State v. Blackwell
| Decision Date | 14 July 2000 |
| Docket Number | No. A00A0073.,A00A0073. |
| Citation | 537 S.E.2d 457,245 Ga. App. 135 |
| Parties | The STATE v. BLACKWELL. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Roger G. Queen, District Attorney, John G. Wilbanks, Jr., Assistant District Attorney, for appellant.
William L. Reilly, Blue Ridge, for appellee.
The trial court dismissed drug possession charges against John Blackwell after the State intentionally destroyed Blackwell's urine sample. The State Crime Lab's positive test results on the sample were the only evidence of Blackwell's guilt; the sample had initially tested negative for drugs in a field test; and there was an existing court order allowing Blackwell to independently test the sample. Under these circumstances, the trial court concluded that allowing the State to prosecute Blackwell would be "fundamentally unfair." The State appeals. We agree with the trial court and affirm.
The record shows that, on March 9, 1997, Blackwell was cited for DUI and weaving on the road. Three days later, Blackwell's probation officer tested his urine for drugs using a kit issued by the State. The test was negative. Nevertheless, an agent from the Appalachian Drug Task Force sent Blackwell's urine—the same sample—to the State Crime Lab, which tested it again. This time, the urine tested positive for amphetamine and methamphetamine. Blackwell was indicted for possession of amphetamine and methamphetamine, as well as DUI and weaving on the road.
Shortly after his arraignment, Blackwell filed a motion to permit an independent laboratory analysis of his urine sample. The prosecutor consented to the motion, and, in an order dated March 26, 1998, the trial court granted it. The order provided that Blackwell's "attorney, or his representative, shall call [the State Crime Lab] in advance to set an appointment to view the evidence."
According to Blackwell's attorney, the prosecutor called the State Crime Lab to inform them that defense counsel would be bringing an expert to analyze the urine, but the prosecutor was told that the crime lab did not keep urine specimens for more than one year. The record does not show when this call took place. In a letter dated April 28, 1998, the prosecutor wrote to Blackwell's counsel that an employee from the crime lab "called this morning and confirmed that the urine has been destroyed, pursuant to their policy of destroying urine after 12 months."
At the hearing on Blackwell's motion to dismiss, however, the prosecutor stated that the crime lab had recently confirmed that it did not actually destroy the urine until May 5 or 15, 1998. Blackwell's attorney argued that allowing the State to present evidence of the crime lab's positive test result would violate "fundamental fairness." The prosecutor suggested that Blackwell could have tested the urine during the month and a half period between the entry of the consent order and the destruction of the sample. Without specifically ruling on that argument, the trial court concluded that it was "fundamentally unfair" for the State to destroy the evidence after the entry of its order, and it dismissed the drug charges in the indictment.
1. On appeal, the State argues that Blackwell waived his right to independent testing by waiting too long after the entry of the consent order to procure such testing. We do not agree.
The State relies upon Norley v. State,1 in which the defendant moved for an independent analysis of a substance that the State Crime Lab had determined to be cocaine. The trial court entered an order granting the motion and giving the defendant approximately one month to conduct the analysis. The defendant failed to conduct the analysis within that time, and the crime lab destroyed the evidence three or four months later. On those facts, we held that the defendant waived his right to independent analysis by "not timely utilizing the court-ordered opportunity to conduct the testing."2
This case is considerably different. First, unlike in Norley, the trial court's order did not set a specific time for Blackwell to complete the independent analysis. Second, the record shows that Blackwell took steps to accomplish the analysis within one month of the trial court's order. The trial court's order is dated March 26, 1998. The prosecutor called the State Crime Lab on Blackwell's behalf to arrange for independent testing. Although the record does not show when this call occurred, the prosecutor's April 28 letter to Blackwell's attorney states that the crime lab had confirmed the destruction of the sample, implying that the first contact with the lab occurred before April 28. Thus, Blackwell—or the prosecutor acting on his behalf—acted within one month of the trial court's order. Under these circumstances, we cannot conclude that Blackwell waived his right to an independent test. 3
2. Even though Blackwell did not waive his right to an independent test, the trial court lacked authority to dismiss the drug charges in the indictment unless prosecution would violate Blackwell's constitutional rights.4 The trial court concluded that prosecution would result in a due process violation, and we uphold that ruling.
(a) First, we address the assertion of the dissenting opinion by Presiding Judge Andrews that the issue of due process was not raised in the trial court. The due process clause of the Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property, without due process of law."5 Under this clause, "criminal prosecutions must comport with prevailing notions of fundamental fairness."6 The United States Supreme Court has long held that fundamental fairness "require[s] that criminal defendants be afforded a meaningful opportunity to present a complete defense," including the right of access to exculpatory evidence.7
At the hearing on Blackwell's motion to dismiss, Blackwell's counsel argued to the trial court that allowing the State to present evidence of the crime lab's test result would violate "fundamental fairness," and the trial court agreed. Although the trial court did not specifically mention the due process clause, the court repeatedly referred to the State's destruction of the urine sample as "fundamentally unfair," which is the gravamen of a due process violation.8 And the court gave no other basis for its ruling. Thus, it seems clear that Blackwell's motion and the trial court's ruling were based on constitutional due process, even if those words were not used. There should be no sophisticated way to say "due process" or whatever is fundamentally fair.9 Thus, we may properly consider the constitutional issue here.
(b) "The practice of destroying evidence without prior notice to the accused has been soundly denounced."10 The State has a constitutional obligation to preserve "evidence that might be expected to play a significant role in the suspect's defense."11 Accordingly, our Supreme Court has recognized that "[w]here the defendant's conviction or acquittal is dependent upon the identification of [a] substance as contraband, due process of law requires that analysis of the substance not be left completely within the province of the state."12 In California v. Trombetta, the United States Supreme Court held that the State violates a defendant's right to due process when it destroys evidence that has "constitutional materiality"—i.e., evidence that (1) has "an exculpatory value that was apparent before the evidence was destroyed" and (2) is "of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means."13
In Trombetta, the defendants, who were prosecuted for drunk driving, challenged the destruction of their breath samples after tests performed by the State using an Intoxilyzer machine showed that the samples contained alcohol. The defendants claimed that "had a breath sample been preserved, [they] would have been able to impeach the incriminating Intoxilyzer results."14 The Court found no due process violation, however, because the possibility that an independent test of the breath samples would have exculpated the defendants was "extremely low" and because there was evidence that the defendants could have impeached the Intoxilyzer results by other means.15
This case differs markedly from Trombetta, and both prongs of the two-part test announced in Trombetta are satisfied here. First, Blackwell's urine sample had an exculpatory value that was apparent before its destruction. "Exculpatory" means "supportive of a claim of innocence"16 or "tending to clear from alleged fault or guilt."17 Here, the very same urine sample that the State destroyed had previously tested negative for drugs in a State-administered field test. Because the results of the field test tended to show Blackwell's innocence of the drug charges, the urine had obvious exculpatory value that was apparent before the State destroyed it. Moreover, unlike in Trombetta, Blackwell had specifically sought an independent analysis of the urine sample, and the court had granted that motion before the urine was destroyed. Thus, the State was clearly on notice that the urine was "expected to play a significant role in [Blackwell's] defense."18
The second prong of the Trombetta test—a showing that Blackwell is unable to obtain comparable evidence by reasonably available means—is also satisfied. Obviously, Blackwell cannot replicate the destroyed sample. Blackwell could impeach the State Crime Lab's test result by introducing the contrary result from the probation officer's initial test of the urine. But, as the Supreme Court of Illinois said in People v. Newberry,19 the relief offered by evidence of a conflicting field test is "illusory":
Whatever the actual reliability of the tests performed in the lab ... the laboratory analysis of the evidence will carry great weight with the jury, and the jury will undoubtedly give such an analysis more deference than the initial...
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