THE STATE OF FLORIDA, APPELLANT,
v.
MYRNA FERNANDEZ COOPER, APPELLEE
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Florida appealed the trial court's order suppressing blood test evidence in a DUI manslaughter case after the medical examiner's blood sample was inadvertently destroyed. The appellate court reversed, holding that suppression was improper because exculpatory test results from the destroyed sample had already been obtained and remained available to the defendant, and a quantity of blood for further testing still existed.
The court reversed the suppression order, holding that destruction of physical evidence does not warrant suppression or dismissal unless exculpatory testimony neither actually has been nor potentially may be derived from that source. Here, suppression was improper because favorable test results already existed and remained available to the defendant, and additional blood remained available for further testing.
[1] Brady v. …
[2] The destruction of physical evidence does not mandate suppression unless exculpatory testimony cannot be derived from the remaining evidence.
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Join FLexlaw to unlock all legal intelligence“The evidence favorable to the defendant in this case-the so-called Brady material-was not the blood itself, but the results of the medical examiner's analysis of that blood.”
Establishes that Brady protections apply to test results, not the physical evidence itself, and that available results remain admissible regardless of sample destruction.
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Join FLexlaw to unlock all legal intelligenceDefendant Cooper was arrested for manslaughter caused by driving while intoxicated. Blood samples were taken and analyzed by both the Dade County Medi…
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SCHWARTZ, Judge.
Blood samples were taken from the defendant-appellee soon after her arrest for manslaughter caused by driving a vehicle while intoxicated. Two vials of the blood were transmitted to the Dade County Medical Examiner and one to the Public Safety Department. Both entities conducted chemical tests on their respective samples. Those performed by the medical examiner’s office revealed an alcohol content of .100 per cent, the lowest reading which constitutes prima facie evidence that the individual in question was under the influence. § 322.262(2)(c), Fla.Stat. (1979).
Because of the acknowledged possibility of a sampling error of between .005 and .015 per cent, which could have reduced the reading below that percentage, both the state and the defendant regarded this testimony as, at the least, unfavorable to the prosecution if not positively helpful to the defense.1 Two separate testings of its vial by the PSD showed, however, a level of .160 per cent, well beyond both the margin of error above the .100 statutory figure and any normal deviation from the .100 reading obtained by the medical examiner. Prior to the trial, the blood in the medical examiner’s possession was inadvertently destroyed “by attrition.” Solely for this reason, and although the blood in the possession of the PSD remained available for further analysis, the trial judge suppressed evidence of both sets of tests, citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
The state appeals from the order of suppression, which we reverse.
Simply stated, we are unable to discern even a colorable basis for the order below.
The evidence favorable to the defendant in this case-the so-called Brady material-was not the blood itself, but the results of the medical examiner’s analysis of that blood. See, G.
E. G. v. State, 389 So. 2d 325 (Fla. 5th DCA 1980). Not only was this evidence not concealed by the prosecution, the defendant remained and remains free to introduce it as she sees fit at the trial. See, G.
E. G. v. State, supra; Turner v. State, 388 So. 2d 254 (Fla. 1st DCA 1980); Jones v. State, 360 So. 2d 1293 (Fla.3d DCA 1978). The loss of the particular samples upon which those tests were run was thus affirmatively shown to have been nonprejudicial. This case therefore presents an a fortiori situation to those in such decisions as State v. Sobel, 363 So. 2d 324 (Fla.1978), and Budman v. State, 362 So. 2d 1022 (Fla.3d DCA 1978) in which there was no showing that destroyed material would have aided the defendant’s case. See generally, State v. Snell, 391 So. 2d 299 (Fla. 5th DCA 1980).
That reversal is required is made even more evident by the fact that a quantity of blood remains in existence for still-further testing if desired. Even when, unlike this instance, favorable test results have not already been obtained, we are aware of no case in which it has been so much as seriously contended that incriminating material should be suppressed after any part of it has been destroyed. Compare Jones v. State, supra, and cases cited, with Stipp v. State, 371 So. 2d 712 (Fla. 4th DCA 1979), cert. denied, 383 So. 2d 1203 (Fla.1980). The contrary rule would mean that the burning of nine tons (or one ounce) of a ten ton quantity of marijuana would doom the state’s case.
In sum, the destruction by the state of physical evidence may not result in suppression or dismissal unless, at a minimum, exculpatory testimony neither actually has been nor potentially may be derived from that source.2 In this case, both circum stances obtain and the order below manifestly must therefore be
Reversed.
. Under Sec. 322.262(2)(b), a reading of between .05 and .10 is admissible into evidence but raises no presumption either way.
. Even then, evidence concerning the material may be permitted under some circumstances, as when the entire quantity of a drug has been unavoidably consumed in the course of testing and the defendant has not been prejudiced. State v. Atkins, 369 So. 2d 389 (Fla.2d DCA 1979); Adams v. State, 367 So. 2d 635 (Fla.2d DCA 1979); State v. Herrera, 365 So. 2d 399 (Fla.3d DCA 1978); see also, State v. Snell, supra; G. E. G. v. State, supra.
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Houser v. State, 474 So. 2d 1193 (Fla. 1985)…evidence on behalf of criminal defendants.” 104 S.Ct. at 2533. A blood or breath sample has no inherent evidential value. The evidence at trial is not the sample but, rather, the results of tests performed on the sample. Trombetta; State v. Cooper, 391 So. 2d 332 (Fla. 3d DCA 1980). The due process question thus is whether the accused has sufficient opportunity to question the results of the tests. There is no indication in this case that the state failed to refrigerate the sample in bad faith. The defendant…
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State v. Castellano, 407 So. 2d 273 (Fla. 3d DCA 1981)…PER CURIAM. Reversed. U. S. v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Sobel, 363 So. 2d 324 (Fla.1978); State v. Brown, 393 So. 2d 1195 (Fla. 3d DCA 1981); State v. Cooper, 391 So. 2d 332 (Fla. 3d DCA 1980).…
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Emilio Rodriguez v. State, 416 So. 2d 866 (Fla. 3d DCA 1982)…and because his lawyer’s own unequivocal objection to the offending comment was incorrectly overruled. Simpson v. State (Fla. Case no. 49,681, opinion filed, April 8, 1982). The other points raised by the defendant have no merit. State v. Cooper, 391 So. 2d 332, 333 (Fla. 3d DCA 1980); United States v. Ross,-U.S.-, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). Reversed.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (14 total)
- Brady v. Maryland, 373 U.S. 83 (U.S. 1963)
- State v. Sobel, 363 So. 2d 324 (Fla. 1978)
- Blowers v. Williams, 360 So. 2d 1293 (Fla. 1st DCA 1978)
- Jones v. State, 360 So. 2d 1293 (Fla. 3d DCA 1978)
- Burns v. Seymour Dermer & K Audio & T. V., Inc., 371 So. 2d 712 (Fla. 4th DCA 1979)
- State v. Herrera, 365 So. 2d 399 (Fla. 3d DCA 1978)
- Adams v. State, 367 So. 2d 635 (Fla. 2d DCA 1979)
- Turner v. State, 388 So. 2d 254 (Fla. 1st DCA 1980)
- State v. Snell, 391 So. 2d 299 (Fla. 5th DCA 1980)
- In the Interest of G. E. G. v. State, 389 So. 2d 325 (Fla. 5th DCA 1980)