CAPERTON, JUDGE:
Appellants Delbert Bessinger and Paul Carter appeal from the Warren Circuit Court's reversal of the Warren District Court's grant of Appellants' motion to suppress the evidence due to the unavailability of the arresting officer's in-car video tape. After a thorough review of the parties' arguments, the record, and the applicable law, we affirm the circuit court.
The genesis of this appeal occurred on October 8, 2012, when Delbert Bessinger was arrested and charged with operating a motor vehicle under the influence and other traffic offenses when Bowling Green Police Officer Mary Fields observed Bessinger stopped in the middle of the roadway, slowly proceed across the center line of a by-pass and drive the wrong way into a parking lot. It is undisputed, and reflected on the uniform citation, that Officer Fields recorded the traffic stop. After stopping Bessinger, Officer Fields administered standard field sobriety tests. Bessinger was taken to a medical center where he submitted to a blood draw, which
Paul Carter was arrested and charged with operating a motor vehicle under the influence and failure to wear a seatbelt on November 16, 2012. Bowling Green Police Officer Ben Carroll stopped Carter for failure to wear a seat belt and then administered a field sobriety test. It is undisputed that Officer Carroll recorded the stop. Carter was arrested and transported to the Warren County Regional Jail where he submitted to the Intoxilyzer 5000; the result was 0.152.
Bessinger and Carter, through counsel, requested the in-car recordings of their stops in the course of discovery. The Commonwealth could not produce them and explained to the district court that a permanent server failure had occurred at the Bowling Green Police Department. The Appellants moved to suppress the evidence related to any and all evidence and statements from the arresting officer given that the in-car video has not been produced in discovery.
In granting the motion to suppress, the district court noted that the Commonwealth did not dispute that such a video once existed and did not dispute its inability to produce the video. The district court found that the RCr 7.26 mandated the Commonwealth to produce the video. Additionally, the court determined that the video recordings were the "best evidence" of the officer's statements. Last, the court relied upon Green v. Commonwealth, 684 S.W.2d 13 (Ky.App.1984), and Sanborn v. Commonwealth, 754 S.W.2d 534 (Ky.1988), in concluding that the destruction of the evidence rendered the evidence properly suppressed. The Commonwealth appealed this ruling to the circuit court.
The circuit court reversed the district court's grant of the motion to suppress the evidence. The court distinguished Sanborn as the destruction of evidence therein was intentional. The court concluded that neither the Commonwealth nor the Bowling Green Police Department intentionally destroyed the video; instead the evidence was lost from an unexpected and unintentional act of an intervening entity, computer failure. Green was distinguished because of the type of evidence destroyed. Greeninvolved the destruction of the drug sample, leaving the defendant without the ability to test the sample. The court found this markedly different as the evidence of the crime was still available, the breathalyzer results or the blood test and the arresting officer was available to testify. The court did not address the best evidence argument relied upon in part by the district court.
The court concluded that based on the missing evidence case law the instruction should not be given if the loss was from mere negligence, which the court concluded was the case sub judice. The court also concluded that the technical failure fell into the category of "normal course of file maintenance". The court determined that the best evidence instruction was not warranted as there was no proof that the evidence was missing from anything other than computer failure or at least mere negligence. It is from this order that the Appellants now appeal.
On appeal, the Appellants argue that the circuit court erred in its reversal of the district court, to which the Commonwealth disagrees.
In review of the trial court's decision on a motion to suppress, this Court must first determine whether the trial court's findings of fact are clearly erroneous. Under this standard, if the findings of fact are supported by substantial evidence, then they are conclusive. Kentucky Rules of Criminal Procedure (RCr) 9.78; Lynn v. Commonwealth, 257 S.W.3d 596, 598 (Ky. App.2008). "Based on those findings of fact, we must then conduct a de novo review of the trial court's application of the law to those facts to determine whether its decision is correct as a matter of law." Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky.App.2002) (citing Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky.1998); Commonwealth v. Opell, 3 S.W.3d 747, 751 (Ky.App.1999)). We review de novo the issue of whether the court's decision is correct as a matter of law. Stewart v. Commonwealth, 44 S.W.3d 376, 380 (Ky. App.2000). With this in mind, we turn to the issues presented by the parties.
First, we shall address whether the circuit court erred in reversing the district court's grant of the motion to suppress based on the inability of the Commonwealth to provide the video recording.
At issue, RCr 7.26 states in part:
Sanborn v. Commonwealth, 754 S.W.2d 534, 539-40 (Ky.1988)(internal footnotes omitted).
We believe that Sanborn is markedly different than the situation presented here. The Sanborn prosecutor intentionally destroyed the taped statements, unlike the seemingly unintentionally technical failure of the Bowling Green Police Department. Also in Sanborn, these were statements of witnesses and, as such, observations or fact statements that were not observed by the defendant. In contrast, the defendants below were present during any statements made to them and necessarily by them, and free to make and recall any observations of the situation. Thus, we do not believe that Sanborn mandated suppression of the evidence; accordingly, we affirm the circuit court's reversal on this basis. We now turn to whether the circuit court erred in concluding that a missing evidence instruction was unwarranted.
First, we note that the court's ruling was premature given that this matter has not proceeded to trial; thus, there is the possibility that the Appellants will be entitled to a missing evidence instruction at trial. See University Medical Center, Inc. v. Beglin, 375 S.W.3d 783, 790
Estep v. Commonwealth, 64 S.W.3d 805, 810 (Ky.2002).
We agree with the court that there was no evidence of bad faith on behalf of either the Commonwealth or the Bowling Green Police Department regarding the loss of the tape given the facts we have on appeal. Per Estep, the Appellants would not be entitled to the instruction. However, we reiterate that the Appellants will have the opportunity to prove their entitlement to a missing evidence instruction at trial. Likewise, the lack of the instruction does not foreclose the Appellants from exploring, commenting on or arguing inferences from the failure to preserve the video recording.
The court below additionally relied upon Beglin in concluding that the Appellants would not be entitled to a missing evidence instruction:
University Medical Center, Inc. v. Beglin, 375 S.W.3d 783, 791 (Ky.2011).
We agree with the court below that mere negligence would not result in a
In light of the aforementioned, we affirm.
STUMBO, JUDGE, CONCURS.
KRAMER, JUDGE, CONCURS IN RESULT ONLY.
As noted, the best evidence rule requires a proponent who seeks to prove the contents of a writing, recording, or photograph to produce the original. See KRE 1002. For example, the contents of a photograph are "sought to be proved when it has probative value that is independent of the testimony of witnesses and thus is offered as a `silent witness.' ... the rule would apply to ... photographs used to prove details of objects, scenes, or events not directly observed by the naked eye of witnesses." Robert G. Lawson, The Kentucky Evidence Law Handbook § 11.05(3) (4th ed.2003).
Clearly, sub judice, the arresting officer may testify as to his personal knowledge and be cross-examined as such as the officer would not be interpreting the video or seeking to prove the content thereof.
Id. (internal footnotes omitted).