Hilliard v. Spalding

• Decision Date: 09 May 1983
• Docket Number: No. 82-3641,82-3641
• Citation: 719 F.2d 1443
• Parties: Kermit George HILLIARD, Petitioner-Appellant, v. James C. SPALDING, Superintendent, and Slade Gorton, Attorney General of the State of Washington, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1443

719 F.2d 1443

Kermit George HILLIARD, Petitioner-Appellant, v. James C. SPALDING, Superintendent, and Slade Gorton Attorney General of the State of Washington Respondents-Appellees.

No. 82-3641.

United States Court of Appeals, Ninth Circuit.

Submitted May 9, 1983. ^*

Decided Nov. 8, 1983.

As Amended Dec. 1, 1983.

Kermit George Hilliard, in pro. per.

Michael P. Lynch, Asst. Atty. Gen., Olympia, Wash., for respondents-appellees.

Appeal from the United States District Court for the Western District of Washington.

Before TANG, FERGUSON and BOOCHEVER, Circuit Judges.

FERGUSON, Circuit Judge:

Hilliard was tried and convicted in a Washington state court on charges of rape, kidnapping and sodomy. After exhausting his state remedies, he petitioned for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. The district court denied the petition, and Hilliard brought this appeal, in which he raised eleven issues. Ten of his contentions are without merit; we treat them in a separate memorandum disposition issued today. However, Hilliard has raised a colorable claim that the government suppressed evidence relevant to the rape conviction in violation of his constitutional right to due process of law. Because the proper resolution of this claim depends on a factual determination, we reverse and remand to the district court for an evidentiary hearing.

FACTS:

The record shows that the rape for which Hilliard was convicted took place in July 1975. Immediately after the victim reported the crime to the Seattle police, she was taken to Harborview Hospital for a physical examination. There, a physician obtained a sample of fluids from her vaginal tract, which he placed on a glass slide. An examination of the sample revealed the presence of sperm in the victim's vaginal secretions. However, the record is silent as to the subsequent fate of the glass slide. It cannot be determined whether the hospital retained the sample or turned it over to the government, or whether the sample was ultimately destroyed.

Prior to trial, Hilliard's counsel made several discovery requests, including the following, "Defendant moves for discovery of all evidence known to the State which may prove the defendant's innocence." The sperm sample was not among the items produced by the prosecution.

At trial, no testimony regarding the sperm sample was introduced other than a brief exchange between the prosecutor and the examining physician, in which the doctor described the procedure by which the sample was obtained. Hilliard invoked an alibi defense and was convicted of kidnapping, rape and sodomy. He was sentenced to life imprisonment in the Washington state penitentiary.

Hilliard contends that the prosecution suppressed material evidence in his case, i.e., the sperm sample, and thus deprived him of a fair trial.

DISCUSSION:

It is well established that the constitution prohibits the prosecution from suppressing material evidence in a criminal case. The government's duty to disclose such evidence was first announced by the Supreme Court in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), which held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." This court subsequently expanded that notion, imposing a duty to disclose even if defense counsel failed to specifically request particular evidence. United States v. Hibler, 463 F.2d 455, 459 (9th Cir.1972). The test for reversal in that situation is whether "the government failed to disclose evidence which, in the context of this particular case, might have led the jury to entertain a reasonable doubt about [the defendant's] guilt." Id. at 460.

This view, which was Ninth Circuit law when Hilliard went to trial in 1975, was accepted by the Supreme Court in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). That case established the prevailing constitutional standard in cases where defense counsel makes only a general "Brady request" for evidence, or makes no request at all. Under Agurs, evidence is "material," and reversal required, "if the omitted evidence creates a reasonable doubt that did not otherwise exist." 427 U.S. at 112, 96 S.Ct. at 2402.

From the record before us, it appears that Hilliard's counsel did not specifically request the prosecution to turn over a sperm sample taken from the victim. However, counsel did move for discovery "of all evidence known to the State which may prove the defendant's innocence." In determining whether Hilliard's due process rights were violated, the question therefore becomes, assuming that the government did suppress the sperm sample, was that sample "material evidence" of the kind which would raise a reasonable doubt that did not otherwise exist? We believe it was.

In a rape case, it is possible to test a sample of seminal fluid taken from the victim and compare it with samples of a defendant's saliva and blood. The results of such a test cannot positively identify a defendant as the perpetrator, but the test can conclusively exculpate an individual if the blood types do not match. This procedure is widely employed by law enforcement authorities, and has been accepted by a number of courts. See, e.g., United States v. Kennedy, 714 F.2d 968 (9th Cir.1983); Davis v. Pitchess, 388 F.Supp. 105, 107-08 (C.D.Cal.1974), aff'd, 518 F.2d 141 (9th Cir.1974), rev'd on other grounds, 421 U.S. 482, 95 S.Ct. 1748, 44 L.Ed.2d 317 (1975); Bowen v. Eyman, 324 F.Supp. 339, 340 (D.Ariz.1970); People v. Nation, 26 Cal.3d 169, 604 P.2d 1051, 1054-55, 161 Cal.Rptr. 299 (1980); State v. Bowen, 104 Ariz. 138, 449 P.2d 603, 605, cert. denied, 396 U.S. 912, 90 S.Ct. 229, 24 L.Ed.2d 188 (1969); People v. Kemp, 55 Cal.2d 458, 359 P.2d 913, 924, 11 Cal.Rptr. 361, cert. denied, 368 U.S. 932, 82 S.Ct. 359, 7 L.Ed.2d 194 (1961); see also 65 Am.Jur.2d Rape Sec. 61 (1972). The materiality of a sperm sample in a rape case thus goes well beyond the Agurs "reasonable doubt" requirement because it can be used to prove the defendant's innocence to a certainty.

Of course, the utility of a sperm sample to the defense necessarily depends on whether or not the blood types match. Thus, if the sperm sample were still available for testing, it would be reasonable to require the defendant to make some showing that the evidence would indeed have been exculpatory. If the sample had come into government hands prior to trial and subsequently been destroyed, however, the government may not interfere with the accused's ability to present a defense by imposing on him a requirement which the government's own actions have rendered impossible to fulfill.

We note that in some cases involving "what might loosely be called the area of constitutionally guaranteed access to evidence," United States v. Valenzuela-Bernal, --- U.S. ----, 102 S.Ct. 3440, 3447, 73 L.Ed.2d 1193 (1982), the defendant is required to make some showing that the government's actions actually prejudiced his defense, even when those actions have rendered such a showing more difficult. The Supreme Court's recent decision in Valenzuela-Bernal is such a case. There, however, the actions were taken in furtherance of legitimate governmental interests, so that, on balance, it was not unreasonable to place a heavier burden on a defendant challenging them.

The Valenzuela-Bernal Court held that when the government deports illegal-alien witnesses before the defense has an opportunity to interview them, the compulsory process and due process clauses are not violated absent a showing that "the lost evidence would be both material and favorable to the defense." 102 S.Ct. at 3449. Although the removal of potentially favorable witnesses creates additional problems for the defense, the Court explicitly noted that the government's conduct must be viewed in light of the executive's concurrent duty to faithfully carry out the immigration laws, which requires prompt deportation of undocumented persons. 102 S.Ct. at 3444-45. We can discern no comparable government duty in cases such as the one before us now. The Court in Valenzuela-Bernal was also cognizant of the high costs the government incurs while detaining large numbers of alien witnesses. 102 S.Ct. at 3445-46. In contrast, the cost of preserving sperm samples is insignificant--a slide can last over six years, without refrigeration, and still be tested with scientific certainty. Davis v. Pitchess, 388 F.Supp. at 107.

Finally, even though the government has a considerable interest in deporting aliens promptly, it cannot pursue that interest without making some effort to ensure that the accused is not denied his fundamental right to a fair trial. Thus, the Valenzuela-Bernal Court held that alien witnesses could be deported "upon the Executive's good-faith determination that they possess no evidence favorable to the defendant in a criminal prosecution." 102 S.Ct. at 3449. In the case before us, it appears that no such good-faith determination was made regarding the sperm sample. In cases where the government has arbitrarily suppressed a sperm sample without affording the defense an opportunity to test it, requiring a showing of prejudice before a defendant may assert his constitutional right to the evidence places his rights in the unsupervised hands of the prosecution.

We find Hilliard's situation to be more closely analogous to the cases in which no showing of prejudice is required. In those cases, government conduct, even though furthering a legitimate government interest, renders the defendant's burden of demonstrating prejudice extraordinarily difficult or impossible; in that situation the scales must be tipped...