          Supreme Court of Florida
                                  ____________

                                  No. SC15-228
                                  ____________

                    LAWRENCE WILLIAM PATTERSON,
                              Petitioner,

                                        vs.

                             STATE OF FLORIDA,
                                 Respondent.

                                [August 25, 2016]

POLSTON, J.

      In two vehicle arson cases, our First and Fourth District Courts of Appeal

reached conflicting decisions regarding the due process implications of admitting

the testimony of State experts who physically examined the vehicle prior to its

destruction where the defendant’s expert did not have that opportunity. Compare

Patterson v. State, 153 So. 3d 307 (Fla. 1st DCA 2014) (finding no due process

violation), with Lancaster v. State, 457 So. 2d 506 (Fla. 4th DCA 1984) (finding

due process violation).1 Applying the well-established rule from Arizona v.




      1. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
Youngblood, 488 U.S. 51 (1988), that the State’s loss or destruction of evidence

potentially useful to the defense violates due process only when done in bad faith,

we hold that no due process violation occurred in Patterson’s case because there is

no evidence of bad faith. Accordingly, for the reasons explained below, we

approve the result of the First District’s decision in Patterson and disapprove the

Fourth District’s pre-Youngblood decision in Lancaster.

                                 BACKGROUND

      Patterson’s jury convicted him of multiple crimes stemming from the alleged

arsons of his truck and residence. As the First District explained,

      [t]he arsons for which Patterson was tried and convicted completely
      destroyed his house and truck (which was parked in the garage at the
      time). It was alleged that Patterson used the truck to start one of the
      two arson fires in the house. [Not long after firefighters extinguished
      this first fire that allegedly originated in the truck, they were called
      back to Patterson’s residence in response to a second fire that
      allegedly originated in one of the bedrooms.] After State Fire Marshal
      and insurance company investigators completed their work, including
      inspecting the truck, and after the auto insurer paid Patterson the
      proceeds of his insurance policy, the insurer took custody of the truck
      and had it destroyed. This occurred five months before Patterson was
      arrested and charged. With the vehicle itself unavailable, Patterson’s
      fire investigation expert reviewed approximately 300 photographs of
      the burned truck and garage area. (He also personally inspected the
      dwelling.)
              Before trial, Patterson moved the trial court to dismiss all the
      charges, or alternatively, to exclude any testimony from State expert
      witnesses opining, based on their physical examination of the truck,
      on whether the truck fire was intentionally started. He argued the
      State had intentionally destroyed the truck, making it unavailable to
      his expert and, as a consequence, violated his constitutional right to
      due process. The trial court denied the requested relief, allowing

                                        -2-
      prosecution experts Stephen Callahan, Mike Miller and Bob Hallman
      to describe for the jury how they each examined the truck, and to give
      the jury their opinions on how the truck fire started. [In addition to
      these experts, the State presented expert testimony from David
      Cheers, an investigator retained by Patterson’s homeowner’s
      insurance company who also physically examined the truck.]

Patterson, 153 So. 3d at 309.

      At trial, the experts’ testimony conflicted as to the origin of the fire, with the

State’s experts testifying that the fire was not accidental and Patterson’s expert

testifying that it was. Though the State’s experts had physically examined the

truck before it was destroyed, whereas Patterson’s expert did not have that

opportunity, the experts relied heavily on extensive photographs of the truck and

garage to support their testimony.

      For example, the State’s experts relied on the following in support of their

conclusion that the fire was not accidental: (i) burn patterns in the truck indicating

that the fire primarily came from the passenger compartment, rather than from

electrical components in the engine compartment; (ii) burn patterns on the inside

wall of the garage on the passenger side of the truck indicating that the truck’s

passenger door was open during the fire; (iii) a sample taken from the passenger

compartment that tested positive for gasoline, indicating that accelerant had been

poured inside the truck and ignited by an open heat source; (iv) the presence of

combustible material remaining in the engine compartment that would not be

expected to withstand a fire that began in the engine, including plastic on the

                                         -3-
battery and aluminum, which has a low melting point, on the radiator; and (v)

wiring in the engine compartment, passenger compartment, and under the

dashboard that showed no signs of arcing as would be expected if the fire’s origin

was electrical.

      In contrast, Patterson’s expert, Cam Cope, testified that from his

examination of the photographs, “all of the burn patterns would certainly tell me

that [the fire was] electrical,” and that there was no evidence in the photographs

that someone ignited gas in the seat, which Cope testified would be extremely

difficult to do without suffering serious injuries that Patterson lacked. Cope further

explained that it was not surprising that a sample taken from the passenger

compartment tested positive for gasoline because during the fire the gas tank

burned and leaked (which he said caused the burn pattern on the wall beside the

truck), and the fire department then sprayed the area where gasoline had leaked on

the ground with high pressure hoses back toward the truck. In addition, Cope

noted that the lack of burning of combustible material in the passenger

compartment, including the center console, further informed his opinion that the

fire began in the engine, likely in the powertrain control module, which was not

photographed.

      Cope also testified to his perceived shortcomings of the State’s experts’

opinions and investigation. Specifically, Cope testified that he did not agree with


                                        -4-
the testimony regarding the absence of arcing because some circuits in a vehicle

are energized 100% of the time, and as long as a battery is in a vehicle there will be

cross arcing. Cope also identified several electrical components that should have

been further examined, such as the powertrain control module, electronic seats,

seat heaters, headlights, and aftermarket components that had been added to the

truck, and he testified that x-rays would have been required to properly examine

some of those components. In addition to noting that those components were

impossible to examine since the truck had been destroyed, Cope testified that the

State’s experts did not address them in their reports and that they cannot be

eliminated as the cause of the accidental fire.

      After Patterson’s jury found him guilty on all counts, he appealed to the First

District, arguing that “the trial court should have dismissed the charges against him

because the destroyed truck was of critical evidentiary value,” or, alternatively,

that under the Fourth District’s decision in Lancaster, “the trial court should have

excluded the testimony of the State’s experts because the truck’s unavailability

rendered his trial fundamentally unfair.” Patterson, 153 So. 3d at 309, 310. The

First District rejected both arguments and affirmed. In so holding, the First District

relied on Youngblood to reject Patterson’s argument that due process required

dismissal of the charges against him because the record was devoid of any

evidence that the truck was destroyed in bad faith. Id. at 310. In rejecting


                                         -5-
Patterson’s alternate argument that due process required exclusion of the State’s

experts’ testimony, the First District factually distinguished Lancaster,

emphasizing that in Lancaster’s case, the State “neither photographed the burned

truck, nor preserved any samples taken from it,” leaving Lancaster (unlike

Patterson) with “no basis on which to challenge [the State’s experts’] findings and

conclusions.” Id. at 311.

                                    ANALYSIS

      Relying on the Fourth District’s decision in Lancaster, Patterson argues that

the trial court’s failure to preclude the testimony of the State’s experts who

physically examined his truck violates his due process right to a fair trial.2 We

disagree.

      As this Court has explained, the standard for analyzing an alleged due

process violation in cases involving the defendant’s constitutional right to access

evidence “depends on the type of error asserted and whether the evidence is

exculpatory, impeaching, or merely potentially useful.” Beasley v. State, 18 So. 3d

473, 487 (Fla. 2009).

      Claims involving the State’s suppression of favorable evidence are analyzed

under Brady v. Maryland, 373 U.S. 83 (1963), recognizing a due process violation



      2. We review this legal question de novo. See Delgado v. State, 162 So. 3d
971, 981 (Fla. 2015).


                                         -6-
where the defendant shows “(1) that favorable evidence—either exculpatory or

impeaching, (2) was willfully or inadvertently suppressed by the State, and (3) that

because the evidence was material, the defendant was prejudiced.” Beasley, 18 So.

3d at 487.

      In contrast, claims involving the State’s destruction of evidence “potentially

useful to the defense” are analyzed under Youngblood, recognizing a due process

violation “only if the defendant can show bad faith on the part of the [State].”

Guzman v. State, 868 So. 2d 498, 509 (Fla. 2003); see also King v. State, 808 So.

2d 1237, 1242 (Fla. 2002) (“The landmark case of . . . Youngblood[], and all cases

since, requires a defendant to show bad faith on the part of the person destroying

evidence before any relief can be afforded.”); see also 1 Charles W. Ehrhardt,

Florida Evidence § 401.1, at 164-65 (2015 ed.) (“In a criminal case, due process

apparently is not violated by the state introducing circumstantial evidence or

testimony which the state has lost or destroyed unless it is shown that the

destruction was in bad faith and there is actual prejudice to the accused.”).

      Thus, Brady and Youngblood “involve two different tests regarding

evidence possessed by the State,” with a defendant’s ability to prove the State’s

bad faith is not relevant to securing relief on a Brady claim, but critical to securing

relief on a Youngblood claim. Beasley, 18 So. 3d at 500 (Pariente, J., concurring);

see also Youngblood, 488 U.S. at 57 (“The Due Process Clause of the Fourteenth


                                         -7-
Amendment, as interpreted in Brady, makes the good or bad faith of the State

irrelevant when the State fails to disclose to the defendant material exculpatory

evidence. But we think the Due Process Clause requires a different result when we

deal with the failure of the State to preserve evidentiary material of which no more

can be said than that it could have been subjected to tests, the results of which

might have exonerated the defendant.”).

      The Supreme Court explained the reason for requiring the defendant to show

bad faith where the lost or destroyed evidence is only “potentially useful” evidence

(as opposed to material exculpatory evidence under Brady) as follows:

      Part of the reason for the difference in treatment is found in the
      observation made by the Court in [California v. ]Trombetta[, 467 U.S.
      479, 486 (1984)], that “[w]henever potentially exculpatory evidence is
      permanently lost, courts face the treacherous task of divining the
      import of materials whose contents are unknown and, very often,
      disputed.” Part of it stems from our unwillingness to read the
      “fundamental fairness” requirement of the Due Process Clause . . . as
      imposing on the police an undifferentiated and absolute duty to retain
      and to preserve all material that might be of conceivable evidentiary
      significance in a particular prosecution. We think that requiring a
      defendant to show bad faith on the part of the police both limits the
      extent of the police’s obligation to preserve evidence to reasonable
      bounds and confines it to that class of cases where the interests of
      justice most clearly require it, i.e., those cases in which the police
      themselves by their conduct indicate that the evidence could form a
      basis for exonerating the defendant.

Youngblood, 488 U.S. at 57-58.

      Patterson does not quarrel with the well-established standards of Brady and

Youngblood. Nor does Patterson attempt to escape the obligation to prove bad


                                         -8-
faith by arguing that the destroyed truck is material exculpatory evidence rather

than potentially useful evidence. It clearly is not material exculpatory evidence.

The most that could be said is that, if the components that Patterson’s expert

identified as potential causes of the fire had been subjected to additional

examination and testing, they might have supplied evidence to further support

Patterson’s theory that the fire was electrical and therefore accidental. Instead,

rather than seek relief under either of the two possible standards, Patterson urges

this Court to apply a different standard—i.e., Lancaster’s—because “he is not

seeking a blanket exclusion of evidence [but] merely seeking that the experts from

both parties be placed on a level playing field” in a new trial at which only experts

who have not physically examined the truck may testify.

      In Lancaster, four years before the United States Supreme Court’s decision

in Youngblood, the Fourth District held that Lancaster’s due process rights were

violated by allowing the State to present testimony from an expert who had

examined the truck that Lancaster was accused of intentionally burning. Lancaster,

457 So. 2d at 507. The Fourth District emphasized that Lancaster could not refute

the testimony of the State’s expert because his own expert did not have the

opportunity to examine the vehicle. Id. As a remedy for the violation, the Fourth

District reversed for a retrial in which “the state will be precluded from calling as

witnesses the experts who physically examined the truck.” Id.


                                         -9-
      In so holding, the Fourth District rejected the State’s argument that “the

‘mere possibility’ that examination of the truck would have assisted [Lancaster]

should not result in reversal.” Id. Instead, the Fourth District relied on its prior

decision in Stipp v. State, 371 So. 2d 712 (Fla. 4th DCA 1979), for the proposition

that “a due process violation exists when the state unnecessarily destroys the most

critical inculpatory evidence and then is allowed to introduce essentially irrefutable

testimony of the most damaging nature.” Lancaster, 457 So. 2d at 507 (citing State

v. Counce, 392 So. 2d 1029 (Fla. 4th DCA 1981); Johnson v. State, 249 So. 2d 470

(Fla. 3d DCA 1971)); see also Lancaster, 457 So. 2d at 507 (“It would be

fundamentally unfair, as well as a violation of rule 3.220, to allow the state to

negligently dispose of critical evidence and then offer an expert witness whose

testimony cannot be refuted by the Defendant.”) (quoting State v. Ritter, 448 So.

2d 512, 514 (Fla. 5th DCA 1984)).

      However, the law has changed since the Fourth District decided Lancaster.

As the First District explained below, Youngblood is now “the pertinent

authoritative decision” for analyzing whether the State’s destruction of evidence

“potentially useful” to the defendant violates due process. Patterson, 153 So. 3d at

310 (quoting Youngblood, 488 U.S. at 58). The remedy the defendant seeks for

the alleged due process violation does not change the standard applicable to

determining whether a due process violation occurred. In other words,


                                         - 10 -
Youngblood is the proper standard for judging whether due process has been

violated whenever the State’s loss or destruction of potentially useful evidence is at

issue, even where—as here—the remedy sought for the alleged violation is the

exclusion of evidence as opposed to the complete dismissal of the charges. See

State v. Coleman, 911 So. 2d 259, 261 (Fla. 5th DCA 2005) (reversing trial court’s

decision to exclude evidence (rather than dismiss the case) because “to sanction the

State on due process grounds, based upon the loss or destruction of potentially

exculpatory, documentary evidence, there must be a showing of bad faith”

(emphasis added) (citing Youngblood, 488 U.S. at 58)).

      Applying Youngblood’s standard to the facts of Patterson’s case, no due

process violation occurred. “There simply is no evidence in this record

establishing that the State acted in bad faith,” as everyone who physically

examined the truck determined the fire was not accidental, and Patterson’s own

insurance company had the truck destroyed after the State released it. Patterson,

153 So. 3d at 310; see also Armstrong v. State, 73 So. 3d 155, 172 (Fla. 2011)

(“Youngblood explained that the ‘presence or absence of bad faith for purposes of

the Due Process Clause must necessarily turn on the police’s knowledge of the

exculpatory value of the evidence at the time it was lost or destroyed.’ ”) (quoting

Youngblood, 488 U.S. at 56 n.*)).




                                        - 11 -
      Furthermore, as the First District held below, a key factual difference

between Lancaster and this case illustrates why Patterson’s argument that

fundamental fairness requires a new trial (which if we accepted would effectively

require us to circumvent Youngblood by way of Lancaster) is misplaced:

      [An] important difference between Patterson’s case and Lancaster is
      that the sheriff’s fire investigators in Lancaster appear to have neither
      photographed the burned truck, nor preserved any samples taken from
      it. Consequently, the defendant had no basis on which to challenge
      their findings and conclusions. And, that is the circumstance that led
      the Fourth District to reverse the defendant’s conviction, order a new
      trial, and direct the trial court on retrial to prohibit the [State’s]
      investigators from testifying.

Patterson, 153 So. 3d at 311.

      In contrast to the truck in Lancaster, Patterson’s truck was extensively

photographed prior to its destruction. Relying on these photographs, Patterson’s

expert presented detailed testimony as to why, in his opinion, the truck fire’s origin

was electrical and therefore accidental in nature. Similarly, the State’s experts

made extensive use of the photographs to support their contrary opinions that the

fire’s origin was not accidental. See Patterson, 153 So. 3d at 311 (“[M]uch of the

testimony from both sides’ experts centered on their respective interpretations of

observed burn patterns.”). Patterson also used his expert to undermine the

thoroughness of the examinations performed by the State’s experts, including

through his expert’s testimony identifying components that the electrical engineer

did not address in his report and components that should have been removed and

                                        - 12 -
examined (including x-rayed) but were not. Therefore, even though Patterson’s

expert did not have the same opportunity to physically examine the truck as the

State’s experts, because the State preserved extensive photographs of the truck,

Patterson, unlike Lancaster, was able to defend against the State’s charges.

      Accordingly, there is no basis to depart from Youngblood as the proper

standard for analyzing Patterson’s due process argument. And, as explained

above, there is no due process violation under Youngblood because there is no

evidence that Patterson’s truck was destroyed in bad faith.3

                                  CONCLUSION

      Finding no due process violation under Youngblood, we approve the result

of the First District’s decision in Patterson and disapprove the Fourth District’s

decision in Lancaster.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, and PERRY,
JJ., concur.


       3. Patterson also takes issue with the State’s request during closing
argument for the jury to consider “how thorough” its experts’ investigations were,
arguing that this statement improperly suggested that the jury should find the
State’s experts more credible than his because they physically examined the truck.
However, Patterson’s trial counsel did not object to or request any relief as a result
of this statement (perhaps for good reason because, in the context of the entire
record, this statement appears to have been a fair response to Patterson’s expert’s
testimony faulting the quality of the State’s experts’ investigation). In any event,
Patterson has not argued in this Court that his trial counsel’s failure to object was
fundamental error, nor is it. See Evans v. State, 177 So. 3d 1219, 1234 (Fla. 2015).

                                        - 13 -
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions

      First District - Case No. 1D12-3982

      (Escambia County)

Michael Robert Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee,
Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and
Kathryn Lane, Assistant Attorney General, Tallahassee, Florida,

      for Respondent




                                      - 14 -
