Supreme Court 1/20/11


Harness was convicted of aggravated DUI and sentenced to 15 years to serve.  Harness appealed his conviction and the Court of Appeals affirmed and the Supreme Court granted Cert and reversed his conviction, but on the State’s Motion for rehearing, reversed themselves and affirmed his conviction.


This case presents a very scary proposition.  Harness and Clyde Hampton, the victim, were involved in a head on collision and Hampton later died from the injuries sustained.  Harness was taken to the hospital where his blood was drawn and subsequently sent to the Mississippi Crime Lab.  A test was performed and the result came back with a BAC between .1176 and .1234.  However, since the results were not within the plus or minus two percent allowed by the crime lab a second test was to be conducted.  A second test resulted in .1175 and .1170.  A report listing his BAC as .11 was sent to the Jackson Police Department with this note:

This report represents the analytical results of the examinations performed on the items of evidence in this case . . . . Should additional material be required for court purposes, please contact the laboratory as soon as possible.  All samples submitted for toxicological examinations will be routinely disposed of six months after analyses are completed. If you anticipate that this evidence will be needed, please contact the laboratory to arrange its return.

Harness was indicted on April 8, 2004.  He filed his motion for discovery on July 22, 2004, which included a request to have the blood sample sent for independent testing.  The State failed to produce the blood sample and a Motion to Compel was filed on September 30, 2004 and a hearing was set for November 5, 2004, but the crime lab disposed of the blood sample a week AFTER the motion to compel was filed.


The Supreme Court originally agreed with Harness and reversed the conviction but on rehearing, changed its mind.  Justice Kitchens, in his dissent, stated that on May 27, 2010 the Supreme Court, in an 8 to 1 vote, reversed Harness’ conviction, and there were no errors of law or fact to warrant a rehearing.  The U.S. Supreme Court has implemented a three prong test in dealing with destruction of evidence.  (1) the evidence possessed exculpatory value prior to its destruction, and (2) the evidence was of such a nature that the defendant could not have used other comparableevidence to mount a defense.  Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102L. Ed. 2d 281 (1988), added a third factor: the defendant must also demonstrate that the State acted in bad faith in failing to preserve the evidence in question.  He goes on to say that the fact that the DA’s office was on notice for three months prior to the destruction of the evidence, via formal motion for discovery, and a motion to compel, and that the prosecutors were the only ones who could make the crime lab not destroy the evidence, is tantamount to a willful disregard to the affirmative duty to preserve evidence that might be expected to play a significant role in the suspect’s defense.  He felt that Harness’ due process rights were violated.  While a Motion for Discovery is a form motion, and an argument could be made as to how much weight it really carries, a Motion to Compel, in a criminal case, should have clued the DA’s office in.  When they didn’t call to check on the blood sample until 15 days later, a week after it had been destroyed, the evidence should have been suppressed.




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