State v. Cosey

652 So. 2d 993 (1995)

STATE of Louisiana, v. Frank Ford COSEY.

No. 95-KK-0039.

Supreme Court of Louisiana.

March 30, 1995.

Stay Order Recalled; Rehearing Denied April 28, 1995.

*994 PER CURIAM.[*]

Defendant, Frank Ford Cosey, in performing DNA testing on a semen specimen obtained by investigators from the crime scene, exhausted the remaining testable quantities of the specimen. Consequently, the prosecution is precluded from performing additional, more sophisticated DNA testing of the specimen, similar to that conducted by defense experts. In addition, as the defendant neither intends to use the DNA test results at trial nor call as a witness the person who prepared the test results, copies thereof are not discoverable by the prosecution under the language of La.C.Cr.P. art. 725.

However, fundamental fairness and the extraordinary circumstances presented by this case dictate that the prosecution be allowed to obtain copies of the test results in question. La.C.Cr.P. art. 725 was not designed to protect a criminal defendant in this type of situation, i.e., where the remaining testable quantities of physical evidence of a crime have been destroyed, consumed, or otherwise exhausted by the defendant's own actions in testing the physical evidence. Accordingly, Frank Ford Cosey and his attorneys are ordered to turn over to the prosecution copies of all results of tests performed on the semen specimen.

[*] Calogero, C.J., not on panel. Rule IV, Part 2, § 3.