APPEAL from the Circuit Court of Morgan County; the Hon. JOHN
B. WRIGHT, Judge, presiding.
MR. PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
This appeal concerns the problems involved in a prosecution for unlawful possession of a controlled substance when the defendant is prevented from obtaining an independent testing of the substance alleged to be contraband because the State has destroyed the substance in the testing it has done.
Defendant, Kelly B. Dodsworth, was convicted after trial by jury in the circuit court of Morgan County of the offense of unlawful possession of a controlled substance, .03 grams of methylenedioxyamphetamine (MDA), in violation of section 402(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1402(b)). He was sentenced to 1 year of probation and fined $750 and costs.
The parties agree that law enforcement officers found defendant to be in possession of a certain substance which they took from him and delivered to a State laboratory for analytical testing. The person who performed the tests testified that the substances contained .03 grams of MDA. For purposes of appeal, the parties have stipulated that (1) the State's testing destroyed so much of the substance that no further testing could be done; (2) the testing could have been done and the same results reached by the destruction of only one-third of the substance submitted; and (3) the defendant had moved to exclude evidence of the results of the test before it was admitted and had moved to strike testimony concerning the testing after it was given. The record further shows that prior to trial the court had granted a motion by the defendant for an order directing the State to produce the substance for testing by the defendant, and that the State was unable to do so because the only residue left after the State testing was too small for further testing.
The sole question raised by defendant on appeal is whether the trial court committed reversible error in refusing his request to either dismiss the case or deny admission of the evidence of the results of the State's test as a sanction for State's destroying the substance seized before he had a chance to have an independent analysis made.
The stipulation which was prepared for use in lieu of supplying a report of proceedings begins with the following as one of its statements of fact: "That a substance weighing .03 grams of a substance containing methylenedioxyamphetamine, hereinafter referred to as MDA, was delivered to" the agent of the Bureau of Identification. The defendant maintains that this was not intended to be an admission by him that the substance taken from him and delivered to the Bureau for testing was in fact MDA. The parties would not be likely to intentionally enter into an agreement that would confess the central factual issue in the case and make the error cited harmless. Accordingly, we conclude that the wording of this part of the stipulation was inadvertently contrary to the intention of the parties. We will not consider it in our determination.
The State's argument supports the trial court's denial of the relief requested by the defendant on the theory that language of Supreme Court Rule 415(g) (58 Ill.2d R. 415(g)) provides that the court "may" impose the sanction of excluding evidence. The State further contends that, in any event, the sanction of exclusion of evidence should be imposed only upon a showing of prejudice to the defendant or culpability upon the part of the State. The defendant, on the other hand, argues that regardless of the State's culpability, he is necessarily so greatly prejudiced by his inability to have independent testing done that the denial of the relief he requests was reversible error.
People v. Taylor (1977), 54 Ill. App.3d 454, 369 N.E.2d 573, appeal denied, ___ Ill.2d ___, is the only Illinois case ruling upon destructive testing of evidence in a criminal case. There, a substance which the evidence indicated to have been sold by the defendant to an undercover law enforcement officer was unnecessarily destroyed in testing conducted by the State. The State, as here, was unable to produce the substance for defendant's testing prior to the defendant's trial for the unlawful delivery of the substance which was alleged to be heroin. The appellate court reversed the defendant's subsequent conviction and remanded for a new trial, ruling that the trial court should have granted the defendant's request to exclude evidence of the result of the State's test.
1 The Taylor opinion emphasized that laboratory testing of allegedly contraband substances is not infallible, citing a study described in B. Stein et al., An Evaluation of Drug Testing Procedures Used by Forensic Laboratories and the Qualifications of Their Analysts, 1973 Wis. L. Rev. 727, 736. The court determined that without independent testing the accused had no reasonable way of cross-examining the chemist who performed the test for the State and held that the unnecessary destruction of the substance deprived the accused of due process of law. We agree with the conclusion of that court, inherent in its decision, that to be entitled to relief, the accused need not prove actual prejudice arising from the destructive testing because, in the absence of an independent test, the accused will usually not know whether the results of the State's test were inaccurate or incorrect.
The matter of culpability of the State presents a more difficult question. The State does not dispute that if the State destroyed the substance being tested intentionally and for the purpose of preventing independent testing by defendant, evidence of the State's testing should have been excluded. The Taylor court stated it did not think that occurred there and the record gives no indication of such occurring here. In both cases, the destruction was unnecessary but in neither case was it shown whether the destruction was intentionally and knowingly done or whether it occurred as the result of negligence, accident, or other inadvertence. In speaking of negligence in this respect, we distinguish between negligence in determining the necessity to destroy in testing, and negligence in the operation of the testing which unintentionally causes the substance to be destroyed.
2 The Taylor opinion stated that when, in a criminal case, the State is unable to produce for defense testing, the alleged controlled substance which is at the heart of the State's case, because the substance has been destroyed by State's testing, a "heavy burden" rests upon the State to show that the destructive testing was necessary. (54 Ill. App.3d 454, 458, 369 N.E.2d 573, 576.) We are in general agreement with that statement. By analogy to that statement, we also conclude that if the destructive testing may be excused on any grounds such as accident, other inadvertence or even negligence, a similar burden is placed upon the State to show that this was the reason for the destruction. We are not ruling that any of these reasons are excuses for destructive testing. Because the State offered no evidence to excuse the testing upon these grounds we need not consider that question here.
We do not consider that an undue burden is placed upon law enforcement officials by requiring the State to prove some justification for destructive testing. It would appear that unnecessary destructive testing ordinarily occurs neither because of an intent by the State to deprive the defendant of an opportunity for testing nor because of unintended destruction, but rather from lack of sensitivity to defendant's right to perform independent tests.
We recognize, as did the Taylor court, that our decision is contrary to the precedent of a few cases in other jurisdictions. The problems involved in destructive testing have only recently received consideration by courts> of review (Sarver v. Barrett Ace Hardware, Inc. (1976), 63 Ill.2d 454, 349 N.E.2d 28). We also recognize that the law must develop on a case-by-case basis. Perhaps the rights of a defendant can be safeguarded by protective court order setting forth conditions for destructive testing by the State which permit the defendant to have an observer present at the testing. (Sarver.) In any event, where as here, the State unnecessarily and presumably intentionally destroys the alleged contraband without the defendant having opportunity for his own testing or the protection of court imposed safeguards to protect his rights, we agree with Taylor that the trial court commits reversible error in admitting evidence of the results of the State's test.
3 Accordingly, we reverse the defendant's conviction and sentence. We agree with Taylor that the possibility of proving the offense without the aid of the testimony of the chemist is at least theoretically ...