Crockett v. State

• Decision Date: 13 December 1979
• Docket Number: No. 8919,8919
• Citation: 603 P.2d 1078,95 Nev. 859
• Parties: Edward Nevon CROCKETT, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 1078

603 P.2d 1078

95 Nev. 859

Edward Nevon CROCKETT, Appellant, v. The STATE of Nevada, Respondent.

No. 8919.

Supreme Court of Nevada.

Dec. 13, 1979.

David Hamilton, Reno, for appellant.

Richard Bryan, Atty. Gen., Carson City, Calvin R. X. Dunlap, Dist. Atty., and John L. Conner, Deputy Dist. Atty. Washoe County, Reno, for respondent.

OPINION

GUNDERSON, Justice:

A jury convicted Edward Crockett for the shooting death of his 15 1/2-year-old stepdaughter, Blythe Harrington. On appeal, Crockett urges a variety of serious contentions, to most of which we will allude only in passing. For example, some significant assignments of error, which we find it unnecessary to consider, involve the following: 1) in closing argument, the prosecutor commented several times to the jury on Mrs. Crockett's failure to testify; 2) following defense counsel's final argument to the jury, the court clerk stated to the prosecutor, "Go get 'em Tiger"; 3) around midnight, after the jury had deliberated several hours, they reported they could not reach a verdict. The court inquired how the jury stood numerically. After hearing of the eleven-to-one division, the judge stated that he and both counsel appreciated there was a problem in the case. He said, however, it had been a long, five-week trial, and if a mistrial were declared, it would have to be tried over by some other jury. Shortly after the jury began deliberating again, it returned an apparent compromise verdict of murder in the second degree.

Crockett also urges that suppression, loss and destruction of certain evidence violated his right to a fair trial. We direct our primary concern to this issue, since it is fully dispositive of the case. Having reviewed the voluminous record, we are constrained to agree with appellant's counsel. The conviction must be reversed and all charges dismissed.

Without attempting a complete recapitulation of the record, we note the evidence was entirely circumstantial. Sometime between 11:00 and 11:30 p. m. on July 2, 1974, Crockett telephoned the Washoe County Sheriff's Department to report finding the nude body of his stepdaughter on Antelope Mountain. Crockett explained he and his wife had gone looking for the girl, when she had failed to return home that evening. After Crockett led them to the remote location of his discovery, law enforcement officers cordoned off an area approximately fifteen feet in radius around the body and waited for daylight. During the night, several additional officers arrived.

The following morning, the officers began photographing and gathering evidence, within and outside the roped area. ¹ The pathologist arrived around 10:30 a. m. and made a cursory examination of the body. An autopsy was performed later that day in a laboratory, where body tissue, fluid, hair and foreign material samples were taken for future testing and examination.

Several days later, the Sheriff's Department secured a warrant to search Crockett's residence for certain guns, ammunition and clothing. During the search, officers twice knocked a small box off a closet shelf, spilling numerous small torn bits of paper. Crockett told the officer not to bother picking them up, that he would vacuum them up later. Noticing the word "love" written on one of the scraps, however, the officers decided the papers should be taken. One officer then put the paper bits into his pocket. When Crockett inquired what had happened to the scraps, the officers informed him they intended taking them and indicated they would get an additional warrant if necessary. Crockett acquiesced on the condition that he be informed of the contents. When the paper scraps were later assembled, the writing appeared to be a "diary" or narrative by Blythe Harrington of an ongoing love affair, including sexual relations, with her stepfather.

Several weeks later, the grand jury found a murder indictment against Crockett, who made numerous pre-trial motions, including one to suppress the so-called "diary" as fruit of an illegal seizure. Denial of that motion is assigned as error on appeal. ² Another pre-trial motion, for discovery, resulted in an open court order for the prosecution to review known names of any persons in the area at the time of the killing. Additionally, the court issued a written order to produce copies of all photographs taken, as well as all scientific tests conducted, including blood grouping tests. Various contentions on appeal relate to the State's asserted failure to fulfill its obligations to safeguard evidence and make it available to the defendant.

One instance in which the State arguably deprived appellant of due process by interfering with evidence concerned the anticipated testimony of Mrs. June Campbell, a Lemon Valley resident. Before the grand jury, Mrs. Campbell testified that at about 5:15 p.m. on July 2, 1974, she had seen, from her home, a girl very much resembling Blythe Harrington riding a dark horse very slowly northbound toward Lemon Valley Road. Because the time of death could not be accurately estimated medically (arguably due to investigative oversights), and because Crockett had an alibi until at least 4:30 p. m. on the day of the killing, Mrs. Campbell's testimony was crucial: it indicated the victim was still alive at 5:15 p. m. Prior to trial, the defense located a young girl bearing a striking resemblance to Blythe Harrington, who initially stated that, on the day in question, she had been riding a dark horse in the Lemon Valley area, around Mrs. Campbell's home. Because the girl's statement cast considerable doubt on Mrs. Campbell's identification of Blythe Harrington, the prosecutor stipulated to dismiss the indictment; however, the court refused to honor the stipulation.

Subsequently, the girl changed her story, stating she had not been riding in Lemon Valley that day, but had been riding in Sun Valley on a light colored horse. Still later, the girl said Washoe County Sheriff's deputies had intimidated, threatened and harassed her. She brought a motion for protective order, on which the court never finally ruled, asserting that because of emotional instability suffered as a result of the prosecution's investigations, she could no longer separate fact from fiction regarding her activities on the day in question. ³ At trial, Mrs. Campbell testified that she observed a girl very much resembling Blythe Harrington riding a dark colored horse slowly northward toward Lemon Valley Road at about 5:15 p. m. She also testified that, approximately thirty minutes later, she observed a man resembling Crockett riding the easement road behind her residence much faster in the same direction. However, of course, the "look alike" witness did not testify.

It was undisputed that both Crockett and the victim rode north on Lemon Valley Road to "the second windmill," approximately 9.4 miles from Mrs. Campbell's residence. However, officers who tracked the horse prints to that point did not determine whether the two horses were riding together or at different paces.

The distinctive track of the victim's horse clearly left the road at one point and horse tracks, as well as two sets of footprints, continued from that point into the sagebrush toward the death scene. However, testimony was unclear whether there were tracks of one horse or two, and the officers assertedly had lost the photographs taken of the trial of prints. One set of footprints was made by the victim. The other set, "chevron" prints, apparently was made by the killer.

Three sets of prints were found within the roped-off area around the body: the victim's, "chevron" prints, and a single smooth-soled bootprint. The State argued the smooth-soled print was made by Crockett when he discovered the body. Crockett, on the other hand, argued the print was made by a second participant in the killing. Although a cast of the smooth-soled print was larger than Crockett's boot size, the State contended that problems with the casting process, or even the killer wearing an extra pair of socks, might explain the disparity. However, again, investigative omissions made it impossible to resolve this issue. No prints from the trail made by Crockett when he found the body had been preserved for comparison.

Another area of dispute and confusion concerned sorrel-colored hairs discovered on the tree to which officers had found the victim's darker horse tied. The defense argued that the sorrel hairs (Crockett's horse was sorrel) came from the saddle blanket on the victim's horse, which blanket contained numerous sorrel hairs. As to where on the tree the hairs were discovered the side on which the victim's horse stood tied, or the other the State's evidence was unclear and in conflict. Also, the handling and labeling of the samples by the Washoe County Sheriff's criminologist was impugned.

Experts testified that the murder weapon was a .22 Marlin rifle. Crockett was seen both embarking and returning from his ride in Lemon Valley. Each time witnesses saw him carrying a .22 pistol, but no one saw a rifle, although Crockett owned such a weapon. Moreover, Crockett's stepsons testified they remembered having his Marlin rifle on the afternoon in question. ⁴

Testimony regarding expert examinations of the pubic hair combings was highly contradictory. The Washoe County Sheriff criminologist found no foreign hairs. ⁵ An expert from Oakland Forensics discovered a hair foreign to both the defendant and the victim. An expert from the California Department of Justice found two more foreign hairs. At trial, the State urged that these foreign hairs were not definitively established to be pubic hairs, and speculated that they might have been the result of contamination occurring after the initial examination by the criminologist.

The faulty processing of other evidence concerning recent sexual relations was even more noteworthy, however. Microscopic examination of a sample of the vaginal swab from the...