Defendant contends the trial court should have dismissed the information also because the State destroyed the drug evidence in his case. Defendant bases this contention on two decisions of this court: People v. Taylor (1977), 54 Ill. App.3d 454, 369 N.E.2d 573, and People v. Dodsworth (1978), 60 Ill. App.3d 207, 376 N.E.2d 449. In Taylor, the court held that the State "has a duty to preserve some part of the substance so that an independent chemical analysis may be made by the putative law violator in the event criminal prosecution is later instituted."
Defendant cites and relies upon two cases: People v. Taylor (1977), 54 Ill. App.3d 454, 369 N.E.2d 573, dealt with a sample of heroin which "weighed 0.5 grams (less than one-fiftieth of an ounce)." ( 54 Ill. App.3d 454, 455.)
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.
β’ 2 The State's second argument focuses on the legal basis for the trial court's ruling. Based on People v. Taylor (1977), 54 Ill. App.3d 454, 369 N.E.2d 573, and People v. Dodsworth (1978), 60 Ill. App.3d 207, 376 N.E.2d 449, the trial court found the State's negligence warranted the sanction imposed. The State argues the trial court misapplied these cases to the instant facts.
People v. Precup (1978), 73 Ill.2d 7, 16-17, 382 N.E.2d 227. The cases cited by defendant, People v. Dodsworth (1978), 60 Ill. App.3d 207, 376 N.E.2d 449, and People v. Taylor (1977), 54 Ill. App.3d 454, 369 N.E.2d 573, are distinguishable. In both, defense pretrial requests for permission to perform tests upon controlled substances were thwarted by the State's unnecessary destruction of the alleged contraband.
Counsel for defendant notified the State well before the trial that defendant would not stipulate to the chain of custody or the chemical test results. In People v. Taylor (1977), 54 Ill. App.3d 454, 369 N.E.2d 573, the defendant sold two small tinfoil packets of a brown powder to undercover agents of the Illinois Bureau of Investigation for $50. The powder weighed 0.5 grams (less than one-fiftieth of an ounce). After the qualitative test, from which the chemist concluded that heroin was present in the brown powder, about half of the powder remained.
On appeal, the State contends that the trial court erred in dismissing the indictment because there was no due process violation. The State asserts that under People v. Taylor (1977), 54 Ill. App.3d 454, People v. Dodsworth (1978), 60 Ill. App.3d 207, and People v. Sleboda (1988), 166 Ill. App.3d 42, the defendant must file a timely motion to preserve the evidence. Since the defendant did not file a specific request to preserve, the State contends that a violation of due process did not occur.
It is undisputed that defendant filed a timely motion to preserve the evidence. See People v. Taylor, 54 Ill. App. 3d 454 (1977); People v. Dodsworth, 50 Ill. App. 3d 207 (1978); People v. Sleboda, 166 Ill. App. 3d 42 (1988). The majority concludes that a reasonably prudent officer acting in good faith could assume that the vehicle would no longer be needed after it was examined by the defense (Supra at ΒΆ 32) and since defendant has not shown that the evidence was destroyed in bad faith, he cannot support his due process claim.
It is now impossible for him to "meet or dispute the test results by evidence of equal integrity and persuasiveness." See People v. Taylor (1977), 54 Ill. App.3d 454, 458. The State asserts that Newberry is not without recourse because he can still assail the State's test results by introducing the conflicting field test results and by cross-examining the State's experts about the procedures they followed.
On this record defendant asserts a denial of his right of due process. In aid of this analysis, he cites State v. Hanson, S.D., 278 N.W.2d 198 (1979), and People v. Taylor, 54 Ill. App.3d 454, 12 Ill. Dec. 76, 369 N.E.2d 573 (1977). In the former case the Supreme Court of South Dakota held that "where doubt exists as to whether an independent test of an alleged contraband substance is material and exculpatory * * *, the defense must be given an opportunity to have an independent determination made."