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People v. Epps6/27/1986
evidence which is the only evidence probative on the ultimate issue and the situation actually presented by this appeal. While a gross examination of the constitutionally guaranteed right of access to evidence might indicate universal application, actually there are subtle distinctions in the application of the duty and the imposition of sanctions for violation of the right. Patterns have evolved, but it would be presumptuous for this court to attempt to articulate a "majority rule." It is clear, however, that fundamental considerations exist in different cases: (1) is the evidence objective evidence or subjective evidence; (2) does the evidence seized constitute the primary evidence of defendant's
guilt or merely represent part of a possible defense; (3) what is the methodology of the state regarding the collection of the evidence and its retention; and (4) is the accused charged with specific intent or general intent crimes?
In the instant case there is no issue of whether the need for an independent defense analysis was apparent during the time frame in which these actions occurred. The investigating officer on the night of the murder concluded that blood and urine samples were necessary for testing given the obvious evidentiary considerations in the case. This is not a case of applying 20-20 hindsight to a patrol officer's conduct, concerning some esoteric application of a judicially created search and seizure rule, where the officer was faced with an instantaneous decision. In this case the officer's experience and education are obvious. The officer probably felt this was a case involving special circumstances, and the thought processes of appellant, if significantly impaired, would be of critical, perhaps singular, importance. The officer is to be commended on his recognition of the potential problem and his straightforward and proper conduct in obtaining blood and urine samples as evidence. It must have been obvious, even early in the investigation, that the evidence pointing to appellant as the perpetrator was overwhelming.
As it turns out, the officer was correct, and appellant's mental state was the pivotal issue.
Therefore, from the inception of this case, the blood and urine tests could not have had anything but momentous significance. It is noteworthy that the record from the date of filing the complaint (mid-November 1983) until January 1984 contains little reference to the problem presented. Defense counsel requested the blood and urine samples for independent testing and was repeatedly assured of their ultimate delivery. The record speaks well for what must be the honesty and professionalism of the law enforcement agencies in Tulare County and the state regional laboratories. In this case, however, defense counsel's reliance on a pattern of behavior was misplaced and occurred in such a manner that, absent the benefit of a crystal ball, could not have been avoided. By the time all the pieces fell into place, the blood sample suitable for qualitative and quantitative testing had been entirely consumed and it was apparent the urine sample was inappropriate for the desired testing.
This case poses a predicament which is not easily reconciled, which is to say, the prosecution very easily could have prevented this calamity. On its first realization that the quantity of properly preserved blood was a problem, the prosecution could easily have informed defense counsel and sought either a mutually agreed upon independent laboratory, an alternate and scientifically sound procedure for testing two smaller-than-usual samples,
or the guidance of the superior court in fashioning a discovery order. The prosecution did not deviate from
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