JOHN R. BENNETT, Petitioner,
v.
STATE OF FLORIDA, Respondent.
Case No. 2D08-4028.
District Court of Appeal of Florida, Second District.
Opinion filed November 25, 2009.
Petition for Writ of Certiorari to the Circuit Court for the Twelfth Judicial Circuit for Manatee County, sitting in its appellate capacity.
Darren Finebloom of Finebloom & Haenel, P.A., Sarasota, for Petitioner.
Bill McCollum, Attorney General, Tallahassee, and Tonja R. Vickers, Assistant Attorney General, Tampa, for Respondent.
ALTENBERND, Judge.
John R. Bennett seeks certiorari review of a circuit court’s appellate decision reinstating a DUI charge against him in county court. The county court had dismissed the DUI charge because either a deputy sheriff’s video camera failed to
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record the roadside field sobriety test or the digital recording system in the sheriff’s office failed to preserve the recording. The circuit court reversed this order, concluding that the case was controlled by the holding in State v. Betts, 659 So. 2d 1137 (Fla. 5th DCA 1995), and that the county court had mistakenly treated dicta in State v. Powers, 555 So. 2d 888 (Fla. 2d DCA 1990), as a holding from this court. As further explained in this opinion, in light of the decisions in Samborn v. State, 666 So. 2d 937, 938 (Fla. 5th DCA 1995), and State v. Davis, 14 So. 3d 1130 (Fla. 4th DCA 2009), we conclude that the circuit court did not depart from the essential requirements of the law in reaching this decision and in remanding the case to the county court where this complex issue can be explored in greater detail.
The issue in this case—at least at the county court level—is what, if any, sanction should be imposed upon the State when it attempts to create physical evidence for use in a criminal proceeding, under circumstances where it has no legal duty to create that evidence, and in the process of preparing that physical evidence, it inadvertently destroys the preliminary work or data and is unable to produce the desired evidence for use at trial.
At the conclusion of this opinion, we provide a lengthy discussion—in dicta—of the decisions by the Florida supreme court in State v. Sobel, 363 So. 2d 324 (Fla. 1978), and Kelley v. State, 486 So. 2d 578 (Fla. 1986) (Kelley I), and of the decisions of the U.S. Supreme Court in California v. Trombetta, 467 U.S. 479 (1984), and Arizona v. Youngblood, 488 U.S. 51 (1988), that form the starting point for any analysis of the above-referenced issue. It appears to us that the analysis of the issue may be somewhat different under Sobel than under Youngblood. An examination of
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cases from around this country also suggests that other courts have not settled on a single analytical structure for the resolution of this issue.
At least in this case, which involves the loss of an opportunity to present a video recording of a field sobriety test, there can be little doubt that a recording would have been “relevant” to establish a “material” fact as those terms are defined in section 90.401, Florida Statutes (2007), of the evidence code. The decisions related to this issue, however, discuss a concept of “constitutional materiality” that seems more complex. The analysis in Youngblood creates different outcomes depending on whether the lost evidence is “materially exculpatory” or “potentially useful.” 488 U.S. at 57-58.
A serious difficulty in the analysis of this problem arises because, although it is obvious that a recording of the field sobriety test would be very relevant to a material fact at a trial on the charge of DUI, it is usually very difficult to determine whether this evidence would have been inculpatory, exculpatory, or inconclusive. It does not appear that the U.S. Supreme Court intends to require dismissal of criminal charges merely because evidence that would be relevant under the rules of evidence has been lost. On the other hand, it is not entirely clear in Florida who has the burden of proof and persuasion within this due process analysis when it comes to deciding whether the missing evidence would be “exculpatory” or “potentially useful.”
Admitting that our suggestion is only dicta, at least in the case of potential evidence that is accidently destroyed when the State has no legal obligation to create the evidence, we are inclined to believe that before lost evidence is declared to be “material exculpatory evidence,” the defendant should have a threshold burden to
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persuade the trial court, perhaps by the preponderance of the evidence, that (1) the lost opportunity to present relevant evidence involved evidence that would have created a reasonable probability that the outcome of the proceeding would have been different, and (2) the defendant did not have an adequate alternative method to provide comparable evidence. Only after such a threshold showing would the burden shift to the State to prove that the defendant had not been prejudiced. Whether dismissal is the only adequate sanction for an inadvertent loss of material exculpatory evidence is an issue that may require case-by-case analysis for which we suggest no solution—even in dicta.
Accordingly, this case presents a challenge to the county court, but it is obvious that the circuit court did not depart from the essential requirements of the law in sending the matter back for more consideration.
I. The Proceedings in the County and Circuit Courts
A deputy sheriff stopped Mr. Bennett while he was operating a motorcycle on July 3, 2007, at 10:11 p.m.1 The stop ultimately resulted in the State’s charging Mr. Bennett with DUI. Mr. Bennett and the deputy provided substantially different versions of the stop at a hearing on a motion to dismiss the charges.
The deputy testified that a passing driver told him that Mr. Bennett was weaving in his lane. After observing Mr. Bennett driving erratically, the deputy stopped him. Mr. Bennett admitted that he had had three beers on an empty stomach. Mr. Bennett smelled of alcohol and had slurred speech. The deputy conducted a field sobriety test and filled out the standard form documenting Mr. Bennett’s poor
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performance on that test. The deputy arrested Mr. Bennett and transported him to the county jail, where Mr. Bennett refused to provide a breath sample.
Mr. Bennett testified that he told the deputy that he had had three beers hours earlier. He said that he did quite well on the field sobriety test, that he had not made certain statements the deputy claimed he made, and that his speech was not slurred.
There is no dispute that the deputy believed that he recorded the stop and the field sobriety test on a digital video camera that was mounted on the cage inside his police car. The camera had a red light that indicated when it was functioning and recording. The deputy testified that the light was on during this stop. The camera worked by recording data onto a removable storage device. The deputy would later transfer the data to a DVD using equipment in the sheriff’s office. The deputy testified that this equipment, which has since been replaced, malfunctioned with some frequency. For whatever reason, no video of this stop could be transferred to a DVD, and the data on the removable storage device was apparently lost in the attempt to transfer it. No one suggests, and the county court did not find, that the deputy did anything intentionally to destroy the evidence.
In its order of dismissal, the county court found that the video camera was functioning that night and recorded the stop onto the removable storage device but that the recording was subsequently lost in the effort to transfer it. This is the most likely explanation, but it is also possible that the camera malfunctioned and recorded nothing. The circuit court recognized this possibility in its opinion. Under either factual
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circumstance, however, the county court’s analysis of the case was incorrect and the circuit court’s analysis was correct.
The county court correctly found that if a video recording of the stop existed, it would be material evidence in the case. The county court then determined that Mr. Bennett had been prejudiced by the loss of this evidence because it might corroborate his version of the events. The county court concluded that the accidental loss of the data on the digital storage device was a due process violation that warranted dismissal of the case without any further examination of the evidence. The county court explained that it did not need to decide whether the deputy acted in good or bad faith because, once the evidence was lost, the State was required to prove that the loss had not been prejudicial to the defendant, and the State could not prove a lack of prejudice under the competing factual claims in this case. This decision was strongly influenced by our earlier decision in Powers.
In reversing the county court, the circuit court briefly explained that the county court failed to determine whether the video recording would have been exculpatory evidence. It emphasized that the video footage had been lost due to a “technical failure” and not an intentional act. It relied on Betts, which held that the failure of a video camera to operate, without more, did not constitute a due process violation, and concluded that Mr. Bennett had not established a due process violation. 659 So. 2d at 1137.
II. The Narrow Standard of Review in a Certiorari Proceeding Reviewing an Appellate Decision from a Circuit Court
In reviewing the order, we are limited to determining whether the circuit court afforded Mr. Bennett procedural due process and whether it “applied the correct
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law” or “departed from the essential requirements of law.” See Dep’t of Highway Safety & Motor Vehicles v. Stenmark, 941 So. 2d 1247, 1249 (Fla. 2d DCA 2006). A “departure from the essential requirements of the law” necessary for the issuance of a writ of certiorari is something more than a simple legal error. See Ivey v. Allstate Ins. Co., 774 So. 2d 679, 682 (Fla. 2000). Instead, a district court should exercise its discretion to grant certiorari review only when “there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 528 (Fla. 1995).
Admittedly, the case relied upon by the circuit court, Betts, provides little analysis to support its holding. However, in a similar case, Samborn, the Fifth District denied a petition for certiorari review of a circuit court decision that reinstated a DUI charge against the petitioner in county court. 666 So. 2d at 938. The petitioner challenged the local sheriff’s office policy of destroying potentially exculpatory maintenance testing results on its breath-testing machines. Id. at 937-38. Although the circuit court upheld the county court’s findings, it reversed the decision, concluding that the county court had not utilized a proper legal analysis. Id. at 938. “The circuit court explained that, in determining whether the loss or destruction of potentially exculpatory evidence constitutes a due process violation, a trial court must apply the tests established in [Trombetta] and [Youngblood].” Id. Applying these tests, the Fifth District concluded that it had no basis to grant certiorari relief. Likewise, in this case, we conclude that this court should deny certiorari relief.
Recently, the Fourth District reviewed a circuit court’s decision to dismiss a felony DUI charge because of the loss of a video recording of a field sobriety test.
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See Davis, 14 So. 3d at 1131. In Davis, the data appears to have been lost in essentially the same manner as it was lost in this case. Id. Accordingly, the Fourth District in Davis was procedurally in a similar position to the circuit court in this case. Like the circuit court in this case, the Fourth District reversed the trial court and remanded for further proceedings. Id. The analysis in Davis, however, was distinctly different from the analysis in the circuit court opinion that we review today.
The Fourth District recognized that the due process analysis of a loss of evidence is different when the evidence is “material exculpatory evidence.” Id. at 1132. Relying heavily on a case from Oregon, the Fourth District decided that the lost evidence at issue was “material,” but nevertheless reversed the trial court because it decided that dismissal was too harsh a sanction. Id. It left it to the trial court to determine what lesser sanction would be appropriate. Id. at 1134.
We are troubled by aspects of the decision in Davis. First, the decision implicitly assumed that the lost video recording would have supported the defendant and not the officer’s version of the events. Perhaps something in the record supported that conclusion.2 It seems to this court that such a recording could be either very prejudicial to the defendant as inculpatory evidence in some cases, very helpful to the defendant as exculpatory evidence in other cases, and—perhaps most often—possibly useful to both sides.
The analysis in Davis relied on the Florida decisions in Sobel and Kelley I that are discussed later in this opinion, but made no reference to the U.S. Supreme Court’s decisions in Trombetta and Youngblood. As we discuss later, the analysis in
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Sobel predates Youngblood. The loss of evidence in this case seems more likely to be a loss of “possibly useful” evidence under the analysis in Youngblood, which would require a far different analysis.
Despite our concerns with the Fourth District’s analysis, it is precedent supporting the circuit court’s decision to reverse the order of dismissal. The circuit court’s decision, although holding that the defendant had not established a due process violation, did not preclude the defendant from seeking to prove such a violation on remand. The circuit court’s decision also would not preclude the county court from selecting a lesser sanction as authorized by Davis. Given that the county court was misled in its analysis by the dicta from this court, we cannot say that the circuit court departed from the essential requirements of the law in this case and note that the defendant continues to have avenues to challenge this issue in the county court.
III. This Court’s Contribution to the County Court’s Error
In dismissing the charges against Mr. Bennett, the county court’s decision gave great weight to language found in Powers. In Powers, this court held that the failure of a sheriff’s department to have a policy of videotaping field sobriety tests did not warrant the dismissal of a DUI charge where no recording had ever occurred. 555 So. 2d at 891. At the beginning of the legal analysis, we considered a hypothetical case in which a recorded tape was not preserved. Id. at 889. We stated:
Based upon th
