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FIE. 
IN THE CRIMINAL COURT FOR KNOX COUNTY. II .n I. n? 1]
DIVISION II
QUIT ?7 m1 8? 5 
v. No. 108894

HARLAN FERGUSON

MOTION TO DISMISS PRESENTMENT FOR FAILURE
TO PRESERVE BLOOD SPECIMEN OR SUPPRESS BLOOD SPECIMEN AND
TOXICOLOGY RESULTS

Comes now the Defendant, by and through counsel, pursuant to US. Const.
amend. VI and Tenn. Const. art. I, 8 and 9; Term. Code Ann. 55-10-408; Brady
v. Maryland, 373 US. 83 (1963); State v. Ferguson, 2 912 (Tenn. 1999), and
their progeny, and respectfully moves this Honorable Court to dismiss all charges in the
presentment against Mr. Ferguson for the State's failure to preserve the blood specimen
in this case. or, in the alternative, to suppress said evidence and any test results

associated thereto. In support of this Motion, Mr. Ferguson would show the following:

I. INTRODUCTION.

On February 3, 2016, at approximately 7:32 pm, Harlan Ferguson was alleged to
be the driver of a vehicle that was involved in an accident. Mr. Ferguson's ?ance,
Sarah Howe, died as a result of the accident. Knox County Sheriff's Of?ce (KCSO)
of?cers had pursued the vehicle allegedly driven by Mr. Ferguson, arrived at the scene
immediately after the accident, and pulled Mr. Ferguson from the vehicle. Mr. Ferguson

sustained multiple serious injuries and was rushed to the University of Tennessee

Medical Center (UTMC) by ambulance, where he underwent multiple medical
procedures. KCSO of?cers followed Mr. Ferguson to the hospital.

KCSO records indicate that at some point during the night, Mr. Ferguson was
requested to voluntarily give a sample of his blood for legal purposes, and he refused.
However, a ?medical draw" was conducted at approximately 8:38 pm. on February 3,
2016, in which a sample of Mr. Ferguson?s blood was drawn without his consent,
allegedly for medical purposes. These exact medical purposes are unknown. It is also
unknown at whose request this blood specimen was taken, or who among personnel at
UTMC took the blood specimen.

Because Mr. Ferguson had refused consent to voluntarily give a blood specimen,
KCSO Lieutenant David Amburn obtained a search warrant in order to do a ?legal draw"
of Mr. Ferguson's blood. This search warrant was issued by Magistrate Sharon
Frankenburg during the early hours of February 4, 2016. KCSO of?cers then obtained a
sample of Mr. Ferguson?s blood at approximately 4:16 am. on February 4. 2016,
pursuant to the search warrant. The search warrant was executed and returned at
approximately 5:12 am. the same morning.

Lieutenant Amburn later sought a search warrant to obtain the blood specimen taken
from Mr. Ferguson pursuant to the medical draw, which was believed to be in
possession of UTMC or LabCorp. This search warrant was issued by Magistrate Robert
Cole on February 4, 2016, at approximately 4:30 pm. The search warrant was
executed and returned at approximately 6:15 pm. the same day.

The two blood specimens taken from Mr. Ferguson?the blood specimen from the

legal draw and the blood specimen from the medical draw?were taken to the

Tennessee Bureau of Investigation Knoxville Crime Laboratory located at 1791
Neals Commerce Lane in Knoxville. The blood specimen from the medical draw was
tested, but the blood specimen from the legal draw was reported to not be tested. Both
samples were destroyed on September 1, 2016, before Mr. Ferguson was arrested,
arraigned, or appointed counsel on these charges.

On August 30, 2016, more than six months after the accident, a presentment was
?led in the Criminal Court for Knox County, Division II, Docket No. 108894, charging the
Defendant, Harlan V. Ferguson, with the offenses of Vehicular Homicide, Evading
Arrest, Reckless Endangerment, Driving Under the In?uence, and Failure to Drive
Within a Single Lane of Traf?c. On September 20, 2016, Mr. Ferguson was taken into
custody on these charges. On September 26, 2016, Mr. Ferguson was arraigned and
the Of?ce of the Public Defender was appointed to represent him.

By statute, Mr. Ferguson is entitled to a sample specimen for his independent
testing. However, both samples have been destroyed. Nevertheless, the state was
able to obtain a single toxicology report by testing a sample and then destroyed the
underlying evidence. Now, it seeks to use the test results as evidence of intoxication at
Mr. Ferguson?s trial. Due to the State's destruction of the blood specimen taken from
his body, these specimens are no longer available for examination or testing by the
defense. As a result, the State?s conduct has materially impaired Mr. Ferguson?s ability
to defend against these charges, and Mr. Ferguson is deprived of a fundamentally fair
trial. All counts of the presentment pending against Mr. Ferguson must be dismissed

pursuant to State v. Ferguson, 2 912, 915-916 (Tenn. 1999). In the alternative,

Mr. Ferguson moves to suppress the blood specimen and resulting toxicology reports.
State v. Meniman, 410 779, 785 (T enn. 2013).
II. THE STATES DESTROYED THE BLOOD SPECIMENS IN VIOLATION OF
STATE V. FERGUSON AND THE DUE PROCESS CLAUSE, DEPRIVING MR.
FERGUSON OF A FUNDAMENTALLY FAIR TRIAL
In State v. Ferguson, 2 912, 915-918 (Tenn. 1999), our Supreme Court
explained that ?the loss or destruction of potentially exculpatory evidence may violate a
defendant's right to a fair trial." State v. Merriman, 410 779, 784 (Tenn. 2013)
(citing Ferguson, 2 at 915?16. ln Ferguson, the Court rejected the Arizona v.
Youngblood, 488 U. S. 51 (1988), "bad faith" standard, instead enunciating a standard
that asked whether a defendant's trial, conducted without the destroyed evidence, would
be "fundamentally unfair." Ferguson, 2 912, 914 (Tenn. 1999). Indeed, the
Tennessee Supreme Court rejected the Youngblood ?bad faith? approach on the ground
that it fails to adequately protect the right to a fair trial under the Due Process Clause of
the Tennessee Constitution. 2 912, 916 (citing Tenn. Const. Art. I, The
Ferguson court then developed a three-step analysis to determine whether a trial
without the destroyed evidence would be fair: (1) establishing whether the State had a
duty to preserve the evidence, (2) determining if the State breached its duty to preserve
evidence and (3) balancing several factors which should guide the decision regarding
the consequences of the breach. Id. at 917. For the third step, the Court found that
several factors should guide the decision, including the following:

1. The degree of negligence involved;

2. The signi?cance of the destroyed evidence, considered in light of the

probative value and reliability of secondary or substitute evidence that
remains available; and

3. The suf?ciency of the other evidence used at trial to support the
conviction.

id.

A. The State?s Duty To Preserve Evidence

The ?rst step in the Ferguson analysis is to determine whether the State ?rst had
a duty to preserve the destroyed evidence. The Ferguson Court found that the State
has a general duty to preserve all evidence subject to discovery and inspection:
"Generally speaking, the State has a duty to preserve all evidence subject to discovery
and inspection under Tenn. R. Crim. P. 16, or other applicable law." Ferguson, 2
at 917; see also State v. Merriman, 410 779, 785 (Tenn. 2013) (stating
same). Moreover, the Merriman Court found that even when the State has no duty to
gather evidence, but gathers that evidence anyway, the State then has a duty to
disclose the evidence to the defendant pursuant to discovery and pursuant to the
defendant?s constitutional rights under Brady v. Maryland, 373 US. 83 (1963):

The State had no duty to create a video recording of Ms. Merriman's traf?c

stop. When the video was recorded, however, it became a part of the

State's evidence against Ms. Merriman and its disclosure was required
under Tennessee Rule of Criminal Procedure 16 and Brady.

Merriman, 410 at 794.

Speci?cally, the state has a duty to preserve ?constitutionally material evidence"
which has been described by the Court as ?evidence that might be expected to play a
signi?cant role in the suspect's defense." Ferguson, 2 at 917 (quoting Califomr'a
v. Trombetta, 467 US. 479, 488 (1984)). The ?loss or destruction of potentially

exculpatory evidence may violate a defendant's right to a fair trial." Merriman, 410

 at 784-85 (citations omitted). The Tennessee Supreme Court determined that
due process, and therefore "fundamental fairness? considerations of both the U.S. and
Tennessee Constitutions, requires a review and evaluation of "the effect of the State's
failure to preserve evidence? in a criminal case. Id; see generally Trombetfa, 467 U.S. at
485 (discussing "standard[s] of fairness require that criminal defendants be afforded
a meaningful opportunity to present a complete defense[;] [therefore,] the Court
area of constitutionally guaranteed access to evidence. [These]
constitutional privileges delivers exculpatory evidence into the hands of the accused,
thereby protecting the innocent from erroneous conviction and ensuring the integrity of

our criminal justice quotations omitted).
1. Preservation of Blood Specimen ls Further Mandated By Statute

The state is further statutorily mandated to preserve the blood evidence collected
from Mr. Ferguson and must do so for his independent testing. Tenn. Code Ann. 55-
stating defendant "shall be entitled to have an independent sample of
blood . . . procured" and to independently test that specimen); Tenn. R. Crim. P.
?the state shall permit" inspection if ?the item was obtained from or
belongs to the defendant? or the state ?intends to use the item in its see

generally State v. Merriman, 410 779, 785 - 6 (Term. 2013)(citations omitted).

2. The State Had A Duty To Preserve Mr. Ferguson's Blood
Specimens

Likewise, the State had a duty to preserve Mr. Ferguson?s blood specimens so
that Mr. Ferguson could independently test these specimens. There is no question that

the blood specimen and its corresponding test results would play a signi?cant role in Mr.

Ferguson?s case. In fact, these specimens will be used to show elements of several of
the offenses charged. The preservation of the blood sample is so vital that the
legislature codi?ed the state?s duty to preserve such evidence. See Tenn. Code Ann. 
R. Crim. P. ?the state shall permit? inspection
it ?the item was obtained from or belongs to the defendant? or it the state ?intends to use

the item in its 

However, assuming arguendo, that the state is permitted to destroy the sample it
tested, it was certainly not entitled to destroy Mr. Ferguson's sample as well. Id. The
?rst step of the Ferguson analysis has been met the state had a duty to preserve the

seized evidence at issue.

There is no question that the destroyed blood specimen contained material
evidence. The results of the tests in this case will be used as direct proof. Conversely,
the specimen may have contained potentially exculpatory evidence for the defense. In
addition, the destroyed evidence included highly signi?cant impeachment material for
the defense. That is, the defense will not be able to fully and properly impeach the
analyst who tested the state's specimen. Instead, the jury would rely on the single
toxicology report alone. This forecloses the Defendant?s Opportunities for confrontation
and cross-examination. See generally United States v. Bagley, 473 US. 667, 681, 105
S. Ct. 3375, 3383, 87 L. Ed. 2d 481 (1985)(discussing materiality standard); Kyles v.
Whitley, 514 US. 419, 450, 115 S. Ct. 1555, 1573, 131 L. Ed. 2d 490 (1995) (stating
when the suppressed evidence has ?some value as [to] exculpation and impeachment

. it counts accordingly in determining whether Bagley '5 standard of materiality is

satis?ed).

When considering the materiality issue under Ferguson, the trial court's analysis
should also include the question of whether the defendant has a way of obtaining other
?comparable evidence" in his case. Ferguson, 2 at 918. Here, Mr. Ferguson has
no possible way of obtaining ?comparable evidence" at all considering the State
destroyed the only comparable evidence he could have possibly had. See Tenn. Code
Ann. 55-10-408 Plainly, there are no ?options" or alternatives for the defendant 

the blood samples do not exist - and thus the Ferguson analysis proceeds accordingly.

B. The State Failed In Its Duty To Preserve The Blood Specimens

After the court recognizes the state's duty to preserve the constitutionally
material evidence, the second step, under Ferguson, requires the court to determine
whether the state "failed in its duty." Ferguson, 2 at 917. The state did fail in its
duty to preserve the blood specimen in this case. The blood specimen contained
potentially exculpatory evidence, therefore, ?negligence by the state is presumed."
Merriman, 410 at 793. Contrary to statute, the state destroyed Mr. Ferguson?s
sample as well, although his right to inspect the evidence is codi?ed. See Tenn. Code
Ann. 55-10-408. Moreover, the State destroyed the blood specimens before Mr.
Ferguson even had an opportunity to request that the blood specimens be preserved,
because the State destroyed the blood specimens two days after the grand jury ?led a
presentment against Mr. Ferguson, and weeks before Mr. Ferguson was arraigned on
the charges in the presentment and appointed an attorney.

C. Dismissal Of All Charges In The Presentment Is The Appropriate
Remedy

The third step in the Ferguson analysis includes balancing several factors to

determine the consequences of the State's failure to preserve evidence. ?If the trial

court concludes that a trial would be fundamentally unfair? because of the destruction,
then the trial court may ?impose an appropriate remedy to protect the defendant's right
to a fair trial, including, but not limited to, dismissing the charges . . Merriman, 410
at 785?86 (emphasis added). If the State had a duty to preserve evidence
and failed in that duty, the trial court must consider the following factors to determine the
consequences of that failure: [t]he degree of negligence involved; (2) [t]he
signi?cance of the destroyed evidence considered in light of the probative value and
reliability of secondary or substitute evidence that remains available; and, (3) [t]he
suf?ciency of the other evidence used at trial to support the conviction." Ferguson, 2
at 917. Mem'man noted that, despite the third factor?s focus on evidence
presented at trial, such a motion could be ?led pre-trial, and would involve the trial court
"weigh[ing] the signi?cance of the lost evidence in light of the other evidence and to
determine an appropriate remedy." See also State v. Dustin Wayne Capps, 2009 WL
690685 (Tenn. Crim. App. Mar. 13, 2009) abrogated on other grounds by State v.
Mern'rnan, 410 779 (Tenn. 2013) (dismissal of charges where videotape that
directly captured the alleged aggravated robbery was destroyed. not pursuant to
standard procedure).
1. ?[t]he degree of negligence involved:"

Blood evidence plays a signi?cant role in DUI cases. Such evidence is routinely
seized, preserved, and tested. In this case, the defense?s sample was destroyed. The
destruction occurred well before Mr. Ferguson was arraigned on the presentment and

appointed a lawyer.

The State should not be allowed to institute a regime whereby it seizes evidence.
tests it for inculpatory information, presents that evidence to the grand jury and then
destroys it. It is also improper for it to then destroy the Defendant's evidence as well.
See Tenn. R. Crim. P. Given the timing of these events and the
subsequent destruction of all of the seized blood evidence in this case, these actions
indicate either exceptional carelessness amounting to gross negligence or intentioned
action.

This is not forgivable negligence in the sense of some overlooked item of
evidence of dubious relevance mistakenly falling through the cracks. The State's
course of action in this case weighs strongly in favor of dismissal.

2. ?[t]he signi?cance of the destroyed evidence, considered in light of
the probative value and reliability of secondary or substitute
evidence that remains available:"

As to the second factor, there is no ?secondary? or ?substitute" evidence available
in this case. Here, the probative value of the blood evidence is high because it goes to
the elements of the crimes charged.

The State will present the TBI's toxicology report although it destroyed the
underlying evidence that formed the basis of its ?nding. It also destroyed the ?secondary
or substitute evidence" even though it belonged to Defendant and he was statutorily
entitled to it. See Tenn. Code Ann. 55-10?408 Tenn. R. Crim. P. 
The defense has forever lost the ability to double-check the quality of the State?s
investigation and accuracy of testing of the blood specimens. See State v. Stephens,
529 712, 713 (Tenn. 1975) (a defendant should not be forced to rely on the

State's analysis of the evidence in a case). Because of the signi?cance of this

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evidence, the State's course of action weighs strongly in favor of dismissal in this factor
as well.
3. ?and [tlhe suf?ciency of the other evidence:?

The third factor used in determining the appropriate remedy is the suf?ciency of
the remaining evidence. As established above, there is no other comparable evidence
for the defense and thus the evidence ?bec[omes] more signi?cant.? Mem'man, 410
at 795. Here, the Court should consider that there is no video recording or
other recording of the initial chase of the vehicle allegedly driven by Mr. Ferguson; no
video recording or other recording of of?cers' interactions with Mr. Ferguson after
of?cers came into contact with him; no recording of the alleged interview between Mr.
Ferguson and of?cers at the hospital; and no vehicle, because the vehicle involved in
the accident was also destroyed due to the State?s actions as well. (See Motion To
Dismiss For Failure To Preserve Vehicle, previously ?led in this case.)

The blood specimens in question are not circumstantial evidence. Instead, it will
be offered by the state as direct proof of more than one of the elements of the offenses
charged. (See Presentment, Counts 1-2 and 4-8.) However, as a result of the state?s
destruction, Mr. Ferguson cannot challenge the evidence in his case although the laws
of this state have provided him with the ability to do so. This is fundamentally unfair and
violates due process. Mem'man, 410 at 795?96.

The destroyed evidence at issue relates to all charges in Mr. Ferguson's
presentment. The State had a duty to preserve the blood specimens in Mr. Ferguson?s
case and failed in its duty to preserve them. Because of the State?s destruction of the

evidence in Mr. Ferguson's case before Mr. Ferguson was even arraigned on these

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charges, Mr. Ferguson?s trial will be rendered fundamentally unfair. Mr. Ferguson will
suffer grave prejudice should he be forced to proceed to trial without this evidence.
Likewise, he will be foreclosed on properly impeaching the State?s witnesses just as he
is constitutionally entitled to do so. US. Const. amend. VI, Tenn. Const. art. I, 
8, 9. The only appropriate remedy is the dismissal of all charges in the presentment, or
in the alternative, suppression of the blood specimens and any resulting toxicology

reports.

THE STATES DESTRUCTION OF THE BLOOD SAMPLES VIOLATES
FEDERAL DUE PROCESS

As noted above, under Tennessee law a showing of bad faith is not required. In
this case, however, it is apparent that the State acted in bad faith and therefore a trial
conducted in these circumstances would violate federal due process as well. See
Moldowan v. City of Warren, 578 F.3d 351, 385 (6th Cir. 2009). Here, the State had
reason to believe that the blood specimens in this case were important evidence and
that the defense would need to inspect the blood specimens. It nonetheless
deliberately chose, through its action, to allow the blood specimens to be destroyed two
days after the presentment was ?led by the grand jury in Mr. Ferguson?s case. it
allowed the blood specimens to be destroyed before Mr. Ferguson was arrested,
arraigned, or appointed an attorney on the charges in the presentment. The State was
aware that at the time the blood samples were destroyed, Mr. Ferguson was powerless
to defend himself against any charges, or even to request that the blood specimens be

preserved.

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IV. CONCLUSION

In light of the importance of this evidence and the egregious nature of the State's
actions, the only appropriate remedy would be to dismiss all counts in the presentment
against Mr. Ferguson. Any trial conducted in these circumstances, where the actions of
the State have served to gratuitously deny the defense access to crucial evidence,
would not produce a reliable and fair result as guaranteed by the Tennessee
Constitution.

WHEREFORE, Mr. Ferguson respectfully moves this Honorable Court to conduct
an evidentiary hearing on this matter and accordingly dismiss the presentment or, in the
alternative, prohibit the State from introducing any evidence related to the blood
specimen seized and tested in this matter by suppressing the evidence and any tests
results related thereto.

RESPECTFULLY SUBMITTED,

MARK E. STEPHENS
PUBLIC DEFENDER, SIXTH JUDICIAL DISTRICT

BY: kw

CHRISTY MURRAY, BPR 020836
ASSISTANT DISTRICT PUBLIC DEFENDER
1101 Liberty Street
Knoxville, TN 37919
Phone: (865) 594-6120

BPR 034240

ASSISTANT DISTRICT PUBLIC DEFENDER
1101 Liberty Street

Knoxville, TN 37919

Phone: (865) 594-6120

 

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