Mitchell v. StateMitchell v. State
The state filed an information on May 18, 1977, charging appellant with sale and delivery of heroin on the preceding March 14. On May 23 appellant filed a comprehensive demand for discovery pursuant to
At trial Detective White of the Pinellаs County Sheriff‘s Department testified that on March 14 he was working undercover to assist the Hillsborough County Sheriff‘s Department in narcotics investigations. White said that on that day he attempted to make a buy from appellant at the New Lounge in Tampa. He identified appellant as having sold him two tinfoil packets of heroin for $20. During the transaction White was wearing an electronic transmitter, commonly called a body bug.
Detective Doss from the Hillsborough County Sheriff‘s Department testified that he and his colleague, Detective Latimer, monitored and recorded the transmission from White‘s body bug from their position across the streеt from the New Lounge. Doss testified that only background noise, music, and unintelligible voices were picked up on the tape. He further testified that he did not know аppellant and did not see the transaction.
The defense called Detective Latimer, who also testified that there were no distinguishable voices on the tape. The defense attempted to impeach Latimer on the basis of his discovery deposition, taken five days before trial, in which Latimеr purportedly said there were voices on the tape which could be made intelligible by means of some sort of electronic device. However, the deposition itself was never introduced into evidence. From Latimer‘s testimony it appears that he had said in his deposition the
Appellant took the stand on his own behalf. He stated that although he worked near the New Lounge and had been there on occasion, he did not recall being there on March 14. He emphatically denied ever having met Detective White or ever having sold or given heroin to anyone.
Thus, it was undisputed that when the officers conducted the investigation which led to the charge against appellant they mаde a tape recording of the transaction with the expectation that this voice evidence would identify appellant as a heroin seller. Likewise, it is undisputed that despite defense counsel‘s timely demand the tape was never produced, but was, in fact, erased while in the possession of the state. The evidence does not reveal whether the erasure was intentional or inadvertent; nor even when it occurred. However, it may be inferrеd the erasure was made after defendant‘s discovery demand.1
In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215, 218 (1963), the United States Supreme Court held:
[T]he 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.
The First District Court of Appeal applied the Brady principle in Farrell v. State, 317 So.2d 142 (Fla. 1st DCA 1975). There it was held that the unintentional destruction of a tape recording of a transaction out of which defendants were charged, after timely demand for discovery, violated the defendants’ right to due process. In a specially concurring opinion Chief Judge Boyer noted that the mere inadvertent destruction of evidence would not ipso facto lead to reversal, but rather it must be demonstrated that the destroyed evidence was material and that the defendant was prejudiced by the destruction. 317 So.2d at 144.
The facts of Sobel v. State, 349 So.2d 747 (Fla. 3d DCA 1977), are almost identical to those of this case. Sobel was convicted of sale and delivery of a controlled substance. The testimony reflected that the drug transaction took place in Sobel‘s car with an undercover officer аnd informant in the back seat. There, as here, the undercover officer was outfitted with an electronic transmitter, the signal from which was monitored and recorded by another officer elsewhere. Only this latter officer heard the tape made of the transaction, and he testified that he destroyed it beсause he could only hear indistinct sounds and static. There, also, the defendant denied taking part in the transaction which led to his arrest. On appeal thе third district held that the defendant had been denied due process because he was unable to examine the destroyed tape and utilize it in his defense if he so desired.
We agree with the rationale of our sister courts in the first and third districts. In the ordinary situation the trial court must make an evidentiary determination as to whether the evidence withheld by the state is material to the defendant‘s guilt or punishment. However, undisclosed evidence which does not raise a reasonаble doubt as to the defendant‘s guilt will not require a reversal. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Briskin v. State, 341 So.2d 780 (Fla. 3d DCA 1977). See Antone v. State, 355 So.2d 777 (Fla. 1978).
Unfortunately, the tape in the instant case has been destroyed and is not susceptible to reviеw under the above standard. But it must be noted that here, just
Accordingly, the trial court is directed to vacate apрellant‘s judgment and sentence, and discharge him.
HOBSON, Acting C.J., and GRIMES, J., concur.