissible).

                                                   -2-
       While preparing for the upcoming trial, Ms. Merriman’s attorney listened to Officer
Hammond’s preliminary hearing testimony. Although Officer Hammond referenced a video
recording of the traffic stop during his testimony, the video recording was not included in the
State’s discovery response. Ms. Merriman requested the video recording in a supplemental
discovery request, but the State was unable to locate the recording. Ms. Merriman filed a
motion to dismiss the indictment, alleging that the State failed to preserve potentially
exculpatory evidence.

        Two days before the scheduled trial date, the trial court conducted an evidentiary
hearing on the motion to dismiss. In support of the motion, Ms. Merriman’s counsel
submitted State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999) and State v. Jeffrey Lee Fields, No.
W2005-02128-CCA-R3-CD, 2007 WL 1028640 (Tenn. Crim. App. Apr. 5, 2007). In its
opening remarks, the trial court recalled having addressed the issue of lost evidence in
previous cases and further recalled that the court was required to make certain determinations
about the lost evidence.2 Following a discussion with counsel about the Ferguson
requirements, the trial court heard Officer Hammond’s testimony. Officer Hammond
recounted the circumstances surrounding his stop and eventual arrest of Ms. Merriman.
Officer Hammond described the content of the video recorded by the equipment in his patrol
car and the unexplained loss of the video recording. Sergeant Jones was not called to testify
at the pre-trial hearing.

       At the conclusion of Officer Hammond’s testimony, the trial court revisited the factors
discussed with counsel initially and determined that the State’s failure to preserve the video
recording warranted dismissal of the charges of driving under the influence, reckless
endangerment, and reckless driving.

        The State appealed pursuant to Rule 3(c) of the Tennessee Rules of Appellate
Procedure. Tenn. R. App. P. 3(c)(1) (providing the State with an appeal as of right in
criminal actions when the substantive effect of the trial court’s order is dismissal of an
indictment). The Court of Criminal Appeals affirmed the trial court’s judgment, concluding
that the trial court did not abuse its discretion in dismissing the charges due to the State’s
failure to preserve evidence. State v. Merriman, No. M2011-01682-CCA-R3-CD, 2012 WL
524474, at *3 (Tenn. Crim. App. Feb. 17, 2012). We granted the State permission to appeal.




        2
          The trial court referred to Ferguson as a Court of Criminal Appeals opinion. It is clear from the
record, however, that the factors cited by the trial court were those we adopted in Ferguson.

                                                   -3-
                                         II. Analysis

       The issues presented in this appeal derive from our decision in State v. Ferguson, 2
S.W.2d 912 (Tenn. 1999), in which we conducted a post-trial due process analysis to
determine the consequences of the State’s loss or destruction of evidence. We will determine
the appropriate standard of review of a trial court’s ruling under Ferguson and examine
whether the trial court conducted a proper Ferguson analysis in Ms. Merriman’s case.

                                    A. State v. Ferguson

        Our examination begins with a review of our holding in State v. Ferguson. Mr.
Ferguson was observed slumped over in his van, which was parked on an interstate ramp.
Ferguson, 2 S.W.3d at 914. When the investigating officer opened the van door and
awakened Mr. Ferguson, he smelled a strong odor of alcohol and noticed that Mr. Ferguson’s
speech was slurred. Id. The officer administered two field sobriety tests at the scene. Id.
Based on his observations, the officer arrested Mr. Ferguson for driving under the influence
and transported him to the police station. Id. Additional field sobriety tests were conducted
at the station, and a video recording of those tests was inadvertently erased before the
original recording had been reviewed. Id. A jury subsequently convicted Mr. Ferguson of
driving under the influence. On appeal, Mr. Ferguson complained that his constitutional
rights had been violated by the destruction of the video recording.

        In Ferguson, we explained that the loss or destruction of potentially exculpatory
evidence may violate a defendant’s right to a fair trial. Ferguson, 2 S.W.3d at 915-16 (citing
U.S. Const. amend. XIV, § 1 and Tenn. Const. art. I, § 8). We determined that the due
process required under the Tennessee Constitution was broader than the due process required
under the United States Constitution, and we observed that fundamental fairness, as an
element of due process, requires a review of the entire record to evaluate the effect of the
State’s failure to preserve evidence. Ferguson, 2 S.W.3d at 914, 917. Ferguson rejected the
strict “bad faith” analysis of Arizona v. Youngblood, which stated 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.” 488 U.S. 51, 58 (1988).
Instead, we adopted a balancing approach in which bad faith is but one of the factors to be
considered in determining whether the lost or destroyed evidence will deprive a defendant
of a fundamentally fair trial. Ferguson, 2 S.W.3d at 916-17 n.10 (considering bad faith
within the “degree of negligence” factor).

        Ferguson requires a trial court to determine “[w]hether a trial, conducted without the
[lost or] destroyed evidence, would be fundamentally fair.” Ferguson, 2 S.W.3d at 914.
When this claim is raised by a defendant, Ferguson first requires the trial court to determine
whether the State had a duty to preserve the evidence. In Ferguson, we acknowledged the

                                             -4-
State’s 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, 373 U.S. 83 (1963). Ferguson, 2 S.W.3d at 917. We recognized, however, the
difficulty in defining the boundaries of the State’s duty to preserve evidence when its true
nature, whether exculpatory, inculpatory, or neutral, can never be determined. Ferguson, 2
S.W.3d at 915, 917.

       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.” Ferguson, 2 S.W.3d at 917 (quoting California v.
Trombetta, 467 U.S. 479, 488 (1984)). To meet this materiality standard, we held that 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.3 Ferguson, 2 S.W.3d at 915, 918. If the trial court determines that the State had a
duty to preserve the evidence, the court must determine if the State failed in its duty.
Ferguson, 2 S.W.3d at 917.

       If the trial court finds that the State failed in its duty to preserve the evidence, the trial
court must consider the following factors to determine the consequences of that failure:

        (1) [t]he degree of negligence involved;
        (2) [t]he significance of the destroyed evidence, considered in light of the
        probative value and reliability of secondary or substitute evidence that remains
        available; and
        (3) [t]he 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 conducted without the missing or destroyed evidence would be
fundamentally fair. Id. If the trial court concludes that a trial would be fundamentally unfair
without 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.




        3
          Although we cited with approval the standard enunciated in California v. Trombetta, we did not
adopt its materiality standard requiring the evidence to possess apparent exculpatory value. As noted, in
most instances the true nature of the lost or destroyed evidence may never be known. In contrast, we used
the terms “potentially” exculpatory evidence and “allegedly” exculpatory evidence in our analysis of the
adopted factors to more appropriately describe such evidence. See Ferguson, 2 S.W.3d at 915, 918.

                                                  -5-
                            B. Pre-trial Application of Ferguson

        Before we begin our examination of the issues raised by the parties in this case, we
first address an underlying issue concerning our decision in State v. Sherman, 266 S.W.3d
395 (Tenn. 2008) and the possibility that Sherman or even Ferguson may preclude the trial
court’s pre-trial application of Ferguson in this case. Neither party has raised the timing of
Ms. Merriman’s motion as an issue, and we are aware that our discussion may well fall into
the heading of dicta. With these disclaimers in mind, however, we will proceed to address
the timing of the motion in this case.

        In State v. Sherman, we considered the propriety of the trial court’s pre-trial dismissal
of an indictment. A brief factual summary of Sherman is necessary to place the trial court’s
ruling in context. In Sherman, the defendant held religious services in his six-bedroom home
and allowed certain parishioners to reside with him, including a mother and her fourteen-
year-old daughter. Sherman, 266 S.W.3d at 399. The child began to experience health
problems and was advised by a chiropractor to seek treatment at a medical center. Id.
Because the mother did not have adequate health insurance, the child was taken to a walk-in
clinic instead. Id. While the ministry was attempting to raise adequate funds for the child’s
anticipated medical expenses, she died of cancer. Id. A grand jury indicted the defendant
on one count of misdemeanor child abuse and child neglect. Id. at 400.

       The defendant filed a pre-trial motion to dismiss the indictment under Tennessee Rule
of Criminal Procedure 12(b). Sherman, 266 S.W.3d at 400. In his motion, the defendant
argued that because he was not the child’s parent or guardian, he had no legal or special duty
to provide care for the child and therefore could not be held criminally liable for her death.
Id. At the motion hearing, the State conceded that the defendant was not married to the
child’s mother and was neither the parent nor the guardian of the child. Id. The trial court
sustained the defendant’s motion to dismiss based on the State’s concession. Id. Our
intermediate appellate court reversed the trial court and reinstated the indictment.

       In affirming the Court of Criminal Appeals, we determined that the duty imposed in
the criminal statute under which the defendant was indicted may extend to those who stand
in loco parentis to the victim. Sherman, 266 S.W.3d at 405. We concluded that the issue of
whether the defendant stood in loco parentis to the child who lived in the defendant’s
residence with her mother was a factual determination to be made by a jury. Id. at 407 n.13.
Citing United States v. Covington, 395 U.S. 57, 60 (1969), we noted that an issue presented
in a pre-trial motion is capable of determination prior to trial if “the facts surrounding the
commission of the alleged offense would be of no assistance in determining” the issue.
Sherman, 266 S.W.3d at 403. Because the undisputed facts presented at the motion hearing
were insufficient and were intertwined with the ultimate issue of the defendant’s guilt, the
motion to dismiss was not ripe and was therefore prematurely granted.

                                               -6-
       This same principle was espoused earlier in State v. Goodman, 90 S.W.3d 557 (Tenn.
2002). Mr. Goodman filed a pre-trial motion to dismiss an indictment charging him with the
especially aggravated kidnapping of his daughter. Id. at 559. In his motion, Mr. Goodman
claimed that the plain language of the statute prevented a parent from being prosecuted and
sought dismissal without a trial on the merits. Id. at 562. The trial court conducted an
evidentiary hearing on the motion during which the defense and the State entered certain
stipulated facts including Mr. Goodman’s status as the natural father of the victim. Id. at
560. The trial court granted the defendant’s motion. Id. The State did not assert in its
answer to the motion, during the hearing on the motion, or on appeal of the case to the Court
of Criminal Appeals that the issue was incapable of pre-trial determination. Id. The Court
of Criminal Appeals sua sponte reversed the trial court’s determination on the basis that the
dismissal under Rule 12(b) was improper. We reversed the Court of Criminal Appeals and
reinstated the judgment of the trial court granting the defendant’s pre-trial motion to dismiss.

       In Goodman, as in Sherman, we considered the propriety of ruling on a pre-trial
motion to dismiss under Tennessee Rule of Criminal Procedure 12(b). We recognized that
the issue in the pre-trial motion must be “capable of determination without the trial of the
general issue.” Goodman, 90 S.W.2d at 561. In other words, “[w]here the factual findings
necessary to resolve the motion are intertwined with the general issue, a ruling must be
deferred until trial since, in criminal cases, there simply is no pretrial procedure akin to
summary judgment for adjudicating questions of fact involving the general issue of guilt or
innocence.” Id. Although we continue to recognize this important principle, we find some
important procedural distinctions between Ferguson and the Sherman and Goodman
decisions.

        Sherman and Goodman prohibit a trial court from ruling on a pre-trial motion to
dismiss when the ruling must also resolve questions of fact on the ultimate issue of a
defendant’s guilt or innocence. Ferguson, on the other hand, directs a constitutional inquiry
using a balancing analysis to determine whether a defendant can receive a fundamentally fair
trial when evidence is lost or destroyed. Although one part of that analysis includes a review
of the sufficiency of the evidence to convict the defendant, the Ferguson inquiry into the
adequacy of the state’s evidence is not a vehicle to adjudicate questions of fact involving the
“general issue of guilt or innocence.”

        Ferguson’s examination of the sufficiency of the evidence merely permits an
evaluation of the significance of the lost or destroyed evidence and may assist the trial court
in determining an appropriate remedy. For example, when the State’s evidence is
overwhelming, a trial court may determine that the lost evidence is less significant. On the
other hand, when the State’s case is legally sufficient but is based on minimal evidence, the
trial court may find the same lost evidence to be more significant when it considers all of the
evidence and balances the other Ferguson considerations. We conclude that neither Sherman

                                              -7-
nor Goodman precludes a trial court from considering a pre-trial motion to dismiss under
Ferguson.

        Although we conclude that Sherman and Goodman do not prohibit a trial court from
conducting a Ferguson analysis pre-trial, we nonetheless recognize that the rules of criminal
procedure may limit the circumstances under which a pre-trial motion to dismiss based on
Ferguson may be granted. A defendant has no traditional procedural vehicle to challenge the
sufficiency of the State’s evidence prior to trial. Cf. Tenn. R. Crim. P. 29 (authorizing the
trial court to enter a judgment of acquittal on one or more offenses charged in the indictment
after the evidence on either side is closed). Furthermore, a defendant cannot file a pre-trial
motion to dismiss to “force the trial court to conduct a ‘mini-trial’ in which the State must
present its proof on the merits of the charge . . . or be cut short in its attempt to prosecute.”
State v. Norton, 55 S.W.3d 580, 582 (Tenn. Crim. App. 2001) (internal quotation marks
omitted).

        When a Ferguson motion is brought prior to trial, however, the trial court is required
to assess the sufficiency of the evidence that the State intends to introduce at trial. Because
of the procedural limitations inherent in a criminal case, we must consider whether a trial
court can assess the sufficiency of the evidence in conducting a Ferguson analysis prior to
trial. In making this determination, it is useful to review unreported decisions of the Court
of Criminal Appeals that have applied Ferguson.

         In State v. Clark, No. E2009-01795-CCA-R3-CD, 2011 Tenn. Crim. App. LEXIS 808
(Tenn. Crim. App. Oct. 24, 2011), the defendant was charged with vandalism and reckless
endangerment when he fired shots at a traffic light camera because he believed he would
receive a traffic ticket. Id. at *4-5. When the damaged camera and camera housing were not
provided as part of discovery, the trial court conducted a hearing and granted the defendant’s
motion to dismiss based on Ferguson. Id. at *14-15. The Court of Criminal Appeals
conducted its own Ferguson analysis, including the “sufficiency of the other evidence used
at trial to support the conviction.” Id. at *50. Although it recognized that the trial court
dismissed the indictment prior to trial, the Court of Criminal Appeals determined that the
police report, the preliminary hearing testimony, and the video recording of the stop were
adequate to review the sufficiency of the evidence. Id. at *50-51.

       In State v. Capps, No. E2007-02734-CCA-R3-CD, 2009 WL, at *1 (Tenn. Crim. App.
Mar. 13, 2009), the defendant was charged with aggravated robbery of a convenience store.
The lead investigator obtained a videotape from the store’s surveillance camera that captured
the offense as it occurred. Id. at *3-4. The investigator viewed the videotape and made his
own assessment of its value, then returned the videotape to the convenience store. Id. at
*5-6. The defendant filed a motion to dismiss after the State indicated the tape was
“missing.” Id. at *4-5. Following a pre-trial hearing at which the investigator was the sole

                                               -8-
witness, the trial court determined that dismissal was the only appropriate remedy. Id. at
*7-8. The Court of Criminal Appeals conducted its own Ferguson analysis and affirmed the
trial court’s pre-trial dismissal of the indictment based on the weight given to the first two
Ferguson considerations. Id. at *14-15.

        Having reviewed these cases in which trial courts have conducted a Ferguson analysis
pre-trial,4 we turn to the facts of this case. The trial court conducted an evidentiary hearing
two days prior to the scheduled trial date to address Ms. Merriman’s motion to dismiss based
on Ferguson. The trial court heard from one witness, Officer Hammond, who established the
factual bases of the underlying charges. Officer Hammond recounted the pursuit and stop
of Ms. Merriman’s vehicle and recalled activating the video equipment in his car when he
first encountered her vehicle. According to Officer Hammond, the video recording showed
Ms. Merriman’s vehicle traveling in his lane of traffic and his pursuit and stop of her vehicle.
Officer Hammond testified that the video recording also showed Ms. Merriman’s attempts
to complete the field sobriety tests, the officer’s recitation of the implied consent law to Ms.
Merriman and her refusal to submit to a blood test, and her statement that she had taken “a
Valium and hydrocodone.”

       Officer Hammond explained the McMinnville Police Department’s standard
procedure for retrieval of the video recordings from patrol vehicles. Following an arrest,
officers are required to review the video recording in their patrol cars and make field notes.
A supervisor later removes the hard drive containing the video recording and provides it to
a patrol division captain who logs the hard drive into evidence.

        Officer Hammond testified that he followed the standard procedure with respect to
the video recording of Ms. Merriman’s traffic stop and reviewed the video recording to make
his field notes. However, he had no knowledge of the removal of the hard drive or the entry
of the hard drive into the evidence log. Officer Hammond testified that Sergeant Jones
searched numerous times but was unable to locate the video recording of Ms. Merriman’s
stop.5


        4
          See also State v. Fairbetter, No. M2004-00594-CCA-R3-CD, 2004 WL 2218477, at *3-4 (Tenn.
Crim. App. Oct. 1, 2004) (finding that although the sufficiency of the evidence was difficult to address
because the defendant’s motion to dismiss had been granted pre-trial, the limited evidence in the record,
which included testimony by the arresting officer that “the defendant had watery eyes and slurred speech and
smelled of alcohol,” “would have been sufficient to support a conviction for driving under the influence”);
State v. Martin, No. E2001-00914-CCA-R9-CD, 2002 WL 927427, at *5-6 (Tenn. Crim. App. Sept. 9, 2002)
(conducting a Ferguson analysis on a pre-trial motion to suppress and remanding the case for trial based on
the “available substitute evidence that appear[ed] both reliable and probative”).
        5
            It is unclear from Officer Hammond’s testimony whether Sergeant Jones played a role in the
                                                                                        (continued...)

                                                    -9-
        At the conclusion of the hearing, the trial court summarized the State’s case as
consisting of the testimony of Officer Hammond and possibly that of Sergeant Jones. The
trial judge surmised that Sergeant Jones’ testimony would corroborate Officer Hammond’s
testimony. The State did not comment on the trial judge’s observation or offer any correction
of the trial court’s summation. The State did not object at any time to proceeding on the
Ferguson motion prior to trial. Further, the State never indicated that it had additional
evidence that would have been presented at trial but that it was being denied the opportunity
to do so.6 Under these circumstances, the trial court was not prohibited from conducting a
pre-trial Ferguson analysis and had sufficient evidence to make a pre-trial ruling on the
motion to dismiss.

       Due to the nature of Ferguson’s inquiry, we are unable to enumerate every possible
procedural setting in which a Ferguson analysis could be conducted prior to trial. 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.

       The State may object to a pre-trial motion if it has other evidence to present at trial
that would assist the trial court’s Ferguson analysis, and it is within a trial court‘s discretion
to reserve ruling on a Ferguson motion until the evidence is presented at trial.

                                          C. Standard of Review

       In this appeal, we are asked to clarify the appropriate standard of review of the trial
court’s determination that the State’s failure to preserve the video recording violated Ms.
Merriman’s constitutional right to a fair trial. We must also determine which standard of
review applies to the trial court’s dismissal of several counts of the indictment as a remedy




        5
           (...continued)
retrieval of the hard drive from Officer Hammond’s vehicle or if a patrol division captain took possession
of the hard drive or logged it into evidence, as required by the McMinnville Police Department procedures.
        6
         The trial court may well have erred in granting the motion to dismiss if the State had objected on
the grounds that it intended to present additional evidence at trial. Without knowing the nature of the State’s
objection, however, it is difficult to conclude that any objection by the State would preclude a trial court from
considering a Ferguson motion prior to trial.

                                                      -10-
for that violation. The standard of review of a trial court’s ruling under Ferguson is an issue
of first impression for this Court.7

        The State submits that the trial court’s findings as to whether the trial was
fundamentally fair warrants de novo review but that the trial court’s choice of remedy should
be reviewed under an abuse of discretion standard. Ms. Merriman, however, advocates the
application of an abuse of discretion standard to an appellate court’s entire review of the trial
court’s Ferguson analysis. We conclude that the trial court’s decision concerning the
fundamental fairness of the trial must be reviewed under a de novo standard. If we conclude
that the trial would be fundamentally unfair in the absence of the lost evidence, we will apply
an abuse of discretion standard to review the appropriateness of the remedy imposed by the
trial court.

       Our decision in Ferguson rests on the Tennessee Constitution and its due process
clause. Tenn. Const. art. I, § 8. Although we determined that the minimum level of
protection mandated by the federal constitution should be expanded under the Tennessee
Constitution when evidence is lost or destroyed, it is appropriate to consider the standard of
review used by the United States Supreme Court in reviewing decisions involving the United
States Constitution.

       In Ornelas v. United States, 517 U.S. 690 (1996), the Supreme Court examined the
appropriate standard of review in determining reasonable suspicion or probable cause under
the Fourth Amendment and held that a de novo review is appropriate when reviewing
decisions involving the United States Constitution. Ornelas, 517 U.S. at 697-99. The
Supreme Court specifically rejected the application of a deferential standard of review to the
determination of constitutional issues. Id. at 697. The Court in Ornelas reasoned that de
novo review, unlike an abuse of discretion standard, will prevent unacceptably varied results
based on the interpretation of similar facts by different trial judges and “is therefore
necessary if appellate courts are to maintain control of, and to clarify, the legal principles.”
Id. Further, de novo review will tend to unify precedent and stabilize the law. Id.




        7
           We recognize, however, that the Court of Criminal Appeals has frequently applied an abuse of
discretion standard when reviewing trial court decisions under Ferguson. See, e.g., State v. Asbury, No.
E2011-00431-CCA-R3-CD, 2012 WL 4459819, at *11 (Tenn. Crim. App. Sept. 27, 2012); State v. Clark,
No. E2009-01795-CCA-R3-CD, 2011 Tenn. Crim. App. LEXIS 808, at *25 (Tenn. Crim. App. Oct. 24,
2011); State v. Capps, No. E2007-02734-CCA-R3-CD, 2012 WL 690685, at *4 (Tenn. Crim. App. Mar. 13,
2009); see also State v. Lawrence, No. E2007-00114-CCA-R9-CD, 2008 WL 704355, at *13, *15 (Tenn.
Crim. App. Mar. 17, 2008) (applying an abuse of discretion standard to both the trial court’s determination
that the investigating officers had a duty to preserve the physical evidence and to the trial court’s decision
to suppress other evidence as an appropriate remedy).

                                                    -11-
        Although the Supreme Court held that de novo review is appropriate when reviewing
constitutional issues, it stated that deference should be given to a trial court’s findings of fact.
Ornelas, 517 U.S. at 699; see also Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532
U.S. 424, 436 (2001) (applying the de novo standard of Ornelas in reviewing a court’s
determination of whether a punitive damages award was “constitutionally excessive”);
United States v. Bajakajian, 524 U.S. 321, 336 n.10 (1998) (citing Ornelas and applying the
de novo standard with deference given to the lower court’s factual findings in a punitive
forfeiture proportionality determination).

       While not binding on this Court, the United States Supreme Court’s reasoning in
Ornelas is instructive in determining the appropriate standard for our review of a trial court’s
application of the Ferguson factors and its conclusion as to whether the lost or destroyed
evidence will render a trial fundamentally unfair under article I, section 8 of the Tennessee
Constitution. Moreover, this analysis is not without precedent in our appellate review. For
example, we review post-conviction cases using a de novo standard of review, which is
embodied in Rule 13(d) of the Tennessee Rules of Appellate Procedure. Fields v. State, 40
S.W.3d 450, 456 (Tenn. 2001). Under the Rule 13(d) standard, appellate courts review a trial
court’s conclusions of law and mixed questions of law and fact de novo with no presumption
of correctness. Tenn. R. App. P. 13(d); Fields, 40 S.W.3d at 457-58. The trial court’s
findings of fact, however, are entitled to substantial deference on appeal and are conclusive
unless the evidence preponderates against them. Tenn. R. App. P. 13(d); Henley v. State, 960
S.W.2d 572, 578 (Tenn. 1997). Because the application of Ferguson, like Ornelas, presents
a constitutional issue, we will apply a de novo standard of review to the trial court’s decision
concerning the fundamental fairness of the trial.

        We next determine the standard of review applicable to a trial court’s chosen remedy
for the denial of a defendant’s right to a fundamentally fair trial. We have traditionally
applied an abuse of discretion standard to a trial court’s decision to dismiss an indictment.
See State v. Benn, 713 S.W.2d 308, 311 (Tenn. 1986) (applying an abuse of discretion
standard to a trial court’s decision to dismiss an indictment under Rule 48(b) of the
Tennessee Rules of Criminal Procedure); State v. Harris, 33 S.W.3d 767, 771-72 (Tenn.
2000) (applying an abuse of discretion standard to a trial court’s decision to dismiss a
superseding indictment). A trial court abuses its discretion when it applies an incorrect legal
standard or reaches a decision that is against logic or reasoning and that causes an injustice
to the party complaining. State v. Turner, 352 S.W.3d 425, 428 (Tenn. 2011).

       In Ferguson, we held that dismissal of the indictment was only one of the possible
remedies available to the trial court and indicated that the trial court had broad authority to
fashion a remedy. Ferguson, 2 S.W.3d at 917. Ferguson clearly recognizes the discretion
that should be afforded the trial court in fashioning the appropriate remedy under the
circumstances. For these reasons, we hold that the trial court’s choice of remedy is subject

                                               -12-
to review under the abuse of discretion standard. Thus, when the chosen remedy is consistent
with the findings made by the trial court utilizing the Ferguson considerations, we will not
overrule that choice on appeal.

                               D. Application of Standard of Review

       We now turn to the application of the standard of review to the facts of this case.
Although we give deference to the trial court’s factual findings, we will review the trial
court’s conclusion that Ms. Merriman would have been denied a fundamentally fair trial de
novo with no presumption of correctness.

       Initially, we consider whether the State had a duty to preserve the video recording.8
For this duty to arise, the video recording must be expected to play a significant role in Ms.
Merriman’s defense. Specifically, the video recording must have potential exculpatory value
and be of such a nature that Ms. Merriman would be unable to obtain comparable evidence
by other reasonably available means. Ferguson, 2 S.W.3d at 917.

        The value of video evidence in a traffic stop generally hinges on a number of factors,
including weather conditions, placement of video equipment, and the types of field sobriety
tests administered. In this case, the State has not argued that the video recording was of poor
quality or was less than complete. To the contrary, Officer Hammond, the only person
known to have viewed the video recording, testified unequivocally that the video recording
would have been useful at trial.9 From this testimony, we can surmise that video quality was
not at issue and that the video had evidentiary value.

        The materiality standard, however, requires that the video recording have “potential”
exculpatory value. According to Officer Hammond, the video recording captured Ms.
Merriman’s conduct in its entirety. Therefore, the video recording was relevant evidence as
to all of Ms. Merriman’s charges. Although the video recording is not available for viewing,
we recognize that the video recording could have been beneficial evidence to both the State
and Ms. Merriman. Had the case proceeded to trial, the fact-finder could have viewed the


        8
          Although audio or video recordings are frequently used by law enforcement, officers have no duty
to make such recordings. Once created, however, these recordings become part of the State’s evidence
against a defendant and are subject to the discovery requirements of Tennessee Rule of Criminal Procedure
16 and Brady.
        9
           This testimony highlights the difficulty in assessing the value of lost evidence. Officer Hammond
testified that the evidence would have been helpful to the State’s case. Without the lost evidence, however,
his opinion as to whether the lost evidence is inculpatory or exculpatory should not control the trial court’s
finding under Ferguson. To conclude otherwise would be to effectively dispense with the need for a
Ferguson examination when evidence is lost or destroyed.

                                                    -13-
video recording and made its own determinations as to whether Ms. Merriman was driving
recklessly in a manner that endangered Officer Hammond and whether Ms. Merriman’s
performance on the field sobriety tests was attributable to her use of Valium and
hydrocodone or to her health issues as she claimed. We are satisfied that the video recording
had potential exculpatory value.

      For the State to have a duty to preserve evidence, we must also find that Ms.
Merriman would be unable to obtain comparable evidence by other reasonably available
means. A video recording from a patrol vehicle is unique by its very nature. No evidence
comparable to this video recording could have been obtained through other means.

       Although we are unable to assess the precise nature of the evidence contained in the
lost video recording, Officer Hammond’s testimony established that the video recording
“might be expected to play a significant role in [Ms. Merriman’s] defense.” The State
therefore had a duty to preserve the video recording as potentially exculpatory evidence.
Ferguson, 2 S.W.3d at 917. The State therefore failed in its duty when it lost the video
recording.

       Having concluded that the State failed in its duty to preserve the video recording, our
review turns to the three remaining Ferguson factors provided to guide the decision in this
case regarding the consequences of the State’s failure. Ferguson, 2 S.W.3d at 917.

       The first factor we consider is the degree of negligence involved in the State’s failure
to preserve the video recording. In Ferguson, we indicated that when potentially exculpatory
evidence is lost or destroyed, negligence by the State is presumed. Ferguson, 2 S.W.3d at
917 n.10. In this case, the presumption is not overcome.

        The McMinnville Police Department had a procedure in place for the recording and
preservation of video evidence. The standard procedure required the arresting officer to
review a video recording following the arrest in preparation of the officer’s field notes. A
supervisor or patrol captain was responsible for removing from the patrol vehicles the hard
drive on which the video recordings were stored and for logging the drive into evidence.
Officer Hammond followed the McMinnville Police Department’s standard procedure when
he reviewed the video recording to make field notes following the arrest. Officer Hammond
could offer no further testimony on the chain of custody of the video recording after it left
his patrol car. According to Officer Hammond, Sergeant Jones was unable to locate the
video recording despite repeated attempts to do so. No evidence was presented, however,
to indicate that the supervisor or patrol captain violated their respective obligations under the
established policy.




                                              -14-
        At the conclusion of Officer Hammond’s testimony, the trial court accurately recited
the first Ferguson consideration but expressed its difficulty in determining whether the loss
of the video resulted from gross negligence or general negligence. The trial court’s failure
to state the specific degree of negligence is not fatal. From our own review, we find that the
conduct in this case amounts to simple negligence.

       The second Ferguson factor examines the significance of the destroyed evidence
considered in light of the probative value and reliability of the remaining secondary or
substitute evidence. Ferguson, 2 S.W.3d at 917. In this case, the video recording was the
only non-testimonial evidence of Officer Hammond’s pursuit and stop of Ms. Merriman’s
vehicle. The trial court described the video recording as key evidence of Ms. Merriman’s
driving and her performance on the field sobriety tests, specifically distinguishing Ms.
Merriman’s case from Ferguson and other cases in which blood or breath evidence is also
presented. Noting the absence of a passenger in either Ms. Merriman’s vehicle 10 or Officer
Hammond’s vehicle, the trial court reasoned that without the video, “[the case] would remain
[Ms. Merriman’s] word against [Officer Hammond’s].” As a result, the video recording was
highly probative in determining what actually occurred during Ms. Merriman’s traffic stop.

       The issues of Ms. Merriman’s driving and her performance on the field sobriety tests
were central to the State’s case against Ms. Merriman. Although we cannot determine
whether the video recording ultimately would have favored the State’s or Ms. Merriman’s
position, the loss of the video recording prevented the fact-finder from viewing the events
as they actually occurred. Because no other secondary or substitute evidence was available,
the case was reduced to a credibility contest between the officer or officers and Ms.
Merriman, had she elected to testify at trial. We conclude, therefore, that the video recording
would have played a significant role in the outcome of Ms. Merriman’s case.

        The final Ferguson factor requires us to consider the sufficiency of the remaining
evidence used at trial to support the convictions. Officer Hammond testified that he first
encountered Ms. Merriman when her vehicle entered into his lane of travel from the center
turn lane. Officer Hammond’s observations of Ms. Merriman’s driving presumably serve
as the factual basis for the reckless endangerment and reckless driving charges.

       As to the DUI charge, the trial court summarized the State’s evidence as including the
testimony of Officer Hammond and possibly the testimony of Sergeant Jones, should he be
called as a witness at trial. Officer Hammond described his attempts to administer field
sobriety tests, but his testimony is inconclusive. We can glean from his testimony that he


        10
           The transcript indicates that Ms. Merriman’s two minor children (ages 7 and 10) were present in
her vehicle during the traffic stop in question. The children’s presence served as the factual basis of some
of the criminal charges. The children were not called as witnesses.

                                                   -15-
administered the HGN test and one other unidentified test. Ms. Merriman was unable to
perform on a third unidentified test due to her health problems. Although Officer Hammond
failed to explicitly state how Ms. Merriman performed on the tests, the reasonable inference
we can draw from the entirety of his testimony is that Ms. Merriman’s performance was
unsatisfactory in Officer Hammond’s judgment. Had he testified, Sergeant Jones’ testimony
likely would have corroborated the testimony of Officer Hammond. Because Ms. Merriman
refused testing under the implied consent law, no blood or breath testing was conducted. No
alcohol was involved but Ms. Merriman admitted to her earlier ingestion of a Valium and
hydrocodone. The trial court found the remaining evidence to be minimal.

        As noted above, we review the trial court’s conclusions of law and mixed questions
of law and fact de novo with no presumption of correctness. Fields, 40 S.W.3d at 456.
However, we recognize that the trial court’s findings of fact are entitled to substantial
deference on appeal and are conclusive unless the evidence preponderates against them.
Henley, 960 S.W.2d at 578. We conclude that the evidence does not preponderate against
the trial court’s factual determinations.

                            E. Application of Ferguson Factors

       We review the application of the Ferguson considerations de novo and conduct our
own balancing analysis. The State had no duty to create a video recording of Ms.
Merriman’s traffic stop. When the video was recorded, however, it became a part of the
State’s evidence against Ms. Merriman and its disclosure was required under Tennessee Rule
of Criminal Procedure 16 and Brady. Applying our materiality standard, we conclude that
the video recording could be expected to play a significant role in the outcome of Ms.
Merriman’s case. The video recording possessed potential exculpatory value, and no
evidence comparable to this video recording could have been obtained through other means.
We conclude that the State had a duty to preserve the video recording and failed in its duty
when it lost the video recording.

        Having determined that the State had a duty to preserve the video recording, we turn
to the remaining Ferguson considerations. We conclude that the loss of the video recording
resulted from simple negligence. Although the McMinnville Police Department had a policy
in place for the collection and storage of video evidence, the loss of the hard drive on which
Ms. Merriman’s video recording was stored was not explained.

       The two final Ferguson considerations require us to consider the significance of the
video recording and the sufficiency of the remaining evidence. The lost evidence was
significant because it recorded Ms. Merriman’s conduct, which provided the factual basis for
her charges. The video was a recording of the alleged offenses as they occurred, was
probative of the issues surrounding all three dismissed charges, and was the only non-

                                             -16-
testimonial evidence of the pursuit and stop of Ms. Merriman’s vehicle. We must consider
the significance of the video recording, however, in light of the sufficiency of the other
evidence.

       Without the video recording, the evidence supporting the reckless endangerment and
reckless driving charges consisted of Officer Hammond’s account of his encounter with Ms.
Merriman. If the video recording had not been created, the sufficiency of the evidence would
have been determined by the fact finder based on testimonial evidence and credibility
determinations derived from that evidence. We recognize, as did the trial court, that a video
recording is not required, and the evidence in most traffic cases consists entirely of
testimonial evidence. The video recording became more significant in this case because the
only remaining evidence of the reckless endangerment and reckless driving was Officer
Hammond’s testimony. According to Officer Hammond, the video recording would have
shown Officer Hammond’s view of Ms. Merriman’s vehicle and would have shown her
crossing the center lane. The quality and value of the video recording was validated by
Officer Hammond. Its loss prevented Ms. Merriman and any fact finder from viewing the
events as they actually occurred.

       We also consider the evidence that served as the factual basis for the DUI charge.
When the video recording was removed from consideration as evidence, the State’s DUI
evidence was reduced to Officer Hammond’s testimony and possibly that of Sergeant Jones.
According to Officer Hammond, Ms. Merriman admitted she had ingested a Valium and
hydrocodone. Officer Hammond said he attempted to administer three field sobriety tests.
He identified one test as the HGN but did not identify the remaining two tests.11 Ms.
Merriman was unable to perform one of the tests due to her health issues but presumably
completed the remaining test. From all indications, Officer Hammond believed that Ms.
Merriman had performed unsatisfactorily on the tests. The trial court anticipated that
Sergeant Jones would corroborate this testimony, an observation that was not corrected by
the State.

       The evidence presented to the trial court was not atypical of that presented in DUI
cases, but it was not overwhelming. Unlike the testimony offered in Ferguson, Officer
Hammond did not testify as to any indicia of alcohol use, and no test results based on breath
or blood analysis were available because Ms. Merriman’s refused to submit to testing under
the implied consent law. In reviewing the Ferguson considerations, we conclude that the
video recording became more significant in light of the relative strength of the State’s case.


        11
           Due to the strict admissibility requirements for the HGN test, it is unclear whether the results
would have been inadmissible at trial. See Murphy, 953 S.W.2d at 203. Without the HGN test results, the
State’s evidence relating to Ms. Merriman’s performance on field sobriety tests was reduced to one
unspecified test.

                                                   -17-
Our balancing of the Ferguson factors leads us to the conclusion that the loss of the video
recording under the facts of this case deprived Ms. Merriman of her right to a fair trial.

                                               F. Remedy

       We now review the trial court’s remedy for the State’s failure to preserve the video
recording. We will not overturn the trial court’s dismissal of Ms. Merriman’s charges absent
a finding that the trial court abused its discretion.

       At the conclusion of the July 13, 2011 hearing, the trial court granted Ms. Merriman’s
motion to dismiss the indictment despite its finding that the case presented a “close call.”
The trial court specifically rejected the State’s suggestion of the alternative remedy of the
pattern jury instruction for missing evidence.12 The court reiterated its opinion that the video
recording was “very strong evidence . . . that would be needed for the jury to make the best
determination they could without having to speculate.” The trial court found that “the police
had an obligation to maintain [the video recording] and they didn’t and there is no good
answer why.”

       Under Ferguson, the trial court is afforded wide discretion in fashioning a remedy
when it concludes that a trial without the lost or destroyed evidence would not be
fundamentally fair. Ferguson, 2 S.W.3d at 917. Ferguson did not establish separate factors
to guide the trial court’s choice of remedy. It is logical that a more severe remedy may be
warranted when the conduct is egregious or the evidentiary value of the lost evidence is more
significant. Thus, dismissal of an indictment will not always be the appropriate remedy for
a Ferguson violation. See Thorne v. Dep’t of Public Safety, 774 P.2d 1326, 1331 (Alaska
1989) (determining an appropriate sanction for failure to preserve evidence by looking to the
culpability of the state, the importance of the evidence lost, and the evidence of guilt). As
noted, the trial court was troubled by the unexplained loss of the video recording. More
importantly in conducting Ferguson’s balancing analysis, the trial court concluded that the


       12
            Section 42.23 of the Tennessee Pattern Jury Instructions provides:

       The State has a duty to gather, preserve, and produce at trial evidence which may possess
       exculpatory value. Such evidence must be of such a nature that the defendant would be
       unable to obtain comparable evidence through reasonably available means. The State has
       no duty to gather or indefinitely preserve evidence considered by a qualified person to have
       no exculpatory value, so that an as yet unknown defendant may later examine the evidence.

       If, after considering all of the proof, you find that the State failed to gather or preserve
       evidence, the contents or qualities of which are an issue and the production of which would
       more probably than not be of benefit to the defendant, you may infer that the absent
       evidence would be favorable to the defendant.

                                                   -18-
video recording’s significance was elevated due to the minimal remaining evidence. Nothing
in the record indicates the trial court applied an incorrect standard or reached a decision that
is against logic or reasoning. Recognizing that the remedy of dismissal of charges under
Ferguson should not be imposed lightly, we nonetheless hold that the trial court did not abuse
its discretion in dismissing the charges of driving under the influence, reckless
endangerment, and reckless driving.

                                        III. Conclusion

       We hold that under Ferguson, the standard of review of a trial court’s determination
as to whether a defendant was deprived of a fundamentally fair trial is de novo with no
presumption of correctness. Deference should be given to the trial court’s findings of fact,
however, unless the evidence preponderates otherwise. A trial court’s determination of the
appropriate remedy for the State’s failure to preserve the evidence is reviewed under an
abuse of discretion standard. We affirm the trial court’s dismissal of the charges of driving
under the influence, reckless endangerment, and reckless driving. Costs of this appeal are
taxed to the State of Tennessee.




                                                     _________________________________
                                                     JANICE M. HOLDER, JUSTICE




                                              -19-
