BEFORE ROY NOBLE LEE, C.J., ANDERSON AND ZUCCARO, JJ.
ZUCCARO, JUSTICE, FOR THE COURT:
Willie Jones was indicted as an habitual offender for possessing, with intent to distribute, a controlled substance. He was convicted and sentenced to sixty (60) years without possibility of parole. From that conviction and sentence he appeals.
On November 19, 1983, a confidential informant with the Biloxi Police Department placed several telephone calls to Willie Jones in Jackson, Mississippi. Although the record does not reveal the content of those conversations, it does indicate that, as a result of those conversations, several law enforcement officers set up a surveillance at the Gulf Marine State Park near Biloxi. Shortly after 5:00 a.m. on November 21, Willie Jones drove into the park and placed a small box on the ground near a curb in the parking lot. Another man was in the car with Jones. Within a few minutes, the informant drove into the park, and Jones retrieved the box from the curb and showed the informant its contents. The informant then drove out of the park and notified the police officers that there were drugs on the scene. Meanwhile, Jones had placed the box back on the curb and returned to his car. The police officers then arrested Jones and seized the box which he had placed on the curb. The box contained a white powdery substance and two (2) bottles of pills, which subsequent tests revealed to be cocaine and hydromorphine, respectively.
Sometime after being tested, the contents of the box disappeared from the evidence vault of the Mississippi Crime Laboratory in Gulfport, Mississippi. They were still missing at the time of trial, and the State was unable to explain their disappearance.
At the conclusion of the trial, the jury returned a verdict of guilty. The trial court then sentenced Jones to sixty (60) years without possibility of parole. This sentence resulted from the trial judge's 1) doubling the sentence because Jones was a subsequent offender under Miss. Code Ann. 41-29-147 (1972), and 2) providing that the
sentence was to be without possibility of parole, since Jones was an habitual offender, as provided for in Miss. Code Ann. 99-19-81 (Supp. 1984). From that conviction and sentence Jones appeals, assigning four (4) errors.
I. DID THE TRIAL COURT ERR IN DENYING JONES' MOTION TO SUPPRESS TESTIMONY REGARDING THE RESULTS OF THE PURPORTED LABORATORY ANALYSIS OF THE ITEMS SEIZED FROM THE SCENE OF THE ARREST?
III. DID THE TRIAL COURT ERR IN DENYING JONES' MOTION TO DISMISS?
During discovery Jones requested that he be allowed to examine the evidence seized at the scene of the crime. Although the State was unable to produce the evidence, the trial court allowed the State's expert, who had tested the substances, to testify that they were cocaine and hydromorphine. Jones cites cases in which this Court has held that failure to allow defense counsel to inspect the State's physical evidence renders that evidence and testimony about it inadmissible. Morris v. State, 436 So. 2d 1381 (Miss. 1983); Jones v. State, 390 So. 2d 597 (Miss. 1976). He also claims the State's failure to produce the evidence required dismissal.
As the State correctly points out, however, in the cases cited by Jones the evidence was available to the State. The case most similar to that at bar is Coyne v. State, 484 So. 2d 1018 (Miss. 1986), in which marijuana which had already been tested was stolen from an evidence locker. We held as follows:
The defendant's first assignment of error alleged that the trial court erred in failing to dismiss the indictment against him, because the marijuana for which he was indicted could not be supplied by the state. He asserts that the failure to allow him an independent test and an independent opportunity to weigh the substance involved denied him due process of law, in that he was unable to effectively cross-examine the state's witnesses.
Normally," where the outcome of the case is substantially dependent upon the identification of an alleged substance as contraband, due process requires making the substance available to the defendant for inspection and analysis. "Love v. State, 441 So. 2d 1353, 1354 (Miss. 1983). However,
this case is distinguishable from Love, because the substance requested was unavailable to the state, as well as to the defendant, at the time of the request.
This case is more analogous to the case of Poole v. State, 291 So. 2d 723 (Miss. 1974), cert. den. 419 U.S. 1019, 95 S. Ct. 492, 42 L.Ed.2d. In Poole the defendant was convicted of selling LSD. The tablet of LSD which was seized from him was consumed during ...