State v. Powers, 89-01025
| Decision Date | 05 January 1990 |
| Docket Number | No. 89-01025,89-01025 |
| Parties | 15 Fla. L. Weekly D156 STATE of Florida, Appellant, v. Nicholas Patrick POWERS, Warren A. Stevens and Linda J. Schoeppl, Appellees. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Tallahassee, and Stephen A. Baker, Asst. Atty. Gen., Tampa, for appellant.
Denis M. de Vlaming and William C. Gregg, III, Clearwater, for appellees.
The state has appealed three orders entered by the county court in and for Pinellas County, Florida. We have accepted jurisdiction pursuant to Florida Rules of Appellate Procedure 9.030(b)(4)(A) and 9.160(e)(2). After reviewing the briefs, record on appeal, and hearing oral argument, we conclude that the trial court erred by dismissing the charges against the appellees, Nicholas Patrick Powers, Warren A. Stevens, and Linda J. Schoeppl and, accordingly, reverse.
The appellees were arrested by the Pinellas County Sheriff's Department and charged with driving under the influence (DUI) in violation of section 316.193, Florida Statutes (1987). The appellees filed motions to dismiss the charges filed against them. The motions alleged that the appellees' due process rights were violated because the sheriff's department did not video tape the field sobriety tests conducted at the time of arrest and later at the place of incarceration.
At the hearing on the motions, two of the appellees testified that they performed the tests better than the written reports indicated, and they felt that a video tape would support their position. The parties stipulated that the third appellee would testify the same way. In addition to the testimony of the appellees and the alcoholic influence report forms prepared by the arresting officers, Sergeant Lonnie Hill, supervisor of the DUI squad, testified and laid the predicate for the introduction of a memorandum that he had prepared at the request of his immediate supervisor. On the date of the hearing, February 17, 1989, Hill had been employed by the sheriff's department for approximately seven years. During that period of time, the department had never video taped drivers performing field sobriety tests. During the month of June 1988, Hill, at the request of his supervisor, prepared a memorandum concerning the use of video tapes in the prosecution of DUI offenses. The memorandum stated, among other things, that Hill had received information that video taping did not help the prosecution of DUI offenses, but instead favored the driver when a driver had a blood alcohol reading just over that needed to establish a presumption of impairment. In Hill's opinion, a deputy's observation of an accused's performance of the field sobriety test was the best evidence of the performance and the testing procedures should not be video taped. There was no evidence presented to establish that the sheriff's policy of not video taping field sobriety tests was based upon this memorandum or upon Hill's opinion. At the conclusion of the hearing, the trial court granted the appellees' motion to dismiss.
In a very thorough order, the court concluded that law enforcement's demonstrated bad faith in intentionally failing to preserve potentially exculpatory evidence of the appellees' successful performance of the field sobriety tests constituted a denial of due process sufficient to warrant dismissal of the charges. The state filed a timely notice of appeal from that order dismissing the charges, and pursuant to the trial court's request, we accepted jurisdiction of the consolidated appeals.
Under the circumstances of this case, we agree with the state that the appellees' due process rights were not violated by the sheriff's department not video taping the appellees' performance during field sobriety testing.
Based upon the record presented to us, if the appellees' performances had been video taped and the tape had not been preserved, we would affirm the trial court's dismissal of the charges filed against the appellees without having to consider the good or bad faith of the sheriff's department. An accused's due process rights are violated, irrespective of the good or bad faith of the prosecution, if the prosecution suppresses material evidence favorable to the accused. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Although an accused's due process rights are not violated if the contents of a lost or destroyed tape recording would not have been beneficial to the accused, thus demonstrating a lack of prejudice, the state has the burden of showing the absence of prejudice. State v. Sobel, 363 So.2d 324 (Fla.1978). In this case, the record reflects that each of the appellees presented evidence indicating that the tapes would be material in that they would impeach the field sobriety test reports and the testimony of the arresting and backup officers. Accordingly, the loss or destruction of the tape, if it had been made, would have prejudiced the appellees and resulted in a violation of their due process rights, and we would affirm the trial court. Sobel.
In this case, the trial court concluded that law enforcement's demonstrated bad faith in intentionally failing to preserve potentially exculpatory evidence of appellees' successful performance on field sobriety tests constituted a denial of due process sufficient to warrant dismissal of the charges. We disagree. In a case where the destruction of evidence is a flagrant and deliberate act done in bad faith with the intention of prejudicing the defense, that alone would be sufficient to warrant a dismissal of the charges against the appellees. See Strahorn v. State, 436 So.2d 447 (Fla. 2d DCA 1983). In its order, the trial court found that the decision not to video tape field sobriety testing was a conscious policy decision that was made and approved by the sheriff based upon information and advice received from his subordinates through written memorandum. The court then referred to Hill's memorandum on June 22, 1988, and found it could be considered as having formed the basis for the sheriff's decision not to video tape field sobriety tests. The record lacks any evidence that the policy of not video taping had anything to do with this memorandum. The sheriff's department, then under the direction of Sheriff Coleman, established a policy of not video taping performance tests approximately seven years prior to Hill's memorandum recommending that the department refrain from doing so. Absent any evidence that the policy was not initiated in good faith, we will not impute a finding of bad faith based upon the opinion of one deputy given to a subordinate to the sheriff seven years later. We must instead conclude that the policy was...
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State v. Ware
...agents may suppress evidence by failing to collect and preserve the evidence when performing routine procedures); State v. Powers, 555 So.2d 888, 890 (Fla.Dist.Ct.App.1990) (suggesting that failure to gather evidence may, in some circumstances, be equivalent to destruction of evidence by af......
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