Nettles v. State, 18S00-8905-CR-379

• Decision Date: 29 January 1991
• Docket Number: No. 18S00-8905-CR-379,18S00-8905-CR-379
• Parties: Harold Henry Augusta NETTLES, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1064

565 N.E.2d 1064

Harold Henry Augusta NETTLES, Appellant, v. STATE of Indiana, Appellee.

No. 18S00-8905-CR-379.

Supreme Court of Indiana.

Jan. 29, 1991.

Geoffrey A. Rivers, Muncie, for appellant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of two counts of Murder, for which he received sentences of sixty (60) years on each charge, the sentences to run consecutively.

The facts supporting the verdict of the jury are as follows: The victims in this case were Brenda Freeman and her five-year-old son, Michael Tyrone Carmichael. They lived with Syrona Lynn Haines. Prior to the killings, appellant and Haines had been having a relationship, and appellant had spent a number of nights at the apartment. Haines testified she last saw the victims alive when she left the apartment on December 26, 1987.

On the evening of December 28, 1987, appellant was seen leaving the apartment. Haines returned home about 3:00 p.m. on December 29 and discovered the bodies of the victims. She immediately called police. She testified that appellant often wore a maroon sweat shirt with "Harvard" on the front. Several other witnesses also testified that appellant had been seen wearing such a sweat shirt.

On the day the bodies were discovered, appellant was seen running through nearby yards wearing the sweat shirt. Daisy Bonner testified that she saw appellant take off the sweat shirt and drop it in Elizabeth Isom's yard. Elizabeth's son, Virgil Isom, retrieved the sweat shirt and it was turned over to police. Blood was found on the sweat shirt which was inconsistent in type with appellant's or the child's blood but was consistent with the mother's blood. Tests also revealed that there was hair on the sweat shirt which matched appellant's hair as well as hair matching that of both victims.

At the scene of the murders, bloodstains were found that were inconsistent with the two victims' blood but which were consistent with appellant's blood. Police also obtained a bloody fingerprint from the kitchen which matched appellant's prints with seven points of comparisons. Police also found a Salem cigarette butt in the apartment, a brand which appellant was known to smoke.

Dr. James Baldwin performed autopsies on the victims and stated that the child had four stab wounds in the back, one of which went through his heart. His body contained a total of sixteen stab wounds. As to the mother's injuries, Dr. Baldwin stated there were multiple gaping lacerations on the victim's scalp and face. Her face alone contained approximately forty separate wounds. She sustained blunt-instrument injuries which probably were inflicted by a broken steam iron that was found nearby. She also sustained multiple stab wounds to the chest, back, arms, and hands including at least seventy separate punctures of her chest. Comparison of the wounds with instruments found in the apartment showed that the wounds matched knives and a meat fork.

At the time of his arrest, appellant had multiple cuts on his hands. These cuts were photographed and Dr. John E. Pless testified that some cuts on appellant's hands were inflicted by a serrated knife. Such a knife was found at the crime scene. An H-shaped wound on appellant's hand matched the handle of the broken iron.

Appellant claims the trial court erred in denying his motion to suppress numerous items of the State's evidence including blood and hair identification test results the samples of which were either destroyed in the testing process or not preserved by the State. He combines this argument with his claim of error in the trial court's denial of his motion to dismiss the charges against him because of the State's intentional or negligent destruction of material evidence.

On January 14, 1988, appellant's attorneys filed a motion to produce. The State responded by providing existing scientific reports and informed appellant's attorneys that the physical exhibits were available for viewing. On March 30, 1988, appellant filed a motion asking for "copies of ... all fingerprints and blood analysis...." He followed this with a request for funds to hire an expert on blood analysis. On July 14, 1988, appellant filed a motion to require the State to provide evidence to his experts. After a hearing on the matter, the trial court denied the request, ruling it had no authority to order the State to turn physical evidence over to the defendant. The court did require the State to allow appellant's expert to examine the evidence when suitable security arrangements were made.

On August 15, 1988, defense counsel moved to withdraw. Two weeks later, counsel moved for sanctions against the State for violation of the orders to produce. Both motions were based upon the State's refusal to turn over physical evidence to appellant. Another hearing was held on September 19, 1988 in which the trial judge reiterated his ruling that he would not order the State to turn over physical evidence unless arrangements could be made for security of the State's evidence. Subsequently, appellant's counsel complied, and their expert was permitted to examine the evidence.

Appellant then filed a motion to suppress the evidence based upon his claim of the State's delay and bad faith. His motion to dismiss filed a week later was based on the same grounds.

As to appellant's allegation of destruction of evidence by the State, the only evidence of intentional destruction was explained by the examining technicians who stated that it was necessary to destroy portions of items such as hair and blood to conduct the testing. The balance of appellant's claim is supported by the fact that the State neglected to refrigerate blood samples, and by the time appellant's counsel and the State resolved their differences on custody of the objects, the technician employed by appellant stated that the blood samples were too old and in such a state of deterioration that he could not adequately test them.

The trial court had the inherent power to guide and control the discovery proceedings. Norris v. State (1987), Ind., 516 N.E.2d 1068; Spears v. State (1980), 272 Ind. 634, 401 N.E.2d 331, modified on other grounds on reh'g, 272 Ind. 647, 403 N.E.2d 828. The trial judge was correct in his observation that he should not order State's evidence turned over to appellant without provision being made for the security of the evidence. It is true that when a court finds that a prosecutor's noncompliance with discovery orders is grossly misleading or in bad faith, he may exclude the State's evidence. Sparks v. State (1979), 271 Ind. 419, 393 N.E.2d 151.

However, in the case at bar, appellant's counsel was furnished with the test results immediately upon request. It was not until later that appellant's counsel moved for funds with which to employ an expert and moved the court to order the State to turn over its physical evidence for independent testing. This was denied by the court until reasonable security could be provided for the State's evidence. Any testing which could be done was extremely limited due to the passage of time. While this is unfortunate and the State might be sanctioned for failure to refrigerate blood samples, this in no way invalidates the testing which previously had been done by the State Police Laboratory on the hair and blood samples.

In Arizona v. Youngblood (1988), 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281, a similar situation was presented. There the Supreme Court held the State's failure to preserve potentially useful evidence by neglecting to refrigerate semen-stained clothing did not constitute denial of due process where there was no showing of bad faith on the part of the police. In the case at bar, we see nothing in this record to indicate bad faith in the failure to preserve the specimens of human blood. The results of all tests conducted by the police were made available to appellant, and there is no indication or contention that those tests were conducted improperly or fraudulently.

The facts in this case, which are relied upon by appellant in his argument, were placed before the jury and raised a question as to the credibility of the State's evidence. This was a matter to be weighed by the jury and it was their prerogative to give such weight as they saw fit to the State's evidence.

Appellant claims the trial court erred in denying his motion to suppress the evidence concerning hair, blood, etc. taken from appellant during his incarceration. He claims the allegations included in the search warrant were not sufficient to establish probable cause to believe that he had committed a felony. He claims the warrant for his arrest also was deficient in facts to establish probable cause to believe that he had committed a felony. However, appellant sets out the State's affidavit which was filed to support their search warrant in an attempt to support his contention. A reading of that affidavit leads to the conclusion that ample evidence was set out to establish probable cause that the taking of hair and blood samples from appellant was justified in light of the information then available to police.

A similar situation existed regarding the warrant for appellant's arrest. Preliminary police investigation had disclosed many of the facts recited at the beginning of this opinion. There can be no doubt that these facts were ample to provide probable cause for the arrest of appellant in the instant case. See Merritt v. State (1986), Ind., 488 N.E.2d 340; Battle v. State (1981), 275 Ind. 70, 415 N.E.2d 39. In dealing with probable cause for making an arrest, a court deals with probabilities which are the factual and practical considerations of everyday life upon which prudent and reasonable men, not legal technicians, act. Draper v. United States (1959), 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. We see no lack of probable cause...