IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL
CIRCUIT IN AND FOR LEE COUNTY, FLORIDA
CRIMINAL ACTION
State of Florida
vs.
JOHN ROBERT WALKER,
Defendant
Case No. 00-2866 CF
ORDER
This matter, having come before the court on the defendant's Motion to Dismiss
or Exclude or Suppress Evidence, it is ordered:
1 . Findings
The defendant is charged with two counts of vehicular homicide that arose from a
head. on collision that occurred on March 19, 2000. The defendant was the driver
and only occupant of a 1999 Chevrolet S-10 pickup truck, and the victims were
the two persons in the other vehicle, a 1994 Chevrolet Cavalier. Neither vehicle
caught fire. The truck had an airbag and the electronic system that controlled
the airbag contained a crash data recorder, and for five seconds before the
airbag deployed it recorded the vehicle speed, engine RPM's, position of the
throttle, and whether the brake switch was on or off. These recorders have been
put into cars with airbags for many years. so car manufacturers could accumulate
statistics on airbag deployments and improve the calculations that a car's
computer must make to decide when to deploy the airbag. However, only Genera!
Motors has made the data available to the general public, for a fee paid to the
company that designs the software for the computer and crash data recorder.
The information recorded on the truck's crash data recorder might aid the state
or the defendant to establish the issue, that is, whether the defendant drove so
recklessly he was likely to cause death or great bodily harm. An examination of
the truck might also shed light on this issue. Comparing damage on the underside
of the truck to gouges and scrapes on !he highway might give evidence of the
point on the highway where the two vehicles met, and measuring the crush damage
to the truck might give an estimate of the truck' s speed at the moment of
impact.
However, the truck is no longer available. The Florida Highway Patrol
investigated the crash and called a junkyard to pick up the truck after the
scene was examined. The highway patrol notified the junkyard to hold the truck
until further notice. The junkyard notified the defendant that it had the truck
and it would sell the truck "on 05/03/00" if its charges for towing
and storage were not paid. However, that sale did not take place presumably
because the highway patrol had a hold on the truck.
On June 26,2001, the highway patrol sent the defendant a letter stating the
truck would be "released" to the towing company and the owner of the
truck on July 14, 2001, and that the defendant had until that day to inspect the
truck. The defendant was the owner of the truck and he received this letter, The
letter also said the highway patrol had to be present during any inspection. A
copy of this letter was sent to the junkyard. A copy of this letter was not sent
to the state attorney or to the defendant's lawyer. While the letter told the
defendant he would be liable for storage charges after July 15,2001, it did not
say the truck would be scrapped. It simply said the truck would be
"released" to the towing company and the owner. For those
knowledgeable in how these things work, when the highway patrol released the
truck, the junkyard would be free to execute on its lien and sell the truck if
its towing and storage charges were not paid.
The highway patrol's letter of June 26, 2001
was sent to the defendant and the junkyard almost a year after the patrol
completed its investigation. The highway patrol investigated this case from
March 19, 2000, until July 25, 2000, when it secured an arrest warrant
for the defendant's arrest. The trooper who testified at the hearing explained
that the highway patrol no longer needed the truck and the junkyard had a
business to conduct, so the truck was released.
The junkyard proceeded to dispose of the truck in the ordinary course of its
business. The truck was a total loss so the junkyard sold it for scrap on
October 25, 2001, and applied the proceeds against its bill for towing and
storage. While the junkyard had notified the defendant that it was owed charges
for towing and storage shortly after the crash and that it would conduct a sale
on "05/03/2000", it did not send the defendant any further notice of
this particular sale. Oddly enough, the 1994 Cavalier is still at the junkyard.
On March 18, 2002, the court granted a
defense motion to appoint a traffic reconstruction expert to assist the
defendant, and shortly after the expert was hired defense counsel learned that
the defendant's truck was equipped with a crash data recorder and that the data
could be retrieved. Defense counsel then sought the production of the truck for
examination but, of course, by the spring of 2002, the truck was no longer
available. The highway patrol did not know that a 1999 Chevrolet S-10 had a
crash data recorder in it, although they did receive a bulletin in June of 2000
that certain other GM models had these recorders. Of course, the patrol did know
the truck could be examined for crush damage to estimate the truck's speed and
for damage to the underside to help determine the point on the highway where the
two vehicles collided.
An eyewitness to the crash reported that when
she turned onto the highway and headed west, she saw the defendant's truck in
front of her also heading west. She said she was traveling at "80 to 85
miles per hour" and she believed the truck moved away from her car as the
two vehicles progressed down the highway. She told the highway patrol that the
defendant's truck was going "100 miles per hour." She reported the
defendant's truck crossed the centerline for no apparent reason and hit the
Cavalier in the eastbound lane. There were no other vehicles nearby.
The day after the wreck the defendant told the highway patrol he was traveling
at about 60 miles per hour before the crash but he had no memory of the events
immediately before the collision or the collision itself. He could only recall
driving and then waking up in the hospital.
The defendant had a blood alcohol level of 0.044 grams per 100 milliliters of
blood. The driver of the Cavalier had a blood alcohol level of 0.127 grams.
which, of course. exceeds the legal impairment level of 0.08. The primary damage
to the defendant's truck was on the front left side while the Cavalier's damage
was "primarily to the front."
The highway patrol trooper who investigated and measured the crash scene
believes the defendant's truck crossed the center lane and entered the eastbound
lane, although it is not clear that he has a basis for that opinion that is
independent of the eyewitness' testimony. He also reported there was "no
indication of either vehicle taking evasive action prior to impact." A
gouge in the highway, or perhaps two, it is not clear which from the probable
cause affidavit, was found at the scene.
It is not clear whether the trooper has a basis independent of the eyewitness
for estimating the speed of the defendant's truck. It is also not clear what
measurements, reports, and photographs were done of the vehicles and the crash
scene by the highway patrol or anyone else and whether the defendant's expert
can use these to analyze the crash. It is also not clear what evidence might be
found from an examination of the Cavalier.
The defendant moves to dismiss the charges or, in the alternative, to suppress
evidence, in particular, any evidence of the defendant's speed.
2. Ruling
The defendant�s motion to dismiss is denied because there is no telling
whether the information in the crash data recorder would have been inculpatory
or exculpatory. Assuming it survived the crash, which seems likely since neither
vehicle burned, it might have indicated the defendant was driving within the
speed limit or that he was speeding; it might have indicated the defendant took
his foot off the accelerator and applied the brake, or maybe he did not. There
is no evidence the highway patrol acted in bad faith when they released the
vehicle to the owner and the junkyard. At worst, this was a careless thing to do
in a crash in which two persons died. As it turned out, the state may have
lost a very important piece of evidence. Since the court cannot find the
evidence would have been exculpatory and because the court does not find the
state's failure to preserve the evidence was done in bad faith, the court cannot
find a violation of due process. See, e.g., Exantus v. State, 734 So.2d
1176 (Fla. 4th DCA 1999); Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct.
333, 102 L.Ed.2nd 281 (1988).
Concerning the defendant�s motion to
suppress evidence, this requires further analysis. "Florida courts apply a
balancing approach to determine what sanction, if any, should be employed when
the state loses evidence." State v. Westerman, 688 So.2d 979
(Fla. 2d DCA 1997) at 980, citing State v. Sobel 342 So.2d 1094 (Fla. 2d
DCA 1977).
The crash data recorder would not be able to say the defendant's truck did or
did not cross the centerline. It does not record changes in the direction of
travel. An examination of the truck itself, however. might have helped determine
where the truck was when the vehicles collided. The underside of the truck might
have had components that struck the highway and left gouges or scrapes
which give some evidence of where the vehicles were when they collided. But
photographs of the truck, if they exist, or the report of the highway patrol, if
there is one, may suffice for what is now missing. An examination of the
Cavalier might also establish the point of impact. In short, the court does not
have enough information to decide that an examination of the truck is material
to a determination of where the vehicles were when they collided and whether the
loss of the truck is prejudicial to the defendant on this question.
As for the defendant's speed. the crash data recorder might have shed light on
this question. However. given the newness of this type of computerized
information, experts might disagree about the reliability of the software and
hardware and whether the data recovered is accurate and not manipulated. The
recorder was, after all, an erasable memory chip. The party prejudiced by the
data would certainly question the integrity and reliability of the system for
recording and retrieving the data. Experience with the system may give experts
confidence in the data retrieved as they develop procedures for extracting the
data and familiarity with the software and hardware. Neither counsel has cited
the court to a case in which this evidence was admitted. The admissibility of
the data at trial is not certain. It is also not certain that all experts would
rely on a crash data recorder in arriving at an opinion of speed. Again, counsel
has not cited the court to a case in which experts used this information to
arrive at an opinion of the speed of a vehicle in the seconds before a crash. As
for crush damage to the truck, and whether it could give an estimate of the
truck's speed, the trooper who investigated the crash. did not believe the crush
damage was a reliable indicator of the speed of the truck, although the reasons
for this opinion are not clear to the court. Even though the truck is no longer
available, it is not clear that photographs, if they exist, or measurements of
the deformation of the truck, if they exist, will not suffice for an estimate of
crush damage and the speed of the truck at the moment of impact.
In summary. the court does not have enough information about the state's
investigation and evidence and what is now available to the defense to decide if
the loss of the truck is material and
prejudicial to the defendant. For the foregoing reasons, the defendants motion
to suppress is denied, without prejudice.
Done and Ordered at Fort Myers, Lee County,
Florida.
R. Thomas Corbin, Circuit Judge
Certificate of Service
I hereby certify that a copy of the foregoing has been served on Claudia
Stewart, Esq., Assistant State Attorney, and Karen Miller, Esq., counsel for the
defendant, this date.
Dorina Soumastre, Judicial Assistant