TERRENCE DURHAM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Terrence Durham appeals his conviction for sale and possession of cocaine, challenging the destruction of a failed listening device recording, the denial of his motion for judgment of acquittal based on mistaken identity, and the legality of his sentence. The Florida District Court of Appeal affirms, finding no due process violation from the destroyed evidence, sufficient evidence to support conviction despite mistaken identity claims, and that the sentence complies with statutory maximums.
The court affirmed, holding that destruction of the tape did not violate due process because Durham failed to show it contained exculpatory evidence, showed it was useless, and did not establish bad faith. The court held sufficient evidence supported the conviction based on the officer's identification and the marked bill found on Durham. The court held the sentence was legal because the trial judge imposed concurrent terms totaling five years, respecting the statutory maximum.
[1] A defendant seeking to establish a due process violation based on the destruction of evidence must show that the evidence was exculpatory and that the state acted in bad…
[2] A defendant's theory of mistaken identity is insufficient to warrant a judgment of acquittal when the undercover officer identifies the defendant and evidence linking the…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Durham made no showing the tape contained exculpatory evidence and all indications were that it was useless to prove a case for or against Durham. Further, Durham failed to establish any basis to show bad faith on the part of the state in destroying the tape.”
Establishes the standard for due process violation in destroyed evidence cases and why Durham's claim failed
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDurham was arrested after an undercover policewoman conducted a controlled cocaine purchase from him. A listening device was supplied to monitor the t…
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Durham appeals from the trial court’s order withholding adjudication of guilt and sentencing him for sale of cocaine1 and possession of cocaine.2 We affirm.
Durham’s first point on appeal is that the state destroyed exculpatory evidence thereby depriving him of due process.3 The evidence disclosed that Durham was arrested after a controlled purchase of cocaine by an undercover policewoman. She had been supplied with a listening device to enable other agents to hear her conversation with Durham, but it failed to work. The agents monitoring the transaction could hear the undercover agent initially, but then they heard nothing but static. The tape was later destroyed.
At the close of the state’s case defense counsel moved to dismiss the charges because the tape had been destroyed by the state. However, Durham made no showing the tape contained exculpatory evidence and all indications were that it was useless to prove a case for or against Durham. Further, Durham failed to establish any basis to show bad faith on the part of the state in destroying the tape. See Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); State v. Erwin, 686 So. 2d 688 (Fla. 5th DCA 1996); Louissaint v. State, 576 So. 2d 316 (Fla. 5th DCA 1990).
Second, Durham argues that the trial court erred in denying his motion for judgment of acquittal because there was a reasonable doubt about his guilt, based in large part upon his showing of mistaken identity. However it appears the state introduced sufficient evidence to rebut Durham’s theory of mistaken identification. The undercover police officer identified him as the person from whom she had just purchased cocaine, and a marked $20.00 bill used by the policewoman to buy cocaine was found on his person shortly after the transaction. This evidence was sufficient to withstand Durham’s motion for judgment of acquittal. Morris v. State, 727 So. 2d 1013 (Fla. 5th DCA 1999); Forestal v. State, 724 So. 2d 697 (Fla. 5th DCA 1999).
Finally, Durham asserts the sentence he received on count two is illegal because it exceeds the statutory maximum of five years for a third degree felony. On count one (sale of cocaine), Durham was sentenced to ninety days in county jail, followed by two years community control, followed by five years drug offender probation. However, for count two (possession of cocaine), Durham was sentenced to a concurrent term of ninety days in county jail, followed by two years community control, followed by “balance of five years total on drug offender probation.” The trial judge was clearly aware that five years was the statutory maximum for this offense and therefore only sentenced Durham to 90 days in jail, plus two years community control, plus drug offender probation for whatever time was left for the five year maximum time limit.
AFFIRMED.
DAUKSCH and COBB, JJ, concur. . § 893.13(l)(a)l., Fla. Stat. . § 893.13(6)(a), Fla. Stat. . California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Arizona v. Youngblood, 488 U.S. 51 (U.S. 1988)
- California v. Trombetta, 467 U.S. 479 (U.S. 1984)
- Louissaint v. State, 576 So. 2d 316 (Fla. 5th DCA 1990)
- State v. Jerel Morrison Erwin, 686 So. 2d 688 (Fla. 5th DCA 1996)
- Morris v. State, 727 So. 2d 1013 (Fla. 5th DCA 1999)
- Hans Forestal v. State, 724 So. 2d 697 (Fla. 5th DCA 1999)
- Mobley v. Mobley, 724 So. 2d 697 (Fla. 5th DCA 1999)