Court of Criminal Appeals of Tennessee, Nashville
Session April 22, 2015
Appeal from the Circuit Court for Williamson County No. I-CR106759 Michael W. Binkley, Judge
Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant Attorney General; Kim R. Helper, District Attorney General; and Carlin Charles Hess, Assistant District Attorney General, for the appellant, State of Tennessee.
Rob McKinney (at hearing and on appeal); and Brittney S. Hollis (on appeal), Nashville, Tennessee, for the appellee, Kathy L. Bartlett.
Roger A. Page, J., delivered the opinion of the court, in which John Everett Williams and Alan E. Glenn, JJ., joined.
ROGER A. PAGE, JUDGE
This case concerns the traffic stop of appellee after an officer observed her speeding and the subsequent loss of the audio-visual recording ("the recording") depicting the stop. Appellee was indicted for driving under the influence of an intoxicant ("DUI"). Due to the loss of the recording, appellee filed a motion to dismiss on May 13, 2013. The trial court held an evidentiary hearing on the motion on May 20, 2013.
I. Facts from the Hearing
On March 29, 2012, at approximately 11:57 p.m., Elliot Hamm, a patrol officer with the Brentwood Police Department, was driving southbound on Wilson Pike in Williamson County when he noticed a Honda Fit traveling northbound. Officer Hamm visually estimated that the vehicle was traveling at a rate of speed over fifty miles per hour in an area that had a posted speed limit of forty miles per hour. Officer Hamm used his radar gun, which he had been trained to use, to confirm his suspicion. The radar gun indicated that the Honda Fit was traveling at fifty-six miles per hour.
Officer Hamm initiated a traffic stop, and when he approached appellee (the driver), he smelled the odor of alcohol emanating from inside the vehicle. According to Officer Hamm, appellee also had "bloodshot and watery eyes." When Officer Hamm asked appellee about the smell, she responded that she had consumed two glasses of wine earlier in the evening. Officer Hamm testified that he had appellee perform two field sobriety tests, both of which she performed poorly. After Officer Hamm arrested appellee, she refused to submit to a blood-alcohol test. During transport to the jail, appellee stated, "'What am I gonna tell my friends? Come pick my drunk a** up.'"
Officer Hamm explained that his car was equipped with an in-car dash camera and a camera and microphone in the back of the car that records video and audio from the back of the car during transport. Officer Hamm viewed the recording in his car immediately after the arrest and then submitted it wirelessly to the police station's server. However, when Officer Hamm attempted to retrieve the recording, he was told that it was unavailable.
William Reape, the evidence custodian for the Brentwood Police Department, explained that the police cars capture recordings digitally and that when the officer arrives at the police department, the officer wirelessly transmits the footage from the patrol car to the server. Mr. Reape explained that he searched for the recording of appellee's stop but was unable to find it. He even contacted the software vendor but was unable to locate the recording. Mr. Reape postulated that a technical error occurred and that the recording of appellee's stop did not transmit properly.
After questioning by the State and appellee had concluded, the trial court asked the witness about the reasons behind prior lost recordings. Mr. Reape explained that one of the police department's servers had been failing, so information was moved from the failing server to a new server. By doing so, some files were corrupted. Mr. Reape explained that at the time, only six recordings out of thousands were missing and that the problem seemed to be isolated to March 2012. Upon questioning by the court regarding whether the recording of appellee's stop was "forever lost, " Mr. Reape hypothesized that a recovery specialist might be able to "locate something on an old server somewhere, " although he stated that the failed server had been discarded.
Following the hearing, the court continued the matter until our supreme court filed its decision in State v. Merriman, 410 S.W.3d 779 (Tenn. 2013). On July 31, 2014, the trial court filed a written memorandum and order granting appellee's motion to dismiss due to ...