STATE OF OHIO v. JONATHON M. BARRON
Appellate Case No. 10-CA-28
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
May 20, 2011
2011-Ohio-2425
HALL, J.
Triаl Court Case No. 08-CR-282 (Criminal Appeal from Common Pleas Court)
STEPHEN K. HALLER, Atty. Reg. #0009172, by STEPHANIE R. HAYDEN, Atty. Reg. #0082881, 61 Greene Street, Xenia, Ohio 45385 Attorneys for Plaintiff-Appellee
THOMAS M. KOLLIN, Atty. Reg. #0066964, Killin & Wilkins, 2661 Commons Boulevard, Suite 214, Beavercreek, Ohio 45431 Attorney for Defendant-Appellant
HALL, J.
{¶ 1} Jonathon M. Barron appeals from his conviction and sentence following a no-contest plea to one count of cocaine possession in violation of
{¶ 2} In his sole assignment of error, Barron contends thе trial court violated his due
{¶ 3} The record reflects that Barron was indicted for cocaine possession in April 2008 after one of his urine samples tested positive for the drug a month еarlier. On August 27, 2008, he moved the trial court for an order requiring the prosecutor to give him part of the sample for independent testing. The trial court sustained the motion on October 7, 2008, ordering the prosecutor to make part of the sample “available” to defense counsel. The trial court did not order the sample to be preserved for any specific length of time. (Motion to dismiss, hearing transcript at 5). On October 10, 2008, the prosеcutor and defense counsel contacted the Miami Valley Regional Crime Laboratory (MVRCL), which was holding the sample, about the procedure for having it independently tested. Shortly thereafter, the prosecutor advised defense counsel that MVRCL had refrigerated the sample. (Id. at 5-6). Defense counsel then tried to find an expert to test the sample. The experts that defense counsel contacted told him they could not accurately test the sample because it had been refrigerated rather than frozen. (Id. at 6-7). Without defense counsel‘s knowledge, MVRCL destroyed the urine sample sometime in March 2009, pursuant to its policy, after holding it for at least one year.
{¶ 4} On May 5, 2009, Barron moved to dismiss the indictment against him or, alternatively, for suppression of the prosecutor‘s urine sample test results, based on the failure to preserve the sample for independent analysis. On June 30, 2009, the prosecutor and defense counsel discovered, for the first time, that MVRCL actually had frozen the sample prior to its
{¶ 5} During a hearing on Barron‘s motion, Heather Antonides, an MVRCL supervisor, disagreed with the proposition that refrigeration rather than freezing would spoil Barron‘s urine sample and destroy the usefulness of independent testing. Antonides explained that freezing the sample would prevent any cocaine in it from metabolizing. (Id. at 24). On the other hand, merely refrigerating the sample would allow the cocaine to metabolize into benzoyl alkaline, a by-product of cocaine. (Id.). According to Antonides, an expert still could conclude, to a reasonable degree of medical certainty, that the sample had contained cocaine because “[b]enzoly alkaline doesn‘t come from anywhere else.” (Id. at 34).
{¶ 6} On December 7, 2009, the trial court overruled Barron‘s motion. It acknowledged that Barron‘s attorney had received a letter from a medical doctor indicating that testing a non-frozen specimen would be useless. It also found that the prosecutor had acted in good faith in misinforming defense сounsel that Barron‘s urine sample had been refrigerated rather than frozen. In its analysis, the trial court rejected Barron‘s argument that
{¶ 7} “* * * The Court responded to [Barron‘s] motion for providing a specimen of the sample for his expert‘s review and the Court ordered the State to make that available to the Defendant. Had the Defendant contacted the Miami Valley Regional Crime Laboratory, he would have found that the specimen was frozen all the while and his expert could have made
an appropriate analysis of a portion of the specimen. Even if the Assistant Prosecuting Attorney‘s statement was correct that the sрecimen was only refrigerated, then the Defendant, along with his expert, could have found this out at the Miami Valley Regional Crime Laboratory and any such test would have demonstrated the degraded specimen and would have been beneficial to the Defendant for use at trial, or in this motion itself to demonstrate the improper preservation of the sample. {¶ 8} “Consequently, it is the view of the Court that it was incumbent upon the Defendant, аfter being authorized by Court Order, to determine for himself the existence or nonexistence of the specimen in question and to determine for himself the condition of the sample in its preserved state rather than only rely on statements made by the Assistant Prosecuting Attorney.” (Doc. #40 at 4-5).
{¶ 9} After the trial court overruled his motion, Barron pled no contest to the charge against him. The trial court found him guilty, imposed a twelve-month prison sentence, and stayed execution of the sentence pending appeal.1
{¶ 10} In his assignment of error, Barron first contends the trial court erroneously found
{¶ 11} “Any person who is accused of a violation of this chapter or of Chapter 3719 of the Revised Code is entitled, upon written request made to the prosecuting attorney, to have a portion of the substance that is, or of each of the substances that are, the basis of the alleged
viоlation preserved for the benefit of independent analysis performed by a laboratory analyst employed by the accused person, or, if the accused is indigent, by a qualified laboratory analyst appointed by the court. * * * The prosecuting attorney shall provide the accused‘s analyst with the sample portion at least fourteen days prior to trial * * *.” (Emphasis added).
{¶ 12} The trial court found the foregoing provision inaрplicable because Barron was not charged with a violation of
{¶ 13}
{¶ 14} We will assume, arguendo, that the prosecutor violated Barron‘s statutory right under
{¶ 15} For the defendant to prevail on a due process claim based on the destruction of
{¶ 16} We determine that Barron‘s urine sample should be characterized as “potentially useful” evidence. The sample had no exculpаtory value that was apparent before its destruction because it already had tested positive for cocaine. “[E]videntiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant,” is not materially exculpatory. Christian, supra. Barron merely planned to subject the sample to additional testing which he hoped might exonerate
{¶ 17} There is no indication in this case that the actions of the prosecution, or of the crime lab, amounted to bad faith. “The term ‘bad faith’ generally implies something more than bad judgment or negligence. ‘It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or will partaking of the nature of fraud. It also embraces the actual intent to mislead or deceive another.’ State v. Buhrman (Sept. 12, 1997), Greene App. No. 96 CA 145, unreported (citations omitted).” Christian, supra. Because there is no indication of bad-faith, the defendant was not entitled to have the State‘s evidence suppressed.
{¶ 18} Finally, we reject Barron‘s assertion that the trial cоurt should have suppressed the State‘s urine sample test results under
{¶ 19} Barron cites State v. Hutcherson (Nov. 28, 1989), Franklin App. No.
{¶ 20} But even if we assume that the State did violate
{¶ 21} In light of the circumstances set forth abovе, we are unpersuaded that the trial court abused its discretion in declining to suppress the lab test results. The prosecutor responded to the trial court‘s order by contacting MVRCL to determine the procedure for defense counsel to test the urine specimen. The prosecutor then incorrectly, but absent any indication of bad faith, told defense counsel that the specimen had been refrigerated rather
BROGAN, J, concurs.
FROELICH, J., concurring:
{¶ 22} Aсcording to a test by the MVRCL, appellant had cocaine in his urine in March of 2008; he was indicted in April of 2008 for possession of cocaine.
{¶ 23} In August, he filed a motion to require the prosecutor to provide him with a sample for independent testing. On October 7, 2008, the court granted the motion and ordered the prosecutor to “make available” a part of the sample to defense counsel. Three days later, the prosecutor and defense counsel had a conversation with the MVRCL, which was holding a sample, about the procedure for having it tested. In March of 2009, while defense counsel was attempting to locate and retain an expert, the MVRCL destroyed the sample.
{¶ 24} Appellant moved to dismiss the indictment or to suppress the results of the MVRCL‘s testing; the court denied both motions and the Appellant subsequently pled no contest.
{¶ 25} I would find a violation of
{¶ 26} Nonetheless, both the Ohio Supreme Court and we have held that mere violation of a statute does not automatically invoke the exclusionary rule absent a legislаtive mandate to that effect or a constitutional violation. A constitutional violation, in turn, requires a defendant to show that the State either destroyed “materially exculpatory” evidence or destroyed “potentially useful” evidence in “bad faith.”
{¶ 27} For example, in State v. Franklin, Montgomery App. No. 19041, 2002-Ohio-2370, the State burned down a house before the defendant‘s investigators had the opportunity to examine it and potentially disapprove arson. We held that “bad judgment and negligence are not enough to violate a defendant‘s due process rights.” Id., ¶ 48. We followed Youngblood for the principle that “no due process violation arises from the destruction of potentially useful evidence unless such evidence is destroyed in bad faith.” Id., ¶ 46. We then went on to restate that ” ‘bad faith’ generally implies something more than bad judgment or negligence. It imports a dishonest purpose, moral obliquity, consсious wrongdoing, breach of a known duty through some ulterior motive or ill-will partaking of the nature of fraud. It also embraces actual intent to mislead or deceive another.” Id., ¶ 47,
{¶ 28} It is apparently agreed by all parties that there is no evidence of bad faith, but rather that the sample that was in the possession of the MVRCL was destroyed as part of its routine practices.4 The State argues that thе failure to make the evidence available cannot be shown to be “materially exculpable” since it is only speculation that testing by the defense would have created a reasonable doubt and that even if it were “potentially useful” there was no bad faith. As stated by the Ninth District in a case where the State refused to provide a copy of a cruiser‘s videotape, “the tautology is too obvious.” State v. South, 162 Ohio App.3d 123, 2005-Ohio-2152, ¶ 13. The defendant hаs not justified his right to have the evidence presented for testing, which might help prove him not guilty, because he has not shown that the testing would produce evidence which would prove him not guilty. That is to say, if the defendant cannot prove the tests would have come back negative, he could not be prejudiced by not being able to test the substance which potentially would have come back negative. This argument proves nothing but that the dеfendant has conducted no testing on a sample he does not have. It is a logical truism that the absence of evidence is not the evidence of absence and it is impossible for anyone to prove a negative or, specifically in this case, for the defendant to prove a negative test without the sample to test. Id.
{¶ 29} Should evidence of guilt be suppressed because the State destroyed the only evidence from which a defendant potentially can establish reasonable doubt?5 The dilemma
{¶ 30} I am concurring based on the unusual facts before us and our existing precedent; but I would put the State on notice that when (1) there is a court order that requires it (I would reject any argument that evidence in the physical possession of the MVRCL or a law enforcement agency is not under the control of the State) to preserve evidence or allow testing or to make available or provide certain evidence that is (2) reasоnably the only dispositive evidence against the defendant (and is not otherwise obtainable), and (3) without which the defendant will not have a meaningful opportunity to challenge the prosecution‘s case, the failure to preserve such evidence is prima facie proof of bad faith. And such bad faith, especially in the absence of a jury instruction regarding the consequence of the State‘s lack of preserving the evidence, results in a denial of the defendant‘s due process rights.
(Hon. James A. Brogan, retired from the Second District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Stephen K. Haller
Stephanie R. Hayden
Hon. J. Timothy Campbell