State v. Blackwell , 245 Ga. App. 135 ( 2000 )

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,³⁷ 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).

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

[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 “[w]e think it’s inherently unfair and would be volitive [sic] 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.³⁸

Grounds not presented to or specifically ruled upon by the trial court are waived and not generally considered by this Court. Rushing v. State, 271 Ga. 102, 104-105 (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 28 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.

37 The Crime Lab, contained within the Division of Forensic Sciences, has no law enforcement authority. Jackson v. State, 208 Ga. App. 391, 394 (430 SE2d 781) (1993).

38 The reference to Smith v. State, supra, was made as persuasive authority on the issue here. In Smith, due process was argued and ruled upon. The Supreme Court held that, even when exculpatory evidence had been destroyed, where there had been no showing of bad faith by police, no due process violation had occurred.