STATE OF FLORIDA, APPELLANT,
v.
LIBERACE ATKINS, APPELLEE
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Florida appeals the dismissal of drug possession charges against Atkins after the trial court ruled the state could not prove its case because the heroin evidence was consumed during chemical testing. The appellate court reverses, holding that unavoidable destruction of contraband during legitimate chemical analysis does not violate the defendant's constitutional rights.
The court reversed the dismissal, holding that the unavoidable destruction of suspect contraband drugs during chemical testing by a state chemist does not constitute suppression of evidence sufficient to trigger a due process violation, provided the destruction was not caused by negligence or intentional conduct by state agents.
[1] In a criminal case where an essential element is the possession of a substance identifiable only by chemical analysis, the primary evidence of the substance's identity is…
[2] The confrontation clause of the Sixth Amendment applies to witnesses and does not extend to physical evidence.
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Join FLexlaw to unlock all legal intelligence“such a chemical test was part of the state's legitimate investigation of this case and cannot be considered in any sense improper conduct”
Establishes that legitimate chemical testing of suspected drugs is not improper state conduct
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Join FLexlaw to unlock all legal intelligenceTwo law enforcement officers found Atkins in a pool hall back room with a bottle cap, tin foil, and a syringe—items commonly used to prepare heroin fo…
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OTT, Judge.
The State of Florida appeals the dismissal of its information charging appellee with possession of heroin. We reverse.
Appellee was charged with this offense after two law enforcement officers came upon him in the back room of a pool hall while he was leaning over a bottle cap, three pieces of tin foil and a syringe. Heroin is frequently wrapped in tin foil packets for sale and is often prepared for injection in a bottle cap “cooker.” The officers arrested appellee and seized the items, which they sent to Dr. Clarke Davidson, a forensic chemist employed by the Lee County Sheriff’s Department. Dr. Davidson’s tests established the presence of heroin and its common dilutents. His testing almost entirely consumed the residue in the bottle cap. The traces remaining were then sent to a crime laboratory in Sanford, Florida. The report of the crime lab indicated that there was an insufficient sample of residue left for positive identification.
On these facts, appellee moved to dismiss the charges contending that the state could not prove a prima facie ease because no controlled substance could be introduced into evidence at trial. The trial court granted the motion. This was error. The recent case of State v. Herrera, 365 So. 2d 399 (Fla. 3d DCA 1978) is dispositive. Herrera was arrested for possession of heroin. The suspect contraband drug was turned over to the crime laboratory of the Dade County Public Safety Department for chemical analysis. The testing revealed the presence of heroin. However, the heroin was unavoidably consumed during the test procedures. Our sister court found that “such a chemical test was part of the state’s legitimate investigation of this case and cannot be considered in any sense improper conduct.” 365 So. 2d at 401. The court noted:
A different case would be presented if the suspect drug had been negligently destroyed during the testing process or if an agent of the state had intentionally or negligently destroyed or lost whatever remained of the suspect drug after the testing process had been completed. . No such showing, however, has been made in this case. [Emphasis supplied.]
365 So. 2d at 401.
The Herrera court stated the general rule with reference to the unavoidable destruction of contraband drugs during chemical testing. The court stated:
The law is clear that the state’s intentional or negligent suppression of material evidence favorable to the defendant after a defense request for such evidence constitutes a denial of due process under our state and federal constitutions. .
[T]he weight of authority in the country is that the destruction of suspect contraband drugs unavoidably consumed during chemical testing by a state chemist does not constitute an act of suppression of evidence by the state sufficient to trigger a due process violation.
365 So. 2d at 401.
The Herrera court conceded that it would be a “better practice” for the state to delay the testing of small quantities of suspect drugs until a representative of the defendant could be present during such testing. However, the court stated that such a practice was not constitutionally mandated.
Finally, we find no violation of appellee’s sixth amendment right of confrontation. In State v. Armstrong, 363 So. 2d 38, 39 (Fla. 2d DCA 1978) this court held that the “confrontation provision of the Sixth Amendment is by its terms restricted to ‘witnesses’ and does not encompass physical evidence as well.”
The order dismissing the charge against appellee is reversed and the cause remanded.
BOARDMAN, Acting C. J., and SCHEB, J., concur.
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G. E. G. v. State, 417 So. 2d 975 (Fla. 1982)…he crime, such as the fatal bullet itself, which was introduced. Similarly unaffected by our decision are cases excusing the nonintro-duction of evidence because of unavoidable destruction of the substance during testing. See, e.g., State v. Atkins, 369 So. 2d 389 (Fla. 2d DCA 1979). Unavoidable destruction prevents the defendant from conducting an independent analysis of the substance, not an issue in this case. More importantly, the state in petitioner’s trial offered absolutely no excuse for its failure to…
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In the Interest of G. E. G. v. State, 389 So. 2d 325 (Fla. 5th DCA 1980)…State introduced photographs of a stolen power saw but not the saw itself. Also, since Alexander, drug convictions based only on the testimony of a chemist, where the drug was unavoidably consumed in the testing, have been upheld. State v. Atkins, 369 So. 2d 389 (Fla.2d DCA 1979); State v. Herrera, 365 So. 2d 399 (Fla.3d DCA 1978). This is not a case where some right of an accused to examine tangible inculpatory evidence has been violated because of its willful, negligent, or unnecessary loss or destructio…
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State v. T.L.W., 457 So. 2d 566 (Fla. 2d DCA 1984)…tion provision of the sixth amendment refers to witnesses and does not encompass physical evidence. Strahorn v. State, 436 So. 2d 447, 449 (Fla. 2d DCA 1983), citing State v. Armstrong, 363 So. 2d 38, 39 (Fla. 2d DCA 1978). See also State v. Atkins, 369 So. 2d 389, 390 (Fla. 2d DCA 1979). As to appellee’s second argument, we recognize that intentional or negligent destruction of suspect drugs by the state or its agents, constitutes a due process violation. State v. Atkins, 369 So. 2d at 390, citing State v.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Herrera, 365 So. 2d 399 (Fla. 3d DCA 1978)
- State v. Armstrong, 363 So. 2d 38 (Fla. 2d DCA 1978)