In the previous post, the recent case of State v. Clark, E2009-01795-CCA-R3-CD (Tenn.Crim.App. 10-24-2011) was discussed regarding the search and seizure issue in that case. There was also a missing evidence issue. In addition to excluding evidence, the trial court also dismissed the indictment due to finding that other evidence which had been in the control of the State had been lost and that it was impossible for the Defendant to receive a fair trial due to the State having lost potentially exculpatory evidence (citing State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999). The State appealed this ruling and prevailed.

The Defendant, who was accused of shooting out a Knoxville red light camera, argued that he should be able to obtain the damaged camera housing and have it subject to ballistics testing by a defense expert to determine if some argument could be made that the damage was not consistent with the Defendant’s weapon and ammo, or the Defendant’s location when the shots were heard. The Defendant also claimed the rifle scope lens casings taken from him at the scene of the arrest were potentially exculpatory and had been lost by the State. The State had recovered and photographed the camera housing, but had returned the broken housing back to the contractors who operated the camera system, where the housing was perhaps recycled.

In analyzing the missing evidence issue under Ferguson, the Court of Criminal Appeals agreed with the Defendant and the trial court that the missing housing was significant. The Court did not find that the scope lens casings were significant, as there was no way anything about that could be exculpatory to the Defendant. In considering the effect of lost or missing evidence under Ferguson, a court considers the degree of negligence involved, the significance of the lost or destroyed evidence, and the sufficiency of the remaining evidence. The Court determined that the loss or destruction of the broken camera housing was a matter of simple negligence by the State, rather than gross negligence. The Court noted that the photographs of the broken housing were not a valid substitute, as the photographs could not be subject to the same testing. However, the Court also found that the other evidence of the Defendant’s guilt (of which there are some details in the previous post on this case) was strong. In weighing all the factors, the Court concluded that some remedy to the Defendant was appropriate. But that dismissal of the indictment was not necessary and the Defendant could still receive a fair trial. The remedy was that the photographs of the broken housing should not be admitted into evidence by the State. Otherwise, the trial should proceed on the remaining evidence.

For more information on the legal impact of lost or destroyed evidence in a criminal case, contact The Lanzon Firm.