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State v. Fairbetter10/1/2004
The defendant, Gregory Fairbetter, was charged with driving under the influence and violating the implied consent law. The defendant filed a motion to dismiss, arguing that because the videotape of his arrest had been destroyed by the state, he could not receive a fair trial. The trial court agreed and dismissed the driving under the influence charge. In this appeal, the state asserts that the trial court erred. The judgment of the trial court is reversed and the cause is remanded.
Tenn. R. App. P. 3; Judgment of the Trial Court Reversed and Remanded
Appeal from the Criminal Court for Davidson County No. 2003-T-296. Monte Watkins, Judge.
Paul G. Summers, Attorney General & Reporter; Helena W. Yarbrough, Assistant Attorney General; and Kristen Shea, Assistant District Attorney General, for the appellant, State of Tennessee.
Richard McGee, Nashville, Tennessee, for the appellee, Gregory Fairbetter.
The opinion of the court was delivered by: Gary R. Wade, Presiding Judge
Gary R. Wade, P.J., delivered the opinion of the court, in which Norma McGee Ogle and Robert W. Wedemeyer, JJ., joined.
OPINION
In June of 2003, the defendant was indicted for one count of driving under the influence and one count of violation of the implied consent law. See Tenn. Code Ann. §§ 55-10-401, -406. Approximately eight months later, the defendant filed a motion to dismiss the charges because the state had destroyed the videotape of his arrest. He argued that the videotape was essential to the development of his defense and that a trial conducted without the videotape would be fundamentally unfair.
At the evidentiary hearing on the motion, Belle Meade Police Officer Shawn O'Brien testified that he arrested the defendant for driving under the influence on October 12, 2002. He stated that prior to initiating a traffic stop and activating the camera in his patrol car, he had observed the defendant driving off of the roadway. According to Officer O'Brien, he activated the video camera in his patrol car at the same time he activated the lights and siren. The officer testified that the defendant was not unsteady on his feet but had watery eyes, slurred speech, and an "extreme" odor of alcohol. He contended that he observed the defendant for more than an hour from the time of the initial traffic stop until the time the defendant was booked at the jail. Officer O'Brien estimated that the video contained only thirteen minutes of evidence. It was his opinion that the videotape would have shown the defendant in the profile position because the defendant never faced the camera. According to Officer O'Brien, an officer trainee, Kenneth Dixon, was riding with him at the time of the arrest. Officer O'Brien stated that Dixon also observed the defendant's erratic driving before the arrest and his demeanor afterward.
After arresting the defendant, Officer O'Brien delivered the videotape to Officer Candice Mowry with a note attached that said, "Hold, D.U.I. evidence." Officer O'Brien stated that he did not review the videotape between the time that it was made and the time that it was requested by the District Attorney's Office. He recalled that when he asked Officer Mowry to return the videotape, she informed him that she had erased the videotape and placed the blank tape into a cabinet to be reused. Officer O'Brien testified that he was aware of no other instance of a videotape being destroyed in that office. After this incident, the police department changed its policy regarding the handling of tapes, requiring the arresting officer to maintain possession of videotapes of arrests. Officer O'Brien admitted that certain of the facts, such as the exact tim
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