Motion to Dismiss – Identity

COMES NOW the Defendant, by and through his undersigned counsel, pursuant to Florida Rules of Criminal Procedure 3.190(c)(4), and respectfully files his Motion to Dismiss, and moves the Court to dismiss the Information filed herein, alleging two counts of leaving the scene of a crash involving death, and in support thereof, states as follows:

Introduction – General Factual Background

1. On April 3, an accident occurred on I-295 South. As a result of that accident, W. E. H., the driver of a Pontiac, and his passenger, P. N. H., died at the scene.
2. Later that evening, at a separate location, the Client was involved in a separate accident, and was thereafter hospitalized. While at the hospital, at the request of JSO Officer C., the Client was Baker Acted.
3. No charges were filed against the Client that day. Indeed, he was not arrested until July 5, some two months after the accident, on two charges of leaving the scene of a crash involving death – one count each for the deaths of W. E. H. and P. N. H.
   

   Information

4. On July 19, the State Attorney’s Office filed a two count Information charging the Client with those same two counts, that is, leaving the scene of a crash involving death – one count each for the deaths of W. E. H. (Count 1) and P. N. H. (Count 2).
   

   Introduction – Legal

5. The basis for this Motion to Dismiss is that there are no material disputed facts and the undisputed facts do not establish a prima facie case that the defendant, was the driver of the vehicle involved in the crash with H., or that his truck was involved in that crash.
6. A prima facie case is defined as: “A party’s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor.”  Black’s Law Dictionary, 7^th
7. Here, the “fact at issue” is whether the Client was the driver involved in the H. crash. That “fact at issue” necessitates an affirmative answer to two questions:  (1) was the Client truck involved in the H. crash, and (2) was the Client driving that truck at the time.  The failure of the State to produce prima facie evidence of either of these predicate facts will support the granting of the (c)(4) motion.
8. Specifically, and as more completely set forth below, there are no witnesses identifying either the Client as the driver, or his truck as the vehicle, involved in the H. crash. Nor are there any documents or forensic evidence so identifying the Client as the driver, or his truck as the vehicle, involved in the H. crash.
   

   Facts

9. Corporal A., FHP, asserted in his Traffic Homicide Investigation report (“THI”) his belief that JSO Officer P. L. could testify to “placing Vehicle 1’s driver [the driver of the Ford truck, assumed by Corporal A. to be the Client] behind the wheel of Vehicle 1.” THI at p. 14.  That was the only witness he listed to establish that the Client was the driver.  Id.  He so testified at his deposition.  Exhibit A at _____.  His information was mistaken, as JSO Officer P. L. could not testify to “placing Vehicle 1’s driver behind the wheel of Vehicle 1.”  (See ¶8).
10. JSO Officer P. L. could not testify to “placing Vehicle 1’s driver behind the wheel of Vehicle 1.” Officer L. can only place the Client behind the wheel of his Ford truck from where she saw him in a “ditch” beside Biscayne Blvd., just south of its intersection with Duval Rd., and testified that she followed him to a crash on Biscayne Blvd., south of where it passes over I-295S.  Exhibit B at ____.
11. Officer L. testified she did not see the H. accident on I-295S. Exhibit B at ____.  Thus, she could identify neither the driver nor the vehicle that allegedly impacted the H. vehicle.  Exhibit B at ____.[1]
12. M. was a witness to H. crash. He was driving northbound (actually the compass heading was east) on I-295 at the time of the accident.  Exhibit C at _______.  However, he only saw a “beige Ford truck” bump the H. rear bumper.  Exhibit C at _______.  He could not identify the truck by year or model, or tag number.  Exhibit C at _______.  He saw the Ford truck take the Duval Rd. exit off I-295, and never saw the vehicle again.  Exhibit C at _______.  He could not identify driver at all.  Exhibit C at _______.  He could not see inside the vehicle, since the windows were tinted, and thus had no way of identifying the driver.  Exhibit C at _______.
13. The Client was not interviewed, and thus no statements can be attributed to him to support the proposition that he was the driver involved in the H. crash. The Client was not interviewed by Corporal A.  Exhibit A at _______.  He was not interviewed by JSO Officer P. L.  Exhibit B at _______.  He was not interviewed by Trooper W.  Exhibit D at _______.  Indeed, as noted, the Client was Baker Acted after his accident, and has no memory of that evening.
14. FHP sent numerous items to FDLE for examination, in an attempt to obtain forensic evidence establishing that the Client’s truck was the vehicle that impacted the H. Pontiac. That evidence was submitted on May 10.  (THI; pp. 39-40.)  On March 19, the FDLE report was authored, a copy of which is attached as Exhibit E.  As that report reflects, no admissible forensic evidence is available to demonstrate that the Client’s vehicle impacted the H. vehicle.  Indeed, the scientific evidence supports the proposition (and surely to the standard of prima facie) that the Client’s vehicle did not impact the H. vehicle.  Thus, since the Client’s vehicle cannot be scientifically linked to the accident, no forensic evidence exists in proof of the element of the charge that the Client’s truck, let alone with the Client behind the wheel, being the driver at the time, was involved in the subject crash with the H.’s.[2]
15. The State has no evidence to establish that the Client’s was driving the Ford that was involved in the accident on Biscayne Blvd. – prior to the H. accident. In other words, the State has no evidence that The Client was even driving the Ford at any time prior to or relevant to the H. crash.
    

    Controlling Law

16. This motion is filed pursuant to provisions of Rule 3.190(c)(4), Fla. R. Crim. P., which provides that a motion to dismiss may be filed on the grounds that,there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.
17. In considering a defendant’s motion to dismiss criminal charges, which is analogous to a motion for summary judgment in a civil case, the defendant must demonstrate that the undisputed facts fail to establish a prima facie case, and all questions and inferences from the facts must be resolved in favor of the State. Cashatt v. State, 873 So. 2d 430 (Fla. 1st DCA 2004), rehearing denied.  See State v. Kalogeropolous, 758 So. 2d 110 (Fla.2000); Dorelus v. State, 747 So.2d 368 (Fla.1999).
18. What does it take for the State to establish a prima facie case? As noted above, a prima facie case exists following a “party’s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor.”  Black’s Law Dictionary, 7^th
19. Here, the “fact at issue” is whether the Client was the driver involved in the H. crash. The State cannot establish prima facie evidence of that fact.
20. Prima facie evidence must be the “production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor.” Black’s Law Dictionary, 7^th  Here, the State has no such evidence.  They can neither prove that the Client’s truck was involved in the subject crash, nor that the Client was its driver at that time and place.  All the State has, at best, is two separate crashes, separated by distance and time, involving a Ford F-150 – whose year, or model, or tag number was never identified, and whose driver was never identified.  Indeed, the Ford F-150 is the most popular truck on the highways in America.[3]  Moreover, as noted, the State’s own scientific evidence establishes that the Client’s truck was not the truck involved in the H. crash.
21. The defendant understands that, “if there is any evidence upon which a reasonable jury could find guilt, such a motion must be denied.” State v. McQuay, 403 So. 2d 566, 568 (Fla. 3d DCA 1981) (emphasis added).  However, here, surely no “reasonable jury” could find guilt, as to the Client being the driver, when there is a complete absence of any direct evidence of guilt, and there exists no circumstantial evidence sufficient to give rise to a prima facie[4]
22. The question of the State’s ability to identify the person charged as the perpetrator of the crime was raised in State v. McQuay, 403 So. 2d 566 (Fla. 3d DCA 1981). In that case, a school bus driver had 10 males board her bus with knives and bats, and one had a pistol.  She could not identify the one with the pistol.  Five of the defendants moved to dismiss the charge of displaying a firearm, relying on the lack of proof of identify of the male with the pistol.  The trial court granted the motion.  On appeal, the Third District Court of Appeal found the motion should have been denied, for the simple (and obvious) reason the State did not have to prove which one of the ten possessed the gun – since they were all charged with aiding and abetting [so it did not matter who actually had the gun], and (2) the count alleged that “someone in the group displayed the firearm…” [so the Information never tried to assert that a specific person did].  Id at 568.
23. Unlike the defendants in McQuay, who could be convicted as “aiders and abettors,”[5] the Client is but a single individual. The State cannot rely on any theory of aiding and abetting to sidestep the fundamental legal requirement that they prove that the Client was the driver involved in the H. crash.  They must identify him as the specific person involved in the crash, and the person who purportedly left the scene – as charged.
24. The facts, based on the witness depositions, reports, statements and transcripts, are undisputed, and application of the law to the undisputed facts shows that the State has not, and cannot, meet its factual burden of establishing a prima facie case that the Client was the driver of the vehicle allegedly involved in the H. crash. Accordingly, dismissal of the charge is appropriate.
    

    Conclusion

25. Based on the undisputed facts of this case, the State has failed to establish a prima facie case as to one of the elements of the charges, that is, identification of the Client as the driver, and thus the undisputed facts do not establish a prima facie case of guilt against the Client, such that dismissal of the charges are required by law.

^[1]  Nor did she see what Corporal A. suggested to be a second accident on International Airport Blvd.  Exhibit B at ____.

^[2]  There is no evidence of any (1) paint transfer to Ford grill, (2) “direct association with the license plate” of the Pontiac with a piece of black plastic found in the Ford front bumper, (3) paint transfer to Pontiac license plate, (4) paint transfer to Pontiac rear trunk spoiler, or (5) paint transfer to Pontiac rear trunk bumper.  In short, there exists no forensic evidence to establish the Client’s truck was involved in the H. crash.  Indeed, it appears, to a virtual scientific certainty, it was not.

^[3]    Exhibit F is a copy of an advertisement from the Times-Union for Thursday, February 1, (page C-8), stating the F-150 is “America’s Best-Selling Truck 30 Years Running.”

^[4]  Circumstantial evidence is defined by Black’s Dictionary, 7^th Edition, as “Evidence based on inference and not on personal knowledge or observation.”  The 11^th Circuit (federal) Court of Appeals defines circumstantial evidence as “proof of a chain of facts and circumstances tending to prove, or disprove, any fact in dispute.”  11^th Cir. Pattern Jury Insts. (Crim.) 4.1.  Under either definition, no inference exits, nor any “chain of facts and circumstances” exists, sufficient to establish a prima facie case that the Client was the driver involved in the H. crash.  His own crash, in a Ford F-150, at a separate place and time, could never be sufficient for a reasonably minded jury to fairly conclude he was the driver involved in the H. crash.

^[5]  Id at 568.