1988); Hampton v. State, 498 So.2d 384, 386 (Miss. 1986); Poole v. State, 291 So.2d 723, 726 (Miss. 1974). Gibson complains that the photographs are not the best evidence.
The Colorado Supreme Court has held that the state is not prevented from performing scientific tests that destroy evidence, though such destruction cannot be condoned when it is unnecessary. ( People v. Gomez (1979) 198 Colo. 105 [ 596 P.2d 1192, 1197]; accord, People v. Garries (Colo. 1982) 645 P.2d 1306; see also People v. Dodsworth (1978) 60 Ill. App.3d 207 [ 376 N.E.2d 449] [state must prove some justification for destructive testing]; People v. Taylor (1977) 54 Ill. App.3d 454 [ 369 N.E.2d 573] [state has heavy burden of showing destruction of evidence during testing is necessary]; Poole v. State (Miss. 1974) 291 So.2d 723, 725 [no due process violation if it was reasonably necessary for state to consume evidence in testing it]; Lee v. State (Alaska 1973) 511 P.2d 1076, 1077 [no due process violation in consumption of heroin in testing unless deliberate attempt to suppress exculpatory evidence]; see also State v. Asherman (1984) 193 Conn. 695 [ 478 A.2d 227, 246-247] [no due process violation in consumption of blood samples in testing in absence of showing that consumption unnecessary]; State v. Kersting (1981) 50 Or. App. 461 [ 623 P.2d 1095, 1103-1104] [defendant may show due process violation in state consumption of evidence in testing by showing retest would have been possible but for state's test and by challenging state's test results by attack on manner of test].) The court, faced with unnecessarily duplicative color, chromotography, ultraviolet and microcrystalline tests for the presence of heroin which destroyed the sample, affirmed an order suppressing the evidence.
However, this case is distinguishable from Love, because the substance requested was unavailable to the state, as well as to the defendant, at the time of the request. This case is more analogous to the case of Poole v. State, 291 So.2d 723 (Miss. 1974), cert. den. 419 U.S. 1019, 95 S.Ct. 492, 42 L.Ed.2d 292. In Poole the defendant was convicted of selling LSD. The tablet of LSD which was seized from him was consumed during testing.
Hampton next argues that the fact the state laboratory used the entire amount of the Talwin in making its test deprived him of an independent analysis, and therefore the test results should not have been admitted into evidence. There is no merit to this assignment: Poole v. State, 291 So.2d 723 (Miss. 1974); Jackson v. State, 243 So.2d 396 (Miss. 1970).
However, this case is distinguishable from Love, because the substance requested was unavailable to the state, as well as to the defendant, at the time of the request. This case is more analogous to the case of Poole v. State, 291 So.2d 723 (Miss. 1974), cert. den. 419 U.S. 1019, 95 S.Ct. 492, 42 L.Ed.2d 292. In Poole the defendant was convicted of selling LSD. The tablet of LSD which was seized from him was consummed during testing.
Regarding an insufficiency of substance for analysis, this Court has held that due process does not require dismissal of the charges where the state is unable to comply with defendant's motion because the substance was exhausted in the process of analysis. Poole v. State, 291 So.2d 723 (Miss. 1974). In this case there is no evidence that Herring's tests were unauthorized or that the state was negligent.
" Id., 416. See also Lee v. State, 511 P.2d 1076 (Alaska 1973) (heroin); State v. Herrera, 365 So.2d 399 (Fla.App. 1978) (heroin); Poole v. State, 291 So.2d 723 (Miss.), cert. denied, 419 U.S. 1019, 95 S.Ct. 492, 42 L.Ed.2d 292 (1974) (LSD); State v. Teare, 135 N.J. Super. 19, 342 A.2d 556 (1975) (preservation of test ampoules in breathalyzer test for alcohol in blood); cf. People v. Taylor, 54 Ill. App.3d 454, 369 N.E.2d 573 (1977). Stolman, testifying with reference to the hypodermic needles, syringes, etc. that were introduced into evidence, said that they did not presently contain any of the substances or residue of any of the substances the state laboratory testing found because "they were all extracted to determine whether any drug was present or not."
In that connection, however, the weight of authority in the country is that the destruction of suspect contraband drugs unavoidably consumed during chemical testing by a state chemist does not constitute an act of suppression of evidence by the state sufficient to trigger a due process violation. Partain v. State, 238 Ga. 207, 232 S.E.2d 46 (1977); Poole v. State, 291 So.2d 723 (Miss. 1974); Lee v. State, 511 P.2d 1076 (Alaska 1973); State v. Lightle, 210 Kan. 415, 502 P.2d 834 (1972). Contra: State v. Gaddis, 530 S.W.2d 64, 69 (Tenn.
One finds that the highest courts in several states have determined that the exhaustion of the supply of a narcotic or controlled substance is not a valid basis for excluding the State's analysis of the samples available as a denial of due process. Lee v. State (Alas. 1973), 511 P.2d 1076; State v. Cloutier (Me. 1973), 302 A.2d 84; Poole v. State (Miss. 1974), 291 So.2d 723; State v. Lightle (1972), 210 Kan. 415, 502 P.2d 834. In terms of the consideration of the record, the principal opinion has departed from the literal reading of the stipulation as to defendant's admission of the nature of the substance.
See, e.g., State v. Cloutier, 302 A.2d 84 (Me. 1973); Lee v. State, 511 P.2d 1076 (Alas. 1973); State v. Lightle, 210 Kan. 415, 502 P.2d 834 (1972); Poole v. State, 291 So.2d 723 (Miss. 1974). • 2 We hold, therefore, that defendant in the instant case was denied due process of law and the opportunity for meaningful confrontation of the witnesses against him by the State's unnecessary destruction of the allegedly prohibited substance which he allegedly delivered to agents of the State, and that his conviction must be reversed.