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State v. Blackwell7/14/2000
ment is not a matter of a trial court's discretion. A dismissal with prejudice of a criminal indictment interferes with the State's right to prosecute and "have its case against the [defendant] determined on the merits." State v. Owens, 189 Ga. App. 308, 310 (375 SE2d 656) (1988).
The Civil Practice Act OCGA § 9-11-41 (b) provides for dismissals with prejudice of civil cases, but the court knows of no statutory or case authority which permits such dismissals in criminal cases. (Emphasis in original.) State v. Cooperman, 147 Ga. App. 556, 558 (2) (249 SE2d 358)(1978). See also special concurrence in State v. Owens, 189 Ga. App. 308 (375 SE2d 656) (1988). (Punctuation omitted.) State v. Luttrell, 207 Ga. App. 116 (427 SE2d 95) (1993).
Thus, in order to deny the State its right to prosecute on the indictment because of the failure to preserve evidence, such failure must amount to a constitutional due process violation. California v. Trombetta, 467 U. S. 479, 488-489 (104 SC 2528, 81 LE2d 413) (1984) ("Trombetta"); Arizona v. Youngblood, 488 U. S. 51, 58 (109 SC 333, 102 LE2d 281) (1988) ("Youngblood").
Here, the trial judge dismissed the indictment because he incorrectly determined that the DA, not Blackwell, had a duty to take the court's order to the crime lab to prevent destruction of the sample:
Let me ask you, whose responsibility is it to take a court order to your client - I mean, your witness [crime lab]? Isn't it your responsibility to get them there, Mr. Wilbanks ? . . . it's your responsibility tell them there's going to be an independent . . . I think the State's got a burden once that order's entered.
In fact, a DA has no such burden under OCGA § 17-16-4 (3). And even if the DA had such duty, dismissal of the indictment is not an appropriate remedy.
2. Presumably on a right for any reason ground, the majority would affirm dismissal of the State's indictment on constitutional due process grounds. However:
(a) The majority holds that Georgia courts "have not squarely addressed" the issue of the "bad faith" requirement in cases such as this one where the State failed to preserve disclosed evidence. This is incorrect. The Georgia Supreme Court has "squarely" held that:
In dealing with the failure of the state to preserve evidence which might have exonerated the defendant, a court must determine both whether the evidence was material and whether the police acted in bad faith in failing to preserve the evidence.
This Court has repeatedly followed the Supreme Court's two-pronged analysis.
The majority now advocates a new approach which would abolish the long-standing requirement that both "constitutional materiality" AND "bad faith" be shown in failure-to-preserve cases. The majority contends that the raft of cases which have established the two prong requirement of (A) constitutional materiality and (B) bad faith are not applicable here because "those cases did not involve evidence whose exculpatory value was apparent before its destruction." But even assuming arguendo that the exculpatory value of Blackwell's sample was shown, the establishment of exculpatory value before destruction is prong A, constitutional materiality: to satisfy the standard of constitutional materiality in Trombetta . . . the exculpatory value of the evidence must be apparent before it is destroyed. Youngblood, supra at 56.
It is illogical to argue that the establishment of one prong of a two prong requirement negates the second prong, when this Court has repeatedly held that both prongs must be shown to establish a due process violation. The majority's approach ignores precedent and end
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