author: LAMAR, Justice,

text:
    DELTA MK, LLC v. MISSISSIPPI TRANSPORTATION COMMISSION.
    No. 2009-CA-02021-SCT.
    Supreme Court of Mississippi.
    April 7, 2011.

      Laura Henderson-Courtney, Florence, David Ringer, attorneys for appellant.
    Christopher H. Coleman, Jackson, Jim Warren, attorneys for appellee.
    Before CARLSON, P.J., LAMAR and CHANDLER, JJ.
   LAMAR, Justice,

for the Court:

¶ 1. Delta MK, the owner of a service station along Highway 49, brought suit against the Mississippi Transportation Commission (MTC), claiming that the Commission’s decision to close two medians across Highway 49 had greatly diminished its business. MTC filed a motion to dismiss, and the trial judge considered matters outside the pleadings when he ruled in its favor. Finding that the ..trial judge erred when he converted MTC’s motion to dismiss into a motion for summary judgment without giving Delta notice, we reverse and remand. ■

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 14, 2005, Delta MK, LLC— owner of a service station along Highway 49 South in Richland — filed suit in the Rankin County Chancery Court against the Mississippi Department of Transportation (MDOT) and the Mississippi Transportation Commission. Delta alleged that construction along Highway 49 had “prevented] the free ingress and egress to and from [its] premises and otherwise inter-fer[ed] with [its] property rights ... thereby prohibiting the reasonable and necessary use of the property....” Specifically, Delta alleged that the closure of two medians across Highway 49 had greatly reduced access to its property, forcing potential customers to drive past the store on Highway 49, and then to drive in the opposite direction on the frontage road to access it.

¶ 3. The defendants filed a motion to dismiss, and, after several other motions were filed, the parties agreed to transfer the case to the Rankin County Circuit Court. The parties also agreed that Delta would be allowed to file an amended complaint that officially stated “inverse condemnation” as a cause of action. Delta filed its amended complaint, naming the Mississippi Transportation Commission as the only defendant. Delta’s amended complaint requested an order from the trial court “requiring [MTC] to condemn the property rights and access rights being destroyed by the [construction] project, pursuant to Miss.Code Ann. § 11-27-1, et seq.,” or alternatively, an assessment of actual and nominal damages for a taking without just compensation.

¶ 4. MTC answered the amended complaint, arguing that Delta had failed to state a claim upon which relief could be granted. After the parties had engaged in discovery for several months, MTC filed a motion for summary judgment. The trial judge entered an agreed scheduling order mandating that all fact discovery, including depositions of all fact witnesses, be completed by December 28, 2007. Delta subsequently filed a motion to hold MTC’s motion for summary judgment in abeyance, stating that “[w]ithout completion of discovery, [it was] in no position to respond” to MTC’s motion for summary judgment. Although we found no order in the record granting Delta’s request, the trial court apparently did hold MTC’s motion in abeyance, as several subsequent scheduling orders stated that “Summary Judgment Motions, including the currently pending Motion, are to be heard no later than 60 days prior to trial.”

¶ 5. Delta filed a second amended complaint on October 8, 2008, adding claims that MTC had violated its due process and its civil rights. In response, MTC filed a motion to dismiss, which is the subject of this appeal. MTC argued that no compen-sable taking had occurred, because the closure of the medians was a proper exercise of its police power, and that the affected section of Highway 49 was a “controlled access facility,” with no right of ingress or egress. MTC attached to its motion four exhibits: Delta’s second amended complaint, a 1964 order from the State Highway Commission, an MDOT maintenance rule, and the deposition of an MTC employee.

¶ 6. The parties filed a joint motion to stay all expert discovery pending a ruling on MTC’s motion to dismiss, which the trial judge granted. Delta subsequently filed its response to MTC’s motion to dismiss, arguing that the sole issue before the court was whether it had stated a claim upon which relief could be granted, and that it clearly had done so. Delta also attached to its response several exhibits, including deposition excerpts, maps/charts, and newspaper clippings. Delta concluded its response by stating:

For the above reasons, [Delta] respectfully submits that [MTC] is not entitled to a dismissal in this case pursuant to Rule 12(b)(6). Alternatively, if this Court regards [MTC’s] Motion to Dismiss as one which should have been filed under Rule 56, as a Motion for Summary Judgment, [Delta] would respectfully request an opportunity to supplement its response to provide additional affidavits and deposition excerpts to the Court. Additionally, if this Court regards [MTC’s] motion as one for summary judgment, instead of a motion for- dismissal pursuant to Rule 12(b)(6), [Delta] would respectfully request leave to complete expert discovery and depositions in this case, prior to the court ruling on [MTC’s] motion.

(Emphasis added.)

¶ 7. The parties appeared before the circuit judge for a hearing on MTC’s motion to dismiss. At the hearing, the circuit judge expressed concern that the case was not in the proper court and sua sponte transferred the case to the Rankin County Special Court of Eminent Domain. On September 21, 2009, the parties appeared before the special court judge for a hearing on MTC’s motion to dismiss. Although both parties referred to matters outside the second amended complaint, counsel for Delta requested on several occasions that the trial judge restrict his deliberations to the allegations in the second amended complaint.

¶8. The special court judge issued a memorandum opinion granting MTC’s motion to dismiss as to the inverse-condemnation claim and dismissing • Deltas due-process and civil-rights claims without prejudice (citing lack of jurisdiction). In his opinion, the judge noted that he had considered matters outside the pleadings, stating: “Following arguments of counsel, the Court took the matter under advisement in order to review the voluminous pleadings, discovery documents, documents used by counsel at the hearing, and the competing pleadings on the Motion to Dismiss.”

¶ 9. The judge found particularly persuasive the 1964 Order from the State Highway Commission which designated the relevant portion of Highway 49 a “controlled access facility” and mandated that no right of ingress or egress existed, unless specifically permitted by the Commission. Specifically, the judge found that:

[T]his is not an eminent domain case nor a cause of inverse condemnation, traditional or otherwise. Whether there may remain some compensable wrong done to [Delta] after the eminent domain portions of this case are dismissed is a matter perhaps available to [Delta] in another court on another day. Based upon the Conclusions of Law which this Court believes it is bound to follow ... this ease may proceed no further under eminent domain law.

Finally, the judge noted:

In the event a reviewing court should determine that the Court’s consideration of items other than [Delta’s] pleadings, e.g. the May, 1964 Order supplied in [MTC’s] pleadings, has somehow transformed this into a Summary Judgment, the Court has provided that case law and more detailed factual findings above to make clear that it finds Summary Judgment is also proper in this case.

The trial judge subsequently issued a final judgment which officially dismissed Delta’s inverse-condemnation claim with prejudice and dismissed its due-process and civil-rights claims without prejudice. The judge again noted that MTC was entitled to summary judgment under Rule 56 as well.

¶ 10. Delta filed a motion to reconsider, arguing that'the trial judge did not give it notice at any time before the September 21 hearing that he was converting MTC’s motion to dismiss into a summary-judgment motion. Delta requested “an opportunity to supplement the record to present additional evidentiary material that would show that there are-genuine issues of material fact that preclude summary judgment” in the case. Specifically, Delta requested that it be allowed to supplement the record with several depositions that “clearly showfed] that there [were] genuine issues of material fact as to whether the type and classification of that portion of U.S. Highway 49 at issue in this case was changed when [MTC] undertook to close access points that were previously available for use by the public.” MTC responded to the motion, arguing that Delta should be estopped from making its notice argument, because it had attached matters outside the pleadings to its response to MTC’s motion to dismiss, as well as presented them to the judge at the September 21 hearing. The trial judge denied Delta’s motion to reconsider after a hearing.

¶ 11. On appeal, Delta argues that the trial judge erred when he: (1) considered matters outside the Second Amended Complaint in ruling on MTC’s motion to dismiss; (2) found that the allegations of the Second Amended Complaint failed to state a claim upon which relief could be granted; and (3) failed to transfer its remaining due-process and civil-rights claims to the circuit court for further consideration. We find that, although the trial judge did not err when he considered matters outside the pleadings presented to him by the parties, he did err when he failed to give Delta reasonable time to submit additional evidence, making, issue two moot. We also find that the trial judge did not abuse his discretion when he dismissed Delta’s due-process and civil-rights claims without prejudice.

I. Whether the trial judge erred when he considered matters outside the pleadings when ruling on MTC’s motion to dismiss.

¶ 12. Although Delta argues that the trial judge erred when he considered matters outside the pleadings in ruling on MTC’s motion to dismiss, the crux of its argument is that he erred when he failed to give it notice that he was doing so. Delta argues that “the fact that the lower court considered documents outside of the Complaint in ruling on the Rule 12(b)(6) motion, without giving notice to [it], ox-allowing [it] an oppoi-tunity to supplement the record with additional affidavits and depositions” was error. Relying on this Coui-t’s decision in Sennett v. United States Fidelity and Guaranty Co., 757 So.2d 206 (Miss.2000), MTC ai'gues that the trial court’s consideration of certain outside matters did not transform the motion to dismiss into a motion for summary judgment. MTC also argues that Delta’s notice argument should fail, because it participated in presenting outside matters to the trial judge, and it is “inconceivable” to think that the trial judge’s consideration of those matters took Delta by surprise.

¶ 18. This Court conducts a de novo review of the grant of a motion to dismiss for failure to state a claim. State v. Bayer Corp., 32 So.3d 496, 501 (Miss.2010). Rule 12 of the Mississippi Rules of Civil Procedure governs motions to dismiss and states, in pertinent part:

If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56....

Miss. R. Civ. P. 12(b) (emphasis added). In Palmer v. Biloxi Regional Medical Center, 649 So.2d 179 (Miss.1994), this Court stated:

Whenever a motion to dismiss under Rule 12(b)(6) is converted into a motion for summary judgment, the requirements of Rule 56 become operable. It is important that the court give the parties notice of the changed status of the motion and a “reasonable opportunity to present all material made pertinent to such a motion by Rule 56” .... Accordingly, before this Court can determine on appellate review if the non-moving party has had a reasonable time in which to file documentation in opposition to a Rule 12(b)(6) motion that has been converted to a Rule 56 motion for summary judgment, we must determine if the non-moving party has been afforded ten days notice of the court’s intention to conduct a summary judgment hearing on a date certain.

Id. at 182-83 (citation omitted). Whenever a trial judge converts a Rule 12(b)(6) motion to dismiss into one for summary judgment by considering matters outside the pleadings, the judge must give all parties ten days’ notice that he is converting the motion. Id. at 183 (citation omitted). “Regardless of hoiv baseless [a plaintiffs] claim [appears] to the trial court, our rules require that she be given 10 days’ notice once a motion to dismiss is converted into a motion for summary judgment.” Jones v. Regency Toyota, Inc., 798 So.2d 474, 476 (Miss.2001) (emphasis added).

¶ 14. Based on the authority above, we find that the trial judge erred when he accepted matters outside the pleadings and granted MTC’s motion to dismiss without giving Delta a reasonable opportunity to offer additional evidence. Delta specifically requested in its response to MTC’s motion to dismiss that, if. the trial court regarded MTC’s motion to. dismiss as a motion for summary judgment, it be given an opportunity to supplement its response with additional affidavits and depositions. Delta also specifically requested leave to complete expert discovery and depositions in the case. And at the hearing on MTC’s motion to dismiss, counsel for Delta specifically requested that the trial judge “confine [his] deliberations to the. allegations of the complaint.” So, because matters outside the pleadings were “presented to” the trial judge and not “excluded by” him, he should have treated MTC’s motion to dismiss as a motion for summary judgment and granted Delta the leave it requested to present additional evidence.

¶ 15. MTC argues that, based on this Court’s decision in Sennett, 757 So.2d 206, the trial judge properly could have considered certain outside matters without converting its motion into a motion for summary judgment. In Sennett, this Court held that the trial judge’s review of an insurance contract attached to the defendant’s motion to dismiss did not necessitate converting the motion into a summary-judgment motion. Id. at 214. The Court reached that conclusion because “the exhibit relied upon was specifically referred to” in the plaintiffs complaint, was “central and necessary” to the plaintiffs cause of action, and “directly refuted” the complaint’s assertions. Id. MTC argues that the trial judge properly considered the 1964 Order, because Delta “referred to and relied on” it to frame its complaint.

¶ 16. But in State v. Bayer Corp., 32 So.3d 496 (Miss.2010), this Court clearly retreated from the rule announced in Sennett, a fact that MTC concedes in its brief. Although we did not directly overrule it, this Court noted Sennett and then clearly stated that it was returning to the absolute language of Rule 12(b): “However, rather than adhering to the reasoning in Sennett, this Court has affirmed its allegiance to the rule limiting review of a Rule 12(b)(6) motion to the face of the complaint.” Bayer, 32 So.3d at 503. The Bayer Court noted two recent cases in which this Court had clearly held that the consideration of any outside matter converts a motion to dismiss into a motion for summary judgment. Id. The Bayer Court concluded by stating that “[tjhis Court’s recent interpretation of Rule 12(b)(6) ... and a plain reading of Rule 12(b) establish [the trial judge’s consideration of outside matters] as error.” Id. at 504.

¶ 17. MTC also argues that, because Delta presented matters outside the pleadings to the trial judge, it is “inconceivable” to think that Delta was taken by surprise when the trial judge converted the motion into a summary-judgment motion. In other words, because the purpose of the notice requirement is to avoid “taking a party by surprise,” no notice was required here, as Delta was aware that the judge might consider outside matters. But MTC cites no binding authority for this proposition, and we find that the plain language of Rule 12(b) contradicts its argument. Rule 12(b) states that “if ... matters outside the pleading are presented to and not excluded by the court,” then conversion to a Rule 56 motion and a reasonable opportunity to supplement are required. Miss. R. Civ. P. 12(b), 56. The rule’s requirements are not triggered by which party submits the outside matters, nor does it contain any estoppel or actual-notice language. So we find that, although the trial judge did not err when he considered the outside matters presented to him, he did err when he did not explicitly convert the motion into a motion for summary judgment and give Delta a reasonable opportunity to present all pertinent material.

II. Whether the trial judge erred when he dismissed Delta’s remaining two claims without prejudice.

¶ 18. Delta argues that the trial judge should have “retained jurisdiction” over its due-process and civil-rights claims, citing McDonald's Corp. v. Robinson Industries, Inc., 592 So.2d 927 (Miss.1991). Further, Delta argues that if jurisdiction was not proper in the special court, the trial judge should have transferred the ease to a court of proper jurisdiction, instead of dismissing without prejudice. We find no error in the trial judge’s actions and affirm.

¶ 19. Delta cites McDonald’s for the proposition that special courts of eminent domain have the power to determine questions “that were previously considered within the province of the circuit court.” But Delta reads McDonald’s too broadly. The McDonald’s opinion held only that, when a special court of eminent domain has subject matter jurisdiction of a condemnation proceeding, it may exercise pendent jurisdiction over any questions of title which may arise in the proceedings. Id. at 936. Delta’s due-process and civil-rights claims clearly do not implicate questions of title, so McDonald’s lends no support to Delta’s argument that the special court of eminent domain should have exercised pendent jurisdiction. And because McDonald’s is the only case Delta cites as support, we find that this argument is without merit.

¶ 20. We also find that Delta’s claim that the trial judge should have transferred its remaining claims instead of dismissing them is without merit. Delta cites two cases in support of its argument, but neither is relevant. Although in both cases, this Court held that the action should have been transferred, it did so because of the constitutional mandate that cases mistakenly brought in circuit court should be transferred to chancery court, and vice versa. Neither case discusses the situation at bar. Further, Delta makes no attempt to show that it was prejudiced by the trial judge’s decision to dismiss the claims without prejudice. We therefore affirm the trial judge’s dismissal of Delta’s remaining two claims.

CONCLUSION

¶ 21. Because the trial judge considered matters outside the pleadings, MTC’s motion to dismiss should have been converted into a motion for summary judgment. The trial judge’s failure to convert the motion explicitly into a motion for summary judgment and give Delta notice and a reasonable opportunity to supplement was error, and we reverse and remand. We affirm the trial judge’s decision to dismiss Delta’s remaining two claims without prejudice.

¶ 22. REVERSED AND REMANDED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, KITCHENS, CHANDLER AND PIERCE, JJ„ CONCUR. KING, J., NOT PARTICIPATING.

      . The median closures were part of a highway construction project known as “Stack Phase III." MTC concluded that the median closures were necessary because of safety and traffic flow concerns.

      . This Court discussed "inverse condemnation” in Jackson Municipal Airport Authority v. Wright, 232 So.2d 709 (Miss.1970):
      In many jurisdictions, "inverse condemnation,” or a proceeding in the nature thereof, is a remedy available to one whose land has been taken for public use. "Inverse [condemnation]” has been characterized as an action or eminent domain proceeding initiated by the property owner, rather than the condemnor, and has been deemed to be available where private property has been actually taken for public use without formal condemnation proceedings and where it appears that there is no intention or willingness of the taker to bring such proceedings.

        Id. at 713.

      . This order, according to MTC, clearly designates the relevant portion of Highway 49 a “controlled-access facility.”

      . MTC filed a motion to strike Delta's response because it was untimely. Delta filed a response, and MTC filed a rebuttal. But we find no order in the record granting MTC’s motion to strike, and it is not an issue on appeal.

      . Although the trial judge stated in his order that he had reviewed much outside material, at the hearing on Delta’s motion to reconsider, he stated that he "[c]learly granted the motion to dismiss and did it strictly on the basis of the 1964 [0]rder.”

      . MTC makes much of the fact that the trial judge indicated that the 1964 Commission Order was the sole basis for his decision. But we note that MTC makes no effort to explain how all of the other outside matters presented to the trial judge fit into the Sennett exception.

      . Sullivan v. Tullos, 19 So.3d 1271 (Miss.2009); Wilbourn v. Equitable Life Assurance Society, 998 So.2d 430 (Miss.2008).

      . Benedict v. City of Hattiesburg, 693 So.2d 377 (Miss.1997); Tillotson v. Anders, 551 So.2d 212 (Miss.1989).


source: Caselaw Access Project

author: LAMAR, Justice, KITCHENS, Justice,

license: Public Domain

text:
    Jaison O. HARNESS v. STATE of Mississippi.
    No. 2007-CT-01415-SCT.
    Supreme Court of Mississippi.
    Jan. 20, 2011.
    Rehearing Denied April 21, 2011.
    Jaison O. Harness, Appellant, pro se.
    Imhotep Alkebu-Lan, Virginia L. Watkins, William R. Labarre, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
   ON MOTION FOR REHEARING

ON WRIT OF CERTIORARI

LAMAR, Justice,

for the Court:

¶ 1. The State’s motion for rehearing is granted. The previous opinions are withdrawn and these opinions are substituted therefor.

¶2. Jaison Harness was convicted of aggravated DUI and sentenced to twenty-five years in prison, with ten years suspended and five years of supervised probation. Harness appealed his conviction, and the Court of Appeals affirmed. This Court granted Harness’s petition for writ of certiorari and, finding no error, we affirm his conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 3. On the evening of August 22, 2003, Jaison Harness and Clyde Hampton, traveling in separate vehicles, were involved in a head-on collision. Officer Natyyo Gray was one of the first officers on the scene. Officer Gray testified that he observed Hampton in his vehicle and that he appeared to be “lifeless.” He observed Harness standing beside his vehicle. Harness told Officer Gray that he had just left a “get together,” and that he had been drinking, but that he was not drunk. Officer Gray testified that he thought Harness’s eyes appeared “a little glazed” and that Harness would “move further back” every time Officer Gray would take a step around the car. Harness eventually stated that he was hurting and felt a little dizzy, and he was taken to the hospital. Officer Gray observed an unopened bottle of brandy in the passenger floorboard of Harness’s vehicle and several open beer cans in the driver’s floorboard of Hampton’s vehicle.

¶ 4. Officer Joseph Cotton, another officer at the scene, testified that Hampton and Harness were taken to separate hospitals, and that he went and retrieved blood samples from both men because alcohol was present at the scene of the accident. Hampton died early the next morning from his injuries.

¶ 5. The state crime laboratory received Harness’s blood sample on October 7, 2003. The first analysis of the sample was performed on October 16, 2003, resulting in blood-alcohol readings of .1176 and .1234. But because these results were not within “plus or minus two percent” — the range allowed by the lab’s operating procedures — they were not reported to the State, and a second test had to be conducted. The second analysis of Harness’s blood sample was performed on October 23, 2003, resulting in blood-alcohol readings of .1175 and .1170. A report listing a blood-alcohol level of .11 was then sent to the Jackson Police Department. The report noted:

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.

(Emphasis added.)

¶ 6. On April 8, 2004, Harness was indicted for driving under the influence and causing death in violation of Mississippi Code Sections 63-11-30(1) and 63 — 11— 30(5). On July 22, 2004, Harness received a copy of the crime lab report from the district attorney’s office and filed a motion for discovery, requesting, among other things, his blood sample for independent testing. When the State failed to produce the blood sample, Harness filed a motion to compel on September 30, 2004, and a hearing on the motion was set for November 5, 2004. But the crime lab had disposed of Harness’s blood sample a week after he had filed his motion to compel.

¶ 7. Harness filed a motion to dismiss the indictment, arguing that the crime lab’s destruction of his blood sample denied him the right to an independent test which might have disclosed exculpatory evidence. After a hearing, the trial judge denied the motion, reasoning that there was no evidence of bad faith by the State and that defense counsel also was made aware that the sample would be destroyed within six months when he received the report from the crime lab.

¶ 8. After a trial, the jury found Harness guilty of aggravated DUI, and the trial court sentenced Harness to twenty-five years in prison, with ten years suspended and five years of supervised probation. Harness appealed, arguing five issues:

(1) that the trial court erred when it admitted the expert testimony of Officer Joseph Cotton, the State’s accident re-constructionist; (2) that the trial court erred when it allowed a diagram drawn by Cotton to be admitted into evidence; (3) that the trial court erred in denying Harness’s motion to dismiss the indictment; (4) that the State failed to establish an adequate evidentiary foundation for the blood sample; and (5) that the trial court erred when it disallowed evidence of a release and settlement Harness received from Hampton’s insurer, as well as evidence of a complaint filed against Harness alleging the negligence of a second, unknown individual.

The case was assigned to the Court of Appeals, which affirmed the trial court on all issues.

¶ 9. This Court granted Harness’s petition for writ of certiorari, in which he argued the same five issues. In our original opinion, we addressed issue three only — the trial court’s denial of Harness’s motion to dismiss — and reversed the Court of Appeals. We held that the standard laid out by the United States Supreme Court in California v. Trombetta was insufficient to determine whether a defendant had been deprived of his due-process rights in Mississippi. We found that Harness was entitled to independent testing of his blood sample, and that the State’s failure to honor his timely request for the sample violated his due-process rights.

¶ 10. The State filed a motion for rehearing, asking this Court to clarify whether this heightened due-process standard applied only in DUI cases, or in all cases involving destruction of evidence. The State urged this Court to return to the Trombetta standard, as our statute allowing for independent testing of a blood sample provides no more protection to DUI defendants than that already provided to all defendants under Uniform Circuit and County Court Rule 9.04. After further review, we find errors of both law and fact, and we withdraw our original opinion and substitute this opinion, affirming the trial court and the Court of Appeals. Pursuant to Mississippi Rule of Appellate Procedure 17(h), we limit our review on certiorari to Harness’s third assignment of error.

ANALYSIS

¶ 11. “A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed.” In Trombetta, the United States Supreme Court established a test for determining whether a defendant’s due-process rights have been violated in situations where physical evidence has been destroyed. There, several defendants filed motions to suppress the results of their Intoxilyzer breath tests because the arresting officers had failed to preserve the samples.

¶ 12. In finding for the State, the Supreme Court held that “[w]hatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense.” In order to “play a significant role in the suspect’s defense,” the evidence “must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” The Court found that “the Due Process Clause of the Fourteenth Amendment does not require that law enforcement agencies preserve breath samples in order to introduce the results of breath-analysis tests at trial.”

¶ 13. In Arizona v. Youngblood, the United States Supreme Court explicitly added a bad-faith factor to the Trombetta test: “We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” This Court has applied the three-factor standard established in Trombetta and Young-blood in several cases.

¶ 14. Here, Harness had a right to test the blood sample taken by the State. Uniform Circuit and County Court Rule 9.04 states, in pertinent part:

[T]he prosecution must disclose to each defendant or to defendant’s attorney, and permit defendant or defendant’s attorney to inspect, copy, test, and photograph upon written request and without the necessity of court order the following which is in the possession, custody or control of the State, the existence of which is known or by the exercise of due diligence may become known to the prosecution: (5) Any physical evidence and photographs relevant to the case or which may be offered in evidence ...

(Emphasis added.) But now that the blood sample has been destroyed, Harness must show that it had exculpatory value which was apparent before it was destroyed, that he would be unable reasonably to obtain comparable evidence, and that the State acted in bad faith in order to prevail on his due-process claim. We find that he has not made the first showing — that the blood sample had exculpatory value before it was destroyed — and we therefore affirm the trial court’s denial of his motion to dismiss the indictment.

¶ 15. As already discussed, the crime laboratory tested Harness’s blood sample four times on two occasions. The first two tests resulted in blood-alcohol readings of .1176 and .1234. These results were not reported to the State because the results were outside the standard deviation set by the lab’s internal operating procedures. A week later, the lab conducted two more tests which resulted in blood-alcohol readings of .1175 and .1170.

¶ 16. John Stevenson, the forensic scientist who tested Harness’s blood, testified at length concerning the quality controls implemented by the lab to ensure accurate results, including control samples which the lab runs with each batch of tests. Stevenson also testified that, simply because the first tests had produced readings outside the standard deviation did not mean they were inaccurate. Specifically, Stevenson stated:

The batch itself was good. The batch itself was run along with controls and other data. That doesn’t mean that the batch wasn’t good. That just means that this particular sample was outside the normal standard deviation, which is part of our process. Due to the type of sample we are running, could be blood, urine, or vitreous, that sample has some variances to it. So if it’s outside their range set up by the Mississippi Crime Laboratory then that sample is re-ran [sic].

Stevenson was subjected to cross examination, both at the hearing on the motion to dismiss and at trial.

¶ 17. Thus, Harness’s blood sample was tested four times; and, even giving him the benefit of the lowest result— .1170 — his blood-alcohol level was well over the legal limit. As we stated in Tol-bert v. State: “‘the mere possibility the evidence might aid the defense does not satisfy the constitutional materiality standard.’ ” We find that Harness has failed to meet the first prong of the Trombetta test, as the blood sample did not “possess an exculpatory value that was apparent” before it was destroyed.

¶ 18. Because Harness has failed to prove the first prong of the Trombetta test, we find it unnecessary to discuss the remaining two prongs (i.e., that he would be unable reasonably to obtain comparable evidence, and that the State acted in bad faith). But we feel compelled to address the dissent’s allegation that “despite the trial judge’s suggestions to the contrary, the crime lab personnel were under no compulsion to heed a request to preserve the evidence from anyone but the prosecutor.” (Diss. Op. ¶ 32). John Stevenson clearly testified that the lab would have preserved the sample if asked to do so by defense counsel:

Q. Just one question. If you had received such a letter from a defense counsel asking that the sample be preserved, what steps under the policies and procedures of the Crime Lab would you have taken?
A. The process would have been then taking that item of evidence from the box itself where it was stored and taking it out and putting it in a hold box, an implied consent toxicology hold box within our tox freezer.
Q. So you would have then preserved it. Am I correct?
A. That is correct.
Q. Until further information from the submitting agency?
A. That’s correct.
Q. It didn’t — would it require — well, that’s all. If you got a letter from a defense lawyer saying, please preserve the sample, you would have preserved it until further instruction from the submitting agency?
A. That is correct, sir.

Moreover, the dissent’s lengthy discussion of the State’s affirmative duty to “prosecute responsibly” — a basic principle not disputed by any Justice on this Court — is simply unnecessary for our analysis. Even if we were to agree that the State’s actions were tantamount to bad faith, Harness still would not prevail, as he must meet all three prongs of the Trombetta test in order to have the blood sample suppressed. And as we discussed above, Harness is unable to show that the blood sample had exculpatory value that was apparent before it was destroyed. So we find that Harness’s due-process rights were not violated when the trial court denied his motion to dismiss the indictment and allowed the State to introduce the results from the blood analysis at trial.

CONCLUSION

¶ 19. The trial court did not err when it denied Harness’s motion to dismiss the indictment. Harness has failed to show that the blood sample had exculpatory value before it was destroyed, and we find no denial of due process in this case. We therefore affirm the decisions of the trial court and the Court of Appeals.

¶ 20. CONVICTION OF AGGRAVATED DRIVING UNDER THE INFLUENCE AND SENTENCE OF TWENTY-FIVE (25) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TEN (10) YEARS SUSPENDED AND FIVE (5) YEARS OF SUPERVISED PROBATION WITH FIFTEEN (15) TO SERVE AND CREDIT GIVEN FOR TIME SERVED, AFFIRMED.

WALLER, C.J., CARLSON, P.J., RANDOLPH AND PIERCE, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, P.J., DICKINSON AND CHANDLER, JJ.

KITCHENS, Justice,

Dissenting:

¶ 21. On May 27, 2010, this Court reversed Harness’s conviction with an eight-to-one vote. Because there were no “specific errors of law or fact” in the opinion which would warrant our granting rehearing under Rule 40 of the Mississippi Rules of Appellate Procedure, I respectfully dissent.

I.

¶ 22. The state crime laboratory received blood samples from both Harness and Hampton on October 7, 2003. The first analysis of Harness’s blood sample was performed on October 16, 2008. That test produced results that were not within the reliability parameters established by the crime lab. A week after the initial testing of Harness’s blood sample, the crime lab performed a second analysis on October 23, 2003. No further test was performed on Harness’s blood to check the accuracy of the second test, and the result was forwarded to the prosecutor, via the Jackson Police Department. The laboratory report put the prosecutor on notice that the blood samples would be destroyed within six months unless the crime lab was instructed to preserve the samples. The report contained the following language:

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.

¶ 23. On April 8, 2004, Harness was indicted for aggravated DUI. On July 22, 2004, Harness received a copy of the crime lab report from the district attorney’s office, and that same day, Harness filed a motion for discovery, requesting, inter alia, the blood sample used in the blood-alcohol analysis for independent testing. The district attorney was provided a copy of this motion. When the State failed to produce the blood sample, Harness filed a motion to compel on September 30, 2004, again copying the district attorney’s office. A hearing was set for November 8, 2004. Shortly before the hearing, on October 22, 2004, an investigator from the district attorney’s office contacted the crime lab about the status of the blood sample but was informed that the lab had destroyed the sample just two weeks earlier, on October 7, 2004, a week after the defendant’s motion to compel had been filed and served on the district attorney.

¶24. Harness moved to suppress the results of the blood analysis. At the hearing on the motion, John Stevenson, a forensic scientist with the state crime lab, testified that, prior to the October 22, 2004, call from the district attorney’s office, neither the State nor the defense had contacted the lab about preserving the evidence. Stevenson testified that, although a defendant could request preservation of evidence, only the State had the authority to order that the sample be preserved.

¶ 25. The trial judge overruled the motion to suppress, reasoning that the destruction of the blood sample was not done in bad faith, as such samples are routinely destroyed within six months to a year. Furthermore, although it was undisputed that the defendant could not have compelled the crime lab to preserve the evidence, the trial judge found it noteworthy that the defense had failed to contact the crime lab directly.

II.

¶ 26. Due process of law is a fundamental right found in both the United States Constitution and the Mississippi Constitution. U.S. Const, amend. XIV; Miss. Const, art. 3, § 14. The Court of Appeals, and a majority of this Court on rehearing, relied on the rule set forth in California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), to hold that Harness was not deprived of due process after the State failed to preserve Harness’s blood sample, allowing it to be destroyed. In Trombetta, the United States Supreme Court held that when preservation of evidence is at issue, due process of law is denied only where the destroyed evidence was expected to play a significant role in the defense. Id., 467 U.S. at 488-90, 104 S.Ct. 2528. The Supreme Court noted that evidence plays a significant role in the defense only where (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 comparable evidence to mount a defense. Id. Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.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. This Court has applied this three-pronged federal standard in several cases. See e.g., State v. McGrone, 798 So.2d 519, 522-23 (Miss.2001); Banks v. State, 725 So.2d 711 (Miss.1997); Taylor v. State, 672 So.2d 1246 (Miss.1996); Holland v. State, 587 So.2d 848, 869 (Miss.1991).

¶ 27. The Court of Appeals found the first prong dispositive, reasoning that because the lowest test result of Harness’s blood-alcohol level was 0.1170%, well over the legal limit, the blood sample lacked exculpatory value. This logic presupposes that this result was accurate, notwithstanding the state crime lab’s determination that its first attempt to analyze the evidence had produced a questionable result, based on that facility’s self-imposed reliability criteria.

¶ 28. The Court of Appeals also noted that the defense attorney represented that he believed the destruction of the blood sample was not intentional. However, we need not address whether the Court of Appeals was correct in its interpretation of the test found in Tolbert v. State, 511 So.2d 1368 (Miss.1987), because the circumstances surrounding the instant case present additional due process concerns that cannot fully be addressed by the application of the federal standard.

¶ 29. The preservation of evidence is especially important when the evidence in question is a blood sample taken from a person suspected of driving under the influence. In such cases, a defendant in Mississippi’s state courts has a statutory right independently to test the sample for blood-alcohol content. Miss.Code Ann. § 63-11-13 (Rev.2004). This statutory right is firmly rooted in due process concerns, to ensure the accused’s ability to mount a defense and thoroughly confront the evidence against him. As our case law demonstrates, Mississippi law affords a greater level of due process protection than the standards provided in Trombetta and its progeny.

¶ 30. In Scarborough v. State, 261 So.2d 475 (Miss.1972), we examined this statutory provision for the first time and held that an unreasonable denial of a defendant’s request for a blood test amounts to a denial of due process of law. Following his arrest for driving under the influence, Scarborough was held incommunicado, and his requests for a blood test were denied. Id. at 477. During court proceedings, it was revealed that this was standard police procedure. Id. The Court noted that:

This practice will become particularly acute when the Mississippi Implied Consent Act goes into effect April 1, 1972. The Legislature included within the act a provision giving an accused the right to an additional test conducted by anyone of his choice who is qualified. If such a practice is allowed to continue, it would in fact nullify the statute and frustrate the intention of the Legislature.

Id. at 478 (internal citation omitted). As in Scarborough, the destruction of a blood sample after the State has been notified of the defendant’s desire to conduct an independent test would “nullify the statute and frustrate the intention of the Legislature.”

¶ 81. More importantly, however, the Scarborough decision held that violation of the statute necessarily carried with it the potential violation of a defendant’s constitutional right to due process of law:

We do not think the rights of the respondent are to be ascertained from an examination of the statute. Rather they are determined by the constitutional guarantee that one may be deprived of his liberty only by due process of law. Due process of law is another name for governmental fair play. Fair play requires, for example, that a respondent in a criminal case must be given a reasonable opportunity to employ and consult with counsel before trial. We think that for the same basic reasons a respondent charged with operation of a motor vehicle while under the influence of intoxicating liquor is entitled to a reasonable opportunity to attempt to procure the seasonable taking of a blood sample for test purposes.

Id. (quoting State v. Munsey, 152 Me. 198, 127 A.2d 79 (1956) (internal citations and quotations omitted) (emphasis added)). Thus, the unreasonable denial of a defendant’s request for a blood test pursuant to Mississippi Code Section 63-11-13 amounts to a denial of due process of law.

¶ 32. Likewise, the unreasonable denial of a defendant’s request for an independent blood test under the same statutory provision discussed in Scarborough also will amount to a denial of due process of law. Miss.Code Ann. § 63-11-13 (Rev. 2004). In Scarborough’s case, the defendant’s request was reasonably denied because he was uncooperative with the arresting officer and failed to show that a blood sample could have been obtained. Scarborough, 261 So.2d at 480. However, the circumstances in the present case are quite different, and, unlike Scarborough, Harness was unreasonably denied his right to an independent blood test. Harness complied with all of the procedures required to protect his right to an independent test. He timely filed a motion for discovery of the blood sample on July 22, 2004, and when the State failed to respond, he followed with a motion to compel on September 30, 2004. Even though the State was on notice from Harness’s motions that he desired to exercise his right to independent testing, the district attorney’s office did not communicate with the crime lab until October 22, 2004, fifteen days after the blood had been destroyed. The prosecution’s call to the crime lab was made a full three months after the defendant had notified the district attorney, by written motion, that he desired a blood sample for independent testing. The State was fully aware a year earlier from the crime lab’s report that the blood would be disposed of as early as six months thence, and despite the trial judge’s suggestions to the contrary, the crime lab personnel were under no compulsion to heed a request to preserve the evidence from anyone but the prosecutor. That the crime laboratory’s first round of testing was not within that lab’s own reliability parameters renders the State’s disregard of Harness’s timely request even more disturbing.

¶ 33. While these facts, taken together, may not demonstrate a specific intent to destroy the blood sample, the district attorney’s indifference to the defendant’s efforts to obtain independent testing, which is both a statutory and constitutional right, is tantamount to a willful disregard of the affirmative duty to preserve evidence that “might be expected to play a significant role in the suspect’s defense.” Tolbert, 511 So.2d at 1372 (citing Trombetta, 467 U.S. at 489, 104 S.Ct. 2528). Due process of law demands that the State disclose to criminal defendants any and all evidence relevant to guilt or to punishment. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Likewise, our uniform rules require that the prosecution “disclose to each defendant or to defendant’s attorney, and permit defendant or defendant’s attorney to inspect, copy, test, and photograph upon written request ... any physical evidence ... relevant to the case or which may be offered in evidence.” URCCC 9.04(A)(5) (emphasis added). Further, the State has an affirmative duty to prosecute responsibly, and to this point, Mississippi Rule of Professional Conduct 3.8(d) makes clear that in all criminal cases the prosecutor “shall make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.” A prosecutor is not merely an advocate, but a “minister of justice.” Miss. R. Profl. Conduct 3.8 cmt. Accordingly, a prosecutor’s duty requires diligence to ensure a defendant is afforded procedural justice and that guilt is decided upon the basis of sufficient evidence. Id. Though the prosecutor in this case may not have set out deliberately to deprive the accused of his right to independent testing, his error in failing to undertake steps to preserve the defendant’s right to such testing produced the same result as if he had purposely caused the evidence to be destroyed without the defendant’s being allowed to test it.

¶ 34. Finally, we note that, even before the enactment of the implied consent law, this Court recognized that, in certain cases, the accused is constitutionally entitled independently to inspect and analyze material, tangible evidence. In Jackson v. State, 243 So.2d 896, 397 (Miss.1971), the defendant was convicted of possession of marihuana-based material seized from his car, which the state chemist determined to be marihuana. Id. The State refused to give the defendant a sample of the seized substance in order that he might obtain independent testing at his own expense, and the trial court overruled the defendant’s motion to compel production of a sample. Id. This Court reversed, holding that the denial of the defendant’s request for independent testing amounted to a denial of due process. In reaching this decision, the Court noted that “[t]here is no good reason why the defendant in a civil case should be entitled to more liberal right to tangible evidence in the possession of his adversary ... than is a person under a serious criminal charge.” Id. at 398 (quoting Armstrong v. State, 214 So.2d 589, 596 (Miss.1968)). Although the ruling was “limited to the alleged possession or sale of a prohibited substance where the outcome of the case is dependent upon its identification as contraband,” the same reasoning applies in DUI cases where the outcome of the case is dependent upon the amount of alcohol in the accused’s blood:

The guilt or innocence, prison sentence or acquittal, of the defendant depends entirely upon the identification of the contents of the boxes as marijuana. This substance was relevant, material, competent and, in fact, necessary evidence to defendant’s conviction. Under this circumstance we are of the opinion that due process of law requires, upon the court’s attention being directed thereto by motion, that the analysis of the substance not be left totally within the province of the state chemist.

Id. (emphasis added).

¶ 35. As in Jackson, the State’s inaction denied Harness an opportunity to test the key piece of evidence in this case. This evidence was at all times under the complete control of the State, and the State was fully aware of its importance as well as the defendant’s desire to obtain an independent analysis. In our adversarial system, it is fundamentally unfair to allow only one party access to the evidence. No scientific test or expert is infallible, a point underscored by the crime lab’s failure to obtain an acceptable result from the first round of testing, and the opposing party always should be given a reasonable opportunity to scrutinize his adversary’s case. This is especially important in criminal cases where liberty is at stake. The State’s failure to respond to Harness’s request prevented him from fully defending himself against the crime with which he was charged.

¶ 36. Harness’s conviction should be reversed and his case remanded for a new trial. If that were done and the State’s blood analysis were deemed admissible by the trial court, the jury should be given a negative-inference instruction, on the following order:

The Court instructs the jury that, if you find from the evidence that the State has failed to preserve any physical evidence whose contents or quality are in question in this case, and which the defendant could have had tested or analyzed by a qualified expert of his choosing, but for the State’s having failed to cause that evidence to be preserved for independent, expert testing or analysis by the defense, then you may infer that such testing or analysis would have been favorable to the defendant and unfavorable to the State. However, if you choose to make the negative inference against the State, this would not necessarily result in the defendant’s acquittal. If other evidence on this issue has been presented to you which either establishes the fact or resolves the issue to which the missing evidence is relevant, then you must weigh that evidence along with all other evidence. If, after considering all of the evidence, including the negative inference, you unanimously believe that the defendant has been proven guilty, beyond a reasonable doubt, then your verdict shall be, “We, the jury, find the defendant guilty.”

III.

¶ 37. The standard announced by the United States Supreme Court in Trombet-ta is not sufficient to protect the due process rights accorded under Mississippi law. Trombetta, 467 U.S. at 488-90, 104 S.Ct. 2528. In DUI cases, the accused is entitled to independent testing of an available blood sample, at his own expense, provided a timely and proper request is made. Because the State failed to honor Harness’s timely and proper request and allowed the key evidence against him to be destroyed, he was unreasonably denied due process of law. Therefore, I would reverse his conviction and remand the case for a new trial, and I respectfully dissent from today’s majority decision to the contrary.

GRAVES, P.J., DICKINSON AND CHANDLER, JJ., JOIN THIS OPINION.

      . Harness v. State, 58 So.3d 12 (Miss.Ct.App.2009).

      . The crime lab also received Hampton's blood sample on October 7, 2003. Hampton’s blood-sample analysis resulted in a blood alcohol reading of .03.

      .Each sample is tested in duplicate as part of the crime lab's methodology.

      . Harness also had filed a motion to suppress the results from the blood-sample analysis, and he argued on appeal that the trial court’s denial of that motion was in error as well. But in that motion, Harness argued that the blood evidence should be suppressed because it was illegally seized by authorities. Harness does not reiterate that argument on appeal.

      . Harness v. State, 58 So.3d 12 (Miss.Ct.App.2009).

      . California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984).

      . We relied on Mississippi Code Section § 63-11-13 (Rev.2004), which states:
      The person tested may, at his own expense, have a physician, registered nurse, clinical laboratory technologist or clinical laboratory technician or any other qualified person of his choosing administer a test, approved by the state crime laboratory created pursuant to section 45-1-17, in addition to any other test, for the purpose of determining the amount of alcohol in his blood at the time alleged as shown by chemical analysis of his blood, breath or urine. The failure or inability to obtain an additional test by such arrested person shall not preclude the admissibility in evidence of the test taken at the direction of a law enforcement officer.

      . Uniform Circuit and County Court Rule 9.04 states, in pertinent part:
      A. [T]he prosecution must disclose to each defendant or to defendant’s attorney, and permit defendant or defendant’s attorney to inspect, copy, test, and photograph upon written request and without the necessity of court order the following which is in the possession, custody or control of the State, the existence of which is known or by the exercise of due diligence may become known to the prosecution: (5) Any physical evidence and photographs relevant to the case or which may be offered in evidence ....

      . Trombetta, 467 U.S. at 485, 104 S.Ct. 2528.

      . Id.

      . Id. at 482-83, 104 S.Ct. 2528.

      . Id. at 488, 104 S.Ct. 2528 (emphasis added).

      . Id. at 489, 104 S.Ct. 2528.

      . Id. at 491, 104 S.Ct. 2528.

      . Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988).

      . The Trombetta Court had discussed the lack of bad faith by the State in destroying the breath samples, even though it did not mention it as the third factor to the test. Trombetta, 467 U.S. at 488, 104 S.Ct. 2528.

      . See e.g., State v. McGrone, 798 So.2d 519, 522-23 (Miss.2001); Taylor v. State, 672 So.2d 1246, 1271 (Miss.1996); Holland v. State, 587 So.2d 848, 869 (Miss. 1991); Tolbert v. State, 511 So.2d 1368, 1372-73 (Miss.1987).

      . Tolbert v. State, 511 So.2d 1368, 1372 (Miss.1987) (quoting United States v. Binker,
        795 F.2d 1218, 1230 (5th Cir.1986)).

      . Trombetta, 467 U.S. at 489, 104 S.Ct. 2528.

      . The crime lab also analyzed Hampton's blood sample and reported a 0.03 percent ethyl alcohol content in his blood.

      . Mississippi’s implied consent law contains the following provision:
      The person tested may, at his own expense, have a physician, registered nurse, clinical laboratory technologist or clinical laboratory technician or any other qualified person of his choosing administer a test, approved by the state crime laboratory created pursuant to section 45-1-17, in addition to any other test, for the purpose of determining the amount of alcohol in his blood at the time alleged as shown by chemical analysis of his blood, breath or urine. The failure or inability to obtain an additional test by such arrested person shall not preclude the admissibility in evidence of the test taken at the direction of a law enforcement officer.
      Miss.Code Ann. § 63-11-13 (Rev.2004). Although the final sentence provides that a violation of this right will not preclude the admission of the State's test results, we repeatedly have held that rules governing the admissibility of evidence are strictly within the province of the courts and are not a legislative matter. Deeds v. State, 27 So.3d 1135, 1141 (Miss.2009) (citing Whitehurst v. State, 540 So.2d 1319, 1323 (Miss.1989); Hall v. State, 539 So.2d 1338 (Miss.1989); M.R.E. 1103).


author: IRVING, J.,

text:
    Jaison O. HARNESS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-01415-COA.
    Court of Appeals of Mississippi.
    May 19, 2009.
    Rehearing Denied Sept. 29, 2009.

      William R. Labarre, Virginia Lynn Watkins, attorneys for appellant.
    Office of the Attorney General by LA Donna Holland, attorney for appellee.
    Before KING, C. J., IRVING and ROBERTS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Jaison Harness was convicted in the Hinds County Circuit Court of aggravated driving under the influence and sentenced to serve a term of twenty-five years, with ten years suspended and five years of supervised probation, in the custody of the Mississippi Department of Corrections.

¶ 2. Aggrieved, Harness appeals and asserts the following issues, which we quote verbatim:

(1) The trial court erred when it admitted the testimony of Joseph Cotten as an accident reconstructionist because Cotten failed to qualify as an expert under Mississippi Rule of Evidence 702; thus, the substantial right of Mr. Harness to a fundamentally fair trial was fatally compromised;
(2) The trial court abused its discretion when it admitted into evidence a diagram by Joseph Cotten as it was an incorrect and incomplete depiction of the accident scene, irrelevant, confusing to the jury and prejudicial to a fair hearing of the cause against Mr. Harness;
(3) The trial court erred in denial of the Motion to Dismiss and Motion to Suppress due to the destruction of blood drawn from Mr. Harness; destruction of this crucial evidence deprived him of his fundamental rights to due process of law and to confront evidence mounted against him under Amends. V, VI, XIV, U.S. Const, and Art. Ill, §§ 14, 26, Miss. Const.;
(4) The State failed to establish an adequate evidentiary foundation to admit evidence of a blood sample allegedly drawn from Mr. Harness. The trial court further erred when it held Miss. R. Evid. 803(5) applied to permit presentation of otherwise inadmissible evidence to the jury; and
(5) The trial court violated the fundamental right of Mr. Harness to mount a defense when it denied admission of the release and settlement he received from [Clyde] Hampton’s insurer and evidence of a complaint filed against him alleging the negligence of a second, unknown individual.

¶ 3. Finding no reversible error, we affirm.

FACTS

¶ 4. Clyde Hampton died as a result of injuries that he suffered in a head-on collision on August 22, 2003, when a vehicle driven by Harness collided with his vehicle. The vehicles were traveling on Wes-thaven Boulevard in Hinds County when the accident occurred. Harness was indicted for, and found guilty of, aggravated DUI.

¶ 5. During Harness’s trial, Bobbie Moore testified that on August 22, 2003, around 11:30 p.m., she was traveling in the southbound lane of Westhaven Boulevard in Hinds County and that Hampton was also traveling southbound in a white GMC truck approximately six car lengths behind her. Moore said that as she proceeded along Westhaven Boulevard, she saw a blue Mercury traveling toward her in the northbound lane. The Mercury was being driven by Harness. Moore further testified that Harness’s car drifted over the yellow line in the center of the road, causing her to veer off the road to avoid being hit. According to Moore, after she got back on the road, she became concerned for Hampton in the vehicle behind her, so she looked in her rearview mirror. At that point, she saw Harness’s car and Hampton’s truck collide head-on in Hampton’s lane.

¶ 6. The police department, fire department, and an ambulance responded to the scene. Officer Natyyo Gray testified that when he arrived, he saw Harness standing by his car and saw Hampton in the driver’s seat of his truck, appearing “lifeless.” Officer Gray stated that after Harness gave him his driver’s license and proof of insurance, Harness then informed the officer that he had just left a social function. Although Harness admitted that he had been drinking, he stated that he was not drunk. Officer Gray further stated that he walked around Harness’s car and found an unopened bottle of brandy on the passenger floorboard.

¶ 7. Around midnight, Officer Joseph Cotten, an accident reconstructionist with the Jackson Police Department, arrived at the scene. Officer Cotten testified that he made markings at the scene to preserve each vehicle’s final resting place. Officer Cotten also testified that in the early morning hours of August 28, he went to the Baptist Hospital to visit Hampton who was unconscious. He stated that he smelled alcohol on Hampton’s breath, prompting him to request a blood sample. Officer Cotten stated that he provided a blood alcohol-kit to be utilized by the nurse in drawing the sample. According to Officer Cotten, he recovered the kit from the nurse, labeled it, sealed it, and later placed it into the evidence locker at the precinct.

¶ 8. Officer Cotten stated that after he left Hampton around 2:30 a.m., he went to the Central Mississippi Medical Center to visit Harness. He stated that Harness was semiconscious and that “he was in and out, I couldn’t understand what he was saying.” Officer Cotten further stated that, as was the case with Hampton, he also smelled alcohol on Harness and requested that a blood sample be drawn from Harness. Officer Cotten testified that he saw Nurse Noreen Kenny when she drew the blood sample from Harness around 3:25 a.m. and transferred it into the blood-sample kit that he had provided for her. Officer Cotten also labeled this kit, sealed it, and later placed it into the evidence locker.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 9. Although he argues several points of error, Harness’s central argument is that the trial court erred in allowing certain pieces of evidence and expert testimony to be admitted. It is well settled that the standard of review for the trial court’s admission of evidence is abuse of discretion. Delashmit v. State, 991 So.2d 1215, 1218(119) (Miss.2008) (citing Debrow v. State, 972 So.2d 550, 552(¶ 6) (Miss.2007)). However, when a question of law is raised, the applicable standard of review is de novo. Id. “A case may be reversed based on the admission of evidence if the admission results ‘in prejudice and harm’ or adversely affects a substantial right of a party.” Smith v. State, 839 So.2d 489, 495(¶ 8) (Miss.2003) (quoting Farris v. State, 764 So.2d 411, 428(¶ 57) (Miss.2000)).

1. Expert Testimony

¶ 10. Harness argues that the trial court erred when it admitted the testimony of Officer Cotten as an accident recon-structionist because Officer Cotten had not completed the academic requirements at the time of the accident to qualify as an expert under Rule 702 of the Mississippi Rules of Evidence. In Harness’s view, this lack of academic credentials resulted in Officer Cotten’s testimony being irrelevant and unreliable. He further asserts: “the fact that the trial court sanctioned a clearly unqualified individual as an expert witness lent undue weight to his testimony in [Officer Cotten’s] customary role as [lead] investigator.”

¶ 11. Officer Cotten testified that the academic requirements for becoming a certified accident reconstructionist required three levels of training and a two-day state certification exam. Officer Cotten completed the first level of training in April 2003 and the second level in May 2003. The third level of training covered momentum. Officer Cotten completed this level in October 2003 and became fully certified as an accident reconstructionist in January 2004. On the night of the accident, Officer Cotten used the methods that he had learned in the first two levels of his certification training. Only after completing the third level of training did he use the information that he had gathered from the accident scene to do an in-line momentum test. Officer Cotten completed the accident reconstruction report in November 2003, one month after he had completed all course requirements to be certified as an accident reconstructionist.

¶ 12. Rule 702 of the Mississippi Rules of Evidence states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

¶ 13. As shown, Officer Cotten did not possess all of the skills of an accident reconstructionist on the date of the accident. He had only completed two of the three certification courses. However, he utilized the skills he had acquired up to the date of the accident to make his initial findings and finished the report only after he had acquired skills from the final course. In finding that Officer Cotten was qualified to give expert testimony, the trial court stated in pertinent part:

Subsequent to this collision the witness completed levels two and three of his training as an accident reconstructionist and upon completion of that training and being certified by the State of Mississippi as an accident reconstructionist the Court is of the opinion that the witness possesses the necessary knowledge, training, and skill to testify as an accident reconstructionist in all areas within that field which would include conclusions or opinions concerning momentum and speed.
As of the time of the collision the officer did not possess that knowledge, training or education. However, the Court is of the opinion that there is no reason that once obtaining that specialized knowledge, training, and education that the witness could not go back, as he did, and review the data collected during the course of his investigation and from that data, photographs, and other evidence, form a reliable opinion concerning momentum and speed and other matters that fall within the realm of being an accident reconstruction expert.

(Footnote added).

¶ 14. By the time of the trial, Officer Cotten had reconstructed seventy-two automobile accidents. Applying the standards of Rule 702 and our well-settled standard of review, we cannot conclude that the trial court abused its discretion or that its decision to accept Officer Cotten as an expert witness was an abuse of discretion. Therefore, this contention of error is without merit.

2. Diagram

¶ 15. Next, Harness argues that the trial court abused its discretion when it admitted into evidence a “not-to-scale” diagram created by Officer Cotten. Harness argues that the diagram was irrelevant and that he was prejudiced when it was admitted into evidence because the diagram was inaccurate as to the placement of the vehicles.

¶ 16. During trial, the State explained to the court that the diagram was not to scale. In fact, the diagram had the words “not to scale” written on it. The State further explained that the “diagram is a composite of the matters that are set out in individual places in the photographs.” According to the State, the purpose of the diagram was to give the jury meaning to the measurements that were taken by Officer Cotten.

¶ 17. In allowing the diagram into evidence, the trial court stated:

As long as the witness’s and, as I understand it, the witness’s opinion testimony or conclusions or findings are going to be based on the actual measurements taken as shown in the photographs are of those things that are shown in the photographs, being the placement of the automobiles, the location on the road, the gouge marks and so forth, as I understand both [the] prosecution and [the] defense, this drawing is going to be for demonstrative purposes.
⅜ ⅜ ⅜ ⅝ ⅜ ⅜
As long as his opinion is not predicated on matters in the drawing and it’s based on firsthand observations, measurements taken and things as shown in the photographs, I’ll allow the drawing to be used as a demonstrative exhibit.
If, however, it becomes [evident] that the witness is basing his opinion on the drawing itself, as [defense counsel] has pointed out, it doesn’t take much comparing the photographs of the vehicle with the drawing to see that the placement of the defendant’s car is not the same.
If we have a situation that the basis of his opinion is based on something that’s clearly factually in error, then I’m going to strike his opinion entirely.

¶ 18. We find that the trial court did not abuse its discretion in admitting the diagram, as the trial court was clear that the drawing was only allowed for demonstrative purposes and that Officer Cotten’s conclusions could only be based on the photographs which depicted the actual placement of the vehicles. Therefore, this contention of error is also without merit.

3. Motion to Dismiss and Motion to Suppress

¶ 19. On July 22, 2004, Harness filed a motion for discovery, requesting that the State produce for independent testing a sample of his blood that was utilized to determine his blood-alcohol content. The State did not respond to the discovery request. Accordingly, on September 30, 2004, Harness filed a motion to compel, and a hearing was set for November 8, 2004. However, at the hearing, it was revealed that, unbeknownst to the State and to Harness, the sample had been destroyed by the crime lab on October 7, 2004.

¶20. Stevenson testified that neither the district attorney’s office nor anyone representing Harness contacted the crime lab about the sample before it was destroyed. According to Stevenson, samples are routinely disposed of six months after the analyses are completed. The crime lab’s report was completed on October 24, 2003, and forwarded to the State. The report contained the following language:

This report represents the analytical results of the examinations performed on the items of evidence in this case. It should be noted that this report does not represent all documentary items contained in the master file. 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.

(Emphasis added). At the conclusion of the hearing, the trial court denied Harness’s motion.

¶ 21. Harness asserts that the trial court erred in denying this motion to dismiss and his motion to suppress because the destruction of his blood sample deprived him of due process and of the right to confront the evidence against him. He cites California v. Trombetta, 467 U.S. 479, 488, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) for the proposition that the prosecution is under a duty to preserve evidence expected to play a determinative role in the defense of the criminally accused. He states that in order to determine whether the fundamental rights of a defendant to a fair trial have been fatally prejudiced by the prosecution’s destruction of evidence, a reviewing court must engage in a two-prong test. First, the “evidence must possess an exculpatory value that was apparent before the evidence was destroyed.” Id. at 489, 104 S.Ct. 2528. Second, “[the evidence must] be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id.

¶ 22. We agree that Harness has stated the correct test. However, we find that Harness cannot meet the first prong of the test — that the evidence was apparently exculpatory. The lowest test results of Harness’s blood-alcohol level was 0.1170, which is well over the legal limit. Therefore, it cannot be legitimately argued that the State acted in bad faith in destroying Harness’s blood sample since there was nothing exculpatory about the sample. Because Harness fails to meet the first prong of Trombetta, there is no need for us to consider the second prong. We may add as a point of interest, however, that Harness’s attorney repeatedly stated during the motion hearing that he did not believe that the evidence was destroyed intentionally. Therefore, this contention of error is without merit.

A Foundation for Admission of Blood Sample

¶ 23. Next, Harness contends that the State failed to establish the proper foundation for admission of his blood sample into evidence. Specifically, Harness argues that there was a lack of foundation because Nurse Kenny, who allegedly drew the blood, testified that she did not recall seeing Harness or Officer Cotten, nor did she remember the morning of August 23, 2003. Most importantly, however, Harness points out that Nurse Kenny did not remember complying with the request of Officer Cotten to draw a blood sample from Harness.

¶ 24. Harness is correct in his contention that Nurse Kenny did not have an independent recollection of the events surrounding her drawing of his blood on August 23, 2003. However, Officer Cotten testified that he completed the law enforcement official’s portion of the department’s standard form for a blood draw in DUI cases and, thereafter, tendered the form to Nurse Kenny. He also testified that he observed Nurse Kenny complete the portion of the form that is required to be completed by the medical official who draws the blood sample. He also observed her while she drew the blood. As stated, Nurse Kenny did not remember the specific event. However, she testified that the form bore her signature and that she would have signed it on the day that is reflected on the form because that was her normal practice. She further testified that she would not have signed the form attesting to certain matters reflected on the form unless she had in fact done or performed those matters as reflected. Thereafter, the court allowed Nurse Kenny to read the contents of the form pursuant to the authority of Rule 803(5) of the Mississippi Rules of Evidence, which states:

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence, but may not itself be received as an exhibit unless offered by an adverse party.

¶ 25. We note that the comment to Rule 803(5) provides that before this hearsay exception can be utilized, there must be a “preliminary showing that the witnesses] memory is exhausted to the extent that he is unable to testify fully and accurately.” M.R.E. 803(5) cmt. It is clear in this record that Nurse Kenny’s memory was completely exhausted and that she was unable to testify in any respect regarding the drawing of Harness’s blood. Therefore, we find that the trial court did not err in finding that a proper evidentiary foundation had been laid when it allowed Nurse Kenny to read from the form as authorized by Rule 803(5). Accordingly, this contention of error is without merit.

5. Release, Settlement, and Complaint

¶ 26. Lastly, Harness contends that the trial court violated his fundamental right to mount a defense when it refused to allow him to present information about a release and settlement that he received from Hampton’s insurer. He also claims that the trial court committed additional error by refusing to allow a complaint that allegedly was filed against him by Hampton’s heirs to be admitted into evidence. Apparently the complaint, in addition to alleging negligence on the part of Harness, alleged that a second, unknown individual was also negligent. As to the release and settlement, Harness contends that he should have been allowed to testify that he received a fifty-thousand-dollar settlement check from Hampton’s insurance company and that the insurance company’s representative informed him that the company was paying the money because it had determined that Hampton was at fault in causing the accident.

¶ 27. The trial court found that Harness’s proposed testimony was irrelevant, hearsay, and prohibited by Rule 408 of the Mississippi Rules of Evidence and that the complaint did not disprove Harness’s negligence. Therefore, the court found that the complaint was also irrelevant.

¶ 28. In his brief, Harness argues that Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) stands for the proposition or principle “that substantive constitutional concerns must have sway over procedure when the issue is a fundamental constitutional right, such as the right to mount a defense.” In Crane, the trial court determined that once a confession has been found voluntary, the evidence that supported that finding may not be presented to the jury for any other purpose. Id. at 687, 106 S.Ct. 2142. The Supreme Court found that the lower court’s decision “[rested] on the apparent assumption that evidence bearing on the voluntariness of a confession and evidence bearing on its credibility fall in conceptually distinct and mutually exclusive categories.” Id. In reversing the lower court on this issue, the Supreme Court stated:

Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants “a meaningful opportunity to present a complete defense.” (“The Constitution guarantees a fair trial largely through the several provisions of the Sixth Amendment”). We break no new ground in observing that an essential component of procedural fairness is an opportunity to be heard. That opportunity would be an empty one if the State were permitted to exclude competent, reliable evidence bearing on the credibility of a confession when such evidence is central to the defendant’s claim of innocence. In the absence of any valid state justification, exclusion of this kind of exculpatory evidence deprives a defendant of the basic right to have the prosecutor’s case encounter and “survive the crucible of meaningful adversarial testing.”

Id. at 690-91, 106 S.Ct. 2142 (internal citations omitted).

¶ 29. We find nothing in Crane that requires admission of the evidence that the trial court excluded. It is axiomatic in American jurisprudence, and well established by our rules of evidence, that only relevant evidence is admissible in a court of law.

¶ 30. Here, the trial court noted that although the complaint alleged that another individual contributed to the accident, it also made factual allegations of negligence against Harness. The trial court stated that the complaint was irrelevant because “the fact that another defendant, another person, may have contributed to the accident would not relieve Mr. Harness of any criminal liability for which a jury would [sic] otherwise find.” In addition to the reasoning articulated by the trial court, we note that a civil complaint is nothing more than the pleader’s version of a set of facts and the legal consequences flowing therefrom, which the pleader hopes to prove. It neither adjudicates nor proves anything. The complaint could not assist the jury in determining whether, on the night of August 22, 2003, Harness negligently caused or contributed to Hampton’s death. In Holliday v. State, 418 So.2d 69, 71 (Miss.1982) (quoting Schroer v. State, 250 Miss. 84, 91, 160 So.2d 681, 684 (1964)) (internal citation omitted), our supreme court stated:

The unlawful act or omission of accused need not be the sole cause of death. The test of responsibility is whether the act of accused contributed to the death, and, if it did, he is not relieved of responsibility by the fact that other causes also contributed. Moreover, responsibility also attaches where the injury materially accelerates the death, although the death is proximately occasioned by a preexisting cause.

Therefore, since the complaint could not assist the jury in answering the sole question that Holliday requires must be answered, we agree with the trial court that it was irrelevant.

¶ 31. We also agree with the trial court that any documentation regarding the settlement and release in the civil lawsuit is likewise irrelevant. As stated, the trial court determined that admission of the information was also prohibited by Rule 408 of the Mississippi Rules of Evidence, which provides in pertinent part:

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible.

(Emphasis added). The comment provides the justification for the rule, stating: “The rule is based on two reasons. First, the evidence is irrelevant, since the offer may be motivated by a desire for peace rather than by a recognition of liability. Second, public policy favors out-of-court compromises and settlement of disputes.” M.R.E. 408 cmt.

¶32. We note that the rule is aimed primarily at information regarding settlement and negotiations in civil cases. This conclusion is borne out by the rule’s use of words and phrases such as amount, valuable consideration, claim, and invalidity of the claim-words and phrases that are not normally used in the adjudication of guilt in the criminal context. In a general sense, an indictment asserting that a defendant is guilty of a particular crime is a claim that he is guilty of that crime. Nevertheless, in the body of jurisprudence, we refer to the indictment as charging, not claiming, the defendant with a crime. Attempts to resolve the charges are not referred to as attempts at compromising the claim but are referred to as plea negotiations. In any event, proof that one’s actions do or do not give rise to civil liability neither proves nor negates criminal responsibility for those same actions. Therefore, whether Rule 408 was an appropriate vehicle upon which to deny admission of the information need not be decided, as the overarching point is that the decision refusing to allow admission of the evidence was proper, as the information is clearly irrelevant.

¶ 33. Finally, as to Harness’s claim that he should have been allowed to testify about what he was told as the reason for his being given the check, it is sufficient to say that any such testimony would have been hearsay, as it would have been offered in an effort to prove that Hampton’s negligence was the sole proximate cause of the accident. Harness has not pointed us to any exception to the hearsay rule which allows admission of this information. Therefore, we also find no error in the trial court’s ruling on this point. There is no merit to this issue, as well as to the other issues presented. The record reflects that Harness received a fair trial.

¶ 34. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF AGGRAVATED DUI AND SENTENCE OF TWENTY-FIVE YEARS, WITH TEN YEARS SUSPENDED AND FIVE YEARS OF SUPERVISED PROBATION, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. MAXWELL, J., NOT PARTICIPATING.

      . John Stevenson, a forensic scientist with the state crime laboratory, testified that Hampton's blood-alcohol level was 0.03.

      . Officer Cotten stated that he filled out the standard form which the department uses as authority for medical providers to obtain blood samples of persons involved in vehicular-homicide cases.

      . The test revealed that Harness’s blood-alcohol-content level was 0.11.

      . Officer Cotten testified that in his opinion, Harness’s vehicle was traveling sixty-seven miles per hour at the point of impact and was at least 5.1 feet over the centerline.

      . As we have already noted, Officer Cotten completed level two before the accident. Therefore, the trial court was in error here.