In a Broward County criminal manslaughter case, pending since August 2012, Elbo Room bouncer Christian Nunez was shot and killed by patron Gregory Burns after an altercation. Burns was set to stand trial this year in the matter, however, after defense counsel sought to re-examine evidence in the case, it was learned that all items had been destroyed by the evidence unit.
Motion to dismiss on Due Process Violation
Counsel for the Defendant filed an appropriate Motion to Dismiss alleging a Due Process Violation resulting from the Government’s Failure to Preserve Evidence. It is alleged in the motion that in August of last year, Lead Detetic Juan Caberera requested that the Glock 45 caliber semi-automatic handgun, magazine, cartridge and projectile taken from the victim during surgery be collected for retesting. It was after this request that the defense lawyer for Burns learned that all evidence in requested had been destroyed at the direction of the Evidence Unit Supervisor Dawn Ramage in September and October of 2017. Additional evidence including a dash cam video depicting the scene was also destroyed.
Destruction of evidence without notice to defense attorney
All items were destroyed without notification to defense counsel and effectively prevented counsel from inspecting same for the purpose of finding exonerating or corroborating evidence. The destruction of evidence in the Elbo Room murder case filed against Gregory Burns will likely end up with a dismissal claims Attorney William R. Moore.
The State has an obligation to preserve materially exculpatory evidence and the failure to do so constitutes a due process violation. Under the law, this violation holds true regardless of whether their was good or bad faith on the part of the prosecution. Where the defendant was prejudiced by the unavailability of the evidence, the matter should be dismissed by the court.
Dismissal of criminal action
Dismissal of an action is the most sever sanction that the court may impose and is designed not only to prevent a denial of due process but also to deter future misconduct by law enforcement. At the very least, the court should suppress or exclude certain evidence and/or testimony and provide special jury instruction regarding the unpreserved evidence.
More information about motions to dismiss due to the destruction of evidence may be obtained by contacting Attorney William Moore at 954-523-5333, Offices located at 1 Financial Plaza, Fort Lauderdale FL 33394