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State v. Blackwell7/14/2000
suggests bad faith on the part of the State.
We conclude that the State's intentional destruction of critical evidence without notice to a defendant in the face of a court order allowing the defendant access to that evidence can amount to bad faith. So, even though Blackwell was not required to make that showing, the evidence here supports it.
Accordingly, we affirm the trial court's judgment.
Judgment affirmed. Blackburn, P. J., Barnes, Ellington, and Mikell, JJ. concur. Andrews, P. J.,and Eldridge, J. dissent.
A00A0073. THE STATE v. BLACKWELL.
AN-004C
ANDREWS, Presiding Judge, dissenting.
I must respectfully dissent because the majority has, in essence, created a complex federal constitutional argument for Blackwell, assumed and speculated about facts not proven below to analyze it on Blackwell's behalf, and then ruled in his favor on it, even though the trial court did not. The majority concludes that the State violated his Fifth Amendment due process rights because the Crime Lab, in the normal course of its business and without Blackwell having availed himself of testing the urine as provided in the consent order for such testing, destroyed the urine after 12 months.
Pursuant to Patterson v. State, 238 Ga. 204 (232 SE2d 233) (1977), an accused charged with possession or sale of a prohibited substance is entitled to have an independent examination of the substance made. That right, however, is not absolute. The demand must be timely, the request must be reasonable, and the trial court may, as a matter of discretion, refuse to permit such an examination. Id. at 206. In Patterson, the demand was not made until nearly four years after Patterson's arrest and shortly before his trial. Two months before the request, the marijuana had been destroyed by the State Crime Laboratory. There, the demand was found untimely and there was no impediment to prosecution.
Even destruction of the entire seized material during testing by the State will not preclude prosecution and admission of the State's test results. In Partain v. State, 238 Ga. 207, 208 (232 SE2d 46) (1977), it was concluded that a request for independent testing when the substance had been used up was unreasonable because an independent test was impossible.
Further, "even the destruction of potentially exculpatory evidence does not violate due process unless the police acted in bad faith in failing to preserve the evidence. [Cits.]" Smith v. State, 270 Ga. 68, 71 (6) (508 SE2d 145) (1998). No such showing was made in this case and the granting of the motion to dismiss on this basis was error. Smith involved a due process argument, made and ruled upon below, but is relegated to a footnote reference by the majority indicating that no bad faith was shown there and there was not enough sample for two tests. No "bad faith" by the State is shown on the record here either, nor was any specifically found by the trial court. The majority sidesteps this, apparently, by imposing an affirmative obligation on the State to assure that the accused avails himself of his discovery opportunity once an order is entered. Under OCGA § 17-16-4 (3), our criminal discovery statute, that responsibility is the defendant's. Norley v. State, 170 Ga. App. 249, 252 (4) (316 SE2d 808) (1984).
Also, Smith also involved, not a motion to dismiss precluding further prosecution by the State as is being done here, but a motion in limine seeking exclusion of the State's test results in any such prosecution.
The order allowing the independent analysis had been in effect for approximately a month before the urine was destroyed, and
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