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Highlands Today

Judge Allows Grow House Evidence

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By GARY PINNELL

Highlands Today

Published: October 17, 2008

SEBRING - On Oct. 30, 2007, 10 Highlands County Sheriff's detectives knocked on the door of Nelson Rodriguez. Inside, the squad seized 120 marijuana plants weighing 258 pounds, which were taken from Lake Placid to non-air conditioned storage units in Sebring.

In the hot Florida sun, the green plants decayed into mush. They leaked through their plastic and burlap bags, co-mingling some of the evidence and wilting the rest. Some plants - including those taken from the Rodriguez house - remained relatively intact, but the storage unit became so infected with mold that evidence technicians didn't feel safe entering. Instead, firefighters in biohazard suits were sent inside to check on the evidence.

In August, Justin Gaines, attorney for Nelson Rodriguez, asked Judge Peter Estrada to dismiss the marijuana evidence against his client, since it could no longer be produced in court or weighed. On Monday, Estrada issued an order denying Gaines' motion.

"The constitutions of the U.S. and Florida guarantee a defendant the right to confront the witnesses," Estrada wrote in a four-page opinion. "Evidence is one form of a witness."

The state has a duty to preserve the evidence, the judge reminded, because it can be used by the defense.

"However, in cases where destroyed evidence is determined to have been potentially useful," Estrada wrote, "a due process violation requires a showing of bad faith on the part of the state."

"And no one has ever said that, or anything like that," said Mike Durham, the attorney for Sheriff Susan Benton. "First of all, the evidence wasn't exculpatory, and it was not lost in bad faith. That's the law now in our circuit, and I'm very pleased with that."

The 10th district judge said Gaines did not show that the evidence was exculpatory - that it proved Rodriguez was not guilty of trafficking in cannabis. Random samples of the marijuana were taken at the scene and are stored in the Florida Department of Law Enforcement crime lab. The grow house bust was also videotaped and photographed.

"Undoubtedly, a better method of storing the evidence should have been used. However, either way, there would have been decay of the plants," Estrada wrote. "The Highlands County Sheriff's Office could not have been expected to have continued the grow house operation for the sole purpose of allowing the defense its right to inspect or test the evidence.

"A violation of defendant's due process has not been established, and he is not entitled to dismissal," Estrada concluded.

David Ward, who argued the case for the prosecution, said Thursday he has received an e-mail from Assistant Public Defender Joe Concepcion, withdrawing motions in two other grow house cases. Concepcion's arguments were similar to Gaines.

Gary Pinnell can be reached at gpinnell@highlandstoday.com or 863 386-5828

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