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Filing # 175359099 E-Filed 06/14/2023 10:59:54 PM
IN THE CIRCUIT COURT
OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
ARACELIS DEJESUS,
Plaintiff,
VS. Case No.: 2017-CA-2703
RUSSELL GIBSON, SHERIFF OF
OSCEOLA COUNTY IN HIS OFFICIAL
CAPACITY,
Defendant.
/
PLAINTIFF’S MOTION FOR ADVERSE JURY INSTRUCTION
The Plaintiff, by and through his undersigned attorney, hereby files his Motion for
Adverse Jury Instruction. As grounds for said Motion the Plaintiff states as follows:
FACTS
The case involves a search warrant based upon what CI 13-7 allegedly advised Det.
Vazquez, an employee of Defendant. The Defendant in this case intentionally deleted the
entirety of CI 13-7’s file in April of 2022 while this matter has been pending before this court in
2017. This Honorable Court has ruled that due to this intentional deletion of the file the
Defendants are precluded from introducing testimony as to the reliability of CI 13-7 in
accordance with Plaintiff's April 1, 2022 Motion in Limine.
Then the entirety of the Application and Affidavit for Search Warrant was entered into
evidence by the Defendants, over Plaintiff's objection to the hearsay contained therein and the
statements about the reliability of the CI within said document.
Page 1 of 5
ARGUMENT
The controlling case regarding destruction of evidence is Federal Ins. Co. v. Allister Mfg.
Co., which is in line with the federal procedure. Federal Ins. Co. v. Allister Mfg. Co., 622 So. 2d
1348 (Fla. 4th Dist. Ct. App. 1993). The sanctions allowed when evidence is lost or destroyed by
a party are as follows: (1) striking the offending party's pleadings, (2) shifting the burden of
proof to the offending party requiring that party to prove by the greater weight of the evidence
that it was not negligent, (3) the “Vanishing Presumption,” whereby shifting the burden of
producing evidence to the offending party, (4) giving a jury instruction that an adverse inference
may be drawn that the withheld evidence would be unfavorable to the party failing to produce it.
To determine which sanction is appropriate, courts are to rely upon the following factors:
(a) whether the action was willful or in bad faith by the party responsible for the lost evidence,
(b) the extent of prejudice suffered by the other party (here the Plaintiff), and (c) what, if
anything can be done, to cure the prejudice. Sponco Mfg., Inc v. Alcover, 656 So.2d 629 (Fla. 3d
DCA 1995). The court has discretionary authority to impose sanctions against a party upon
making express findings of willful failure to comply with discovery obligations. Figgie Int'l Inc.,
v. Alderman, 698 So.2d 563 (Fla. 3d DCA 1997); see also Metropolitan Dade County vy.
Bermudez, 648 So. 2d 197 (Fla. Ist DCA 1994). Intentional destruction of evidence warrants
imposition of sanctions against the offending party. Metropolitan Dade County v. Bermudez, 648
So. 2d 197 (Fla. 1st DCA 1994). In this case, the Defendant has intentionally destroyed critical
evidence regarding CI 13-7.
The Plaintiff is simply requesting an adverse instruction be given to the jury, which is the
lowest sanction available, per Allister.
Jury Instruction-Failure to Maintain Evidence or Keep a Record (301.11)
Page 2 of 5
The remedy requested is for this Honorable Court to instruct the jury to infer that the
destroyed/lost evidence would have been to the defendant’s detriment. Federal Ins. Co., 622
So.2d at 1348. Florida’s Third District Court of Appeals found that when a ladder, that may
have caused a Plaintiffs injuries, was destroyed by the Defendant the day of the incident, the
court was permitted to give an instruction that the jury could infer that the evidence would have
been unfavorable to the defendant. Palmas y Bamvu, S.A. v. EL. DuPont de Nemours & Co., 881
So.2d 565 (Fla. 3d DCA 2004). In that case, the defendants had not been placed on notice by the
Plaintiff, but the jury was permitted to make such an inference if they found the evidence was in
the defendant’s control, could have been preserved, and the evidence would have been material
in the case. Jd.
The Plaintiff maintains the instruction that must be read to the jury in light of reliability
statement as to CI 13-7 contained within the Application and Affidavit for Search Warrant is the
model jury instruction 301.11, which states:
If you find that:
The Osceola County Sheriff's Office destroyed or otherwise caused the entire
Confidential Informant File of Confidential Informant 13-7 to be unavailable, while
it was within its possession, custody, or control; and the Confidential Informant File
of Confidential Informant 13-7 would have been material in deciding the disputed
issues in this case; then you may, but are not required to, infer that this evidence
would have been unfavorable to the Osceola County Sheriffs Office. You may
consider this, together with the other evidence, in determining the issues of the case.
Page 3 of 5
Conclusion
The Alcover case helps guide a court’s decision on how to weigh the options when
evidence has been destroyed. A court is to look at whether the action was willful or in bad faith
by the party who lost/destroyed the evidence, the extent of the prejudice, and what if anything
can be done to cure the prejudice. Alcover, 656 So.2d at 630-631. It was the Defendant that
chose not to preserve CI 13-7’s file, which this Honorable Court has already ruled the Defendant,
OSCEOLA COUNTY SHERIFF’S OFFICE, had sufficient notice and should have preserved the
file, rather than allowing it to be destroyed in April of 2022.
There is no question the intentional actions on the part of the Defendant and his
representatives by destroying evidence has resulted in extreme prejudice to the Plaintiff.
Therefore, sanctions are warranted. The Plaintiff is simply requesting the lowest sanction
available be granted, a jury instructions in line with the Florida Supreme Court Civil Jury
Instructions- 301.11
WHEREFORE, due to the conduct on the part of the Defendant in destroying CI 13-7’s
file, the Plaintiff is requesting that the Plaintiff's Motion for an Adverse Jury Instruction be
granted for the reasons stated or any other good grounds shown.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I electronically filed the foregoing with the
Clerk of the Court using the eFiling Portal which will send a notice of electronic
filing and a copy hereof to Thomas W. Poulton, Esquire, DeBevoise & Poulton,
P.A., Lakeview Office Park, Suite 1010, 1035 S. Semoran Blvd., Winter Park, FL
32792 via email at poulton@debevoisepoulton.com, this 13th day of June, 2023.
Wieland & DeLattre, P.A.
Page 4 of 5
226 Hillcrest Street
Orlando, FL 32801
(407) 841-7699
Attorney for Plaintiff
s/William J. Wieland, IT
William J. Wieland, II
Fl Bar #: 84792
Billy@wdjustice.com
Page 5 of 5
Preview
Filing # 175359099 E-Filed 06/14/2023 10:59:54 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA ARACELIS DEJESUS, Plaintiff, VS. Case No.: 2017-CA-2703 RUSSELL GIBSON, SHERIFF OF OSCEOLA COUNTY IN HIS OFFICIAL CAPACITY, Defendant. / PLAINTIFF’S MOTION FOR ADVERSE JURY INSTRUCTION The Plaintiff, by and through his undersigned attorney, hereby files his Motion for Adverse Jury Instruction. As grounds for said Motion the Plaintiff states as follows: FACTS The case involves a search warrant based upon what CI 13-7 allegedly advised Det. Vazquez, an employee of Defendant. The Defendant in this case intentionally deleted the entirety of CI 13-7’s file in April of 2022 while this matter has been pending before this court in 2017. This Honorable Court has ruled that due to this intentional deletion of the file the Defendants are precluded from introducing testimony as to the reliability of CI 13-7 in accordance with Plaintiff's April 1, 2022 Motion in Limine. Then the entirety of the Application and Affidavit for Search Warrant was entered into evidence by the Defendants, over Plaintiff's objection to the hearsay contained therein and the statements about the reliability of the CI within said document. Page 1 of 5 ARGUMENT The controlling case regarding destruction of evidence is Federal Ins. Co. v. Allister Mfg. Co., which is in line with the federal procedure. Federal Ins. Co. v. Allister Mfg. Co., 622 So. 2d 1348 (Fla. 4th Dist. Ct. App. 1993). The sanctions allowed when evidence is lost or destroyed by a party are as follows: (1) striking the offending party's pleadings, (2) shifting the burden of proof to the offending party requiring that party to prove by the greater weight of the evidence that it was not negligent, (3) the “Vanishing Presumption,” whereby shifting the burden of producing evidence to the offending party, (4) giving a jury instruction that an adverse inference may be drawn that the withheld evidence would be unfavorable to the party failing to produce it. To determine which sanction is appropriate, courts are to rely upon the following factors: (a) whether the action was willful or in bad faith by the party responsible for the lost evidence, (b) the extent of prejudice suffered by the other party (here the Plaintiff), and (c) what, if anything can be done, to cure the prejudice. Sponco Mfg., Inc v. Alcover, 656 So.2d 629 (Fla. 3d DCA 1995). The court has discretionary authority to impose sanctions against a party upon making express findings of willful failure to comply with discovery obligations. Figgie Int'l Inc., v. Alderman, 698 So.2d 563 (Fla. 3d DCA 1997); see also Metropolitan Dade County vy. Bermudez, 648 So. 2d 197 (Fla. Ist DCA 1994). Intentional destruction of evidence warrants imposition of sanctions against the offending party. Metropolitan Dade County v. Bermudez, 648 So. 2d 197 (Fla. 1st DCA 1994). In this case, the Defendant has intentionally destroyed critical evidence regarding CI 13-7. The Plaintiff is simply requesting an adverse instruction be given to the jury, which is the lowest sanction available, per Allister. Jury Instruction-Failure to Maintain Evidence or Keep a Record (301.11) Page 2 of 5 The remedy requested is for this Honorable Court to instruct the jury to infer that the destroyed/lost evidence would have been to the defendant’s detriment. Federal Ins. Co., 622 So.2d at 1348. Florida’s Third District Court of Appeals found that when a ladder, that may have caused a Plaintiffs injuries, was destroyed by the Defendant the day of the incident, the court was permitted to give an instruction that the jury could infer that the evidence would have been unfavorable to the defendant. Palmas y Bamvu, S.A. v. EL. DuPont de Nemours & Co., 881 So.2d 565 (Fla. 3d DCA 2004). In that case, the defendants had not been placed on notice by the Plaintiff, but the jury was permitted to make such an inference if they found the evidence was in the defendant’s control, could have been preserved, and the evidence would have been material in the case. Jd. The Plaintiff maintains the instruction that must be read to the jury in light of reliability statement as to CI 13-7 contained within the Application and Affidavit for Search Warrant is the model jury instruction 301.11, which states: If you find that: The Osceola County Sheriff's Office destroyed or otherwise caused the entire Confidential Informant File of Confidential Informant 13-7 to be unavailable, while it was within its possession, custody, or control; and the Confidential Informant File of Confidential Informant 13-7 would have been material in deciding the disputed issues in this case; then you may, but are not required to, infer that this evidence would have been unfavorable to the Osceola County Sheriffs Office. You may consider this, together with the other evidence, in determining the issues of the case. Page 3 of 5 Conclusion The Alcover case helps guide a court’s decision on how to weigh the options when evidence has been destroyed. A court is to look at whether the action was willful or in bad faith by the party who lost/destroyed the evidence, the extent of the prejudice, and what if anything can be done to cure the prejudice. Alcover, 656 So.2d at 630-631. It was the Defendant that chose not to preserve CI 13-7’s file, which this Honorable Court has already ruled the Defendant, OSCEOLA COUNTY SHERIFF’S OFFICE, had sufficient notice and should have preserved the file, rather than allowing it to be destroyed in April of 2022. There is no question the intentional actions on the part of the Defendant and his representatives by destroying evidence has resulted in extreme prejudice to the Plaintiff. Therefore, sanctions are warranted. The Plaintiff is simply requesting the lowest sanction available be granted, a jury instructions in line with the Florida Supreme Court Civil Jury Instructions- 301.11 WHEREFORE, due to the conduct on the part of the Defendant in destroying CI 13-7’s file, the Plaintiff is requesting that the Plaintiff's Motion for an Adverse Jury Instruction be granted for the reasons stated or any other good grounds shown. CERTIFICATE OF SERVICE I HEREBY CERTIFY that I electronically filed the foregoing with the Clerk of the Court using the eFiling Portal which will send a notice of electronic filing and a copy hereof to Thomas W. Poulton, Esquire, DeBevoise & Poulton, P.A., Lakeview Office Park, Suite 1010, 1035 S. Semoran Blvd., Winter Park, FL 32792 via email at poulton@debevoisepoulton.com, this 13th day of June, 2023. Wieland & DeLattre, P.A. Page 4 of 5 226 Hillcrest Street Orlando, FL 32801 (407) 841-7699 Attorney for Plaintiff s/William J. Wieland, IT William J. Wieland, II Fl Bar #: 84792 Billy@wdjustice.com Page 5 of 5