           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                    July 26, 2011 Session

                     STATE OF TENNESSEE v. CASEY TREAT

                Direct Appeal from the Circuit Court for Sevier County
                       No. 14898-II Richard R. Vance, Judge




                No. E2010-02330-CCA-R3-CD - Filed November 18, 2011



A Sevier County grand jury indicted the Defendant, Casey Treat, for driving under the
influence and driving under the influence per se. The Defendant pled guilty but reserved a
certified question of law, pursuant to Tennessee Rule of Criminal Procedure 37(b)(2), as to
whether the absence of the video recording of his stop violated his constitutional rights.
After review, we conclude that this Court does not have jurisdiction to address the certified
question because it does not comply with the strict requirements of Tennessee Rule of
Criminal Procedure 37(b)(2), as the certified question is (1) not dispositive of the case and
(2) overly broad. Accordingly, the appeal is dismissed.

                Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which C AMILLE R.
M CM ULLEN, J., joined. J.C. M CL IN, J., not participating.1

Ronald C. Newcomb, Knoxville, Tennessee for the Appellant, Casey Treat.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; James Dunn, District Attorney General, and Greg Eshbaugh, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                            OPINION

                                             I. Facts



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       The Honorable J.C. McLin died September 3, 2011, and did not participate in this opinion. We
acknowledge his faithful service to this Court.
       This case arises from a traffic stop that resulted in the Defendant’s arrest for driving
under the influence (“DUI”). On January 11, 2010, a Sevier County grand jury indicted the
Defendant for DUI and DUI per se. Subsequently, the State dismissed the count of DUI but
pursued the charge of DUI per se. The record reflects that the police officer who conducted
the Defendant’s traffic stop was later involved in a vehicle accident, which totaled his police
cruiser and destroyed the video camera and the video tape of the Defendant’s traffic stop
located inside the cruiser.

                                 A. Suppression Hearings

        On February 5, 2010, the Defendant filed a motion to suppress and/or dismiss the
evidence obtained at the traffic stop. Specifically, the Defendant argued that the destruction
of the recording deprived him of a fundamentally fair trial because a copy of the video is not
available to the Defendant. He contended that all evidence arising out of the occurrence
should be suppressed, and the indictments against him should be dismissed for lack of
evidence due to the loss of the video recording. The Defendant also argued that the loss of
the recording violated the exculpatory evidence requirements of Brady v. Maryland, the
confrontation clause under Crawford v. Washington, and the Best Evidence rule. On April
12, 2010, the trial court held a hearing on the motion. Neither the State nor the Defendant
presented witnesses at the hearing. The trial court denied the motion.

       The Defendant then filed a motion in limine to exclude any evidence of the blood
alcohol content results based upon the destroyed video recording. In support of his motion,
he cited the same authorities used in the motion to suppress and contended that he had no
way to challenge the probable cause for the traffic stop. Before the Defendant entered his
guilty plea, the trial court held a hearing on the Defendant’s motion. Like the first motion
to suppress, the parties presented no witnesses and made arguments based on the filed briefs.
The trial court denied the motion finding that there was no willful destruction or concealment
of the evidence on the video recording, and the loss of the video tape did not deprive the
Defendant of a fair trial.

                                  B. Guilty Plea Hearing

       The Defendant offered a plea of guilty to the charge of DUI per se and attempted to
reserve a certified question of law, alleging the destruction of the police cruiser video
recording violated his constitutional rights. At the hearing, the State offered the following
evidence in support of the Defendant’s guilty plea:

       [O]n the 23rd day of August [2009], . . . Officer Webb observed the vehicle
       being driven by [the Defendant] traveling in an excess of the speed limit as

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       well as weaving in and out of his lane of travel on Boyds Creek Highway in
       Sevier County. After a stop, Officer Webb detected a severe odor of alcohol
       about [the Defendant’s] vehicle and person. Officer Webb asked him to
       perform field sobriety tests on which he performed poorly. He was requested
       to submit to a blood draw. That was agreed to, . . . and it yielded a result of
       .19 percent . . . .

The trial court accepted the plea and sentenced the Defendant in accordance with the plea
agreement to the agreed eleven months and twenty-nine days in the county jail, all suspended
except for five days.

                                         II. Analysis

        On appeal, the Defendant attempts to present a certified question of law in which he
argues that the destruction of the video recording violated his constitutional rights. The State
argues that the loss of the videotape is not dispositive in this case and that the certified
question is overly broad. After review, we conclude the Defendant has, in fact, failed to
properly reserve his certified question of law for appeal; therefore, this Court lacks
jurisdiction to consider the appeal and the appeal should be dismissed.

                               A. Certified Question of Law

       Because this appeal comes before us as a certified question of law, pursuant to Rule
37(b) of the Tennessee Rules of Criminal Procedure, we must first determine whether the
question presented is dispositive. An appeal lies from any judgement of conviction upon a
plea of guilty if the defendant entered into a plea agreement under Rule 11(a)(3) but
explicitly reserved, with the consent of the State and the court, the right to appeal a certified
question of law that is dispositive of the case. Tenn. R. Crim. P. 37(b)(2); see State v.
Preston, 759 S.W.2d 647, 650 (Tenn. 1988). This Court is not bound, however, by that
determination and agreement. Tenn. R. Crim. P. 37(b)(2)(A)(iv); State v. Thompson, 131
S.W.3d 923, 925 (Tenn. Crim. App. 2003). The reviewing court must make an independent
determination that the certified question is dispositive. Preston, 759 S.W.2d at 651.

        Further, the following are prerequisites for an appellate court’s consideration of the
merits of a question of law certified pursuant to Rule 37(b)(2):

       (i) The judgment of conviction, or other document to which such judgment
       refers that is filed before the notice of appeal, contains a statement of the
       certified question of law reserved by the defendant for appellate review;



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       (ii) The question of law is stated in the judgment or document so as to identify
       clearly the scope and limits of the legal issue reserved;

       (iii) The judgment or document reflects that the certified question was
       expressly reserved with the consent of the state and the trial judge; and

       (iv) The judgment or document reflects that the defendant, the state, and the
       trial judge are of the opinion that the certified question is dispositive of the
       case . . . .

Tenn. R. Crim. P. 37(b)(2)(A)(i)-(iv).

       In State v. Preston, our Supreme Court stated its intention to “make explicit to the
bench and bar exactly what the appellate courts will hereafter require as prerequisites to the
consideration of the merits of a question of law certified pursuant to Tenn. R. Crim. P.
37(b)(2)(i) or (iv).” 759 S.W.2d at 650. First, the final order or judgment appealed from must
contain a statement of the dispositive question of law reserved for review. Id. The question
must clearly identify the scope and limits of the legal issue and must have been passed upon
by the trial judge. Id. Second, the order must also state that: (1) the certified question was
reserved as part of the plea agreement; (2) the State and the trial judge consented to the
reservation; and (3) both the State and the trial judge agreed that the question dispositive of
the case. Id. Third, the defendant bears the burden of satisfying the prerequisites. Id.

       A defendant may comply with these requirements either by using the judgment or a
separate document. State v. Irwin, 962 S.W.2d 477, 479 (Tenn. 1998). If a separate
document is used, it must be clearly referred to or incorporated by reference into the
judgment. Id. However, the Tennessee Supreme Court has warned that mere “substantial
compliance” with Preston is not sufficient to acquire appellate review of the certified
question. State v. Armstrong, 126 S.W.3d 908, 912 (Tenn. 2003). In Armstrong, our
Supreme Court reiterated that strict compliance with Preston is required:

              [O]ur prior decisions demonstrate that we have never applied a
       substantial compliance standard to the Preston requirements as urged by the
       defendant in this case. To the contrary, we have described the requirements
       in Preston for appealing a certified question of law under Rule 37 of the
       Tennessee Rules of Criminal Procedure as “explicit and unambiguous.”
       Moreover, we agree with the State that a substantial compliance standard
       would be very difficult to apply in a consistent and uniform manner, and
       therefore would conflict with the very purpose of Preston. We therefore reject
       the defendant’s argument that substantial compliance with the requirements set

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       forth in Preston is all that is necessary in order to appeal a certified question
       of law.

Armstrong, 121 S.W.3d at 912 (citations omitted).

        Further, this Court has consistently and repeatedly held that the Preston requirements
are jurisdictional. See State v. Faith Whitley, No. W2006-02595-CCA-R3-CD, 2008 WL
450617, at *3 (Tenn. Crim. App., at Jackson, Feb. 19, 2008) (citing multiple cases, including
State v. Long, 159 S.W.3d 885, 887 (Tenn. Crim. App. 2004) and State v. Boyd, 51 S.W.3d
206, 210 (Tenn. Crim. App. 2000)), no Tenn. R. App. P. 11 application filed.

       In the case under submission, the question reserved reads as follows:

               Whether the Trial Court erred in denying Defendant’s Motion to
       Suppress and/or Dismiss filed on February 5, 2010[,] and denied . . . on April
       12, 2010, and Defendant’s Motion in Limine filed on October 8, 2010[,] and
       denied . . . on October 12, 2010, thereby failing to dismiss the Indictment,
       suppress all evidence of bad driving, field sobriety testing, general demeanor
       and appearance blood alcohol test results; or exclude in limine at trial all
       evidence of blood alcohol test results of .19 (19%) blood alcohol content,
       without which the state of Tennessee could not prove intoxication; for
       violation of Defendant’s 4th , 5th , and 5th Amendment rights under the United
       States Constitution; State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999)[,] regarding
       lost evidence; Brady v. Maryland, 373 U.S. 83 (1963)[,]regarding discovery;
       and Crawford v. Washington, 124 S. Ct. 1354; and Melendez-Dias v.
       Massachusetts[,] 1295 S. Ct. 2527 [sic] [,] regarding the confrontation clause;
       and TRE 1002[,] regarding best evidence; as the audio video of the pursuit,
       stop, and field sobriety testing, arrest and request for blood alcohol testing
       recording the alleged reasonable suspicion and probable cause for request to
       submit to field sobriety testing, blood alcohol testing[,] and arrest has been
       negligently destroyed, but not grossly negligent, in a subsequent, unrelated
       vehicle accident destroying the cruiser wherein the audio video was stored, and
       as such[,] deprives Defendant of his right to the only objective evidence to
       challenge the reasonable suspicion and probable cause of the pursuit, stop,
       request for and administration of field sobriety testing, request for blood
       alcohol testing; arrest and criminal charge; right to a fundamentally fair trial
       under the Due Process Clause; right to discovery; right to confront the
       witnesses and evidence against Defendant; and the best evidence based on the
       authorities cited herein.



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              This Honorable Court and the parties specifically incorporate the issues,
       arguments[,] and authorities previously filed in Defendant’s Motion to
       Suppress and/or Dismiss . . . and Defendant’s Motion in Limine . . . in the
       Final Judgment and Plea Agreement in support of the Certified Question of
       Law reserved for appellate review.

We conclude that this question is not dispositive to this case and is overly broad; therefore
it violates the requirements provided in Tennessee Rule of Criminal Procedure 37(b)(2) and
the mandates announced in Preston.

        First, we conclude that the question of law regarding the destruction of the video
recording is not dispositive to the Defendant’s conviction for DUI per se, thus, it is not
reviewable pursuant to Tenn. R. Crim. P. 37. Appellate courts frequently disagree with a
trial court’s finding of dispositiveness and, accordingly, decline to consider the reserved
question. State v. Dailey, 235 S.W.3d 131, 136 (Tenn. 2007) (stating that “numerous
attempts to appeal certified questions have been unsuccessful on the basis that the certified
question was determined by the appellate courts not to have been dispositive.”). It is enough
for the record on appeal to demonstrate that evidence apart from the challenged item supports
the State’s charges. Id. If the record does indeed contain evidence in surplus of that which
supports the State’s charges, then the defendant’s reserved question is not dispositive and,
therefore, not eligible for review. See id.; see also Tenn. R. Crim. P. 37(b)(2).

        As stated above, the State would have had Officer Webb of the Sevier County
Sheriff’s Office testify at trial that he observed the Defendant’s vehicle traveling in excess
of the speed limit, as well as weaving in and out of his lane of travel. At the stop, Officer
Webb detected a strong odor of alcohol on the Defendant’s person and about his vehicle.
Based upon these observations, Officer Webb conducted field sobriety tasks, on which the
Defendant’s level of performance indicated impairment. Officer Webb also obtained consent
from the Defendant to draw his blood, which yielded a blood alcohol content of .19.

       In our view, in light of Officer Webb’s testimony at trial, the destruction of the video
recording of the traffic stop is not dispositive and, therefore, is not properly before this Court.
As such, we cannot properly review this issue pursuant to Tennessee Rule of Criminal
Procedure 37.

       Second, the certified question is overly broad because it is not clearly stated as to
identify the scope and limits of the legal issue reserved. The Defendant bears the burden of
“reserving, articulating, and identifying the issue.” State v. Pendergrass, 937 S.W.2d 834,
838 (Tenn. 1996). The question as posed does not narrowly construe the issues and does not
sufficiently identify the scope and limits of the alleged due process violations. The question

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does not articulate the reasons previously relied upon by the Defendant in support of his
arguments nor does it describe the trial court’s holdings on the constitutional issues presented
by the Defendant; therefore, the Defendant fails to provide an adequate basis for this Court’s
review. As such, we lack jurisdiction to review the merits of the Defendant’s claim because
he failed to properly reserve his certified question of law. We take no satisfaction in the
dismissal of this or the many other failed Rule 37(b)(2) appeals. We, however, cannot
assume jurisdiction where it is denied due to failures in meeting the strict prerequisites. See
Armstrong, 126 S.W.3d at 912; Whitley, 2008 WL 450617, at *3.

                                       III. Conclusion


        After a thorough review of the record and relevant authorities, we conclude that the
Defendant failed to properly frame his certified question of law. As such, this Court has no
jurisdiction to entertain the appeal, and the appeal is dismissed.




                                                     ________________________________
                                                      ROBERT W. WEDEMEYER, JUDGE




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