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Prosecutors base the decision on a lack of witnesses to pin down who was driving the vehicle that killed a mother and daughter in August 1999.
By CARRIE JOHNSON, Times Staff Writer
© St. Petersburg Times, published May 25, 2002
INVERNESS -- Just days before Misty Lynn David was scheduled to stand trial on charges of killing a popular elementary school secretary and her 13-year-old daughter in an alcohol- and pill-fueled car wreck, the State Attorney's Office decided to drop the charges.
"There just wasn't enough evidence," said Chief Assistant State Attorney Ric Ridgway.
David, 25, of Inverness was charged with two counts of driving under the influence-manslaughter and one count of driving while intoxicated-causing great bodily injury. Jury selection was scheduled to begin Tuesday.
But on Friday, the State Attorney's Office filed a notice informing David it did not plan to go forward with a trial because the "likelihood of successful prosecution is remote."
Ridgway said the problem was no witness could testify that David was driving the Jeep Cherokee that smashed into the 1998 Saturn sedan carrying Dixie Kimbrell, 53, and her daughter, Kimberly, in August 1999.
Driving the Saturn was another one of Dixie Kimbrell's daughters, Alicia. Now 21, Alicia Kimbrell was injured in the crash but survived.
Ridgway said two of the people in the Jeep Cherokee, Richard Busby and Jose Menendez, initially told Florida Highway Patrol investigators that David was driving at the time of the crash.
But in pretrial interviews with prosecutors and defense attorney Stephen Toner, the two men changed their stories and said they couldn't be sure who was behind the wheel, the state said.
The third person in the Jeep that night, Crystal McClure, said she had consumed alcohol and the prescription drug Xanax earlier in the evening and had no recollection of the events that led to the crash.
Also, at least one other person has stepped forward and accused Richard Busby of driving the Jeep Cherokee. Bryan Witty, a Crystal River man who said both Busby and David are his friends, told lawyers during an interview that Busby was allowing David to take the blame for the crash.
"I think he's a dangerous person, no conscience," Witty testified. "The fact that he can sit back, and he's responsible for lives of other people and now he's trying to push it off on somebody else."
Ridgway said investigators searched for other clues that would prove whether David was in the driver's seat. But a search for DNA evidence proved fruitless, and physical reconstruction of the vehicle didn't positively identify a specific person as the driver.
"When you don't have any eyewitnesses or any physical evidence, you're kind of left with a whole lot of nothing," Ridgway said.
David could not be reached for comment Friday. But Toner, her attorney, said he wasn't surprised by the state attorney's decision.
"There was no question in my mind that it wasn't my client," Toner said.
Ridgway said he consulted with Dixie Kimbrell's surviving family members before filing the notice. He said they were disappointed but seemed to understand the situation. A call to Alicia Kimbrell's home in Gainesville was not returned Friday.
The notice filed by the State Attorney's Office does not prohibit prosecutors from refiling the charges against David or bringing charges against another person. But if that was to happen, it must be done quickly: The three-year statute of limitations expires in August.
The accident occurred about 2:15 a.m. Aug. 21 on County Road 488 and Diamond T Lane, about a mile east of U.S. 19.
Authorities said the Jeep Cherokee crossed the center line and smashed head-on into the Saturn carrying the Kimbrell family.
David was never accused of being at the threshold the state determines someone to be impaired at the time of the crash. Tests showed she had a blood alcohol level of 0.011, a very small amount that likely meant that she had less than one drink in her system.
But authorities said David had ingested prescription medicine, including Xanax, while at Club Excess and Club Bubba that caused her to be impaired.
-- Crime reporter Carrie Johnson can be reached at 860-7309 or cjohnson@sptimes.com.