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KENYON v. STATE6/4/1997
e admission of evidence relating to the test taken at the direction of a law enforcement officer.
Ark. Code Ann. § 5-65-204(e) (Repl. 1993).
Appellant relies on the above statute and the case of California v. Trombetta, 467 U.S. 479 (1984), in support of his argument. In
Trombetta, the issue before the United States Supreme Court was "whether the Due Process Clause requires law enforcement agencies to preserve breath samples of suspected drunken drivers in order for the results of breath-analysis tests to be admissible in criminal prosecutions." Id. at 481. The Court held that "the Due Process Clause of the Fourteenth Amendment does not require that law enforcement agencies preserve breath samples in order to introduce the results of breath-analysis tests at trial." Id. at 491. In reaching its conclusion, the Court stated that the authorities in the case did not destroy the defendant's breath samples in a calculated effort to circumvent the disclosure requirements previously established by the Court; rather, the authorities acted in good faith. Secondly, the Court stated that, more importantly, the duty to preserve samples must be limited to evidence that "might be expected to play a significant role in the suspect's defense." Id. at 488. The Court stated that to meet this standard, the evidence must possess exculpatory value that was apparent before it was destroyed and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means. The Court noted that the evidence from the breath samples would be much more likely to be inculpatory rather than exculpatory. Finally, the Court pointed out that the defendants had other methods of demonstrating their innocence, such as presenting evidence of how the tests could be inaccurate.
In Wenzel v. State, 306 Ark. 527, 815 S.W.2d 938 (1991), the Arkansas Supreme Court followed Trombetta, supra, in affirming a defendant's conviction when he appealed on the basis that the State had used all the semen found on vaginal swabs during DNA testing, and he was, therefore, unable to conduct his own tests. The court stated that the defendant made no showing that the evidence possessed exculpatory value before it was destroyed. The court also cited Arizona v. Youngblood, 488 U.S. 51 (1988), in stating that the defendant failed to show bad faith on the part of the State, which was necessary in order to constitute a denial of due process.
Applying Trombetta and Wenzel to the present case, the trial court correctly admitted the evidence of the blood-alcohol test. First, the authorities did not destroy the left-over blood sample in
bad faith. To the contrary, the State did not destroy the sample at all; an employee of a private laboratory left the sample out of refrigeration after appellant had waived his right to have his own analysis performed. We do not agree that the private laboratory employee's inadvertent destruction of the blood sample was "tantamount to bad faith on the part of the State" as argued by appellant. As appellant's attorney admitted to the trial court, there is no evidence that the State or any other person requested, hinted, schemed, or in any way caused the lab employee to remove the blood from refrigeration. Second, all indications are that another test performed on the blood sample would have proven inculpatory rather than exculpatory. Not only had the State's test revealed a blood-alcohol level of .10, but the hospital's test, which was introduced by appellant, obtained a result of .12. Thus, the alleged exculpatory value of the test was not at all apparent before the sample was left out of refrigeration. Thirdly, appellant had other means to demonstrate
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