754 S.W.2d 534 (Ky. 1988), 84-SC-566, Sanborn v. Commonwealth

Docket Nº:84-SC-566-MR.
Citation:754 S.W.2d 534
Party Name:Parramore Lee SANBORN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
Case Date:June 09, 1988
Court:Supreme Court of Kentucky

Page 534

754 S.W.2d 534 (Ky. 1988)

Parramore Lee SANBORN, Appellant,


COMMONWEALTH of Kentucky, Appellee.

No. 84-SC-566-MR.

Supreme Court of Kentucky

June 9, 1988

Page 535

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J. Vincent Aprile, II, Julie Namkin, Rodney McDaniel, Asst. Public Advocates, Frankfort, for appellant.

David L. Armstrong, Atty. Gen., David A. Smith, Michael Harned, Asst. Attys. Gen., Frankfort, Bruce R. Hamilton, Sp. Asst. Atty. Gen., LaGrange, for appellee.


The appellant was tried and convicted of intentional murder, first-degree rape, first-degree sodomy, and first-degree kidnapping. The jury imposed a sentence of death for the murder, and a sentence to life imprisonment for each of the other three offenses, and the trial court has entered judgment accordingly. 1 The Commonwealth's evidence proved a particularly vicious and shocking premeditated murder,

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and the death penalty was justified. Nevertheless, in our system an accused has certain minimum guarantees to a fair trial and due process, constitutionally mandated, drawing the line between law and lynching, which apply regardless of the revolting circumstances of the offense. These principles mandate that we reverse for trial error willfully engaged in by the prosecutor, and inexcusably tolerated by the trial judge.

We will undertake in this Opinion to discuss only those errors which individually and cumulatively require that the verdict and judgment be set aside, and such other assignments of error as could become points of contention at a new trial. It would unduly prolong this Opinion, already burdensome in length, to discuss claims which are not error or errors which are unlikely to recur. For instance, the case was tried less than three and a half months from the date of the occurrence, despite its complexity. The defense claims this foreclosed efforts to examine physical evidence and to investigate potential defenses related to mental disease or defect (or even competency to stand trial); that, further, because the trial court refused a change of venue, trial was held precipitately in a small community where the hideous details were still vivid in the minds of the veniremen. Since the convictions must be set aside on other grounds, we need not go into these claims. 2

The Commonwealth's proof may be summarized as follows. The victim lived with her husband and three children on a farm in Henry County. The appellant was a former employee on this farm. After leaving his employment the appellant was hostile and vindictive towards the family.

On the evening of October 12, 1983, the victim was home with her 11-year old son. Her husband and younger daughter had been hospitalized in Louisville. Her older daughter was away at school. Sometime late that evening the victim was induced to dress hurriedly and drive her car down to the road at the end of her driveway, without awakening her son. Her car was found there the next morning, surrounded by evidence of a vicious attack. A large pool of blood was found several feet from the car. The victim's curlers wrapped with hair were scattered around on the ground and inside the car. Her glasses lay on the ground outside the car. Inside the car there was gory evidence, including bits and pieces of bloody flesh. Her keys were in the ignition, in a partially on position. An umbrella had been jammed inside the driver's door, which could not be forced open.

The Sheriff and other police officials proceeded forthwith to canvass the neighborhood, which included the appellant's home. The appellant was at home and invited the officers in. They noted blood under his cuticles and blood smeared on his pants legs. His shoes, setting near the door, were blood stained, and he had a fresh scratch on his face. There was a large amount of blood on the floor and passenger seat of his car. He was arrested on the basis of this evidence. Several hours later the victim's body was found, partially nude, a few miles from her home.

The victim had died of multiple stab wounds. She had been stabbed nine times, three of which were diagnosed as post-mortem. Her hands showed a number of wounds which likely would have occurred in attempting to defend herself. There was physical evidence found on the body indicating sexual contact had occurred, including vaginal penetration and oral sodomy. The expert testimony about this evidence tied the appellant to these acts.

Laboratory testing established that blood found on the appellant's hands, his knife, shoes, pants, tee shirt and throughout his car, all belonged to the victim. Fibers from the appellant's seat covers and his tee shirt were found on the victim's blouse, underneath her fingernails, and inside her mouth. In turn, fibers from the victim's

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jacket and blouse were found inside the appellant's car.

In addition to the physical evidence, there was considerable witness testimony connecting the appellant to the crime; testimony that a few days before the crime the appellant was talking about "revenge"; testimony that the appellant's car was observed in the victim's driveway both in the afternoon before the crime and that same night; and testimony (of questionable admissibility) about a telephone call from the appellant to the victim.

After his arrest the appellant was interviewed at the courthouse by a police officer and the Commonwealth Attorney. At that time he gave a tape-recorded statement in which he admitted he drove his car to the driveway leading to the victim's home before the crimes occurred, but denied that he was the one who committed the charged offenses. The substance of the appellant's statement was to the effect that there were two others in his car, two brothers whom he refused to identify, and that it was these two other people who "hurt" the victim. In his tape-recorded statement the appellant claimed the reason for his going to the victim's driveway was simply to provide transportation for one of these individuals to talk to the victim, that they then forced the victim into his car, and when he realized they were hurting the victim he stopped his car and ordered them out. The appellant offered no proof to substantiate this alibi. There was no proof of the existence of these two brothers, and there was testimony at trial that an investigation proved they did not exist.


    There are three prosecutorial errors so substantial that each would require the judgment be reversed.

    1) The prosecutor intentionally erased the tape-recorded statements of four witnesses, three of whom testified at trial against the appellant.

    The defense had sought by pretrial discovery motion to obtain the statements of prospective witnesses. While this motion was pending, the prosecutor, who was aware of the court's policy to order such disclosure ten or twelve days before trial, erased the tapes. The prosecutor stated on the record, when called upon to produce the tapes:

    "They were erased in anticipation of the Court's rulings.... I get what I want off of them, make my notes, and erase them."

    The prosecutor claims he has a right to destroy such tapes. The claim is specious, and his tactics unforgivable.

    Three of those with tape-recorded interviews testified as witnesses called by the Commonwealth. RCr 7.26(1) states:

    "Before a witness called by the Commonwealth testifies, the attorney for the commonwealth shall produce any statement of the witness in the form of a document or recording in its possession which relates to the subject matter of the witness's testimony and which ... is or purports to be a substantially verbatim statement made by him. Such statement shall be made available for examination and use by the defendant."

    We need not decide at what point before the witnesses testified the prosecutor should be compelled to produce these tapes. The critical point is the prosecutor made such notes as would assist him in using these persons as witnesses for the prosecution, and then destroyed the tapes, so that these verbatim statements were not available for the defense at any point. This was misconduct of constitutional proportions under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, 219 (1963), and its progeny. Brady rules that where the prosecutor "withholds evidence on demand of an accused which, if made available, would [or might] tend to exculpate him or reduce the penalty," such is a violation of due process. Id., 373 U.S. at 87-88, 83 S.Ct. at 1197.

    These verbatim tapes were as such the "best evidence" of the contents of the witnesses' statements (Lawson, Kentucky Evidence Law Handbook, § 7.15 (2d ed. 1984)), and a summary made by the prosecutor before he destroyed them does not

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    suffice. Prejudice is presumed where the prosecutor destroys evidence. Hilliard v. Spalding, 719 F.2d 1443, 1446-47 (9th Cir.1983). As stated in United States v. Pollock, 417 F.Supp. 1332, 1349 (D.Mass.1976):

    "Such action passes beyond the line of tolerable human imperfection and falls into the realm of fundamental unfairness."

    In Pollock, the court held that such action called for dismissal. However, in this case, the testimony of these witnesses, while important, was not essential to the Commonwealth's case. The relief requested and denied was not dismissal or exclusion, but simply an instruction permitting the jury to draw a favorable inference for the defendant from the destruction of the evidence. Reversal with directions to give the requested instruction is the appropriate remedy. In State v. Maniccia, 355 N.W.2d 256, 259 (Iowa App.1984), in similar circumstances, the court held that a missing evidence instruction 3 was sufficient to offset the prosecutor's misconduct. We so hold here.


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