State of Tennessee v. Randal Ledon Tate

02/28/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
October 27, 2021 Session
STATE OF TENNESSEE v. RANDAL LEDON TATE
Appeal from the Criminal Court for Knox County
No. 111708 Steven Wayne Sword, Judge
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No. E2021-00217-CCA-R3-CD
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Defendant, Randal Ledon Tate, was convicted by a jury of possession with intent to sell
less than fifteen grams of heroin within 1,000 feet of a school (count 1), possession with
intent to deliver less than fifteen grams of heroin within 1,000 feet of a school (count 2),
simple possession of Alprazolam (“Xanax”) (count 3), possession with intent to deliver
Xanax within 1000 feet of a school (count 4), driving without a license (count 5), criminal
impersonation (count 6), violation of the financial responsibility law (count 7), violation of
the registration law (count 8), and driving a motor vehicle without operational taillights.
(count 9). The trial court merged count 2 into count 1 and count 3 into count 4 and imposed
an effective fifteen-year sentence as a Range I offender to be served in confinement. On
appeal, Defendant argues: that the evidence was insufficient to support his convictions for
possession of Xanax and heroin with intent to sell or deliver; that the trial court erred by
admitting text messages about prior drugs sales; and that the trial court erred by denying
his motion to dismiss based on an alleged Ferguson violation. After hearing oral
arguments, and following a review of the entire record and the briefs of the parties, we
affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
JILL BARTEE AYERS, J., delivered the opinion of the court, in which D. KELLY THOMAS,
JR., and CAMILLE R. MCMULLEN, JJ., joined.
Joshua Hedrick, Knoxville, Tennessee, for the appellant, Randal Ledon Tate.
Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Senior
Assistant Attorney General; Charme P. Allen District Attorney General; and Kenneth
Irvine, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
This case arises from a traffic stop during which Defendant had no form of
identification, gave a false name and Social Security number to the officer, and was driving
a vehicle on which the license plate did not match the vehicle. During a pat-down search,
Defendant was found to be in possession of a Xanax pill and a drug dog alerted on the
presence of narcotics in Defendant’s vehicle, although none were found in the vehicle.
After Defendant was arrested and taken to the Knox County Detention Facility, he was
discovered to be in possession of a green Crown Royal bag containing Xanax and heroin.
404(b) Hearing
At the 404(b) hearing prior to trial, Defendant argued that text messages
downloaded from his cell phone should be excluded because they were irrelevant, more
prejudicial than probative, and to the extent that any of the messages related to the sale and
distribution of narcotics, inadmissible under Tennessee Rule of Evidence 404(b). The State
asserted that under Rule 404(b), it was required to prove that Defendant knowingly
possessed with intent to sell certain drugs which were referenced in the text messages.
Therefore, the messages were admissible as to Defendant’s knowledge and intent. The
State noted that Defendant denied possessing the drugs.
In its written order denying Defendant’s motion to exclude the text messages, the
trial court concluded that the majority of the text messages were irrelevant to the case.
However, the trial court found that “one exchange two days prior to the present offense
date [November 24, 2016] where it appears someone is requesting that the defendant
provide them with some narcotics,” and Defendant “responded that he was on his way,”
was relevant and admissible under Tennessee Rule of Evidence 404(b). The trial court
further concluded:
The texts include statements of the defendant as recovered from a
phone the defendant was using. Furthermore, the context makes it
clear that the defendant was willing to engage in narcotics sales.
Thus, the court finds proof of the other bad act to be clear and
convincing.
The defendant is charged with possessing a controlled substance
with the intent to sell or deliver. The State is required to prove the
defendant’s intent in possessing the controlled substance. Rule
404(b) prohibits the use of other bad acts to show action in
conformity with a character trait; however, it does permit proof of
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other bad acts to show that the defendant had a specific intent in the
current offense. This includes other bad acts showing that the
defendant was engaging in an ongoing conspiracy to sell and/or
deliver controlled substances.
The trial court cited to several cases from this court that affirmed the admissibility of
similar evidence. The trial court found that “the evidence of the prior discussion about
delivering a controlled substance to another person is relevant to show the defendant’s
intent to sell or deliver the controlled substance.” The trial court further found that the text
messages provided “highly relevant proof of the defendant’s intent to sell or deliver a
controlled substance. This probative value outweighs any danger of unfair prejudice.”
Ferguson Hearing
Captain Steven Patrick, the Assistant Facility Commander of the Knox County
Detention Facility, described the process followed when a person is arrested and brought
into the detention facility for processing. Captain Patrick testified that arrested individuals
are first unloaded and brought to the intake, “sally port” area, patted down, but not
searched, asked to remove extra clothing, jewelry, shoes and socks, and then moved into
the booking or intake area. Inmates are then moved into a “shower area” where they change
out of their street clothes and into a detention facility uniform. A photograph of the shower
stall room taken from the facility’s security video cameras was exhibited to his testimony.
The area was formerly used for showers, but now the stalls are used solely as changing
stalls. Captain Patrick testified that the room contains three stalls, and an inmate is subject
to being strip-searched depending on their charges. Captain Patrick noted that the changing
stall doors are approximately chest high, and inmates are instructed to drape their street
clothing over the door when changing. The clothing is then placed in a property crate
located outside the door. Captain Patrick testified that the inmate then puts on their inmate
uniform and exits the changing stall.
Captain Patrick testified that the detention facility has numerous surveillance
cameras, but the footage from the cameras was not stored indefinitely. He searched to see
if there was any video footage from November 26, 2016, and he did not find any video
from that date. Captain Patrick further testified that he could not locate any videos stored
on the system from 2016.
On cross-examination, Captain Patrick testified that the changing stall area is not
covered by any camera angles within the detention facility “[b]ecause we do strip searches
there[.]” He agreed that the changing stall area is supposed to be searched before an inmate
enters the area to change clothes and again after an inmate leaves the stall.
Captain Patrick testified that video recordings from the many cameras in the
detention facility are preserved when there is a request from the defense or the prosecution.
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He said: “Then we burn it to a separate location.” Captain Patrick testified that there was
no request in this case for video recordings from November 2016 until sometime around
November 2019. He noted that the video from November 2016 would have been preserved
if anything unusual had happened, such as a fight or the mishandling of a prisoner. At the
time of the Ferguson hearing, Captain Patrick said that he had security footage going back
eleven months for the changing stall area of the detention facility.
Trial
At approximately 2:20 p.m. on November 26, 2016, Officer David Lee of the
Knoxville Police Department observed Defendant driving a black vehicle with a broken
taillight in the area of Linden and Spruce Streets, which was located within 1,000 feet of a
school. Officer Lee followed the vehicle for a block and initiated a traffic stop. Officer
Lee observed that the vehicle had a cracked windshield. Defendant had no form of
identification and gave Officer Lee a name and Social Security number; however, the
Social Security number did not match the name when Officer Lee ran the information
through NCIC. Officer Lee also ran a check on the vehicle’s license plate, and found that
it did not match the vehicle. The video of the traffic stop was played for the jury.
Officer Lee removed Defendant from the vehicle and conducted a pat-down of his
person. Defendant was wearing “somewhat baggy clothing,” including a jacket and gym
shorts under his jeans. Officer Lee then placed Defendant in the back of the patrol car until
he could determine Defendant’s identity. Officer Brian Baldwin, a K-9 officer, also arrived
on the scene and walked his K-9 partner “Beny” around Defendant’s vehicle, and the dog
alerted to the odor of narcotics on the vehicle. Beny was trained to alert for the presence
of marijuana, heroin, MDNA1, cocaine, and crack cocaine but not the presence of Xanax.
Officer Baldwin searched the vehicle and did not find the presence of any narcotics. He
noted that a dog may alert on the odor of narcotics even after the drugs have been removed
from a vehicle. Officer Baldwin found two cell phones during the search of the vehicle
and asked Defendant for consent to look at the phones. Defendant denied ownership of the
phones, so Officer Baldwin looked through one of them that was powered on. Officer
Baldwin found pictures of Defendant as well as text messages referencing the exchange of
pills. Defendant then said that he did not give Officer Baldwin permission to look at the
phone. It was later confiscated for further examination.
Officer Lee eventually placed Defendant under arrest for driving without a license.
He searched Defendant more thoroughly and discovered a pill in his left pocket that Officer
Lee, based on his training and experience, described as a “Xanax totem pole,” meaning
that the pill was divided into sections so that it could be easily broken apart. Defendant
1
The transcript reflects MDNA; however, MDMA is an abbreviation for Ecstasy or Molly.
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indicated that he was “laid off” from work, but had possession of $192. Officer Lee then
transported Defendant to the Knox County Detention Facility.
Deputy Alejandro Torrez, an intake security officer with the Knox County Sheriff’s
Department, and another intake security officer removed Defendant from Officer Lee’s
patrol car when he arrived at the detention facility and conducted a pat-down of
Defendant’s clothing. Deputy Torrez described his typical method of patting down
individuals arriving at the detention facility as follows:
I start underneath the armpits, pat down the sides, pat the chest and
back, pat around the waistband, pat each pocket, and starting at the
groin, two-hand. One hand will go up between the groin and the leg.
Other hand will grab the back or pat down against the back and work
my way down the legs, each leg individually.”
Deputy Torrez did not discover anything concealed in Defendant’s clothing. At that point,
Defendant removed his shoes and socks and some other clothing items, which were placed
inside a bin in the “sally port.”
Deputy Torrez took Defendant to the intake area for Defendant to change into his
jail uniform. Deputy Torrez explained that Defendant went into changing stall number one
which had been searched at the beginning of the shift. Prior to Defendant entering the
changing stall, Deputy Torrez “looked over the door and as [he] opened the door, [he]
didn’t see anything, and [Defendant] entered.” There is a small bench in the changing stall,
and Deputy Torrez saw nothing on the bench when Mr. Tate went in. After Defendant
took his clothes off and Deputy Torrez was handing Defendant the jail uniform, Deputy
Torrez looked over the stall and saw Defendant’s clothes and a green Crown Royal bag
“pressed up against” Defendant’s clothes on the bench. Defendant told Deputy Torrez that
the bag did not belong to him. Defendant was then taken to the “holding area,” and Deputy
Torrez retrieved the Crown Royal bag which contained Xanax pills and heroin. Deputy
Torrez then contacted a supervisor and notified Officer Lee that he had found additional
drugs. Deputy Torrez agreed that items concealed in an inmate’s underwear are not always
discovered during a pat-down search. He further agreed that there had been previous
occasions when something was discovered after an inmate had already changed clothes.
Deputy Torrez placed the Crown Royal bag and drugs in a locker at the detention facility.
On cross examination, Deputy Torrez confirmed that the stall would have been searched at
the start of his shift at 2:00 on an afternoon shift and that Defendant was booked in about
4:16 in the afternoon.
Investigator Terry Pate of the Knoxville Police Department, who was a member of
the drug-related death task force, testified as an expert in the area of drug investigations.
He went to the detention facility and picked up the Crown Royal bag recovered by Deputy
Torrez containing two plastic bags of heroin weighing 3.68 grams and twelve Xanax pills
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consistent in appearance to the pill recovered from Defendant’s pocket by Officer Lee
during the initial traffic stop. Investigator Pate testified that the amount of Xanax pills and
heroin in the bag led him to believe that the drugs were for resale rather than personal use.
He noted that Crown Royal bags are frequently seen in drug investigations because they
are “easy to maintain everything together and tighten it up, and you can get rid of it
quicker.” He agreed that a Crown Royal bag could be easily concealed in a person’s
undergarments.
Investigator Philip Jinks of the Knoxville Police Department Organized Crime Unit
testified as an expert in the area of narcotics investigations. He obtained and executed a
search warrant on the cell phone that was confiscated from Defendant’s vehicle in this case.
Using Cellebrite software, Investigator Jinks extracted data from the cell phone.
Investigator Jinks testified that the phone contained “text message exchanges that indicated
that [Defendant] was the user of the phone around the time of the arrest. There were also
text messages indicating that Defendant was engaged in the distribution of heroin.” A
message sent two days prior to Defendant’s arrest indicated that it was from Defendant and
that he had lost his phone and was using the confiscated one. The messages also indicated
that Defendant sold someone Xanax pills and eighty dollars in heroin.
Investigator Jinks opined that the amount of heroin recovered in this case was
“certainly consistent with possession for distribution and not personal.” He further opined
that it “would be unusual for a heroin user to possess that much heroin at one time.” When
asked why it was unusual, Investigator Jinks replied:
Well, heroin is very expensive. Most heroin users - - most heroin
users use or inject somewhere between - - and this was talked about
earlier - - a point or .1 gram up to .3 grams. Some very heavy heroin
users will use up to a half a gram at a time. That’s pretty unusual.
That would be five points. A point of heroin right now in Knoxville
is about $25 to $30 for one point. So with 3 and half grams, you
have almost 35 points of heroin. That’s a lot of heroin for a user to
have. And, again, it’s very expensive.
Investigator Jinks estimated that the amount of heroin found next to Defendant’s clothing
was worth approximately $1,000 if sold to individual users and slightly less if purchased
by someone in bulk. He noted that he would expect a heroin user to also have drug
paraphernalia such as a needle, small cut plastic straw, or a metal spoon with burn marks.
Investigator Jinks said: “Based on the totality of the circumstances surrounding this arrest
and seizure, including the weight amount of the heroin and the pills and the text messages,
my opinion is that the heroin and pills were possessed with the intent to sell and deliver
them.”
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ANALYSIS
I. Sufficiency of the Evidence
Defendant argues that the evidence was insufficient to support his convictions for
possession of Xanax and heroin with intent to sell or deliver. More specifically, he
contends that the State failed to show that he had possession of the controlled substances
found in the changing stall with his clothes in the Knox County Detention Facility. The
State asserts that the evidence was more than sufficient to sustain the convictions because
a rational trier of fact could have found beyond a reasonable doubt that Defendant
possessed the Xanax and heroin in the changing stall at the detention facility.
When a defendant challenges the sufficiency of the evidence, this court is obliged
to review that claim according to certain well-settled principles. A guilty verdict removes
the presumption of innocence and replaces it with a presumption of guilt. State v. Allison,
618 S.W.3d 24, 33 (Tenn. 2021); State v. Gentry, 538 S.W.3d 413, 420 (Tenn. 2017). The
burden is then shifted to the defendant on appeal to demonstrate why the evidence is
insufficient to support the conviction. State v. Jones, 589 S.W.3d 747, 760 (Tenn. 2019).
The relevant question the reviewing court must answer is whether any rational trier of fact
could have found the accused guilty of every element of the offense beyond a reasonable
doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979). On
appeal, “all reasonable and legitimate inferences from the evidence must be drawn in favor
of the prosecution and all countervailing evidence discarded.” State v. Weems, 619 S.W.3d
208, 221 (Tenn. 2021). As such, this court is precluded from re-weighing or reconsidering
the evidence when evaluating the convicting proof. Id. (citing State v. Stephens, 521
S.W.3d 718, 724 (Tenn. 2017)). Questions concerning the credibility of the witnesses and
the weight and value to be given to evidence, as well as all factual issues raised by such
evidence, are resolved by the trier of fact and not the appellate courts. Allison, 618 S.W.3d
at 34; Jones, 589 S.W.3d at 760. “This standard of review is identical whether the
conviction is predicated on direct or circumstantial evidence, or a combination of both.”
State v. Williams, 558 S.W.3d 633, 638 (Tenn. 2018) (citing State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011)).
In Tennessee, “[i]t is an offense for a defendant to knowingly . . . [p]ossess a
controlled substance with intent to manufacture, deliver or sell the controlled substance.”
T.C.A. § 39-17-417(a)(4). Possession of a controlled substance may be actual or
constructive. State v. Robinson, 400 S.W.3d 529, 534 (Tenn. 2013) (citing State v. Shaw,
37 S.W.3d 900, 903 (Tenn. 2001)). A person constructively possesses contraband when
he has “‘the power and intention at a given time to exercise dominion and control over . . .
[the drugs] either directly or through others.’” Shaw, 37 S.W.3d at 903 (quoting State v.
Patterson, 966 S.W.2d 435, 444-45 (Tenn. Crim. App. 1997)). Mere presence in an area
where drugs are discovered, or association with a person who is in possession of drugs,
without more, is insufficient to support a finding of constructive possession. Constructive
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possession rests on the totality of the circumstances of each case and may be proven by
circumstantial evidence. T.C.A. § 39-17-419 (possession may be inferred from “relevant
facts surrounding the arrest”).
Viewed in the light most favorable to the State, the proof shows that Defendant
possessed the Xanax and heroin found in the changing stall at the detention facility. After
Defendant was initially pulled over, Officer Baldwin’s dog alerted on Defendant’s vehicle
for the odor of narcotics. Although Officer Baldwin did not find any narcotics in the
vehicle, Officer Baldwin testified that the dog could alert on the odor of narcotics even if
the drugs were no longer present. When Defendant was placed under arrest, Officer Lee
found a Xanax pill in Defendant’s pocket.
After Defendant was transported to the Knox County Detention Facility and was
changing into his jail uniform, Deputy Torrez discovered a green Crown Royal bag on the
bench of the changing stall pressed up against the clothing that Defendant had been wearing
at the time of his arrest. The green bag contained twelve Xanax pills consistent in
appearance to the pill found in Defendant’s pocket at the time of his arrest. There were
also two corners from a plastic bag containing 3.68 grams of heroin. Deputy Torrez
testified that the changing stall had been searched at the beginning of the shift, and there
was nothing inside the stall. Deputy Torrez also did not see anything inside the stall when
Defendant entered it to change clothes.
From this evidence, a rational juror could find that Defendant was in possession of
the Xanax and heroin found in the changing stall. The jury heard testimony that Defendant
was searched when he entered the detention facility, and nothing was found, and that
Defendant denied ownership of the bag to Deputy Torrez. However, the jury, as was its
prerogative, rejected Defendant’s assertion that someone else left the bag of drugs in the
changing stall. Defendant is not entitled to relief on this issue.
II. Admission of Text Messages
Defendant next contends that his convictions for possession of Xanax and heroin
should be reversed because the trial court erred by admitting a text message exchange from
his cell phone made two days before his arrest concerning a drug sale. Defendant asserts
that intent was not a material issue in this case because Defendant denied that the drugs
belonged to him and therefore, the trial court should not have admitted the messages to
show his intent to distribute the drugs. The State counters that the text message exchange
was admissible for a purpose unrelated to character and that the State was required to prove
the “essential element of intent at trial” regardless of Defendant’s trial strategy.
It is well-established “that trial courts have broad discretion in determining the
admissibility of evidence, and their rulings will not be reversed absent an abuse of that
discretion.” State v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996). Tennessee Rule of
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Evidence 404(b) permits the admission of evidence of prior conduct if the evidence of other
acts is relevant to a litigated issue such as identity, intent, or rebuttal of accident or mistake,
and the probative value outweighs the danger of unfair prejudice. Tenn. R. Evid. 404(b)
Advisory Comm’n Cmts.; see State v. Parton, 694 S.W.2d 299, 303 (Tenn. 1985); State v.
Hooten, 735 S.W.2d 823, 824 (Tenn.Crim.App. 1987). However, “[e]vidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in order to show
action in conformity with the character trait.” Tenn. R. Evid. 404(b). Before admitting
evidence under Rule 404(b), the rule provides that (1) upon request, the court must hold a
hearing outside the jury's presence; (2) the court must determine that the evidence is
probative on a material issue and must, if requested, state on the record the material issue
and the reasons for admitting or excluding the evidence; (3) the court must find proof of
the other crimes, wrongs, or acts to be clear and convincing; and (4) the court must exclude
the evidence if the danger of unfair prejudice outweighs its probative value. Tenn. R. Evid.
404(b).
We find no abuse of discretion by the trial court in admitting the text messages from
Defendant’s cell phone. The text messages in question contain an exchange between
Defendant and someone named “Danielle” in which Danielle asked Defendant to meet for
some “h,” and she also asked him to bring a “xanx.” In one of the messages, Danielle
texted: “[I]’m at [L]ovell so 20 min[utes] tops I need 80 please hook it up I beg you my
tolerance is sky high.” Danielle asked where to meet Defendant, and he responded that he
was at the Weigel’s on Summit Hill. Investigator Jinks at trial testified that the messages
indicated that Defendant sold someone Xanax pills and eighty dollars in heroin.
The trial court in this case complied with the procedural requirements outlined in
Rule 404(b). The court held a hearing outside the jury’s presence concerning this matter
and found that a material issue existed other than conduct conforming with a character trait,
namely Defendant’s intent to possess the heroin and Xanax with intent to sell, which the
State was required to prove at trial. See T.C.A. § 39-17-417(a)(4). The trial court further
found that there was clear and convincing evidence of the text message exchange. Finally,
the trial court found that the probative value of the text messages was not outweighed by
the danger of unfair prejudice. This court has previously found that evidence of prior drug
sales is probative of the defendant’s knowledge and intent to possess drugs for resale. See
State v. Richard Wayne Hampton, No. W2006-02189-CCA-R3-CD, 2008 WL 169645, at
*4 (Tenn. Crim. App., at Jackson, Jan. 18, 2008), State v. Allen Jean Stephens, No. M2004-
00531-CCA-R3-CD, 2005 WL 1541850, *4 (Tenn. Crim. App., at Jackson, June 23, 2005);
State v. Roger M. Staples, No. M2003-01433-CCA-R3-CD, 2004 WL 1337265, *4 (Tenn.
Crim. App., at Nashville, June 14, 2004); State v. Maurice Lashaun Nash, No. W2000-
02971-CCA-R3-CD, 2002 WL 1482731, *5 (Tenn. Crim. App., at Jackson, Feb. 8, 2002)
(Tenn.2002); State v. Johnny Wayne Tillery, No. 01C01-9506-CC-00182, 1998 WL
148326, at *6 (Tenn. Crim. App., Nashville, Mar. 30, 1998); see also State v. Little, 854
S.W.2d 643, 649 (Tenn. Crim. App. 1992).
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As to Defendant’s assertion that intent was not a material issue in this case because
Defendant denied that the drugs belonged to him, intent was a material issue regardless of
the defense asserted by Defendant at trial. See State v. Donald Mickens, No. W2009-
00586-CCA-R3-CD, 2010 WL 2697164, at *15 (Tenn. Crim. App., at Jackson, July 8,
2010) (quoting United States v. Johnson, 27 F.3d 1186, 1192 (6th Cir. 1994)) (“[W]here
the crime charged is one requiring specific intent, the prosecutor may use 404(b) evidence
to prove that the defendant acted with the specific intent notwithstanding any defense the
defendant might raise.”). Defendant is not entitled to relief on this issue.
III. Motion to Dismiss
Finally, Defendant contends that the trial court erred by denying his motion to
dismiss on the basis that the State, in violation of State v. Ferguson, 2 S.W.3d 912 (Tenn.
1999), failed to preserve video footage from the intake area at the detention facility from a
two-hour period of time before the drugs were found in the changing stall. Defendant
asserts that the video footage would have shown if anyone else had entered the changing
stall and left the bag of drugs behind before Defendant entered the stall. He further asserts
that the video footage would have resolved the “question of when and where Deputy Torrez
looked over the changing stall.” The State counters that Defendant has waived the issue
by pursuing a new theory for relief on appeal. The State further argues that regardless of
waiver, there was no duty to preserve the video footage from the intake room.
At the Ferguson motion hearing, Defendant argued that the video footage was
exculpatory because it would have shown whether the drugs that were located belonged to
Defendant and not someone else. He argued that the loss of the video prevented him from
relying on it to form a defense. In the motion for new trial, Defendant argued, without
offering any explanation as to why he was entitled to relief, that the trial court erred by
denying his motion to dismiss. On appeal, Defendant asserts that the video footage from
the intake room would have shown if anyone else entered the changing stall during Deputy
Torrez’s shift in the two hours before Defendant arrived, and it would have resolved the
question of when and where Deputy Torrez looked over the changing stall. Defendant
asserts that the video footage was exculpatory because it would have shown if anyone else
left the bag of drugs in the changing stall. Although the State argues that the issue of
whether the drugs belonged to someone else was raised for the first time on appeal,
Defendant’s arguments at the motion hearing and on appeal are consistent and because he
has not raised a new ground for relief on appeal, we conclude that he has not waived this
issue.
However, Defendant is not entitled to relief on this issue. The Tennessee Supreme
Court in State v. Ferguson held that “the loss or destruction of potentially exculpatory
evidence may violate a defendant's right to a fair trial.” State v. Merriman, 410 S.W.3d
779, 784 (Tenn. 2013) (citing Ferguson, 2 S.W.3d at 915-16). The supreme court
determined that the due process clause under the Tennessee Constitution was broader than
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the due process clause under the United States Constitution and rejected the “bad faith”
analysis adopted by the United States Supreme Court which provided that “‘unless a
criminal defendant can show bad faith on the part of the police, failure to preserve
potentially useful evidence does not constitute a denial of due process of law.’” Id. at 784-
85 (quoting Arizona v. Youngblood, 488 U.S. 51, 58 (1988)). Rather, the court in Ferguson
adopted a balancing approach requiring the trial court to determine “‘[w]hether a trial,
conducted without the [lost or] destroyed evidence, would be fundamentally fair.’” Id. at
785 (quoting Ferguson, 2 S.W.3d at 914).
When a defendant raises a Ferguson claim, a trial court must first determine
“whether the State had a duty to preserve the evidence.” Id. “[T]he State’s duty to preserve
evidence is limited to constitutionally material evidence described as ‘evidence that might
be expected to play a significant role in the suspect’s defense.’” Id. (quoting Ferguson, 2
S.W.3d at 917). To meet the constitutionally material evidence standard, “the evidence
must potentially possess exculpatory value and be of such a nature that the defendant would
be unable to obtain comparable evidence by other reasonably available means.” Id.If the proof establishes that the State had a duty to preserve the
evidence and that the State failed in its duty, the court must conduct
a balancing analysis, considering the following factors:
1. The degree of negligence involved;
2. The significance of the destroyed evidence, considered in
light of the probative value and reliability of secondary or
substitute evidence that remains available; and
3. The sufficiency of the other evidence used at trial to support
the conviction.
Ferguson, 2 S.W.3d at 917 (footnote omitted). The trial court must
balance these factors to determine whether a trial would be
fundamentally fair absent the missing evidence. Merriman, 410
S.W.3d at 785. If the trial court determines 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. at 786.
This court reviews the trial court's decision regarding the
fundamental fairness of a trial conducted without the missing
evidence de novo. Id. at 791. The trial court’s findings of fact are
conclusive on appeal unless the evidence preponderates against
them. See id. (citations omitted). This court reviews the trial court's
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remedy for a Ferguson violation under the abuse of discretion
standard. Id.
State v. Terry Craighead and Sinead St. Omer, No. M2017-01085-CCA-R3-CD, 2018 WL
5994974, at *8 (Tenn. Crim. App., at Nashville, Nov. 15, 2018).
In this case, we find that the State did not have a duty to preserve the video footage
from the intake room because Defendant has not demonstrated that the evidence was
exculpatory and would have played a significant role in his defense. As pointed out by the
State, it is unreasonable that it could have anticipated that two hours of video footage
showing whether any other individuals walked through the intake area before Defendant
arrived would play a significant role in Defendant’s defense. Captain Patrick testified that
while the detention center had numerous surveillance cameras, none of the footage was
stored indefinitely. He said that video recordings from the many cameras in the facility
were preserved only when there was a request from the defense or the prosecution or if
anything unusual had happened such as a fight or the mishandling of a prisoner. There was
no request for the video recordings from November 16, 2016, made until November 2019,
after the video footage was no longer available.
Further, although the video footage would have shown whether someone else may
have entered the intake area, it would not have shown if anyone entered the changing stall
with the bag of drugs. Captain Patrick testified that the changing stall area was not covered
by any camera angles because strip searches were sometimes conducted in the area. The
exhibited photograph confirmed that the security camera did not capture that area. “The
mere possibility of exculpatory content does not trigger a finding that the State failed in its
general duty to preserve evidence under Ferguson.” State v. Ronnie D. Sims, No. M2004-
02491-CCA-R3-CD, 2005 WL 3132441, at *8 (Tenn. Crim. App., at Nashville, Nov. 22,
2005). As for Defendant’s assertion that the video footage may have “resolve[d] the
question of when and where Deputy Torrez looked over the changing stall, this question
was resolved by Deputy Torrez’s testimony that was subject to cross-examination. Deputy
Torrez testified that he looked over the changing stall as he handed Defendant’s jail
uniform to him and saw the bag of drugs on the bench “pressed up against” Defendant’s
clothes. Deputy Torrez testified that the changing stall had been searched at the beginning
of Deputy Torrez’s shift, and nothing was found inside. Likewise, Deputy Torrez looked
and did not see anything inside the stall when Defendant entered it to change clothes.
The video footage from the intake area at the detention facility would not have
resolved the issue of whether someone else left the bag of drugs inside the changing stall.
The changing stall area was not covered by any camera angles within the detention facility.
Defendant is not entitled to relief on this issue.
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CONCLUSION
Based on the foregoing analysis, we affirm the judgments of the trial court.
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JILL BARTEE AYERS, JUDGE
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