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    Tuesday, January 24, 2017-2:19:51A.M.

     

     

     

     

     

Court denies motion to dismiss theft case

SUPERIOR Court Associate Judge Joseph Camacho denied a motion on Tuesday to dismiss a theft case against Peter Koichi Lemei who claims that evidence was destroyed.

The judge said the defendant failed to establish the three factors that must be shown in order for the motion to dismiss to succeed.

Citing the U.S. Supreme Court ruling in Youngblood v. Trombetta, the judge said the defendant must show that (1) the government acted in bad faith in failing to preserve the evidence; (2) the exculpatory value of the evidence was apparent before its destruction; and (3) the nature of the evidence was such that the defendant would be unable to obtain comparable evidence by other means.

Lemei, 46, was charged with misdemeanor theft for stealing a purse from a woman who was in a friend’s garage playing cards on April 10, 2016 at about 5:30 a.m.

A witness testified during the bench trial that she was seated next to the victim when the theft occurred. But the witness said she was distracted by dogs fighting under the table and failed to see the defendant’s face so she couldn’t recognize anyone in a photo lineup she was asked to view at the Department of Public Safety headquarters.

Through his attorney, Assistant Public Defender Tillman Clark, Lemei filed a motion to dismiss for destruction of evidence — the photo lineup in which a witness failed to identify the defendant.

Clark said the photo line-up mentioned by the witness was not provided to Lemei. He said this violated the Brady Rule by failing to provide exculpatory evidence to the defense.

But in his ruling, Judge Camacho said Lemei failed to establish bad faith on the part of the police.

“In his testimony the police detective said he did not remember showing the witness the photo line-up,” the judge said

The judge said, however, that there was no evidence of official animus or a conscious effort to suppress evidence in the record before the court.

In its earlier ruling in Lemei’s case, the court had noted that a non-identification by an eyewitness is potentially exculpatory evidence.

However, the judge also cited a 6th Circuit Court ruling in 2001 which said, “Where potentially useful evidence is not preserved, bad faith alone will not violate a criminal defendant’s due process right to access exculpatory evidence.”

Lemei can obtain comparable evidence by other reasonably available means, Judge Camacho said.

“Lemei had access to both the photo-line up shown to the witness and victim, as well as witness testimony stating that she was unable to identify anyone in the photo lineup.

“These two facts taken together are comparable evidence,” the judge said.

His ruling noted that since Lemei’s motion failed to establish all three elements outlined in Youngblood v. Trombetta, the motion to dismiss is denied.

Assistant Attorney General Heather Barcinas appeared for the government during the Dec. 14, 2016 hearing on the defendant’s motion.