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Samples here were collected and sent to crime lab as a reference sample for DNA testing. “Because OCGA § 17–5–56 requires the preservation of biological materials ‘that relate to the identity of the perpetrator,’ not samples that a defendant may seek with regard to an issue unrelated to identity, such as his level of intoxication, Clay's contention here is meritless. Furthermore, … because the blood samples were reference materials and, by the statute's express language, reference materials are not required to be preserved, see OCGA § 17–7–56(a), Clay's argument on this issue fails.” 2. Evidence wasn’t obviously exculpatory. Blood samples here were taken more than 48 hours after the alleged murder. “Clay claims that the blood samples were constitutionally material, because ‘[they] would establish that [he] was too intoxicated to have committed the crimes with which he is charged.’ However, a review of the record shows that Clay overstates the potential exculpatory value of the blood samples, as the testimony of Clay's expert neuro- pharamcologist, Dr. Jonathan Lipman, shows that any test results from the blood samples would, at best, be of limited usefulness in Clay's attempt at exoneration. … ‘[S]uch potential usefulness “does not establish that the [blood samples] had an ‘obvious’ or ‘readily perceived’ exculpatory value.”’ (Citations omitted.) Johnson v. State, 289 Ga. 106, 109(4) (709 S.E.2d 768) (2011). Accordingly, the blood samples were not constitutionally material. See State v. Miller, 287 Ga. 748, 754–755 (699 S.E.2d 316) (2010).” State v. Mussman, 289 Ga. 586, 713 S.E.2d 822 (June 13, 2011). Reversing 304 Ga.App. 808, 697 S.E.2d 902 (July 6, 2010). 1. Supreme Court unanimously finds that Court of Appeals erred by finding that OCGA § 17-5-56(a), which “requires the State to ‘maintain any physical evidence collected at the time of the crime that contains biological material, including, but not limited to, stains, fluids, or hair samples that relate to the identity of the perpetrator of the crime...’”, requires the State to maintain every container of biological material, rather than the biological material itself. Thus, in this vehicular homicide prosecution, trial court properly denied motion to suppress evidence found in defendant’s car, which investigators failed to preserve by returning it to defendant. “The statute does not require governmental entities to maintain any and all ‘containers’ or ‘sources’ (or in this case, the vehicle) that happen to house the biological material in question, just the contents of the collected biological material itself that ‘relate to the identity of the perpetrator of the crime.’ Id. Indeed, in this case, the State maintained the hair and blood samples taken from the vehicle, which was consistent with plain language of OCGA § 17-5-56(a).” Court of Appeals’ interpretation would lead to the absurd result of forcing “governmental entities to, for example, preserve an entire mattress if DNA evidence were recovered from a portion of the mattress; maintain an entire recliner chair if bodily fluids were recovered from a button on the chair; maintain indefinitely the corpse of every murder victim that contains biological material from the perpetrator and every car involved in a fatal wreck; or maintain any number of large items when the relevant biological material collected from the items only takes up a tiny portion of the items themselves.” 2. No due process violation where police preserved biological materials, but not “the vehicle and the victim and Mussman’s clothing.” Determination of whether a due process violation occurred requires finding that a) the evidence was constitutionally material, and b) that police acted in bad faith in failing to preserve it. Assuming without deciding materiality, Supreme Court finds no bad faith on part of police, who acted in accordance with departmental “‘policy of releasing evidence in vehicular homicide cases it deems to be “solved,” with no concomitant policy of notifying a future defendant that he is a suspect when it releases that evidence,’” quoting Court of Appeals decision. “ The problem with the Court of Appeals’ analysis is that the Court has misconstrued the concept of ‘bad faith.’ Following a standard policy, by itself, is not evidence of bad faith. See Terrell v. State , 271 Ga 783 (6) (523 S.E.2d 294) (1999) (no bad faith where GBI agent disposed of hand-written interview notes according to standard practice). Bad faith is reserved for ‘those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant.’ (Emphasis supplied.) Youngblood, supra , 488 U.S. at 58. In other words, the police must show, by their conduct, some intent to wrongfully withhold constitutionally material evidence from the defendant. Id. Here, as the trial court correctly found, there is simply no evidence of record that the police were acting in bad faith when they followed the standard policy of releasing evidence in vehicular homicide cases that they considered to be solved. [fn: This is not to say that following a standard policy may never amount to evidence of bad faith. However, the question whether bad faith would exist under such circumstances would depend on the conduct of the actors in relation to the policy, and not whether the policy itself constituted evidence of bad faith. For example, a standard policy could be implemented in bad faith, or a standard policy could be followed in bad faith, but, again, the focus is on the conduct in relation to the policy, not simply the policy itself. A policy, by itself, is not evidence of bad faith. See Terrell , supra. ] The Court of Appeals had no basis in the record for disturbing this factual finding of the trial court and concluding otherwise.” Accord, Clay (March 19, 2012), above (standard policy of destroying evidence without obvious exculpatory value not evidence of bad faith). L. BLOODHOUNDS Johnson v. State, 293 Ga.App. 32, 666 S.E.2d 452 (July 24, 2008). Trial court properly allowed officer to testify to his observation of bloodhounds tracking defendant’s scent. “[E]vidence as to the conduct of dogs in following tracks
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