UPDATED: Calhoun County court dismisses missing evidence case

Mar. 17—An assault case in the news last week due to missing evidence has been dismissed, according to court documents.

A case in which a man, Jonathan Poss, of Weaver, was charged with assault in 2018 was dismissed Thursday by Calhoun County Circuit Court Judge Jennifer Weems. Counsel for the defense made the motion to dismiss.

Weems stated in court documents that she had made the decision after careful consideration of all arguments, police reports, and other matters presented in the hearing last week.

"There was a complete lack of prosecution of this case for four years," Weems says in the document.

Weems stated in the document that she wished there were any other option than to impose this sanction, which is only regarded for the most extreme cases. However necessary, she goes on to state that the court "finds no satisfaction in reaching this result."

"This Court agrees that if there was any lesser remedy to the violation of the Defendant's due process rights, that this Court should, and would, exercise that remedy," Weems stated.

In the case, Poss allegedly assaulted a Weaver woman, Mellye Elizabeth McCabe, at her home in September 2018 after an altercation.

Defense counsel Tina Roberts, made the motion to dismiss after, she claims, several of her attempts to gain access to evidence in the case were denied.

Now, more than four years after the initial incident occurred, parts of that evidence, body cam footage and photographs, has since been destroyed as it was a part of an electronic database.

The body cam footage in question is of Poss's original statements to police directly after the incident occurred, and the alleged victim's statements to police.

Questions also arose about whether photographs of evidentiary scenes even existed, as the Weaver police officer who took Poss's original statement could not confirm that he took photographs. If the photos had existed, they would have likely shown defense wounds on Poss's hands and arms from where the victim had supposedly struck him with a rake, according to court testimony last Thursday.

Roberts claimed during the hearing last week that this evidence could have potentially exonerated her client. Weems stated in the document that the missing evidence could not simply be recreated.

At the hearing, Weems asked Roberts why living witness testimony would not be sufficient defense evidence, and Roberts responded that it could not take the place of actual visual documentation.

In the dismissal document, Weems states that "A picture is worth a thousand words."

"A brief description of tools lying 'near' the carport opening does not allow the jury to evaluate the conflicting descriptions of the Defendant's and the alleged victim's versions of the incident," Weems continued.

Weems called the actions of the previous assistant district attorney "grossly negligent" in the seven-page-long document which outlined the specifics of the case and further explained her decision.

"At some point negligence in refusing to obtain vital and required evidence could be viewed as bad faith on the part of the previously assigned Assistant District Attorney," Weems stated. "This Court finds that the previously assigned Assistant District Attorney exhibited gross negligence and is culpable for the deleted evidence."

According to the document, Weems states that in order to move forward with the case, certain elements of the crime must be proven. In this case, the caulking gun the defendant struck the alleged victim with was never collected by the Weaver Police Department, according to court testimony.

"The instrument used to cause the alleged victim's injuries must be proven, as it is an element of the offense," Weems stated.

She goes on to state that the court finds that the destruction of evidence lost in this case is a "violation of the defendant's rights to due process," and the alleged victim waited for over four years only to be "precluded from pursuing justice."

Staff Writer Ashley Morrison: 256-236-1551. On Twitter: @AshMorrison1105.