IN THE CRIMINAL COURT FOR KNOX COUNTY. 
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DIVISION II 
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STATE OF TENNESSEE if". 3 

V. NO. 108894

HARLAN FERGUSON 

MOTION TO DISMISS COUNTS 1 AND 2 FOR FAILURE
TO PRESERVE VEHICLE PURSUANT TO STATE V. FERGUSON
Comes now the Defendant, by counsel, and respectfully moves this Court to
dismiss counts 1 and 2 of the presentment in the above-captioned case pursuant to
State v. Ferguson, 2 912 (Tenn. 1999) and its progeny, on the grounds that the
State has destroyed material evidence in this case, speci?cally evidence collected at the

scene a vehicle. As grounds for this motion, the Defendant states as follows.

I. INTRODUCTION.

It is alleged that on February 3, 2016, Harlan Ferguson was the driver of a
vehicle that was involved in an accident at approximately 7:32 pm. Mr. Ferguson?s
?ancee, 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.
The of?cers found Ms. Howe outside the vehicle on the passenger side. Both Mr.
Ferguson and Ms. Howe sustained multiple serious injuries and were rushed to the

University of Tennessee Medical Center (UTMC) by ambulance and by air, respectively.

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 26, 2016, Mr. Ferguson was arraigned
on this charge and the Of?ce of the Public Defender was appointed to represent him.

On September 30, 2016, counsel for Mr. Ferguson ?led a discovery request. A
response was provided by the state on October 7, 2016. The State has periodically
supplemented this response with additional information as it has been requested. On
February 16, 2017, counsel for Mr. Ferguson speci?cally requested information
regarding the vehicle involved in the accident at issue. On that same date, the State
advised that the vehicle had been released by the Knox County Sheriff?s Of?ce
(hereinafter, to the victim, Ms. Howe?s, insurance company.

Subsequent information provided by the State indicates that the vehicle was
towed from the scene of the accident by Cedar Bluff Towing on February 3, 2016.

While it appears there may have been a hold initially placed on the vehicle, it was
released only ?ve (5) days later, on February 8, 2016, by Chief Henderson. Chief
Henderson failed to document the hold or the release of the vehicle. EXHIBITS A and

B.

At the time of the vehicle?s release, it was insured by Tennessee Farmers Mutual

Insurance Company. EXHIBIT C.

Tennessee Farmer's Mutual Insurance Company arranged for the sale of the
vehicle through Insurance Auto Auctions. The vehicle was sold on July 27, 2016, to
Lowe's Auto Parts. EXHIBIT D.

Subsequent to the vehicle's sale to Lowe?s Auto Parts, Lowe's removed the back
bumpers and taillights. The company then crushed the car and melted the glass.

In addition to the proof attached hereto, the State has advised Counsel that it will
concede the vehicle was released and destroyed.

Due to the State?s release of the vehicle, it is no longer available for viewing.
examination, or inspection by the defense. As a result, the State?s conduct has
materially impaired Mr. Ferguson's ability to defend himself. Counts 1 and 2 of the
presentment pending against Mr. Ferguson should be dismissed under State v.
Ferguson, 2 912, 915?916 (Tenn. 1999), and its progeny.

ll. STATEMENT OF RELEVANT FACTS.

A. The Accident.

The State alleges that on February 3, 2016, Mr. Ferguson was operating a motor
vehicle in an unlawful and reckless manner, while under the in?uence of an intoxicant,
and that Mr. Ferguson?s behavior resulted in the death of the passenger in the vehicle 
Ms. Sarah Howe. Ms. Howe was Mr. Ferguson's ?ancee. She was also the owner of
the vehicle.

Discovery provided by the State indicates that on February 3, 2016, KCSO
of?cers were in the area of Emory Road and Bell Road. They were engaged in the
pursuit of a suspect in an unrelated case when Chief David Henderson observed a car

passing the chief?s unmarked car at a high rate of speed. Chief Henderson re-routed

one of the of?cers, Lt. David Amburn, to investigate this second vehicle, which of?cers
later determined was driven by Mr. Ferguson.

Chief Henderson and Lt. Amburn began a pursuit of the vehicle, traveling from
Emory Road to Bell Road. Though Lt. Amburn temporarily lost sight of the car, he
noticed what appeared to be a crashed vehicle, after rounding a curve.

As the of?cers approached the crashed vehicle, they noticed Mr. Ferguson was
attempting to exit the car. Before Mr. Ferguson was able to exit, however, the car burst
into flames. The of?cers pulled Mr. Ferguson from the car and then went to the
passenger side to check for occupants. As Lt. Amburn went around the car, he noticed
a female lying beside the passenger side rear wheel. The female, who was later
identi?ed as Ms. Howe, was semi-conscious. She was removed from the area of the
?re and later transported by Life Star to the University of Tennessee Medical Center
(hereinafter, where she later died.

B. Removal of the Vehicle from the Scene of the Accident.

Information provided by the State and through subpoenaed documents indicates
that the crashed vehicle was removed from the scene of the accident by Cedar Bluff
Towing. The tow company removed the vehicle the same night as the accident.

Initially, the lead of?cer on the case Chief David Henderson- placed a hold on
the vehicle. But, this hold was released within just days. The State has advised that
there are no records which indicate why the vehicle was released. As the active
investigation of this case was not yet closed, and charges were not ?led until August 30,

2016, it is not clear why the vehicle was released so quickly.

On February 8, 2016, just ?ve (5) days after the accident, Cedar Bluff was
advised by Chief Henderson that the hold on the vehicle was released. The vehicle was
released to the deceased's insured - Tennessee Farmer's Insurance.

Tennessee Farmer?s Insurance arranged for the vehicle to be picked up by the
Insurance Auto Auctions (hereinafter, company. The car was removed from the
tow lot on February 16, 2016. The car was then stored at the IAA lot until a July
auction.

On July 27, 2016, the vehicle was purchased at this auction by Lowe?s Auto
Parts. Lowe's Auto Parts is a salvage company that purchases damaged vehicles for
the eventual resale of parts. Subsequent to the vehicle purchase, Lowe?s removed the
back bumpers and taillights, crushed the vehicle, and melted the glass.

C. Evidentiary Value of Vehicle.

While the State would contend that this case is simple, in fact, it is not. This
vehicle was of signi?cant importance to the preparation and construction of Mr.
Ferguson's case. Due to its release by the State, and the State?s otherwise
incompetent handling of the scene and evidence, Mr. Ferguson ?nds himself at a
constitutionally impermissible disadvantage.

1. Nature and Cause of Accident

Here, the State has alleged that the cause of the accident in this case is due to
Mr. Ferguson?s reckless driving. However, other than this assertion, itself, and the
testimony of the of?cers that were pursuing the vehicle Mr. Ferguson was driving, there

is no solid evidence to indicate Mr. Ferguson, himself, was responsible for the accident.

More importantly, there is no longer any evidence which would indicate Mr.
Ferguson was not responsible for the accident. The absence of such evidence is due to
the destruction of the vehicle in this case. Were the vehicle available for inspection, the
defense would be able to determine whether there was a mechanical or electrical issue
which caused the accident: consider, for example, the effect a blown tire, or the failure
of a ball joint, might have on one?s ability to successfully control a vehicle. If there had
been such a mechanical failure in this vehicle, the likelihood of an accident would have
been great, regardless of Mr. Ferguson?s level of intoxication or manner of driving.

2. Proximate Cause of Ms. Howe?s Death

Here, the State has further alleged that Mr. Ferguson's intoxication was the
?proximate cause? of Ms. Howe's death. Yet, without the vehicle to examine, how is Mr.
Ferguson to counter this claim? Without the vehicle, and in particular the Event Device
Recorder (hereinafter, we have absolutely no information regarding what was
occurring within the vehicle at the time of the accident.

The EDR would have been able to provide the defense information on how Mr.
Ferguson was driving the vehicle and any actions Ms. Howe may have taken. The EDR
for this model of vehicle would have recorded this information.

The EDR is a module which is found near the front center of a vehicle. It is
intended to survive crashes. The module is able, through the use of proprietary
software, to generate a report. This report is comprised of information that is stored for
the ?ve seconds preceding an ?event?. An ?event" includes a crash. The EDR may store
up to two (2) events. The events may be an airbag deployment event, or a non?

deployment event. The report includes a host of helpful information, including but not

limited to 1) ignition cycle, (2) acceleration, (3) vehicle roll angle, (4) steering input
(including degrees and direction which steering wheel is turned), (5) service break, (8)
multiple location airbag deployment, (7) stability control, (8) presence of driver, (9)
presence of passenger, (10) seatbelt use or non-use of driver, (11) seatbelt use or non-
use of passenger, (12) seat track position of driver and passenger, (13) occupant size
classi?cation, (14) speed at time of crash, and (15) driver actions at time of crash.
EXHIBIT E.

Clearly, information related to the activities of both the driver and passenger is
important to the defense's preparation and trial of this case.
Ill. SUMMARY OF APPLICABLE LAW.

In State v. Ferguson, 2 912, 915-916 (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. In 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, 918 (citing Tenn. Const. Art. I, The
Ferguson court then developed a three-step analysis to determine whether atrial
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.

The Tennessee Supreme Court began its analysis of whether Ferguson's trial
was "fundamentally unfair" by asking whether the state had a duty to preserve the
evidence in question, which was a police cruiser video. "Whatever duty the Constitution
imposes on the States to preserve evidence, that duty must be limited to evidence that
might be expected to play a signi?cant role in the suspect?s defense." 2 at 918.
To meet this standard of "constitutional materiality", the Court said the evidence must
both "possess an exculpatory value that was apparent before the evidence was
destroyed, and be of such a nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means." Id. at 918. The Court has
identi?ed some of the factors to be considered in assessing the appropriate remedy:

(1) [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.
State v. Mem?man, 410 779, 785 (Tenn. 2013). 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, No. E200702734CCAR3CD, 2009 WL 690685 (Tenn. Crim. App.
Mar. 13, 2009) abrogated on other grounds by State v. Merriman, 410 779

(Tenn. 2013) (dismissal of charges where videotape that directly captured the alleged

aggravated robbery was destroyed, not pursuant to standard procedure).

If the proof shows a duty to preserve the evidence and a failure by the State in
that duty, then the following factors must be considered: the degree of negligence
involved; (2) the significance 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." Ferguson, 2 at 917.

IV. APPLICATION OF LAW T0 FACTS.

A. The State?s Release of the Car was a Violation of Its Duty to Preserve
Important and Unique Physical Evidence.

1. The State had a duty to preserve the car.

In this case. the defense was entitled to view and inspect the decedent's vehicle
and to inspect the Event Data Recorder. In criminal court, such access is mandated
under Rule (defense entitled to access to tangible objects in the State's
control if they are ?material to preparing the defense" or the State "intends to use the
item in its 

The State alone had control over the car, and had a duty to maintain it. See
Merriman, 410 at 785 (?the State's general duty to preserve all evidence subject
to discovery and inspection? under law). As to whether the evidence might be expected
to play a signi?cant role in the defense, it is surely relevant that the vehicle's condition
was not properly documented and that no inspection or reports were made prior to Chief
Henderson?s release of the vehicle. Had the defense been able to inspect the vehicle
and run an EDR report, the defense would be able to counter the State?s claims
regarding Mr. Ferguson?s behavior and whether his actions were the proximate cause of

Ms. Howe's death. As the Court noted in Mem'man, the defense need only establish

that the evidence was ?potentially" exculpatory. 410 at 785. It has surely met
that hurdle here.
2. The State allowed the evidence to be destroyed.

The car is no longer within reach of the defense. Here, the defense has been
able to track down the car through a series of subpoenaed documents. However, in the
end, it was determined that the vehicle had been destroyed prior to the charges were
even ?led in this case. Whatever evidence that the defense could have gleaned from
inspection of the car has been lost irretrievably by the State's action.

B. Dismissal Is the Appropriate Remedy.

1. Degree of negligence.

The negligence of the State in allowing this vehicle to be released is extremely
high. Indeed, it surely surpasses mere negligence. Chief Henderson is a well-seasoned
of?cer with the Knox County Sheriff's Of?ce. It is highly unlikely this was the ?rst vehicle
accident with death scene he had worked. He was doubtlessly aware of the evidentiary
value of the vehicle involved in the accident. Further, in releasing the vehicle. Chief
Henderson failed to document anything related to the vehicle's release. Further, he
failed. prior to its release, to have the condition of the vehicle documented,
photographed, or inspected. How could an of?cer with decades of experience not know
that the vehicle was an important (and almost exclusive) piece of evidence in this case?

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.

'lD

2. Signi?cance of evidence, availability of substitute
evidence, and suf?ciency of other evidence.

The car in this case was essentially the crime scene. Any independent effort by
the defense to recreate that crime scene in order to test the State?s theory as to exactly
how the accident occurred would require access to the car. The State has not only
overlooked, but has absolutely failed to document aspects of the car that would shed
light on the case. Because of the State's actions there is no comparable substitute
evidence available.

Most particularly, it is evident that the State intends to use evidence of Mr.
Ferguson?s ?reckless" driving, and subsequent accident. Yet, the State has no proof of
?reckless driving" other than the of?cers' testimony; and has failed to properly
investigate and document the scene of the accident.

Here, the State has alleged that Mr. Ferguson was driving recklessly and that
due to this recklessness and intoxication, he had an accident, in which his ?ancee,
Sarah Howe, perished. However, there is no longer any independent, objective
evidence, which indicates that Mr. Ferguson was either driving recklessly, or that his
driving caused an accident.

Here, after of?cers arrived on the scene, they ?rst removed Mr. Ferguson and
Ms. Howe from the area of the vehicle. After ensuring that they were en route to the
hospital, of?cers ?processed? the accident scene. However, the way in which the KCSO
processed the accident scene falls well below local and national standards. The KCSO
had the responsibility of protecting the scene, preserving the physical evidence, and
collecting and submitting the evidence for scienti?c examination. Here, however, other

than a few poorly documented and composed photographs, there is absolutely nothing

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the KCSO did to preserve the evidence in this case. An example sampling of the
photographs provided by the State in this case are attached as EXHIBIT F.

Photographic documentation of an accident scene creates a permanent historical
record of the scene. Photographs should provide detailed evidence that constructs a
system of redundancy should questions arise concerning the report, or position of
evidence at the scene. The investigator should provide detailed photographic
documentation of the scene that provides both instant and permanent high-quality
images. It is important to document in writing a description of each photo so that it can
be used for future reference. Further, should the photograph documentation of the
evidence be made more dif?cult due to the circumstances (such as here, the lighting),
the evidence should be photographed again later under more suitable conditions. See,
generally, Crime Scene Examination, National Institute of Justice,

(last visited May 31, 2017); and Crime Scene Investigation A Guide for Law
Enforcement, US. Department of Justice (January 2000), available at

.

One may see from these photographs that only an insubstantial number of
photographs were taken at the scene. Of these photographs, only a small portion
document the vehicle or the location of the accident. These photographs, however, are

of such poor quality that they provide very little (if any) information that is valuable to the

defense.

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The photographs certainly do not provide the information that an inspection of the
vehicle and a report by the EDR would have provided. A defense expert would have
been able to view other areas of the car to determine whether there were any
mechanical or electrical issues which contributed to the accident; and through use of the
EDR would have been able to provide information regarding the activities of both Mr.
Ferguson and Ms. Howe. Did Ms. Howe grab the steering wheel, was she wearing her
seat belt, was she in her seat? Due to the State?s failure to preserve the evidence in
this case, we will never know.

Here, the KCSO failed to properly document the condition of the vehicle; and
more importantly, failed to remove the EDR for further analysis. The KCSO of?ce has
within their capacity to better document an accident scene and there is no excuse for
their failure to do so in this case.

In addition to failing to properly preserve the condition of the vehicle, the State so
shoddily handled the scene, otherwise, that there is absolutely no competent evidence
which may be gleaned from its reports. Here, there was no accident reconstruction or
survey of the scene. Further, not all aspects of the scene were photographed. Missing is
evidence of the area of impact, the operator's view approaching crash, road evidence,
interior of the vehicle, collision debris distribution, and vehicle damage. There was not a
?to scale' drawing, nor was the drag factor of the road measured. The investigating
of?cers did not 'walk the scene' to look for road defects or evidence that the road may
have caused the collision. Nor did the investigating of?cers determine whether a portion
of the vehicle or its restraints malfunctioned. The clothing of the occupants was not

secured; were it still available it might be inspected to determine the point of impact and

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travel of the decedent?s body. The available reports do not indicate who the medical
responders were who treated Mr. Ferguson and Ms. Howe; nor were their injuries at the
scene properly documented. Equally important, the investigators did not document the
uninjured portions of the occupants, as well. There are no tire marks or road
measurements; nor is there documentation of visibility, weather or lighting issues.

There are none of these things that would have been documented and preserved
in a properly processed accident scene. Instead we are left with only a smattering of
poor quality photographs.

The examinations that would have been available to the defense were the car
and EDR still available cannot be replicated by consulting other evidence in the case.
The defense has forever lost the ability to double-check the quality of the State?s
investigation. See State v. Stephens, 529 7?12, 713 (Tenn. 1975) (a defendant
should not be forced to rely on the State's analysis of the evidence in a case). The
defense has forever lost the ability to examine the rest of the car for other evidence
ignored by the State.

Finally, this is not a case where other evidence of the defendant's guilt is
overwhelming. Other than proof that Mr. Ferguson was the driver of the vehicle through
the of?cer?s testimony and that he had alcohol in his system, there is no proof that Mr.
Ferguson's intoxication was the ?proximate cause" of his ?anc?e?s death. Mr. Ferguson
has lost the ability to confront and dispute the State's evidence. All of these factors

weigh strongly in favor of dismissal of the ?rst two counts of this presentment.

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3. Conclusion.

In light of the obvious importance of this evidence and the egregious nature of
the State's actions, the only appropriate remedy would be to dismiss counts one and
two of this case. 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.

B. In the Alternative, Trial After The State?s Release of the Vehicle
Would Violate 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 vehicle in this case was important evidence in this case and
that the defense would need to inspect the vehicle. It nonetheless deliberately chose,

through its action, to allow the vehicle to leave its hands.

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