Arline v. State

• Decision Date: 18 April 1973
• Docket Number: No. 3--972A55,3--972A55
• Citation: 156 Ind.App. 95,294 N.E.2d 840
• Parties: Zollie ARLINE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 840

294 N.E.2d 840

156 Ind.App. 95

Zollie ARLINE, Appellant (Defendant Below), v.STATE of Indiana, Appellee (Plaintiff Below).

No. 3--972A55.

Court of Appeals of Indiana, Third District.

April 18, 1973.

Patrick Brennan, Michael P. Scopelitis, South Bend, for appellant.

Theodore L. Sendak, Atty. Gen., John McArdle, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

I.STATEMENT ON THE APPEAL

James Patton had been drinking.When he approached the outside door of his rooming house in the early morning hours, he could not find his key and started pounding on the door.Several roomers inside were awakened.Zollie Arline came to the door and opened it for James Patton.There was an immediate exchange of words and an argument.James Patton allegedly pulled a pocketknife and cut Zollie Arline on the side of his face.Zollie Arline knocked James Patton to the floor.James Patton was taken to his bedroom by another roomer and Zollie Arline went to the kitchen.Later, Zollie Arline struck James Patton on tne head with a 'two by four.'James Patton died in the hospital as a result of this blow to the head.Zollie Arline was indicted for second degree murder and tried before a jury.During the trial, the prosecutor exaggerated the absence of any pocketknife in his questioning of several state witnesses.Zollie Arline's defense counsel had filed a motion to produce which was granted.The pocketknife was not turned over to the defense by the prosecutor.The knife had been found by a nurse in the pocket of James Patton at the hospital, and she had turned it over to the police.The knife was delivered to the prosecutor by the police before trial.The prosecutor, knowing of the existence of the knife, made an issue of its absence in evidence during the trial.Zollie Arline was convicted of voluntary manslaughter by a jury.¹His motion to correct errors raises these questions on appeal for our consideration:

1.Was the suppression of the knife evidence suppression of favorable evidence to the defense of Zollie Arline?

2.Did the continual reference to the knife's absence in the evidence by the prosecutor amount to making the knife's absence an issue?

3.Was the prosecution's suppression of the knife evidence a denial of due process?

We answer all of the above questions in the affirmative.Our opinion which follows holds that the evidence was favorable evidence and that the exaggeration of the knife's absence by the prosecutor made the knife's absence an issue.The failure to provide the knife before or during the trial amounted to the denial of due process of law.We reverse the trial court's judgment with instructions.

II.STATEMENT OF THE FACTS

In the early morning hours of September 4, 1971, James Patton returned to his rooming house at 1215 Colfax Street, South Bend, Indiana.He had forgotten his key so he commenced to pound upon the front door.Inside the rooming house, Zollie Arline was aroused by two fellow roomers, Dunnigan and Hicks.Arline went to the front door to admit Patton.According to Arline, Patton pulled a pocketknife and came toward him.Arline knocked the knife aside and hit Patton who fell to the floor.Arline had been cut on the cheek by Patton's knife.The roomers, Dunnigan and Hicks, came into the living room after the affray.

At the trial, Dunnigan testified that Patton appeared to be intoxicated and that Patton kept repeating that he was drunk and did not want to fight Arline.Patton was assisted back to his room, and when Dunnigan returned to the living room, Arline was in a rage.Dunnigan further testified that:

'. . . He went back in the kitchen and he said son-of-a-bitch to Patton and Patton didn't say nothing.And he came back again and went in the sitting room, went back and come out and turned on the light and there were some shovel(s) sitting there.So, we jumped up and he said no, this won't do.He grabbed a shovel--I think it was a shovel or a hoe or something, and he said no, this won't do.And so I laid on back down.I though maybe the man was going on back to bed and forget about it.'

Dunnigan heard noises later in Patton's room and investigated.He saw Arline coming from the bedroom with a 'two-by-four' in his hands and muttering that he had fixed Patton and that he was going to call the police: '. . . (O)r somebody to come and get this _ _ before I kill him or finish killing him, something like that he said on the phone. . . .'

Arline testified that he went to the basement to administer first aid to his cheek wound.When he came back upstairs and walked down the hallway to the bathroom, Patton came storming out of his bedroom with a pair of shears in his hand.Arline saw a 'two-by-four,' picked it up and swung at Patton.The blow knocked Patton back into the bedroom.This is Arline's rendition of what happened on the night of September 4, 1971.

Patton died two days after arriving at the South Bend Memorial Hospital from a severe pulmonary edema.The medical expert explained that pulmonary edema is cause by shock followed by a filling of the lungs with liquid.In his opinion, the cause of death was 'the blow on the head (which) set in motion a train of events which led to shock and the acute pulmonary edema.'

Arline was indicted for second degree murder, tried by jury and found guilty of voluntary manslaughter.After the trial was over, Arline's defense counsel was informed that the prosecutor had in his possession a pocketknife allegedly taken from Patton's pocket when Patton was admitted to the South Bend Memorial Hospial.The issue § raised by the motion to correct errors filed by Arline are set forth in our 'Statement of the Issues'section below.

III.STATEMENT OF THE ISSUES

The three issues presented by this appeal will be discussed together in our 'Statement on the Law'section of this opinion.These three issues are:

1.Was the suppression of the knife evidence suppression of favorable evidence to the defense of Zollie Arline?

2.Did the continual reference to the knife's absence in the evidence by the prosecutor amount to making the knife's absence an issue?

3.Was the prosecution's suppression of the knife evidence a denial of due process?

IV.STATEMENT ON THE LAW

The main thrust of Arline's contention is that the prosecution's intentional suppression of the pocketknife was a denial of due process.²He relies primarily upon Brady v. Maryland(1963), 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215, wherein Justice Douglas stated:

'We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is matrerial either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.'

Since Brady v. Maryland, supra, there has been a proliferation of federal and state court decisions.For an excellent summary of such cases, see34 A.L.R.3d 16.

Moore, v. Illinois(1972), 408 U.S. 786, 92 S.Ct. 2562, 33[156 Ind.App. 100] L.Ed.2d 706, has clarified Brady v. Maryland, supra, by setting forth a test to be applied where there is a suppression of evidence by the prosecution.This test is:

(A) Suppression by the prosecution after a request by the defense,

(B) The evidence's favorable character for the defense, and

(C) The materiality of the evidence.

In the present case, we are dealing more with a fundamental unfairness than with a non-disclosure.A proper question would be: Did the suppression of the evidence place the defendant in a constitutionally unfair position?Where this situation is suggested by the evidence as well as by the conduct at trial of the prosecution or the defense, a request for the disclosure of the evidence is not a sine qua non to establish a duty on the part of the prosecution.³This distinguishes the present case from Brady v. Maryland, supra, andMoore v. Illinois, supra, where a request for the item of evidence must be made before the test set forth in Moore v. Illinois, supra, may be applied.⁴The nurse at the hospital had found the knife in Patton's pocket and had given it to the police.The knife was given to the prosecutor before trial.It is quite possible that the existence or nonexistence of the knife in evidence would not have been cloaked with favorable materiality, but the prosecution exaggerated its absence in evidence, made its absence an issue and materially mislead the jury.The culminating effect was to discredit the defendant's defense, to make the production of the knife evidence favorable to the defendant, and to place the defendant in a constitutionally unfair position.Some examples of the prosecution's references to the knife are as follows:

(Testimony of Officer Kenneth Delinski)

'q.When you were in the bedroom where the body was did you see any weapons in there?

'A.Only what would be similar to hedge shears that laid on the--like a nailed together wooden box, a crate like, which was covered with a scarf.This pair of scissors--hedge shears laid on top of this box.

Q.Did you see any knives?

MR. BRENNAN: I am going to object, if your Honor please.

THE COURT: Sustained.

'Q.Did you see any other weapon of weapons?

'A.No, not other than the shears.'

(Testimony of Officer Charles Mahank)

'Q.And did he talk to you?

'A.He continued talking, saying the same thing that he said in the house.

'Q.And what was that?

'A.That Mr. Patton came home and knocked on the door and when he let him in the house he raised cane and they had an argument about the door not being opened, and that Patton had gone to his bedroom and a short while later Mr. Arline stated that he had gone to the bathroom and he was set upon by Mr. Patton who came out of his room with a knife.He said it was a large penknife.

'Q.Did he describe how large it was?

'A.He just said 'large penknife.'

'Q.Did you find a large penknife any place?

'A.No, sir.'

(Testimony of Officer Raymond Woodward.)

'Q.Did Mr. Arline say where Mr....