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State v. Robinson9/19/2005
on against the state. In Ferguson, the court held that no reversible error flowed from the "taping over" of the videotape. Id. The court determined that the police negligently erased a videotape that would have been of dubious significance because Ferguson had relied upon a defense that his physical impairments would have mimicked intoxication on a videotape of a field sobriety test. Id. Also, the high court determined that the officer's testimony about observing Ferguson's indicia of intoxication supplied sufficient evidence of guilt, independent of the videotaped field sobriety tests. Id.
In the present case, the videotape was apparently erased intentionally, but the "taping over" was in keeping with a procedure established in the police department to record a DUI suspect's refusal to comply with the implied consent law. Although the police intended to "tape over" the segment involving the defendant, they did not intend to erase the segment for purposes of destroying evidence. We view the degree of negligence as greater than that discerned in Ferguson, but here the negligence is manifest in the police department's failure to foresee that their voluntary taping procedure could result in evidence that it had a duty to preserve. Still, as in Ferguson, "the conduct was simple negligence, as distinguished from gross negligence." Id.
Next, we conclude that the lost evidence in the present case is even less significant than that in Ferguson, in which the police had videotaped Ferguson actually performing field sobriety tests. In the present case, no such activity was filmed. Essentially, not only are we uninformed about whether the videotape captured exculpatory images, but we cannot even surmise that it recorded images that were capable of reflecting upon the defendant's level of intoxication.
Finally, we observe that the state's other evidence of the defendant's intoxication was strong. The arresting officer testified to the defendant's furtive manner, slurred speech, odor of alcohol, and failed performance of two field sobriety tests. Furthermore, the defendant's intoxication was indicated by the 0.10 percent result on the intoximeter test. No such test was even performed in Ferguson.
On balance, therefore, we hold that, despite the destruction of the videotape, the defendant's trial was not fundamentally unfair. Thus, no reversible error results from the destruction of the videotape.
III. Jury Instructions on Missing Evidence
The defendant claims that the trial court erred in instructing the jury on the issue of the missing videotape.
In Ferguson, our supreme court suggested a jury instruction on the issue of missing evidence:
The State has a duty to gather, preserve, and produce at trial evidence which may possess exculpatory value. Such evidence must be of a nature that the defendant would be unable to obtain comparable evidence through reasonably available means. The State has no duty to gather or indefinitely preserve evidence considered by a qualified person to have no exculpatory value, so that an as yet unknown defendant may later examine the evidence.
If, after considering all of the proof, you find that the State failed to gather or preserve evidence, the contents or qualities of which are in issue and the production of which would more probably than not be of benefit to the defendant, you may infer that the absent evidence would be favorable to the defendant.
Ferguson, 2 S.W.3d at 917 n.11 (emphasis added). In the present case, the trial court gave the suggested Ferguson instruction except that the court omitted the portion that is italicized above. The defendant claims that
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