He also argues that the trial court's denial of his request prejudiced his rights to due process. He notes that this Court has held that a defendant has a right to obtain independent testing of controlled substances that were obtained from the defendant and that are in the custody and control of the State. Warren v. State, 292 Ala. 71, 288 So.2d 826 (1973). See also Sawyer v. State, 598 So.2d 1035 (Ala.Crim.App.), cert. denied,506 U.S. 943, 113 S.Ct. 386, 121 L.Ed.2d 295 (1992); Gayle v. State, 591 So.2d 153 (Ala.Crim.App.1991); Jackson v. State, 560 So.2d 1100 (Ala.Crim.App.1989); Moton v. State, 524 So.2d 381 (Ala.Crim.App.1988); Ware v. State, 472 So.2d 447 (Ala.Crim.App.1985); Blair v. State, 453 So.2d 1092 (Ala.Crim.App.1984).
This Court in Whitt determined that a comment almost identical to the statement here was a direct comment on the failure of the defendant to testify and that the trial court's failure to promptly remedy the prejudice caused by the comment constituted reversible error. See also Ex parte Yarber, supra; Beecher v. State, 294 Ala. 674, 320 So.2d 727 (1975); Warren v. State, 292 Ala. 71, 288 So.2d 826 (1973); Troup v. State, 32 Ala. App. 309, 319, 26 So.2d 611, 220 (1946). In Whitt, supra, the defendant was indicted for first degree murder arising out of a fatality in an automobile collision.
Montelius's response to this failure is that his constitutional due process rights override "narrowly drawn state discovery rules." He goes on to cite one federal case and an Alabama supreme court case, Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975) and Warren v. State, 288 So.2d 826 (Ala. 1973) for the propositions that fundamental fairness and due process demand that an individual facing the loss of liberty has the right to examine "critical evidence," Barnard, 514 F.2d at 746, and test the "authenticity of the State's evidence," Warren, 288 So.2d at 830. ¶ 12. Although this court does not disagree with those general statements, neither case governs here.
Rule 18 applies to the independent analysis of controlled substances made at the state's expense. Jackson v. State, 560 So.2d 1100 (Ala.Cr.App. 1989); Moton v. State, 524 So.2d 381 (Ala.Cr.App. 1988); Ware v. State, 472 So.2d 447 (Ala.Cr.App. 1985); Warren v. State, 292 Ala. 71, 288 So.2d 826 (1973). Both precedent and fairness require permitting independent analysis of a controlled substance on behalf of an accused.
He also argues that the trial court's denial of his request prejudiced his rights to due process. He notes that this Court has held that a defendant has a right to obtain independent testing of controlled substances that were obtained from the defendant and that are in the custody and control of the State. Warren v. State, 292 Ala. 71, 288 So.2d 826 (1973). See also Sawyer v. State, 598 So.2d 1035 (Ala.Crim.App.), cert. denied, ___ U.S. ___, 113 S.Ct. 386, 121 L.Ed.2d 295 (1992); Gayle v. State, 591 So.2d 153 (Ala.Crim.App. 1991); Jackson v. State, 560 So.2d 1100 (Ala.Crim.App. 1989); Moton v. State, 524 So.2d 381 (Ala.Crim.App. 1988); Ware v. State, 472 So.2d 447 (Ala.Crim.App. 1985); Blair v. State, 453 So.2d 1092 (Ala.Crim.App. 1984).
[Emphasis added]. The Supreme Court of Alabama relied on our Jackson decision in Warren v. State, 292 Ala. 71, 288 So.2d 826 (1973), and added its own reasoning: Where contents of an allegedly prohibited substance is in issue and is to be offered against him, is it asking too much for the defendant that he be allowed as much opportunity to determine the nature of the substance and its characteristics as has been afforded the state?
Our sister states of Mississippi and Alabama have held that, notwithstanding the absence of a criminal discovery statute, due process requires that a person accused of possession of a prohibited substance must be given the opportunity to have an expert of his own choosing conduct an independent examination of the evidence. Warren v. State, 292 Ala. 71 ( 288 So.2d 826) (1973); Jackson v. State, 243 So.2d 396, affd. 261 So.2d 126 (1971). See also State v. Migliore, 261 La. 722 ( 260 So.2d 682) (1972), and State v. Smith (W.Va.), 193 S.E.2d 550 (1972).
"'The comment "The only person alive today that knows what happened out there that night is sitting right there" is almost identical to the comment "No one took the stand to deny it" held to be a direct comment on the defendant's failure to testify and held to be reversible error in Beecher [v. State], 294 Ala. 674, 320 So.2d 727 (1975) (per Justice Embry). The comment is very close to the comment made in Warren v. State, 292 Ala. 71, 288 So.2d 826 (1973). There, this Court held (per Justice McCall) that the argument "The only one that said he didn't sell it [marijuana] was the little brother" was also a direct comment on the failure of the defendant to testify and constituted reversible error.
The trial court agreed that a due-process violation occurred and dismissed the indictment, explaining: Stafford cites three cases to support her due-process argument: Warren v. State, 292 Ala. 71, 288 So. 2d 826 (1973) ; Ex parte Harwell, 639 So. 2d 1335 (Ala. 1993) ; and Ex parte Baker, 144 So. 3d 1285 (Ala. 2013). Those cases, however, are not directly on point because none of them concerns the circumstance of lost or destroyed evidence, as in this case.
Our Supreme Court has long held that "impartiality and fairness require that the defendant be aided by all available processes of the Court, when invoked, to enable him to test and question the authenticity of the state's evidence against him." Warren v. State, 292 Ala. 71, 288 So.2d 826, 830 (1973). In Warren, the appellant made a motion for independent testing and the trial court denied it, saying that it was not timely made. Our Supreme Court held that the appellant was denied due process by the denial of the motion, "especially where his motion to produce was made well in advance of the trial so that it could have been ruled on by the court without causing any undue delay in the trial."