State v. Leatherwood

• Decision Date: 30 December 1982
• Docket Number: No. 14165,14165
• Citation: 656 P.2d 760,104 Idaho 100
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Neil LEATHERWOOD, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 760

656 P.2d 760

104 Idaho 100

STATE of Idaho, Plaintiff-Respondent, v. Neil LEATHERWOOD, Defendant-Appellant.

No. 14165.

Court of Appeals of Idaho.

Dec. 30, 1982.

Jill Kirshner, Deputy Public Defender, Boise, for defendant-appellant.

David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Stephen J. Gledhill, Deputy Atty. Gen., Boise, for plaintiff-respondent.

BURNETT, Judge.

We are asked to decide whether a criminal defendant was denied due process by police failure to preserve tape recordings of certain telephone conversations. The facts framing this issue began to unfold in a Boise restaurant. While a patron of the restaurant was eating dinner, his attention was drawn to a public telephone near his table. There he saw and heard another person call the police and say that a certain drug store would be robbed in forty-five minutes. The caller did not state his name. Shortly thereafter, the same person called the police twice more--saying that the robbery would occur at the drug store's closing time, and asking for a particular detective who apparently was not available to the phone. Following the last call, another individual knocked on a window of the restaurant and gestured to the caller. They left the restaurant together in an automobile. Approximately fifteen minutes later, a Boise drug store, different from the one mentioned in the telephone calls, was robbed at gunpoint.

Aided by information provided by the witness at the restaurant, the police promptly apprehended the robber. He turned out to be one Louis Fazio, and was identified as the individual observed making the telephone calls. The person who had knocked on the restaurant window was found in the company of Fazio, driving the same car seen at the restaurant. That person was Neil Leatherwood.

Fazio and Leatherwood were charged and convicted of first degree burglary and robbery. The evidence against Leatherwood tended to show that he had driven Fazio to and from the drug store, and that he had consumed some of the drugs taken in the robbery. Contraband was also found in Leatherwood's automobile.

The case had an ironic twist. Fazio had served as a confidential police informant in drug traffic investigations. There was speculation that Fazio, being somewhat familiar with law enforcement procedures, had called the police to divert them from the site of the robbery. Leatherwood's counsel suggested, to the contrary, that the telephone conversations might have been the product of complicity between Fazio and the police. Counsel made a pretrial discovery request for tape recordings of those conversations. However, through what was explained as a clerical error, the police extracted from the dispatch recording tape only a telephone call from the drug store proprietor who reported the robbery. The tape apparently was erased and reused, without extracting Fazio's conversations, before the error was detected.

At the outset of a jury trial, Leatherwood's counsel moved for dismissal of the charges against his client, asserting that Leatherwood may have been entrapped and could not receive a fair trial without the recordings of those conversations. The motion was denied. During trial, the man who overheard the telephone calls in the restaurant testified as to what Fazio had said. Fazio himself did not testify. Leatherwood did not call as witnesses any members of the police force who had received the telephone calls in question. The defense did not develop a theory of entrapment. Leatherwood simply testified that he drove Fazio to and from the drug store as a personal favor, and that he had no knowledge of any robbery until he was arrested. Evidently, the jury did not believe him.

Upon this record, Leatherwood contends that he was deprived of due process by failure to preserve tape recordings of the telephone calls made by Fazio. For reasons stated below, we hold that Leatherwood was not denied due process; and we affirm his judgment of conviction.

I

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that the prosecution must disclose to an accused, upon request, evidence material either to guilt or to punishment, and that failure to do so violates the due process clause of the Fourteenth Amendment, "irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct. at 1196. Although the Idaho Supreme Court has not yet had occasion to so hold, we presume that a similar rule would inhere in the due process clause of Art. 1, § 13, Idaho Constitution. The emphasis in Brady upon an accused's right to a fair trial marked a new direction in due process cases, which previously had focused upon the conduct of the government. Note, The Prosecutor's Constitutional Duty to Reveal Evidence to the Defendant, 74 YALE L.J. 136 (1964).

The general duty established in Brady spawned a host of state and federal cases in which the withholding of evidence by the prosecution was challenged. In those cases, the courts attempted to elaborate the Brady duty in terms of the specificity of the request made by the accused and the materiality of the evidence sought. See, e.g., United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Brown, 98 Idaho 209, 560 P.2d 880 (1977).

The progeny of Brady also included a related line of cases, dealing with failure by the police or prosecutor to preserve evidence. In State v. Ward, 98 Idaho 571, 569 P.2d 916 (1977), our Supreme Court held "that the duty of disclosure includes a duty to use earnest efforts to preserve evidence for possible use by defendant ...." Id. at 573, 569 P.2d at 918. See also State v. Smoot, 99 Idaho 855, 860, 590 P.2d 1001, 1006 (1978); State v. Wells, 103 Idaho 137, 645 P.2d 371 (Ct.App.1982). The reference to "earnest efforts" reveals that where the issue is failure to preserve evidence, as opposed to withholding it, the judicial focus is not necessarily limited to the specificity of a discovery request or to materiality of the evidence. Rather, the courts may also take into consideration the conduct of the police and prosecutor. At first blush this broadened focus may seem inconsistent with Brady's disregard "of the good faith or bad faith of the prosecution." However, there is a compelling reason for the broader focus in some evidence preservation cases. It is, simply, that where the police or prosecution have failed to preserve evidence, the nature of that evidence may not be known sufficiently to evaluate its materiality or to compare it with any discovery request that might have been made.

This unique characteristic of some evidence preservation cases has produced judicial uncertainty concerning the standards by which all such cases should be decided. See Comment, Judicial Response to Governmental Loss or Destruction of Evidence, 39 U.Chi.L.Rev. 542 (1972). Some courts have treated these cases like those in which evidence was withheld, and have examined the due process issue from the standpoint of prejudice to the accused. E.g., Trimble v. State, 75 N.M. 183, 402 P.2d 162 (1965). Other courts have drawn analogies to cases involving the destruction of working or "interim" notes of government investigators. E.g., United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969). The latter approach emphasizes not the possible usefulness of the missing evidence to the defense, but the conduct of the government agents, and the procedures followed, in handling the evidence in question.

In Idaho we have taken our bearings largely from cases where evidence was withheld--focusing upon the materiality of the evidence and prejudice to the accused. In State v. Ward, supra, where evidence had been lost, our Supreme Court discussed the ruling of the United States Supreme Court in United States v. Agurs, supra, a leading case on withholding of evidence. Our Supreme Court's discussion mentioned, but declined explicitly to apply, the standards of materiality set forth in Agurs. However, our Supreme Court appeared to decide in Ward that, by any test of materiality, the defendant had failed to show that he was actually prejudiced by the loss of evidence. Similarly, in State v. Martinez, 102 Idaho 875, 643 P.2d 555 (Ct.App.1982), we recently rejected a due process challenge to a judgment of conviction, where allegedly exculpatory tape recordings of telephone calls made by the defendant from the county jail had been erased. We, too, focused upon the question of actual prejudice, and relied upon Agurs to hold that the test of "materiality" in the constitutional sense is not satisfied by a "mere possibility" that the evidence in question might have helped the defense. Id. 102 Idaho at 879, 643 P.2d at 559.

In both Ward and Martinez, although certain evidence had been lost or destroyed, the nature of the evidence was sufficiently known to make a meaningful determination of materiality. In such cases, we believe it is appropriate to draw guidance from the standards of materiality enunciated in cases where evidence has been withheld. These standards relate to the fundamental concern in Brady--avoidance of an unfair trial to the accused. However, if the nature of the evidence lost or destroyed is unknown, and cannot be established indirectly by other testimony or evidence, then the materiality tests are not meaningful. In those cases, it would appear necessary to focus primarily upon the reasonableness of the government's conduct, placing a heavy burden upon the government to show that none of its procedures, or the conduct of its agents, has been tainted by disregard for an accused's right to a fair trial. Cf. United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642 (D.C.Cir.1971) (holding, prospectively, that federal investigatory agencies must adopt regulations specifically designed to preserve all discoverable evidence).

The instant appeal falls within the ambit of cases where the nature...