                           IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 1999-CT-00705-SCT
STATE OF MISSISSIPPI
v.
TIMOTHY McGRONE a/k/a THOMAS McCALLAHAN
                                     ON WRIT OF CERTIORARI
DATE OF JUDGMENT:                                     04/06/1999
TRIAL JUDGE:                                          HON. JAMES E. GRAVES, JR.
COURT FROM WHICH APPEALED:                            HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                              REBECCA W. WOOTEN

                                                      ASSISTANT DISTRICT ATTORNEY
ATTORNEYS FOR APPELLEE:                               THOMAS M. FORTNER
                                                      ROBERT M. RYAN
                                                      BRENDA GALE JACKSON
DISTRICT ATTORNEY:                                    EDWARD J. PETERS
NATURE OF THE CASE:                                   CRIMINAL- FELONY
DISPOSITION:                                          AFFIRMED -10/11/2001
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                       11/1/2001

     EN BANC.

     SMITH, JUSTICE, FOR THE COURT:

¶1. Timothy McGrone was indicted for one count of motor vehicle theft, a second count of aggravated
assault on a law enforcement officer, a third count of aggravated assault and a fourth count of simple assault
on a law enforcement officer by the Hinds County Grand Jury, all arising out of one incident. McGrone
moved to have the last count, simple assault on a law enforcement officer, dismissed because the police
department lost what McGrone alleged was crucial evidence in this case, the pants he was wearing when he
was finally shot and arrested by the Jackson Police Department. The Hinds County Circuit Court agreed
and dismissed the simple assault count. The State appealed. The Court of Appeals affirmed. We granted
certiorari to solely consider the legal standard concerning preservation of evidence by the State. After due
consideration, we find that the judgments of the Circuit Court and the Court of Appeals should be affirmed,
but for different reasons than those cited by the Court of Appeals.

                                                  FACTS

¶2. The following statement of facts is taken from the opinion of the Court of Appeals:

     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. Timothy
      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.

      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 then 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.

State v. McGrone, No. 1999-CA-00705-COA ¶ 4-5 (Miss. Ct. App. Jan. 16, 2001).

¶3. McGrone was treated at the hospital for the gunshot wound to his leg. He was subsequently indicted for
motor vehicle theft, aggravated assault on a law enforcement officer, aggravated assault and simple assault
on a law enforcement officer by the Hinds County Grand Jury. McGrone filed a Motion for Discovery, a
Motion to Compel Discovery and a Motion to Dismiss the simple assault charge. McGrone contended that
his pants were crucial evidence in his defense of the charge of simple assault on a law enforcement officer.

¶4. At the hearing on the Motion to Compel Discovery and Motion to Dismiss, Mike Boyanton, a nurse at
the hospital where McGrone was taken, testified that hospital records indicated the Jackson Police
Department took possession of McGrone's clothing and any possible valuables. The State was unable to
produce McGrone's clothing at the hearing.

¶5. At the conclusion of the hearing the circuit court found that the evidence existed and was given to the
Jackson Police Department, that the evidence could have been of an exculpatory nature, and that the JPD
knew or should have known this when it took possession of the evidence. As a result the circuit court found
that Count 4 of the indictment against McGrone, simple assault on a law enforcement officer, would be
dismissed. The circuit court made two additional observations: first, that no JPD police officers appeared at
any of the hearings on the motions filed by McGrone despite being subpoenaed (the hearing began on
March 29, 1999, and was continued on April 5, 1999); second, that it would or could make no finding as
to the circumstances of the non-existence of the pants, i.e. whether the pants were lost or destroyed,
negligently or intentionally.

¶6. On direct appeal the Court of Appeals, by a vote of 5-4, affirmed. The Court of Appeals found that
certain requirements for cases involving preservation or absence of evidence provided in U.S. Supreme
Court authority, specifically California v. Trombetta, 467 U.S. 479,104 S.Ct. 2528, 81 L. Ed 2d 413
(1984), had been met. The Court of Appeals further found that the circuit court was not required to find
that the State, or the police, had acted in bad faith in losing the evidence in question before the charge in
question could be dismissed.

                                              DISCUSSION

     I. THE COURT OF APPEALS ERRED IN AFFIRMING THE TRIAL COURT'S
     DISMISSAL OF THE SIMPLE ASSAULT COUNT, AS A FINDING OF BAD FAITH ON
     THE PART OF THE STATE IN THE DISAPPEARANCE OF THE EVIDENCE WAS
     REQUIRED TO FIND A VIOLATION OF MCGRONE'S DUE PROCESS RIGHT.

¶7. The seminal case on this subject is the U.S. Supreme Court's decision in California v. Trombetta,
467 U.S. 479,104 S.Ct. 2528, 81 L. Ed 2d 413 (1984). The Supreme Court found in Trombetta, 467
U.S. at 488-89, that 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. To meet this standard of constitutional materiality . . .
evidence must both possess an exculpatory value that was apparent before the evidence was destroyed,
and be of such a nature that the defendant would be unable to obtain comparable evidence by other
reasonably available means." Trombetta dealt with the preservation of breath samples in DUI cases, and
because the aforementioned standard was not met, and because "[i]n failing to preserve breath samples for
respondents, the officers here were acting 'in good faith and in accord with their normal practice,'" the
Supreme Court reversed the grant of new trials and exclusion of the intoxilyzer results. Trombetta, 467
U.S. at 488.

¶8. Trombetta has been cited on numerous occasions by this Court. See Banks v. State, 725 So.2d 711
(Miss. 1997); Taylor v. State, 672 So.2d 1246 (Miss. 1996); Tolbert v. State, 511 So.2d 1368 (Miss.
1987). The standard that developed after Trombetta is that the evidence in question must meet the two-
part test stated above, that (1) evidence must possess an exculpatory value that was apparent before the
evidence was destroyed, and (2) be of such a nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means. In addition, "the prosecution's destruction of
evidence must not have been in bad faith." Tolbert, 511 So.2d at 1372; see also Taylor, 672 So.2d at
1271 (citing Tolbert).

¶9. The question of whether Trombetta actually mandated a finding of bad faith on the part of the State in
such cases was no longer open to interpretation after the U.S. Supreme Court's decision in Arizona v.
Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). Youngblood dealt with a failure
to refrigerate clothing worn by a victim of a sexual assault and to test the clothing for semen samples. In
Youngblood, 488 U.S. at 58, the U.S. Supreme Court stated: "We therefore hold that unless a criminal
defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does
not constitute a denial of due process of law." The Youngblood rule was applied by this Court in Holland
v. State, 587 So.2d 848, 869 (Miss. 1991).

¶10. In this case the Court of Appeals relied on this Court's decision in Banks v. State to find that there
was no requirement of finding of bad faith on the part of the State in the destruction of the evidence in
question. Banks dealt with the destruction of a bologna sandwich which allegedly linked Banks to a murder
by bite marks made in the sandwich. This Court found that Banks had met the two part test of Trombetta,
and that a new trial was required because of the admission of the State's evidence concerning the sandwich.
This Court made little mention of the State's bad faith or lack thereof except to note: "Although Banks is
entitled to no presumption since the trial court found (on substantial evidence) that there had been no
showing of any intentional effort on the part of the State to deprive the defendant of a view of the sandwich,
it nevertheless seems that the bologna sandwich was obviously significant to the defense." Banks, 725
So.2d at 715.

¶11. The Court of Appeals seemed to be making an argument to the effect that this Court, in Banks v.
State, determined that this State's due process protections, in preservation of evidence cases, were
broader that those announced by the U.S. Supreme Court. On the other hand, the Court of Appeals also
made the following statement: "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." McGrone at ¶ 31. While bad faith may not be a prong of the two-part test for
materiality under Trombetta, it is a requirement for a due process violation in a preservation of evidence
case under Youngblood, Tolbert, Taylor, and the Court of Appeals decision in Trollinger v. State, 748
So.2d 167 (Miss. Ct. App. 1999). We therefore clarify that the following is required in order to find a due
process violation by the State in a preservation of evidence case: (1) the evidence in question must possess
an exculpatory value that was apparent before the evidence was destroyed; (2) the evidence must be of
such a nature that the defendant would be unable to obtain comparable evidence by other reasonably
available means; and (3) the prosecution's destruction of the evidence must have been in bad faith.

¶12. In this case the record shows that parts (1) and (2) of this test were met. The remaining question is
whether the defendant can show bad faith on behalf of the prosecution. In this case it would have been
shown through the testimony of the police officers who handled the clothing in question. Counsel for
McGrone subpoenaed certain police officers for two separate hearings in this case, but the officers never
appeared. The State may not, through the police officer's intentional actions, negate the only means the
defendant has for proving a due process violation due to destruction of evidence under Trombetta and
Youngblood. Because the police officer's actions made a determination by the circuit court on the issue of
bad faith impossible, the judgment of the circuit court and the Court of Appeals will be affirmed.

                                              CONCLUSION

¶13. This Court finds that destruction of evidence in bad faith is a requirement for a due process violation
based on the State's failure to preserve evidence. Where the State's actions absolutely prevent a defendant
in a criminal case from presenting proof on this issue, we will consider the requirement of bad faith to have
been proven. The judgment of the Court of Appeals is affirmed.

¶14. AFFIRMED.

      PITTMAN, C.J., BANKS, P.J., WALLER, COBB AND EASLEY, JJ., CONCUR. MILLS,
      J., CONCURS IN RESULT WITH SEPARATE WRITTEN OPINION JOINED BY
      McRAE, P.J., AND DIAZ, J.

      MILLS, JUSTICE, CONCURRING IN RESULT:

¶15. I concur in the result. The majority applies the rule of law dealing with preservation of evidence in this
case correctly as it currently stands. However, since I disagree with the existing rule of law regarding the
test for due process violations in preservation of evidence, I would modify the rule and urge the majority to
reconsider the logic of this test. Mississippi law indeed requires a showing of the State's bad faith before a
constitutional violation may be proved in a preservation of evidence case. The majority accurately notes that
we have found this element necessary in a number of cases. See, e.g., Taylor v. State, 672 So. 2d 1246,
1271 (Miss. 1996); Holland v. State, 587 So. 2d 848, 869 (Miss. 1991); Tolbert v. State, 511 So. 2d
1368, 1372 (Miss. 1987). But we in appellate work sometimes mistake string cites for logic. Just because a
rule is old does not mean it is right.

¶16. The majority finds that the following is required to show a due process violation by the State in a
preservation of evidence case: (1) the evidence in question must possess an exculpatory value that was
apparent before the evidence was destroyed; (2) the evidence must be of such a nature that the defendant
would be unable to obtain comparable evidence by other reasonably available means; and (3) the
prosecution's destruction of the evidence must have been in bad faith. I propose that the third element be
dropped from the test.

¶17. The State's bad faith becomes irrelevant when the search for the truth is the task at hand. Whether the
State is simply negligent in evidence preservation or whether it willfully destroys evidence, the result is the
same. Useful evidence is unavailable, and the fact-finding effort is hindered or, in many cases, rendered
impossible.

¶18. The original two-part test developed from California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528,
81 L. Ed. 2d 413 (1984), is geared toward fact-finding. With this test, the search for the truth is limited by
the bounds of objectivity; for it focuses on the value of the evidence and the attainability of comparable
evidence. The fact finder need not enter the State's mind. A bad faith element only adds confusion to the
test. The search for the truth is best illuminated by objectivity. A required showing of bad faith injects
subjectivity into the case, thereby rendering the truth seeker a mind reader as opposed to a fact finder.

¶19. Retention of the bad faith element discourages the preservation of potentially exculpatory evidence and
encourages duplicitous testimony from the State when justifying the absence or loss of such evidence. We
should enounce a rule of law in this preservation of evidence case that will eliminate this problematic
possibility. In other words, bad faith should be stricken from the test.

      McRAE, P.J., AND DIAZ, J., JOIN THIS OPINION.
