IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2017-CP-00415-COA SANFORD MASON APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 02/13/2017 TRIAL JUDGE: HON. JAMES T. KITCHENS JR. COURT FROM W HICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: SANFORD MASON (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 05/22/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., WILSON AND TINDELL, JJ. WILSON, J., FOR THE COURT: ¶1. In 1982, S anf

ord Mason w as tried and convicted of the crim e of rape in the Oktibbeha County Circuit Court. The jury returned a guilty verdict a n d also f ound t hat M ason should

serve a l if

e sentence. The court sentenced Mason to s erve a lif e term without parole as a habitual of

f ender. T he Mississippi Suprem e C ourt af f irm ed Mason’s convict ion and sentence on direct appeal. Mason v. State , 440 So. 2d 318 (Miss. 1983). ¶2. In 2013, Mason f

i led an application in the Mississippi Suprem e Court f o r perm ission

to f ile a petition f

o r post-conviction relief in the circuit court. His application s ought DNA testing of certain e v i d e n ce allegedly available. The S tate agreed that M ason should be allowed t o f

ile a petition in the circuit c o u rt, a nd a panel of the Suprem e Court grantedMason’s application f or leave to proceed. Mason v. State , No. 2013-M-00253 (Miss. June 10, 2013). ¶3. A f t e r M ason f

iled his petition in the circuit court, the court appointed c o u n s e l t o
represe n t him

. Mason’s attorney searched diligently f or a rape kit and other phy sical evidence related to t he case, but no such evidence could be f ound. The circuit court held a he a r i n g o n F ebruary 6, 2 015. T he circuit clerk a nd witnesses f rom t he C ity of S tarkville Police Departm e nt and t h e O k t i b beha C ounty S herif f ’s Departm ent a ll testif

ied that they , along with Mason’s attorney , searched diligently f o r phy sical evidence f

r om t he case but had
f ound no such evidence. A f orm er deputy circuit clerk f rom Oktibbeha County testif ied that

som etim e af

ter 1989, and probably closer to 2000, there was signif icant f l ooding in the county courthouse. Raw sewage had spilled f rom a b athroom in the tax assessor’s of f ice into

an exhibit room located below, a n d about t wenty -f i ve percent of the item s stored in the exhibit room were destroy ed or u nsalvageable. The f orm e r deputy circuit clerk testif ied that, based on h er contem

p oraneous handwritten notes, s he believed that the phy s i cal evidence
f rom Mason’s case was destroy ed as a result of the f l ooding. 1 During the h earing, Mason and

1 The record indicates that Mason was placed at the crim e scene based on two latent palm prints, one f

o u nd near the perpet rator’s point o f entry i nto the victim ’s hom e and the other f ound on an air conditioning unit outside the victim ’ s bedroom w indow. A rape kit was collected f

rom the v ictim at the tim e of the crim e. The record indicates that t e sting of the rape kit r e v e a l e d t h e presence of acid p hosphatase, a n e n zy m e f ound in sem inal f

luid, and intact sperm atozoa; however, the stain collected w a s , i n 1982, an am ount insuf f icient f or f urther testing. Contem

poraneous testing of various other phy s ical e v i d e n c e showed only that the perpetrator had ty pe A blood, like Mason.

2his a ttorney acknowledged that there was no proof t hat any of the evide n c e w a s d e stroy ed

intentionall y . M ason also agreed that his a ppointed counsel had done all that she could to search f or the evidence. ¶4. Af ter the hearing, the circuit judge e n tered an order closing the case. The judge f ound “that no p hy sical evidence rem ains in this case to be tested because o f its apparent phy sical destruction.” The judge f urther f o und “that the destruction w as not an i ntentional act of any party ”; rather, the f

looding of the courthouse exhibit room y ears af ter Mason’s trial had m ade “any attem pt at preservation im

possible.” As there was no evidence to be tested, the court
f ound that Mason’s petition f o r post-conviction r elief was mo o t

. M ason f iled a notice of appeal. On appeal, he contends that the d e s truction of the r ape kit and o ther evidence collected during the investigation of his case violates due process. ¶5. This Court addressed a sim ilar claim in Chapman v. State , 47 S o. 3d 203, 209 (¶¶21- 23) (Miss. Ct. App. 2010) , c ert. d enied , 63 So. 3 d 1229 (Miss. 2011). In 2005, Chapm an sought DNA t e sting o f biological evidence related to hi s 1 9 8 2 rape conviction. However,

no such evidence was available because it h ad been destroy ed pursuant t o a court order in
1985. Id. at 205 (¶¶2-3). This Court f irst noted that our L egislature had enacted procedures and requirem ents regarding the preservation of D NA evidence, but the law w as not enacted until 2 009, y ears af

ter t h e e v i d e n c e i n Chapm an’s case was destroy ed p ursuant to a court order. Id. at 209 (¶21 ) ( c i t ing Miss. Code Ann. § 9 9-49-1). The sam e i s true in this case. Theref ore, as in Chapman , the 2009 law “has no application here.” Id.

3¶6. In C hapman , we also discussed that, at least prior to a conviction, “[ t]he State has ‘a duty to preserve evidence w hich m ight be expected to play a signif icant role in the suspect’s def ense.’” I d. at (¶22) (internal quotation m a rk om itted). H owever, to establish a violation of this duty , the def

endant m ust show, am ong other things, that the State “acted in bad f aith in f ailing to preserve the p otentially exculpatory evidence.” Id. ; accord A riz. v. Y oungblood , 488 U.S. 51, 58 (1988) ( “[ U]nless a crim inal def endant can show bad f

aith on the part of the police, f ailure to p r e s e r v e potentially usef ul evidence does n ot constitute a denial of due
process of law.”). Chapm an’s claim f ailed because there was no evidence o f bad f aith on the part of the State. Chapman , 47 So. 3d at 209 ( ¶23). A s the c ircuit j udge in this case f ound, the sam e i s true here. 2 T heref ore, the circuit court c orrectly ruled t hat Mason is n ot entitled to post-conviction relief

. ¶7. AFFIRMED. LEE, C .J., IRVING A ND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

2 In considering the denial of a m otion f or post-conviction relief

, we will n ot disturb the circuit court’s “f

actual f indings unless they are f

ound t o be clearly erroneous.” Manning v. State , 158 So. 3d 302, 304 (¶4) (Miss. 2015). 4