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State v. Blackwell7/14/2000
[Blackwell] had not sought to have any independent analysis conducted by the date of this destruction. Under these circumstances, by not timely utilizing the court-ordered opportunity to conduct the testing, [Blackwell] waived any right to the independent analysis. Norley v. State, supra.
While the majority has ruled based upon an extensive discussion of Supreme Court decisions involving the Fifth Amendment to the Federal Constitution, this argument was not contained in Blackwell's written motion to dismiss. In his oral argument before the judge, Blackwell's counsel stated merely that " e think it's inherently unfair and would be volitive of fundamental fairness to allow that test to come in now . . . ." This Court has repeatedly held that, in order to raise an issue of violation of Constitutional protections, one must specify which Constitution (State or federal) and which provision thereof one is relying upon. See Hall v. State, 200 Ga. App. 585 (1) (409 SE2d 221) (1991); Lee v. State, 166 Ga. App. 485 (1) (304 SE2d 446) (1983). That was not done here.
Nor was the issue specifically ruled upon by the trial judge. During the hearing, the trial judge stated that the destruction of the urine before Blackwell took steps to have it tested was "fundamentally unfair." There is no ground for the dismissal given in the written order filed, merely the statement that Blackwell's motion was granted.
Grounds not presented to or specifically ruled upon by the trial are waived and not generally considered by this Court. Rushing v. State, 271 Ga. 102, 104 (2) (515 SE2d 607) (1999); O'Hannon v. State, 240 Ga. App. 706, 709 (2) (524 SE2d 759) (1999); Brantley v. State, 226 Ga. App. 872, 873 (1) (487 SE2d 412) (1997).
Also, as reflected by the majority, it is unclear what actually happened regarding the destruction of the sample. No witness from the lab was called by Blackwell in support of his motion to dismiss. The only "evidence" in the record is the April 28th letter from the prosecutor to Blackwell's counsel, repeating a statement made by telephone to the prosecutor by an unidentified lab employee regarding the sample's destruction and statements made by the prosecutor during the hearing, also relating telephone conversations with other unidentified lab employees. Such statements are hearsay and prove nothing. In re Phillips, 225 Ga. App. 478, 481 (2) (484 SE2d 254) (1997); see Wellons v. State, 266 Ga. 77, 88 (18) (463 SE2d 868) (1995).
The trial court, under the unique factual and procedural posture of this case, in my opinion, abused its discretion in dismissing the indictment.
A00A0073. THE STATE v. BLACKWELL.
ELDRIDGE, Judge, respectfully dissenting.
I believe that the best course would be to vacate the judgment and remand this case for further findings of fact and conclusions of law. My reasons flow from consideration of the content of the majority opinion.
Because of the failure to preserve Blackwell's urine sample, the trial court dismissed the State's indictment. The majority favors this remedy because it seems unfair that Blackwell did not get a chance to independently test his urine sample when: the trial court issued an order saying he could, a prior field test showed negative for drugs, and a subsequent positive test is the basis for his prosecution. Understandable. I do not agree. But it is understandable. In my view, however, the law does not support dismissing the State's indictment for the following reasons:
While OCGA § 17-16-6 gives a trial judge discretion to fashion a remedy for a violation of the discovery statute, a dismissal with prejudice of a criminal indict
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