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Anthony v. State5/14/2003
ater, during the pre-trial hearing, he said:
I'm certainly not making an allegation that the Court would view my motion that there was misconduct on the part of the Prosecuting Attorney's office or the City Attorney's office or the City of Hot Springs Police Department, but I am imputing the negligence and the failure of the officer to report it as the basis for the fact that it doesn't exist. And that's why we believe it should be imputed to the City Attorney's office, not because Mr. Albright or anybody at the Hot Springs Police Department did it surreptitiously or with malice.
The foregoing concessions made by appellant, that the recycling of the videotape, which occurred sometime during the twenty-five month period between appellant's arrest and the hearing on his second motion to dismiss, was not an act of "bad faith" by the police, support the trial court's decision to deny appellant's motion to dismiss.
Furthermore, although appellant asserts that the destroyed videotape represented the best and only exculpatory evidence available to him, he makes no showing that the contents of the videotape would in fact have been exculpatory or that there is a reasonable probability that had the videotape been produced, the result would have been different. See Threadgill, supra (citing Terrell v. State, 26 Ark. App. 8, 759 S.W.2d 46 (1988)). Under similar circumstances in Terrell, this court determined that it could not say the loss of a tape was of such prejudicial magnitude as to warrant dismissal. Appellant failed to make such a showing in this case, and we therefore affirm.
Affirmed.
Gladwin and Bird, JJ., agree.
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