IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA CRIMINAL ACTION

State of Florida

vs.

JOHN ROBERT WALKER,

Defendant

Case No. 00-2866 CF

ORDER

This matter, having come before the court on the defendant's Motion to Dismiss or Exclude or Suppress Evidence, it is ordered:

1 . Findings

The defendant is charged with two counts of vehicular homicide that arose from a head. on collision that occurred on March 19, 2000. The defendant was the driver and only occupant of a 1999 Chevrolet S-10 pickup truck, and the victims were the two persons in the other vehicle, a 1994 Chevrolet Cavalier. Neither vehicle caught fire. The truck had an airbag and the electronic system that controlled the airbag contained a crash data recorder, and for five seconds before the airbag deployed it recorded the vehicle speed, engine RPM's, position of the throttle, and whether the brake switch was on or off. These recorders have been put into cars with airbags for many years. so car manufacturers could accumulate statistics on airbag deployments and improve the calculations that a car's computer must make to decide when to deploy the airbag. However, only Genera! Motors has made the data available to the general public, for a fee paid to the company that designs the software for the computer and crash data recorder.

The information recorded on the truck's crash data recorder might aid the state or the defendant to establish the issue, that is, whether the defendant drove so recklessly he was likely to cause death or great bodily harm. An examination of the truck might also shed light on this issue. Comparing damage on the underside of the truck to gouges and scrapes on !he highway might give evidence of the point on the highway where the two vehicles met, and measuring the crush damage to the truck might give an estimate of the truck' s speed at the moment of impact.

However, the truck is no longer available. The Florida Highway Patrol investigated the crash and called a junkyard to pick up the truck after the scene was examined. The highway patrol notified the junkyard to hold the truck until further notice. The junkyard notified the defendant that it had the truck and it would sell the truck "on 05/03/00" if its charges for towing and storage were not paid. However, that sale did not take place presumably because the highway patrol had a hold on the truck.

On June 26,2001, the highway patrol sent the defendant a letter stating the truck would be "released" to the towing company and the owner of the truck on July 14, 2001, and that the defendant had until that day to inspect the truck. The defendant was the owner of the truck and he received this letter, The letter also said the highway patrol had to be present during any inspection. A copy of this letter was sent to the junkyard. A copy of this letter was not sent to the state attorney or to the defendant's lawyer. While the letter told the defendant he would be liable for storage charges after July 15,2001, it did not say the truck would be scrapped. It simply said the truck would be "released" to the towing company and the owner. For those knowledgeable in how these things work, when the highway patrol released the truck, the junkyard would be free to execute on its lien and sell the truck if its towing and storage charges were not paid.

The highway patrol's letter of June 26, 2001 was sent to the defendant and the junkyard almost a year after the patrol completed its investigation. The highway patrol investigated this case from March 19, 2000, until July 25, 2000, when it secured an arrest warrant for the defendant's arrest. The trooper who testified at the hearing explained that the highway patrol no longer needed the truck and the junkyard had a business to conduct, so the truck was released.

The junkyard proceeded to dispose of the truck in the ordinary course of its business. The truck was a total loss so the junkyard sold it for scrap on October 25, 2001, and applied the proceeds against its bill for towing and storage. While the junkyard had notified the defendant that it was owed charges for towing and storage shortly after the crash and that it would conduct a sale on "05/03/2000", it did not send the defendant any further notice of this particular sale. Oddly enough, the 1994 Cavalier is still at the junkyard.

On March 18, 2002, the court granted a defense motion to appoint a traffic reconstruction expert to assist the defendant, and shortly after the expert was hired defense counsel learned that the defendant's truck was equipped with a crash data recorder and that the data could be retrieved. Defense counsel then sought the production of the truck for examination but, of course, by the spring of 2002, the truck was no longer available. The highway patrol did not know that a 1999 Chevrolet S-10 had a crash data recorder in it, although they did receive a bulletin in June of 2000 that certain other GM models had these recorders. Of course, the patrol did know the truck could be examined for crush damage to estimate the truck's speed and for damage to the underside to help determine the point on the highway where the two vehicles collided.

An eyewitness to the crash reported that when she turned onto the highway and headed west, she saw the defendant's truck in front of her also heading west. She said she was traveling at "80 to 85 miles per hour" and she believed the truck moved away from her car as the two vehicles progressed down the highway. She told the highway patrol that the defendant's truck was going "100 miles per hour." She reported the defendant's truck crossed the centerline for no apparent reason and hit the Cavalier in the eastbound lane. There were no other vehicles nearby.

The day after the wreck the defendant told the highway patrol he was traveling at about 60 miles per hour before the crash but he had no memory of the events immediately before the collision or the collision itself. He could only recall driving and then waking up in the hospital.

The defendant had a blood alcohol level of 0.044 grams per 100 milliliters of blood. The driver of the Cavalier had a blood alcohol level of 0.127 grams. which, of course. exceeds the legal impairment level of 0.08. The primary damage to the defendant's truck was on the front left side while the Cavalier's damage was "primarily to the front."

The highway patrol trooper who investigated and measured the crash scene believes the defendant's truck crossed the center lane and entered the eastbound lane, although it is not clear that he has a basis for that opinion that is independent of the eyewitness' testimony. He also reported there was "no indication of either vehicle taking evasive action prior to impact." A gouge in the highway, or perhaps two, it is not clear which from the probable cause affidavit, was found at the scene.

It is not clear whether the trooper has a basis independent of the eyewitness for estimating the speed of the defendant's truck. It is also not clear what measurements, reports, and photographs were done of the vehicles and the crash scene by the highway patrol or anyone else and whether the defendant's expert can use these to analyze the crash. It is also not clear what evidence might be found from an examination of the Cavalier.

The defendant moves to dismiss the charges or, in the alternative, to suppress evidence, in particular, any evidence of the defendant's speed.

2. Ruling

The defendant�s motion to dismiss is denied because there is no telling whether the information in the crash data recorder would have been inculpatory or exculpatory. Assuming it survived the crash, which seems likely since neither vehicle burned, it might have indicated the defendant was driving within the speed limit or that he was speeding; it might have indicated the defendant took his foot off the accelerator and applied the brake, or maybe he did not. There is no evidence the highway patrol acted in bad faith when they released the vehicle to the owner and the junkyard. At worst, this was a careless thing to do in a crash in which two persons died. As it turned out, the state may have lost a very important piece of evidence. Since the court cannot find the evidence would have been exculpatory and because the court does not find the state's failure to preserve the evidence was done in bad faith, the court cannot find a violation of due process. See, e.g., Exantus v. State, 734 So.2d 1176 (Fla. 4th DCA 1999); Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2nd 281 (1988).

Concerning the defendant�s motion to suppress evidence, this requires further analysis. "Florida courts apply a balancing approach to determine what sanction, if any, should be employed when the state loses evidence." State v. Westerman, 688 So.2d 979 (Fla. 2d DCA 1997) at 980, citing State v. Sobel 342 So.2d 1094 (Fla. 2d DCA 1977).

The crash data recorder would not be able to say the defendant's truck did or did not cross the centerline. It does not record changes in the direction of travel. An examination of the truck itself, however. might have helped determine where the truck was when the vehicles collided. The underside of the truck might have had components that struck the highway and left gouges or scrapes which give some evidence of where the vehicles were when they collided. But photographs of the truck, if they exist, or the report of the highway patrol, if there is one, may suffice for what is now missing. An examination of the Cavalier might also establish the point of impact. In short, the court does not have enough information to decide that an examination of the truck is material to a determination of where the vehicles were when they collided and whether the loss of the truck is prejudicial to the defendant on this question.

As for the defendant's speed. the crash data recorder might have shed light on this question. However. given the newness of this type of computerized information, experts might disagree about the reliability of the software and hardware and whether the data recovered is accurate and not manipulated. The recorder was, after all, an erasable memory chip. The party prejudiced by the data would certainly question the integrity and reliability of the system for recording and retrieving the data. Experience with the system may give experts confidence in the data retrieved as they develop procedures for extracting the data and familiarity with the software and hardware. Neither counsel has cited the court to a case in which this evidence was admitted. The admissibility of the data at trial is not certain. It is also not certain that all experts would rely on a crash data recorder in arriving at an opinion of speed. Again, counsel has not cited the court to a case in which experts used this information to arrive at an opinion of the speed of a vehicle in the seconds before a crash. As for crush damage to the truck, and whether it could give an estimate of the truck's speed, the trooper who investigated the crash. did not believe the crush damage was a reliable indicator of the speed of the truck, although the reasons for this opinion are not clear to the court. Even though the truck is no longer available, it is not clear that photographs, if they exist, or measurements of the deformation of the truck, if they exist, will not suffice for an estimate of crush damage and the speed of the truck at the moment of impact.

In summary. the court does not have enough information about the state's investigation and evidence and what is now available to the defense to decide if the loss of the truck is material and prejudicial to the defendant. For the foregoing reasons, the defendants motion to suppress is denied, without prejudice.

Done and Ordered at Fort Myers, Lee County, Florida.

R. Thomas Corbin, Circuit Judge

Certificate of Service

I hereby certify that a copy of the foregoing has been served on Claudia Stewart, Esq., Assistant State Attorney, and Karen Miller, Esq., counsel for the defendant, this date.

Dorina Soumastre, Judicial Assistant