         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs January 18, 2001

                     STATE OF TENNESSEE v. THOMAS HICKS

                 Direct Appeal from the Criminal Court for Davidson County
                           No. 98-C-1769    Seth Norman, Judge



                       No. M2000-00404-CCA-R3-CD - Filed April 6, 2001


The Defendant was convicted by a Davidson County jury of aggravated robbery and sentenced by
the trial court to twenty-two years in the Tennessee Department of Correction. On appeal, the
Defendant argues that the trial court erred in failing to suppress the Defendant’s confession. The
confession had been videotaped by police detectives, but the video tape was accidentally erased prior
to trial. Finding no error by the trial court, we affirm the Defendant’s conviction.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JERRY L. SMITH and
THOMAS T. WOODALL , JJ., joined.

Daniel L. McMurtry, Nashville, Tennessee, for the Appellant, Thomas Hicks.

Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Pamela Anderson, Assistant District
Attorney General for the Appellee, State of Tennessee.


                                               OPINION

                                  I. Facts and Procedural History

        The Defendant was indicted by the Davidson County Grand Jury in July, 1998 for the
aggravated robbery on November 4, 1996 of Rhonda Atwood, an employee of the Kroger store on
Murfreesboro Road in Nashville, Tennessee. On the morning of trial, October 11, 1999, at 8:50
a.m., the Defendant filed a “motion in limine to suppress confession.” Counsel for the Defendant
conceded to the trial court that the motion was filed late, but argued that the circumstances of the
motion were “. . . a little bit different situation, in that the State lost the videotape that [his] client
supposedly confessed on.”
       Counsel for the State explained to the trial court that the videotape of the confession had been
accidentally “taped over” and offered to present the testimony of Detective Harold Dean Haney to
explain the circumstances surrounding the erasing of the videotape. The trial court allowed defense
counsel the opportunity to question Detective Haney, but this offer was declined.

       The trial court overruled the “motion in limine to suppress confession” without making
findings of fact and conclusions of law. Immediately thereafter, a jury was selected, and the trial
began.

       Along with other evidence implicating the Defendant in the aggravated robbery, evidence
regarding Defendant’s confession and the circumstances surrounding the erasing of the videotape
was also presented to the jury at trial.

        Detective Haney testified that he was a twenty-year veteran of the Metro Police Department
and had been assigned to the armed robbery unit for “a little over” eleven years. He was thus
assigned to the armed robbery unit at the time of the Murfreesboro Road Kroger store robbery on
November 4, 1996. Detective Haney testified that he interviewed the Defendant, who was a suspect
in the Kroger robbery, on November 13, 1996 at the Criminal Justice Center. F.B.I. Agent John
Grant was also present for the interview, which was videotaped. Detective Haney testified that the
Defendant was informed of his Miranda rights, see Miranda v. Arizona, 384 U.S. 436 (1966), and
that the Defendant signed a written waiver of those rights prior to giving a statement. Detective
Haney wrote a supplement that summarized the Defendant’s statement. Haney testified that the
Defendant admitted that he committed the robbery and gave details about the amount of money
obtained and the vehicle used that were consistent with other evidence pertaining to the robbery.
According to Haney, the Defendant further admitted that he used a gun during the robbery.

        Detective Haney testified that he preferred to videotape interviews of suspects and witnesses
when possible, but that videotaping was not required. He explained that if the stop button is not
pushed, a videotape will go to the very end of the tape, where “[i]t will hit rewind. Go to the very
beginning of the tape and start recording again.” Although Detective Haney thought that the
interview with the Defendant had been videotaped properly, he later learned from the F.B.I. (to
whom he had given the videotape in question) that the interview of the Defendant had been
“recorded over.” Although Detective Haney was upset by this turn of events, he stated that he had
no difficulty remembering the details of the interview and that he did not attempt to videotape
another interview with the Defendant.

                                            II. Analysis

       The Defendant argues in this appeal that the trial court erred by failing to grant the
Defendant’s “motion in limine to suppress confession”. The Defendant includes in this argument
the complaint that the trial court overruled the Defendant’s motion to suppress “[w]ith no finding
noted.” The Defendant alleges generally that his constitutional right to due process was violated by



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the trial court’s failure to suppress his confession and that the trial court’s failure to suppress his
confession is reversible error.

        We begin our analysis with the proposition that a trial court’s determination at a suppression
hearing is presumptively correct on appeal, State v. Stephenson 878 S.W. 2d 530, 544 (Tenn. 1994),
and the findings are binding upon this Court unless the evidence contained in the record
preponderates against them. State v. Binette, 33 S.W. 3d 215, 217 (Tenn. 2000). Matters involving
the credibility of witnesses, the weight and value to be afforded the evidence, and resolution of
conflicts in the evidence are entrusted to the trial court as the trier of fact. State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996). On appeal, the defendant has the burden of showing that the evidence
preponderates against the trial court’s determination. see State v. Buck, 670 S.W.2d 600, 610 (Tenn.
1984).

        In this case, the Defendant presented no evidence in support of his “motion in limine to
suppress confession.” The trial court offered the Defendant’s counsel the opportunity to present the
testimony of Detective Haney concerning “the disposition on the loss of the supposed statement,”
and counsel declined. We cannot find fault with the trial court’s failure to make findings of fact
when no evidence was presented to the trial court from which to make such findings. We also find
no error in the trial court’s denial of the Defendant’s motion to suppress the confession where the
motion was supported by nothing more than the mere assertion by defense counsel that a due process
violation had occurred.

         Although our analysis could well end here, we will briefly examine the Defendant’s claim
that his constitutional right to due process of law was violated by the trial court’s failure to suppress
his confession. Detective Haney’s uncontradicted testimony supports the conclusion that the
videotape of the Defendant’s confession was accidentally “taped over” and thus was not available
at trial. Nor was it available for examination by defense counsel prior to trial.

         In State v. Ferguson 2 S.W.3d 912, (Tenn. 1999), our supreme court adopted a balancing
approach for courts to use to determine when the loss or destruction of evidence has deprived a
defendant of his fundamental right to a fair trial. Id. at 917. Under this approach, the first step is to
determine whether the State had a duty to preserve the evidence. As a general rule, “the State has
a duty to preserve all evidence subject to discovery and inspection under Tenn. R. Crim. P. 16, or
other applicable law.” Id. If the proof shows that the State had a duty to preserve the evidence and
that the State failed in its duty, the court must then consider the following factors which bear upon
the consequences of the State’s breach of its duty: (1) the degree of negligence involved; (2) the
significance of the destroyed evidence, considered in light of the probative value and reliability of
secondary or substitute evidence that remains available; and (3) the sufficiency of the other evidence
used to support the conviction. Id. If the court concludes, after consideration of all the factors, that
a trial without the missing evidence would not be fundamentally fair, the court has the option of
dismissing the charges against the defendant, id., or in this case, excluding from the jury any
evidence that the Defendant had confessed to the aggravated robbery.



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        Although there was no evidence presented at the suppression hearing or during the trial to
indicate that the videotape was exculpatory, we conclude that the videotape was clearly discoverable
under Rule 16(a)(1)(A) of the Tennessee Rules of Criminal Procedure as a relevant recorded
statement of the Defendant within the control of the State. When we apply the remaining Ferguson
guidelines, it is clear from the testimony of Detective Haney that the Defendant’s interview, during
which he confessed, was erased from the videotape through simple inadvertence. We would
characterize the “degree of negligence” as slight or simple negligence. The significance of the
destroyed evidence was also slight in light of Detective Haney’s testimony concerning the statements
given by the Defendant to him and Detective Haney’s written supplement in which he summarized
the statements of the Defendant shortly after the interview. Finally, the sufficiency of the other
evidence used to support the conviction is not challenged by the Defendant. Our review of the
evidence reveals overwhelming direct and circumstantial evidence supporting the jury’s verdict of
guilt.

        We conclude that the Defendant received a fundamentally fair trial without the videotape of
his interview, and we find no violation of the Defendant’s right to due process. Accordingly, the
judgment of the trial court is AFFIRMED.




                                                      ___________________________________
                                                      ROBERT W. WEDEMEYER, JUDGE




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