Dennis Earl Anthony v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION I

DENNIS EARL ANTHONY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-505

May 14, 2003

APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT

CR 2000-362

HON. TOM SMITHERMAN, JR., JUDGE

AFFIRMED

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.1 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.2 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 the videotape critical evidence necessary to ensure a fair and impartial trial, it represented the best and only exculpatory evidence available to appellant. He asserts that the lack of disclosure by the Hot Springs City Attorney's office and subsequent destruction of the videotape, whether intentional or not, was tantamount to a denial of a fair trial. Appellant claims that there is no precedent in Arkansas from which to determine if the destruction of such relevant evidence is grounds for dismissal of the charge, rather than simply a retrial - relief that appellant admits has already been granted to him.

Appellant submits that the facts in the instant case are similar to those in Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988), where the state could not produce a tape recording of the defendant's statement because it had been returned to a pool of tapes and reused. In Mitchell, the supreme court determined that because of the overwhelming guilt of the accused and the lack of bad faith being shown against the police department, the unavailability of the tape was not reversible error. Appellant distinguishes those facts from the instant case, however, in that he claims there isno "overwhelming evidence of guilt," rather the only evidence was a swearing match between Officer Reynolds and appellant.

He states there is an absolute constitutional and legal duty that a prosecutor disclose evidence prior to trial, and that such evidence must be made available prior to trial for the use of a defendant in preparing for trial. See Ark. R. Crim. P. 17.1 (2002). Appellant does concede that the prosecutor, the Hot Springs City Attorney in this case, did not know about the evidence prior to trial; however, he contends that the negligence of Officer Reynolds and the police department in destroying the evidence should be imputed to the prosecution. The State also refers to Rule 17.1, pointing out that one of the requirements is that a criminal defendant make a timely request for such information. From our review of the record, at no time during the entire process did appellant make any discovery request, either specific or general. Although not discussed by the State in its brief, the Hot Springs City Attorney asserted in earlier pleadings that such a request early on in the proceedings would have prompted his office to inquire further with the police department as to any relevant information.

More importantly, the State argues that the problem in this case is not so much one of a discovery violation as it is one of the loss by the State of evidence that was potentially useful to appellant. See Threadgill v. State, 74 Ark. App. 301, 47 S.W.3d 304 (2001). More specifically, the State contends that the problem is whether the loss of evidence infringes upon the trial's fundamental fairness under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Id. The United States Supreme Court has held that "[u]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Arizona v. Youngblood, 488 U.S. 51, 58 (1988). This court applied that standard in Threadgill, supra, and the same standard is applicable in this case. Here, appellant not only failed to prove, but specifically did not allege bad faith.

At the pre-trial hearing on the motion to dismiss, appellant clearly stated that he did not allege any bad faith on the part of the police in recycling the videotape of his arrest. At that time he asserted, "[a]nd for the record, we're not making any claim that it was done surreptitiously or maliciously. It's just the fact that [the tape] doesn't exist." Later, during the pre-trial hearing, he said:

I'm certainly not making an allegation that the Court would view my motion that there was misconduct on the part of the Prosecuting Attorney's office or the City Attorney's office or the City of Hot Springs Police Department, but I am imputing the negligence and the failure of the officer to report it as the basis for the fact that it doesn't exist. And that's why we believe it should be imputed to the City Attorney's office, not because Mr. Albright or anybody at the Hot Springs Police Department did it surreptitiously or with malice.

The foregoing concessions made by appellant, that the recycling of the videotape, which occurred sometime during the twenty-five month period between appellant's arrest and the hearing on his second motion to dismiss, was not an act of "bad faith" by the police, support the trial court's decision to deny appellant's motion to dismiss.

Furthermore, although appellant asserts that the destroyed videotape represented the best and only exculpatory evidence available to him, he makes no showing that the contents of the videotape would in fact have been exculpatory or that there is a reasonable probability that had the videotape been produced, the result would have been different. See Threadgill, supra (citing Terrell v. State, 26 Ark. App. 8, 759 S.W.2d 46 (1988)). Under similar circumstances in Terrell, this court determined that it could not say the loss of a tape was of such prejudicial magnitude as to warrant dismissal. Appellant failed to make such a showing in this case, and we therefore affirm.

Affirmed.

Gladwin and Bird, JJ., agree.

1 Appellant was initially convicted in Garland County Municipal Court on June 7, 2000, and appealed his case to circuit court.

2 Appellant also lodged a formal complaint against Officer Reynolds for his conduct during the stop and arrest. Officer Reynolds's supervisor and the Department of Internal Affairs conduct-ed an investigation of the incident, during which the videotape of the stop and arrest was viewed to clear Officer Reynolds of the complaint.