Mathis v. State, 78-1114

• Decision Date: 06 February 1980
• Docket Number: No. 78-1114,78-1114
• Citation: 379 So.2d 459
• Parties: Robert Lee MATHIS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 459

379 So.2d 459

Robert Lee MATHIS, Appellant, v. STATE of Florida, Appellee.

No. 78-1114.

District Court of Appeal of Florida, Fourth District.

Feb. 6, 1980.

Richard L. Jorandby, Public Defender, Tatjana Ostapoff and Jon May, Asst. Public Defenders, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, Glenn H. Mitchell and Marc E. Kirk, Asst. Attys. Gen., West Palm Beach, for appellee.

TENDRICH, MOIE J. L., Associate Judge.

The appellant was charged with kidnapping and sexual battery. Appellant moved for judgment of acquittal and to dismiss the information because the state had allegedly intentionally destroyed a tape containing alleged exculpatory material. The court denied both motions. Subsequently a jury found appellant not guilty of kidnapping and guilty of sexual battery involving use of physical force and violence not likely to cause serious personal injury. Appellant contends on appeal that the trial court erred in denying his motion to dismiss because the state's intentional destruction of the tape recording deprived him of due process of law.

On July 25, 1977, police arrested appellant at a friend's apartment. Detective Jenne testified that appellant gave a statement in which he admitted being with the victim on the night in question, but maintaining that she consented to performing oral sex, and which further stated that they never had intercourse. At the station, while being questioned, the appellant complained that the tape was bothering him, so the police turned it off. At the trial, Agent Hurley who was present during the taped interrogation, testified as follows:

Q. Agent Hurley, now, you mentioned that you had been told at the house by Mr. Mathis that there was no rape and everything was voluntarily consented to, is that correct?

A. Yes.

Q. Now, did you take part in any type of interrogation of Mr. Bob Mathis where a tape recorder was present?

A. Yes.

Q. Did Mr. Mathis make similar comments that everything was consentual (sic) between the parties?

A. Yes.

Q. Where is that tape today?

A. Destroyed.

Q. Destroyed? Why was that tape destroyed?

A. Well, at the time the tape was never transcribed. We didn't feel that it carried any importance in the case. It was never transcribed.

Due process requires that certain discoverable matter, i. e., all evidence which might lead the jury to entertain a reasonable doubt about a defendant's guilt, be disclosed to the defense. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). As Budman v. State, 362 So.2d 1022, 1025 (Fla. 3d DCA 1978), pointed out:

More recently, the Supreme Court in Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972), clearly articulated the following three criteria for measuring when the Brady rule has been violated:

"(a) suppression by the prosecution after a request by the defense,

(b) the evidence's favorable character for the defense, and

(c) the materiality of the evidence" Id. 373 U.S. at 794, 92 S.Ct. at 2568, 33 L.Ed.2d at 713.

Florida recently adopted a balancing approach for cases where evidence has been destroyed or lost by the state, which allows the trial court broad discretion in determining what, if any, sanction should be utilized against the state. State v. Sobel, 363 So.2d 324 (Fla.1978). Referring to this court's opinion in Ludwick v. State, 336 So.2d 701 (Fla. 4th DCA 1976), Sobel, supra, notes:

. . . the purpose of the discovery rule is to aid a defendant in the preparation of his case, not to give him a procedural escape hatch for the avoidance of prosecution . . . . (T)he mere fact that a taped recording which may have been utilized in evidence was destroyed does not require automatic reversal.

. . . (A) defendant is not denied due process where the contents of a lost or destroyed tape recording would not have been beneficial to the accused, thus demonstrating a lack of prejudice.

To support his position, appellant strongly relies on Farrell v. State, 317 So.2d 142 (Fla. 1st DCA 1975), but, as Budman v. State, supra at 1026, illustrates, this reliance is misplaced:

In Farrell, the Fourth District Court of Appeal held that the unintentional destruction (by erasure) by the State of discoverable tape recordings of undercover drug transactions violated ...