State v. Sobel
| Decision Date | 20 July 1978 |
| Docket Number | No. 52633,52633 |
| Citation | 363 So.2d 324 |
| Parties | The STATE of Florida, Petitioner, v. Robert SOBEL, Respondent. |
| Court | Florida Supreme Court |
Robert L. Shevin, Atty. Gen., Tallahassee, and Arthur Joel Berger, Asst. Atty. Gen., Miami, for petitioner.
Stanley M. Goldstein and Geoffrey C. Fleck of Kogen & Kogen, Miami, for respondent.
This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, in Sobel v. State, 349 So.2d 747 (Fla. 3rd DCA 1977), which directly conflicts with State v. Smith, 342 So.2d 1094 (Fla. 2d DCA 1977), and Ludwick v. State, 336 So.2d 701 (Fla. 4th DCA 1976). We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.
The defendant, Robert Sobel, on a two-count information, was convicted of sale or delivery and possession of a controlled substance. In his appeal to the District Court, two issues were presented. The first was whether the charges against the defendant should have been dismissed because the state failed to preserve a tape recording made by police officers during the alleged criminal drug transaction. The second was whether the defendant's conviction should be reversed because of an alleged variance between the state's proof that the controlled substance was lysergic acid diethylamide and the allegation of the information that the controlled substance was lysergic acid. The District Court considered only the first issue, finding it unnecessary to rule on the second. It reversed the defendant's conviction, holding that the trial court erred in not granting the defendant's motion to dismiss. We disagree and quash the decision of the District Court.
Prior to trial, the defendant filed a motion to dismiss, claiming that he was denied due process because the police had destroyed a taped recording of the alleged drug transaction. He asserted that the tape was crucial to his defense because, if it corroborated his contention that he took no part in the sale and never entered into any discussions about the drugs or the price or anything to do with the drugs, then he would be entitled to discharge. He said that the tape should have been preserved even though the police said it was inaudible.
From the testimony given during the hearing on the motion to dismiss, it appears that several police officers and a confidential informant met at the Miami Police Department where they made preparations for a controlled buy of drugs from the defendant. The informant had agreed to meet the defendant later in the day at the Grove Pub in Coconut Grove. Officer English accompanied the informant to the pub, posing as his "girlfriend" and carrying a concealed transmitter. The other officers were stationed nearby in a surveillance car which was equipped with a receiver and recording device. When the defendant arrived, he conversed with the informant out of the presence of Officer English. She could not hear any of their conversation, nor did she hear the defendant make any inculpatory statements when she, the informant and the defendant left the pub and walked to the defendant's car. While the defendant was in the pub, the officers in the surveillance car said that they could pick up nothing but music and static on their receiver, and when the defendant and the others left the pub and walked to the defendant's car, they could pick up no intelligible conversation. When they attempted to follow the defendant's car, their car became blocked by traffic, and they lost contact. The recorder was then turned off. The drug sale allegedly took place in the car sometime after it had been driven from the pub. Sometime later that same day, one of the officers played the tape back and heard only noises and static nothing clear from which he could make any sense. He put the tape back in the reusable tape bin. The transmitter and receiver were subsequently tested at the station and found not to be functioning correctly and were submitted for repair.
The trial court, having considered the questions of materiality and prejudice and having accepted the officer's testimony as to the unintelligibility of the tape, denied the motion to dismiss. The District Court reversed, holding that the mere possibility that the tape could have served to corroborate defendant's contention that he was not involved in the drug deal was critical.
The Supreme Court, in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), held:
We now hold that the suppression by the prosecution of evidence Favorable to an accused upon request violates due process where the evidence is Material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. (Emphasis supplied)
Fla. R. Crim. P. 3.220(j)(1) provides:
If, at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant to an applicable discovery rule, the court may order such party to comply with the discovery or inspection of materials not previously disclosed or produced, grant a continuance, grant a mistrial, prohibit the party from calling a witness not disclosed or introducing in evidence the material not disclosed, or enter such other order as it deems just under the circumstances.
Confronted with the question of whether the prosecutor's failure to tender certain evidence deprived the defendant of a fair trial, the Supreme Court, in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), described the requirements of Brady and defined what is meant by "materiality," which gives rise to the duty of the state to disclose:
The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish "materiality" in the constitutional sense.
The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt. 427 U.S. at 109, 112-113, 96 S.Ct. at 2400, 2401.
The state, conceding that the tape in the present case would have been discoverable evidence under Fla. R. Crim. P. 3.220, argues that the prejudice to the defendant was minimal since the tape was unintelligible and valueless. It relies on United States v. Bryant, 145 U.S.App.D.C. 259, 448 F.2d 1182 (1971), and its progeny for the proposition that, where evidence has been lost by the state, a balancing approach should be taken which gives the trial court broad discretion to determine what, if any, sanction should be utilized against the state for loss of this evidence. Bryant involved a situation where a recording of a narcotics transaction held to be discoverable under the Jencks Act was lost by an agent of the Bureau of Narcotics and Dangerous Drugs. The court concluded that, although the negligence was great, it must be weighed against other factors, and explained:
The lost tape here had major potential importance to the question of guilt or innocence, since it might have enabled appellants to contradict the testimony of the undercover agent involved in the narcotics transaction. It developed on remand, however, that the Bureau agents had played the tape and found it to be almost entirely unintelligible. The District Court credited the agents' testimony in this regard and concluded that the tape would have been of little use to appellants. There is nothing in the record...
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