NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
STATE OF FLORIDA, )
)
Appellant, )
)
v. ) Case No. 2D15-597
)
MICHELLE DAWN LAMBO, )
)
Appellee. )
)
Opinion filed June 1, 2016.
Appeal from the Circuit Court for
Hillsborough County; Samantha L. Ward,
Judge.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Wendy Buffington,
Assistant Attorney General, Tampa, for
Appellant.
Frank de la Grana and Scott Boardman,
Tampa; and Kenneth S. Siegel, Tampa,
for Appellee.
BLACK, Judge.
The State challenges the trial court's order dismissing the information
charging Michelle Lambo with leaving the scene of a crash with injury. The trial court
determined that Lambo's due process rights were violated by law enforcement's failure
to preserve evidence. We reverse and remand.
Lambo filed a motion to dismiss, or in the alternative a motion in limine,
alleging that law enforcement lost or destroyed materially exculpatory evidence.
Specifically, Lambo claimed that witnesses to the crash had been shown two photo
packs, both of which contained photos of Lambo, and none of the witnesses were able
to identify Lambo. Those photo packs have since been lost or destroyed. Lambo
claimed the photo packs are materially exculpatory evidence. She requested that the
court dismiss the information or alternatively enter an order preventing the State from
adducing any evidence or testimony regarding the specific contents of either of those
photo packs and limiting the questioning of each witness who viewed those photo packs
to whether photo packs were shown to them and whether the witnesses identified
Lambo. Lambo did not allege that the photo packs were lost or destroyed in bad faith.
At the hearing on Lambo's motion, the parties stipulated that two photo
packs were produced and shown to at least two witnesses, that both photo packs
contained a photo of Lambo, and that the witnesses did not identify Lambo as the
suspect. In granting the motion to dismiss, the trial court found that the witnesses'
inability to identify Lambo would be significant to the defense where the evidence
against Lambo is wholly circumstantial and that an inability at trial to show the jurors the
photo or photos of Lambo that the witnesses were shown would violate Lambo's due
process rights based upon the totality of the circumstances in this case.
We review an order granting a defendant's motion to dismiss de novo.
State v. Bennett, 111 So. 3d 943, 944 (Fla. 2d DCA 2013). "The dismissal of a charge
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is the most severe sanction a court can impose for the destruction of evidence; it is to
be used with the greatest caution and deliberation." State v. Thomas, 826 So. 2d 1048,
1049 (Fla. 2d DCA 2002). If evidence is materially exculpatory law enforcement has a
duty to preserve it and the failure to do so constitutes a due process violation. Bennett,
111 So. 3d at 944 (citing California v. Trombetta, 467 U.S. 479, 488 (1984)). Materially
exculpatory evidence is evidence which "might be expected to play a significant role in
the suspect's defense"; it is evidence "having 'constitutional materiality,' in that it
possesse[s] 'an exculpatory value that was apparent before the evidence was
destroyed' and [is] 'of such a nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means.' " Bennett, 111 So. 3d at
944-45 (quoting Trombetta, 467 U.S. at 489).
Conversely, where the lost or destroyed evidence is only potentially useful
to a defendant—"posing only some likelihood of exonerating a defendant"—the
defendant must establish bad faith on the part of law enforcement in order to succeed
on a motion to dismiss. Id. at 945; see also Yero v. State, 138 So. 3d 1179, 1182 (Fla.
3d DCA 2014).
Here, the photo packs themselves are not the exculpatory evidence. It is
the testimony of the witnesses that is critical. That is, without the witnesses' testimony
the photo packs hold little evidentiary value and are only potentially useful to the
defense. See Bennett, 111 So. 3d at 945 ("It is undisputed that the video showed the
altercation between Bennett and Barron, but it is also undisputed that at least three
people other than the two participants also witnessed it. Thus the defense can obtain
evidence comparable to the video in the form of the eyewitnesses' testimony. That
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being so, the unavailable video did not rise to the level of constitutionally material
evidence."); State v. Rivers, 837 So. 2d 594, 595 (Fla. 2d DCA 2003) (reversing
dismissal where a lost audiotape was only "potentially useful evidence due to the
existence of the transcript of the tape" because "in the absence of the audiotape, Rivers
had 'alternative means of demonstrating [his] innocence.' " (quoting Arizona v.
Youngblood, 488 U.S. 51, 56 (1988))).
Accordingly, we reverse and remand with instructions to reinstate the
charges.
KELLY and SALARIO, JJ., Concur.
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