                                IN THE COURT OF APPEALS
                                         OF THE
                                  STATE OF MISSISSIPPI
                                       NO. 1999-CA-00705-COA
STATE OF MISSISSIPPI                                                                        APPELLANT
v.
TIMOTHY MCGRONE A/K/A THOMAS MCCALLAHAN                                                       APPELLEE

DATE OF JUDGMENT:           04/06/1999
TRIAL JUDGE:                HON. JAMES E. GRAVES JR.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:    EDWARD J. PETERS
                            REBECCA W. WOOTEN
ATTORNEYS FOR APPELLEE:     THOMAS M. FORTNER
                            ROBERT M. RYAN
                            BRENDA GALE JACKSON
NATURE OF THE CASE:         CRIMINAL - FELONY
TRIAL COURT DISPOSITION:    04/06/1999: MOTION TO DISMISS COUNT 4 OF
                            INDICTMENT NUMBER 98-2-370 JEG IS GRANTED.
DISPOSITION:                AFFIRMED - 05/30/00
MOTION FOR REHEARING FILED: 6/23/2000; denied 1/16/2001
CERTIORARI FILED:           1/29/2001; granted 4/12/2001
MANDATE ISSUED:

     EN BANC

     IRVING, J., FOR THE COURT:

¶1. McGrone was charged as a habitual offender in a four-count indictment with auto theft, two counts of
aggravated assault on a law enforcement officer and simple assault on a law enforcement officer. At the time
of the commission of the crimes charged against McGrone, one of the law enforcement officers, attempting
to apprehend McGrone, wounded him in the leg. McGrone filed a pre-trial motion to compel production of
the pants he was wearing at the time he was shot. The State was not able to produce the pants, and as a
result, the circuit court dismissed count four of the indictment. Count four charged McGrone with simple
assault on a law enforcement officer. The charge was based on the struggle McGrone was alleged to have
engaged in with the police officer that shot him.

¶2. According to the State, the simple assault occurred when McGrone grabbed the officer's arm while the
officer, with his police-issued weapon drawn, was ordering McGrone to halt. Fearing that McGrone would
obtain the officer's weapon, the officer fired once at McGrone, striking him in the leg. McGrone denied
having struggled with the officer and claimed to have been fleeing at the time he was shot.
¶3. On March 29, 1999, a hearing was had on McGrone's motion to compel production of the pants and
on a motion to dismiss. McGrone presented three witnesses at the hearing. The hearing was continued at
the request of the State until April 5, 1999. Count four of the indictment was dismissed at the conclusion of
the April 5th hearing. Aggrieved, the State, pursuant to Miss. Code Ann. § 99-35-103 (Rev. 1995), has
appealed that ruling. The following assignments of error are taken verbatim from the State's brief:

     ISSUE NO. 1: WHETHER THE CIRCUIT COURT ERRED IN GRANTING THE
     DEFENDANT'S MOTION TO DISMISS COUNT FOUR OF THE INDICTMENT
     WITHOUT A FINDING THAT THE DEFENDANT'S DUE PROCESS RIGHTS HAD
     BEEN VIOLATED?

     ISSUE NO. 2 WHETHER THE CIRCUIT COURT FAILED TO MAKE A CORRECT
     FINDING OF FACT THAT THE LOST CLOTHING WOULD BE EXPECTED TO PLAY
     A SIGNIFICANT ROLE AS DEFINED BY CALIFORNIA V. TROMBETTA, 467 U.S.
     479, 104 S.Ct 2528 (1984)?

     ISSUE NO. 3 WHETHER THE CIRCUIT COURT FAILED TO MAKE A FINDING OF
     FACT THAT THE DEFENDANT COULD NOT OBTAIN COMPARABLE EVIDENCE
     BY OTHER REASONABLE MEANS AS REQUIRED BY TROMBETTA?

     ISSUE NO. 4 WHETHER THE CIRCUIT COURT FAILED TO MAKE A FINDING OF
     BAD FAITH ON THE PART OF THE POLICE DEPARTMENT?

                                                    Facts

¶4. A truck belonging to Milton Dixon was stolen from his job site at Galloway Elementary School in
Jackson. Shortly after the broadcast of the description of the stolen truck over police radio, an officer with
the Jackson Police Department made visual contact with the truck and its occupants. McGrone was driving
the truck and sped away from the police officer at a high rate of speed. A transmission went out over the
police radio that McGrone would not heed police efforts to stop the truck and was attempting to elude the
police.

¶5. Patrolman Robert Bufkin heard this call and set up a road block with his patrol car in an attempt to stop
the speeding truck. Deborah Goldman was riding with Bufkin at the time as part of her dispatcher training.
Bufkin exited the patrol car, but Goldman remained seated inside the car. McGrone drove the speeding
truck at Bufkin in an attempt to run over him, forcing Bufkin to dive out of its path. This action by McGrone
gave rise to the charge of aggravated assault on a law enforcement officer. McGrone then drove the truck
into the side of the patrol car where Goldman was seated. This action gave rise to the second charge of
aggravated assault. McGrone lost control of the truck causing it to crash into the side of a house. McGrone
then fled on foot. Patrolman Jonathan Crawford came upon the scene and ordered McGrone to halt.
According to the State, as Crawford attempted to draw his service revolver McGrone lunged at Crawford
and grabbed his arm. This action by McGrone gave rise to the simple assault charge. Fearing that McGrone
would obtain Crawford's weapon, Crawford shot McGrone once in the leg. McGrone claims to have been
fleeing at the time he was shot by Crawford and that a gunshot residue test of his pants would have revealed
that he was not in close proximity to Crawford at the time he was shot.

¶6. When McGrone was transported to the hospital for treatment of his gunshot wound, his pants were cut
off of his body and bagged as evidence for the Jackson Police Department (JPD). At the hearing on the
motion which is the subject of this appeal, Mike Boyanton, a nurse at the hospital where McGrone was
treated, testified that hospital records indicated the JPD took possession of McGrone's clothing and any
possible valuables. The State was unable to produce the clothing and contended that if the pants were
recovered by some unknown JPD officer, they were never logged into evidence and should now be
classified as lost evidence.

                                       Analysis of Issues Presented

      1. Dismissal without finding a violation of due process

¶7. The State contends that it was error for the trial court to grant McGrone's motion to dismiss count four
of the indictment without making a finding that McGrone's due process rights had been violated. The State
further argues that the lower court's action in this regard was in contravention of the holding in California v.
Trombetta, 467 U.S. 479 (1984), the landmark case on preservation of evidence, the rationale of which
was adopted by the Mississippi Supreme Court in Tolbert v. State, 511 So. 2d 1368, 1373 (Miss. 1987).
The State also argues that, under the holding in Trombetta, the State's duty to preserve evidence is limited
to evidence that might be expected to play a significant role in the suspect's defense and that Trombetta
defines "significant role" to mean that the exculpatory nature and value of the evidence must have been
apparent before the evidence was destroyed and of such a nature that the defendant cannot obtain
comparable evidence by other reasonably available means.

¶8. The State claims that in the case at bar, there is nothing in the record to indicate any knowledge
whatsoever by the police of the role that the pants might have played in McGrone's defense. Citing Arizona
v. Youngblood, 488 U.S. 51 (1988), the State goes on to argue that it was McGrone's burden to show
that the exculpatory value of his pants was known to the police and that the police acted in bad faith when
they lost the pants. The State continues its argument that due process does not impose on the police an
undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable
evidentiary significance in a particular prosecution. The State concludes that McGrone failed to show either
that the police knew or should have known that the pants McGrone was wearing at the time he was shot
could have exculpated him or that there was no other comparable evidence available to McGrone. The
State contends that the evidence could have shown an absence of gun powder residue or it could have
shown a distinct pattern of gun powder residue, and on the basis of Trombetta, when the State fails to
preserve evidentiary 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, no due process violation occurs.

¶9. McGrone agrees with the State's position that the State's duty to preserve evidence is limited to
evidence that might be expected to play a significant role in a suspect's defense and that a "significant role,"
according to Trombetta, means the exculpatory nature and value of the evidence must have been apparent
before the evidence was destroyed and of such a nature that the defendant cannot obtain comparable
evidence by other reasonable means. McGrone, however, urges us to consider Justice O'Conner's
concurring opinion in Trombetta and its holding that rules concerning preservation of evidence are generally
matters of state, not federal constitutional law. McGrone points out that the Mississippi Supreme Court, in
keeping with Justice O'Conner's concurring opinion, addressed this issue in Penick v. State, 440 So. 2d
547, 551 (Miss. 1983) and held as follows:

      We accord to the U.S. Supreme Court the utmost respect in its interpretation of the U.S.
      Constitution. We must, however, reserve for this Court the sole and absolute right to make the final
      interpretation of our state Constitution and, while of great persuasion, we will not concede that simply
      because the U.S. Supreme Court may interpret a U.S. Constitutional provision that we must give the
      same interpretation to essentially the same words in a provision of our state Constitution. This is
      especially true of a decision from that Court in which the proponents for opposing points of view each
      give clear and cogent argument in support of their respective positions. Indeed, so lucid, that Court is
      so sharply divided that a change in a single member's point of view would change the result in the
      case.

¶10. McGrone contends that the State's argument is essentially that since the U. S. Supreme Court has
delivered its interpretation of the federal due process clause in Trombetta and its progeny, Mississippi is
mandated to apply the same interpretation to Mississippi's corresponding constitutional provision. Not so,
says McGrone, because subsequently to Penick, and while giving deference to the holdings in the
Trombetta line of cases, the Mississippi Supreme Court reversed a conviction in Banks v. State, 725 So.
2d 711 (Miss. 1997), for a due process violation involving the identical issues raised in the case at bar. The
facts in Banks are as follows:

¶11. Calvin Banks was found guilty of capital murder in the course of a robbery of Amy Ware in Clay
County, Mississippi. After the jury was unable to agree on a sentence, he was given life imprisonment. The
circumstantial evidence adduced at his trial tended to show that Banks had been gambling in a card game
with some friends not far from the home of the victim for most of the afternoon of August 14, 1993, the day
she was murdered. After complaining of having run out of money, Banks left the card game around 4:00 to
"go get some more money." He returned to the game with a paper bag in his hand and resumed playing
cards. Banks, 725 So. 2d at 713.

¶12. Banks had been acquainted with the victim previously; she used to make lunch for him and had agreed
to keep a few of his belongings while he was homeless and trying to find a place to stay. The only evidence
that could conceivably tie Banks to the crime was the testimony of a witness who saw him step off the
victim's porch around the time she is assumed to have died and part of a bologna sandwich found at the
crime scene the day after the murder. The State's expert witness testified that although Banks's teeth
correlated with the bite marks in the remaining portion of the sandwich he could not say with any degree of
certainty that Banks had bitten the sandwich. The autopsy of the victim revealed that she had eaten bologna
shortly before she was killed. Although fingerprints not belonging to the victim were found at the crime
scene, none matched Banks's. Likewise, although hairs that appeared not to belong to the victim were
found at the crime scene, none of the hair came from Banks.

¶13. The defense case consisted of the testimony of one of the victim's neighbors who said that she passed
by the deceased's home some time after Banks was known to have returned to his card game. She saw that
the wooden door to the victim's home was open. When the victim was found, her door was shut and
locked. Banks also put on his own dental expert who testified that he could not draw any conclusions from
the photos made of the bites in the bologna sandwich. The expert also testified that he could not exclude the
victim from the spectrum of people who could have made the bites in the sandwich, nor could he conclude
who had made the bites as between the victim and Banks.

¶14. On appeal Banks argued that the trial court erred in admitting evidence about the bologna sandwich
that was found at the scene. Banks moved to suppress the evidence at trial because the State's expert
destroyed the sandwich before Banks or any of his experts could examine it. The State's expert took
several photographs of the sandwich and made blow-ups of the photographs which he later gave to Banks
to examine, but the expert threw away the actual sandwich. The State argued at the hearing on the
suppression motion that the sandwich was thrown away because it was perishable. In response to Banks's
suggestion that the State could have simply frozen the sandwich, the State noted that its expert determined
that freezing would destroy the sandwich as well, since some test bologna had dehydrated and shriveled
when he froze it. The State did not address the fact that the sandwich had been frozen before it was given
to its expert for analysis in the first place.

¶15. The trial court denied the motion to suppress the sandwich, finding that the State had not destroyed the
sandwich in an intentional attempt to deprive Banks of an opportunity to see it. The court was further
satisfied that Banks would be allowed to cross-examine the State's expert and that Banks had found an
expert who would be able to refute and rebut the State's evidence, notwithstanding the fact that Banks's
expert was unable to examine the sandwich.

¶16. Banks argued further on appeal that, since he was not allowed to examine the sandwich, the evidence
should not have been allowed because it was more prejudicial than probative, in violation of M.R.E. 403,
and that its admission violated his rights under the confrontation clause. Banks's expert testified at trial that
he would have preferred to have seen the sandwich in three dimensions and examined the thickness, etc. He
opined that he then could have made a more thorough expert assessment. As such, Banks argued that his
expert necessarily seemed less credible to the jury than the State's expert who opined from the vantage of
having seen the sandwich in three dimensions.

¶17. As to the first prong of Trombetta, the Mississippi Supreme Court found that the sandwich played a
constitutionally significant role in Banks's defense. Finding that there had been no showing of any intentional
effort on the part of the State to deprive Banks of a view of the sandwich, the Court, nevertheless, found
that the bologna sandwich was obviously significant to the defense, and held as follows:

      The State's expert, Dr. Michael West, could not conclude with any degree of certainty at the close of
      his expert analysis that Banks had bitten the sandwich.

      Contrary to the State's suggestion that the exculpatory nature of this evidence was not apparent
      before its destruction, Dr. West's failure to make a conclusive determination about the bites in the
      sandwich was exculpatory and obviously was apparent to him when he destroyed the sandwich.

      Moreover, the testimony about the bite marks in the sandwich was central to the State's and
      defendant's case, as it is the only evidence that purportedly placed Banks in the victim's house near
      the time of her death. . . . In this evidentiary context, the credibility advantage that was enjoyed by the
      State's expert, since his results were based on an actual inspection of the sandwich, takes on
      substantially greater significance. Cf. Tolbert, 511 So. 2d at 1373 (finding no due process violation
      where State destroyed particle of skin which could not have sustained defense theory of the case in
      context of all the evidence); cf. also Johnston, 618 So. 2d at 92-93 (finding no due process violation
      where State lost physical evidence that was not germane to State's case and did not corroborate or
      otherwise prove defense theory of alibi). Unlike the circumstances in Tolbert and Johnston, the
      prejudicial impact of the State's destruction of the sandwich on the persuasive value of Banks' case is
      plainly apparent, and Dr. West's destruction of the sandwich was unnecessary and inexcusable.
Banks, 725 So. 2d at 715-16.

¶18. The Court found that the second prong of Trombetta required Banks to show that the evidence was
of such nature that comparable evidence could not be obtained by other reasonable means. Id. at 716.
Banks was given access to all the models and photographs made by the State's witness. The Court found
that his analysis could perhaps have been considered "comparable" inasmuch as he used the same photos
and things that the State's expert utilized in his analysis and testimony. Id. However, the Court found that,
on the other hand, the weight of the analysis done by Banks's expert was distinctly disadvantaged by the
failure of his testimony to arise out of an actual inspection. Id. The supreme court found that even though the
trial court rested its decision to admit the State's evidence about the sandwich in part upon Banks's
opportunity to have an expert testify to the contrary, Banks was denied the opportunity to contradict the
weight of the opinion given by the State's expert. Id. The State's expert was afforded added credibility due
to his having viewed the sandwich and having created the very evidence that Banks was forced to rely
upon. Id. Consequently, the Banks court concluded that the admission of the evidence about the bologna
sandwich rendered the trial fundamentally unfair, and the conviction was reversed on that ground. Id.

¶19. In the case at bar, the trial court found that in applying the standard set forth in Trombetta and based
upon the testimony of the hospital nurse who bagged and delivered the clothing to an officer with the
Jackson Police Department, the clothing existed and was given to the JPD. It specifically made no finding as
to whether the evidence was lost or destroyed, but found that, according to the JPD, the evidence was now
unavailable. The court further found that the clothing could have been of exculpatory value based on the
testimony of experts for McGrone and for the State. Even though the State's expert offered his opinion that
it would be possible to make some determinations or estimates regarding distances without the benefit of
having the clothing, he agreed with McGrone's expert that gunpowder residue on clothing worn by shooting
victims can be significant in determining distances relative to how far the victim was away from the firearm at
the time of the weapon's discharge.

¶20. The lower court further found that the second prong of Trombetta was satisfied in that no other
comparable evidence was reasonably available to McGrone and that at the time the JPD had possession of
the clothing evidence it knew, or should have known, that the clothing could be significant in making
determinations relative to the facts and circumstances surrounding the charges against McGrone.

¶21. In light of these findings, the State's claim that the lower court dismissed count four of the indictment
without making a finding that McGrone's due process rights were violated is without merit. McGrone's
defense against the simple assault on a police officer charge was that he was running away from the officer,
not struggling with the officer at the time he was shot. He wanted the pants tested for gunshot residue which
would have been present on the pants if he was in a close struggle with the officer at the time he was shot.
The prejudicial impact of the State's failure to preserve the pants is plainly apparent on the persuasive value
of McGrone's case, and the loss of the pants was unnecessary and inexcusable. Banks, 725 So. 2d at 716.
This issue is without merit.

      2. Lower court finding that pants would have played a "significant role" as defined by
      Trombetta

¶22. The State argues that the lower court did not have enough evidence before it at the hearing on
McGrone's motion to dismiss to determine whether the exculpatory value of the pants was apparent to the
JPD officer who recovered the pants from the hospital. The State bases this argument on the fact that there
was nothing in the record to indicate the identity of the person who received the pants; therefore, the State
argues, it is impossible to say that the person who received the pants knew that the pants could have
exculpatory value for McGrone. The State contends that Mississippi case law requires that the person
destroying or losing the evidence must have known the apparent exculpatory value of the piece of evidence
prior to destruction or loss of said evidence. The State cites Taylor v. State, 672 So. 2d 1246 (Miss.
1996) in support of its argument. We find that Taylor and the case at bar are clearly distinguishable.

¶23. Taylor contended that the State improperly failed to preserve the victim's car and the x-rays taken
prior to the victim's autopsy. He argued that those pieces of evidence could have been exculpatory in nature
as well as vital in shedding more light into the victim's cause of death. The Mississippi Supreme Court found
that, in accordance with usual police procedure, the car remained in police custody for approximately a
month and a half before it was released to the victim's family. There were photographs of the car which
showed the location and condition of the vehicle. The Court further found that in viewing the photographs,
no exculpatory evidence appeared to be present. The Court found that the x-rays, on the other hand, were
taken prior to the autopsy in order to search for foreign objects as well as broken bones. When the x-rays
did not reveal either foreign objects or broken bones, they were thrown away.

¶24. The court, citing Tolbert, 511 So. 2d at 1372, held that the mere possibility that evidence might aid the
defense does not satisfy the constitutional materiality standard, and that, citing Washington v. State, 478
So. 2d 1028, 1032 (Miss. 1985), if the destruction of evidence was done as a matter of routine and with no
fraudulent intent, there is no inference of bad faith. Finally, the court held that the mere possibility that the
car or the x- rays would show some exculpatory evidence is not enough to meet the Trombetta standard.

¶25. We find that, in the case at bar, there is much more than the mere possibility that the pants would
show exculpatory evidence. The expert testimony at the hearing on this matter was undisputed and without
doubt that the presence or absence of gunpowder residue on the clothing worn by a shooting victim is highly
significant on the issue of the distance between the victim and the shooter. Also, as suggested by McGrone
in his appeal brief, the fact that no one was produced who could testify as to what happened to McGrone's
clothing is immaterial to the analysis. What is material to the analysis is the fact that it is standard operating
procedure for the JPD to seize and log into evidence clothing worn by a shooting victim. Such is prima facia
evidence in itself that the clothing could be expected to play a significant role in the prosecution of the case,
especially when the case is one involving a police shooting.

¶26. We agree with the lower court's ruling that the exculpatory value of the pants was apparent or should
have been apparent to the JPD, and to allow the State to proceed on the charge of simple assault on a
police officer in light of the loss of the evidentiary value of the pants would be fundamentally unfair. This
issue is without merit.

      3. Comparable evidence by other reasonable means as required by Trombetta

¶27. The State alleges that the lower court failed to make a finding of fact that McGrone could not obtain
comparable evidence by other means and that without a finding one way or the other, McGrone failed to
satisfy the second prong of Trombetta.

¶28. The lower court, in its opinion from the bench, ruled as follows:

      But the second prong of that particular test is that the Court has to find the defendant would be unable
      to obtain comparable evidence by other reasonably available means. And that takes the Court to the
      testimony of Steven Hayne who alleges that he may be able to make some calculations and offer some
      opinions about distances even without the clothing worn by the defendant at the time of the incident in
      Count 4 of this indictment.

      However, when the Court considers that the evidence is unavailable, the evidence was, in fact, given
      to the Jackson Police Department; that not a single police officer showed up in response to
      subpoenas served on them by the defendant; that the hearing was, in fact, continued until today, still
      no police officers; that expert Hathcock offered an opinion that the clothing could be significant in
      making a determination about the distances . . . .

The State contends that this passage of the record indicates that the court began to address the issue but
never made a finding one way or the other, and that without a finding one way or the other, the defense
failed to satisfy the second Trombetta prong. This Court agrees that the trial court did not follow through in
specifically addressing this issue with the same degree of clarity as it did when it addressed the first prong of
Trombetta. However, we disagree with the State's conclusion that that fact constitutes reversible error. We
believe that when the trial judge, while considering the second prong of Trombetta, made the statement:
"when the court considers that the evidence is unavailable," the trial judge was actually weighing the value of
the evidence available in light of Dr. Haynes's testimony and concluded that even so, such evidence, as the
evidence in Banks, left McGrone at a substantial disadvantage since it would not be comparable evidence.
We agree with the ultimate assessment by the lower court and find that this issue is without merit.

      4. Lower court's failure to make a finding of bad faith on the part of the police department

¶29. The State argues that the lower court failed to make a finding of fact that the police acted in bad faith
when they apparently lost McGrone's pants, and that without such a finding, it was error for the court to
dismiss count four of the indictment. The judge in the lower court stated the following in its ruling on the
motion to dismiss:

      In the instant case, we first find, based on the testimony of Boyanton that the clothing evidence
      existed. And we further find that the evidence was given to the Jackson Police Department. As to
      whether or not the evidence was lost or destroyed, the Court makes no finding in that
      connection. . . . and, again, the Court is making a finding that it was, in fact, received, but
      making no finding about what happened to it after they received it - but based on the testimony
      of Witness Boyanton, the Court makes a finding that the Jackson Police Department, in fact, received
      that clothing evidence. (emphasis added).

¶30. It is clearly evident from the foregoing passage that the lower court was emphatic that it was not
making any finding concerning what happened to the clothing after it was received by JPD, which included
no finding of either good or bad faith. The State would have this Court find error on the part of the lower
court for ruling as it did without finding bad faith on the part of the JPD, and directs this Court's attention to
a number of case authorities wherein it was held that the Trombetta standard was not met because of the
lack of bad faith on the part of the State.

¶31. The fallacy in the State's argument is that in each of the cited authorities the question of bad faith was
an issue primarily due to the intentional destruction of the evidence, and in one case, the evidence was lost
but was not germane to the State's case and did not corroborate or otherwise prove the defense theory. In
the case at bar, there is no issue of intentional destruction which would give rise to the question of motive on
the part of JPD, and the lost evidence in question is certainly germane to the State's case and could
corroborate or otherwise prove the defense theory, so the cited authorities do not support the State's
contention. In fact, this Court knows of no case authority or rationale that would deprive the lower court of
its authority to find that the Trombetta standard of materiality is met because of the absence of bad faith.
This issue is without merit.

¶32. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY DISMISSING
COUNT FOUR OF THE INDICTMENT CHARGING SIMPLE ASSAULT ON A POLICE
OFFICER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE HINDS
COUNTY.

      McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., AND THOMAS, J., CONCUR. LEE,
      J. DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BRIDGES,
      MOORE, AND PAYNE, JJ.

      LEE, J., DISSENTING:

¶33. Although I have great deference for the opinion of the majority, I must dissent. I am of the opinion that
the criteria necessary to dismiss count four in the indictment has not been met. The majority has cited
Banks v. State, 725 So. 2d 711 (Miss. 1997), in their discussion of the issues presented by the State;
however, when I read Banks, I find the case to be factually distinguishable from the case sub judice.

¶34. In Banks it was clear that the evidence (i.e., the bologna sandwich) would be exculpatory because it
was the very piece of physical evidence the State was using in an attempt to prove that Banks was the
perpetrator of the crime. Banks, 725 So. 2d at 714. Additionally, the State had the benefit of examining the
actual sandwich. However, Banks was denied this privilege and was only provided with pictures of the
sandwich for his expert's analysis. Id. Furthermore, it appears that the State intentionally and in bad faith
destroyed the evidence before an expert for Banks had analyzed the bite mark in the sandwich. Id.

¶35. The State argued that the evidence had to be disposed of due to the sandwich's perishable nature.
Banks, 725 So. 2d at 714. When Banks had inquired about the option of having frozen the sandwich for
later review the State said this would alter the evidence. Id. Nevertheless, it was later revealed that the
sandwich had been frozen before the State examined it in an attempt to match the teeth marks to those of
Banks. Id.

¶36. When this Court determines whether the evidence "play[s] a significant role in the defendant's case" we
must determine the following: (1) the police have to possess knowledge of the exculpatory nature of the
evidence before the evidence becomes unavailable, and (2) that the evidence is of such a nature that the
defendant can not obtain comparable evidence by reasonable means. Tolbert v. State, 511 So. 2d 1368,
1372 (Miss. 1987). It is not the Jackson Police Department's job to anticipate and create a defense. The
facts in this case negate the assertion that the police department knew that the evidence would play a
significant role in McGrone's case and acted in bad faith to suppress the evidence.

¶37. McGrone, an habitual offender, was involved in a crime spree on the day he was charged with simple
assault of the officer. As a result of having been struck by a bullet from the officer's firearm he was taken to
the hospital. Upon his arrival at the hospital, in an effort to deceive, McGrone used the alias name of
Thomas McCallahan. He created this deception to conceal his identification and his connection to any
previous or current crimes he may have committed, thus assisting in creating the problem of the lost pants.
The incorrect name information given by McGrone increased the chances of the pants being improperly
logged or misplaced by the hospital staff or police officers. Additionally, it is unclear whether the officers
actually received the evidence, inasmuch as the nurse who had assisted in the care and treatment of
McGrone testified that he had charted that the pants and other valuables were delivered to the Jackson
Police Department; therefore, the event must have occurred. Notwithstanding, but for the note in the chart,
the nurse could not remember any of the facts of the particular instance, nor did the notes reflect who from
the Jackson Police Department received the pants, nor were there any signatures or initials indicating the
receipt thereof. Subsequent testimony from Tara Ervin, booking process employee for the Hinds County
Detention Center, revealed that when McGrone, a.k.a. McCallahan, was delivered from the hospital to
booking, she only logged in two hospital gowns and a bag of medical contents. Additionally, it was
stipulated that the evidence list for the month of February (i.e., the month McGrone was arrested) did not
list the clothing that McGrone was wearing at the time of the shooting. McGrone has failed to meet the
burden in proving that his pants were a foreseeable necessity as evidence for his case.

¶38. Just because McGrone, a career habitual offender, says that he was fleeing instead of struggling with
the officer at the time he was shot and that gun powder residue on the pants may have proven this, do we
have to believe it? Simply because there is a possibility that the evidence might assist the defense does not
fulfill the constitutional materiality standard. Tolbert, 511 So. 2d at 1372. The fact that McGrone is basing
his argument on a possibility was further supported by the testimony of Starks Hathcock and Steven T.
Hayne.

¶39. Hathcock, a forensic scientist, testified that in a case such as this, one would not always expect to find
gun powder residue. Hathcock further testified that the gun powder residue could be destroyed by the
subject's blood or the subject's rolling around on the ground; also the material which the pants were made
of could affect the presence or absence of gun powder; and the packaging of the material at the hospital
would be critical. Hayne, a pathologist, confirmed that evidence could absolutely be destroyed if it were
improperly handled and evidence such as the pants should be allowed to dry and placed in a paper bag.
This is contrary to the handling of the evidence by the hospital. The nurse testified that the pants were
placed in a plastic bag. This would increase the possibility of the destruction of any gun powder residue. It is
also apparent that McGrone had comparable evidence available to support his argument that he was shot at
long range.

¶40. On cross-examination, Hathcock was asked if the clothes were not present, could a pathologist look
at a wound and determine the distance of a gunshot. Hathcock's reply was in the affirmative. Hayne testified
and supported the assertion of Hathcock.

¶41. Hayne stated that although having the clothing is of value, even if one did not have the clothing "[i]t
would be possible to come to a conclusion as to a range that the weapon was fired in distance from striking
the individual. I could not tell you, certainly, with any high degree of probability that that could be done, but
it certainly made a distinct possibility." Dr. Hayne stated he could determine this information by reviewing
various items, including: x-rays, hospital records, records from the police department, and the defendant's
version of the events.

¶42. The burden placed on the prosecution of proving its case is difficult at best. It should not be made
insurmountable. I for one deem McGrone a success in his efforts of crime and deception and would
accordingly reward him for his efforts by serving him with count four of the indictment.

     BRIDGES, MOORE, AND PAYNE, JJ., JOIN THIS SEPARATE OPINION.
