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Anthony v. State5/14/2003
NOT DESIGNATED FOR PUBLICATION
This is an appeal from a Garland County Circuit Court jury trial in which appellant Dennis Earl Anthony was convicted of driving while intoxicated, second offense, and sentenced to one hundred hours of community service and a fine of $2500. Appellant's sole issue on appeal is that the trial court erred in denying his motion to dismiss on the basis that a videotape of the stop and arrest was destroyed by the police and unavailable to be viewed or used by defendant in his trial. We affirm.
On December 4, 1999, appellant was stopped by Hot Springs Police Officer, Mark Reynolds. Officer Reynolds testified that appellant reeked of intoxicants and had to put his hand on his car several times during the arrest in order to stand. Officer Reynolds administered two roadside sobriety tests, the Horizontal Gaze Nystagmus test and the Walk and Turn test, both of which appellant failed. He then offered appellant the opportunity to take a portable breathalyzer test, but appellant refused. Appellant was subsequently arrested and charged with driving while intoxicated, second offense. No blood alcohol concentration tests were performed, either at the roadside stop or at the police station.
The traffic stop and arrest were captured on videotape by a camera inside Officer Reynolds's police car. The videotape was never returned to the department to be used as evidence of appellant's guilt of driving while intoxicated. Officer Reynolds consistently maintained that he did not turn the tape in because it was not made by a certified police camera and, in his mind, was only to be used for his own training and critique by his superiors of his patrol stop technique.
There were no requests for discovery made by appellant prior to trial, and consequently, the existence of the videotape did not come to light until the original trial in circuit court. Officer Reynolds, who by that time no longer worked for the Hot Springs Police Department, admitted during questioning on cross-examination that a videotape of the incident had been made. Upon learning of the existence of a videotape, the prosecution attempted to obtain the videotape from the Hot Springs Police Department; however, they were informed that it had been recycled for use through the normal course of re-circulation of videotapes.
Subsequent to the initial conviction in Garland County Circuit Court on May 30, 2001, appellant moved for a new trial, or alternatively to dismiss the charges on the basis that the Hot Springs Police Department failed to disclose and preserve the videotape tape of his arrest. Upon agreement by the parties, his motion for a new trial was granted on June 26, 2001.
Some time between appellant's arrest on December 4, 1999, and his first circuit court trial on May 30, 2001, the videotape was either destroyed or erased over and was not available to appellant during his new circuit court trial. Appellant was never able to obtain the videotape for exculpatory purposes and requested that the charges against him be dismissed on the basis of the destruction of evidence. At his second circuit court trial, held on February 7, 2002, appellant was convicted of driving while intoxicated, second offense, and sentenced to one hundred hours of community service and a fine of $2500 pursuant to a judgment and disposition order filed on March 1, 2002. From that verdict comes this appeal.
Appellant argues that the loss of the videotape was directly due to the conduct of Officer Reynolds and his supervisors, together with a lack of diligence on their part in failing to disclose the existence of the tape prior to the initial trial. He states that not only was th
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