People ex rel. Gallagher v. District Court In and For Arapahoe County, State of Colo.

• Decision Date: 10 January 1983
• Docket Number: No. 82SA389,82SA389
• Citation: 656 P.2d 1287
• Parties: The PEOPLE of the State of Colorado ex rel. Robert R. GALLAGHER, Jr., District Attorney in and for the Eighteenth Judicial District, Petitioner, v. The DISTRICT COURT In and For the COUNTY OF ARAPAHOE, STATE OF COLORADO, and the Honorable John P. Gately, One of the Judges Thereof, Respondents.
• Court: Colorado Supreme Court

Page 1287

656 P.2d 1287

The PEOPLE of the State of Colorado ex rel. Robert R.

GALLAGHER, Jr., District Attorney in and for the

Eighteenth Judicial District, Petitioner, v. The DISTRICT COURT In and For the COUNTY OF ARAPAHOE, STATE

OF COLORADO, and the Honorable John P. Gately, One

of the Judges Thereof, Respondents.

No. 82SA389.

Supreme Court of Colorado,

En Banc.

Jan. 10, 1983.

Rehearing Denied Jan. 31, 1983.

Robert R. Gallagher, Jr., Dist. Atty., Catherine DiSante, Deputy Dist. Atty., Littleton, for petitioner.

Leonard M. Chesler, Denver, for respondents.

LOHR, Justice.

In this original proceeding under C.A.R. 21, we issued a rule directing the Arapahoe County District Court to show cause why it should not be prohibited from reducing the charge against the defendant from first degree murder ¹ to second degree murder ² as a sanction for failing to preserve the victim's hands in a condition suitable for trace metal testing by the defendant. We now discharge the rule.

The defendant, Thomas Reynolds, was charged with first degree murder based on the shooting of his wife, Elaine Reynolds. The defendant's theory appears to be ³ that the victim held the pistol from which the fatal bullet was fired and that the gun discharged during a struggle in which the defendant was attempting to defend himself against an attack by his wife.

Elaine Reynolds was shot at the family home during the early morning hours of February 28, 1982. Officer Garbett of the Aurora Police Department was summoned to the scene and was in charge of the investigation. While the initial on-scene investigation was in progress, a deputy district attorney asked Garbett to obtain a trace metal test of the victim's hands. Defense counsel also requested that the police perform such a test and asked that the victim's hands be covered with bags until the analysis could be accomplished. The purpose of the requested trace metal test was to attempt to determine whether the victim had held the gun. After receiving these requests, on the morning of the same day Elaine Reynolds was shot Garbett asked the supervisor of the police department crime laboratory to perform the trace metal test. The supervisor stated that his laboratory would not conduct the examination, but also said that if Garbett wished to ask one of the laboratory workers to accomplish such an analysis as a personal favor the supervisor would not interfere. Garbett advised defense counsel on that same morning that the police department crime laboratory would not perform the test.

Bags were placed around the victim's hands at the death scene at the request of the police crime laboratory supervisor. The body was then taken to a mortuary, where an autopsy was performed. ⁴ No defense representative was present at the autopsy; the record does not indicate that defense counsel was notified and given an opportunity to appear. After the autopsy, the body was transported to another mortuary for embalming. A mortician began preparing the body for burial shortly after midnight on March 2, 1982. When the mortician began his work there were no bags on the victim's hands. As part of the usual procedures to prepare a body for burial, the mortician massaged the victim's hands with a solution of surgical soap and Clorox bleach to obtain better circulation of the embalming fluid and later washed and scrubbed the hands with the same solution to remove dried blood resulting from the postmortem examination. On the evening of March 2, 1982, at the request of Garbett, an Aurora Police Department crime laboratory technician performed a trace metal test on the victim's hands.

The defendant moved to dismiss the murder charge on the ground that by failing to preserve the victim's hands in a condition suitable for trace metal testing the prosecution had violated his right to due process of law. The trial court held a hearing at which Garbett, the crime laboratory supervisor, the mortician, and a Colorado Bureau of Investigation (CBI) expert on trace metal tests gave testimony. The CBI expert explained that the trace metal test was devised to determine whether a person has held a metal object in the recent past. It is a chemical test and is based upon the scientific fact that when a human hand touches certain metals perspiration reacts with the metal and a minute layer of metal is deposited on the tissue of the hand. After a hand has been sprayed with the appropriate chemical compound and is exposed to a particular kind of light, it will fluoresce in colors that vary depending on the type of metal present.

Although in the most successful analyses it is possible to discern on the hand an image of a pattern appearing on the metal, only in approximately four percent of tests conducted under laboratory conditions on a subject who has held metal is it possible to identify the particular object that was grasped. The absence of a positive reaction does not necessarily mean that the subject has not held a metal object, ⁵ nor does a positive reaction necessarily mean that the object that produced it was a weapon. Where a positive reaction is obtained it is not possible to tell at what time in the recent past the subject touched the metal object. Notwithstanding these shortcomings, the CBI expert was of the opinion that such a test should be conducted in all cases where there is a question whether the subject held a metal weapon. His opinion was based principally on the fact that the four percent possibility of definite evidence that the subject held a particular weapon is too significant to ignore.

The CBI expert also testified that, although he could not state definitely the manner in which the washing of hands with the Clorox bleach and surgical soap solution would affect the trace metal test, he would expect some reaction, especially because Clorox is a strong chemical. He also noted that many soaps contain zinc, which produces its own characteristic color on trace metal testing.

The police crime laboratory supervisor's testimony, although not so detailed as that of the CBI expert, was not significantly in conflict with it. The supervisor was self-taught in trace metal testing, had engaged in periodic testing for eight to ten years for the Aurora Police Department, and had done his last testing six months earlier. He stated that over the years he had conducted about seventy-five to one hundred tests, about twenty-five percent of them in field situations. The laboratory supervisor was of the opinion that because a negative test result is not conclusive that the subject held a metal object and because a positive reaction does not necessarily establish that the source of the metal was a weapon, the test is too inconclusive to be useful. That is the reason he assigned for deciding not to conduct the trace metal test notwithstanding the requests by the investigating officer, deputy district attorney, and defense counsel.

The trial court found the prosecution's position at the motion hearing that the trace metal test has no value to be implausible, particularly in light of the long history of use of the test by the Aurora Police Department and the testimony of the CBI expert as to the validity and usefulness of the analysis. The court ruled that under the circumstances here, including the fact that the defendant relies on the theory of self-defense, the prosecution had an affirmative duty to preserve the victim's hands in a condition suitable for testing on behalf of the defendant. The court concluded that the failure to perform that duty deprived the defendant of due process of law.

As a remedy for the due process violation, the trial court ordered the charge reduced from first degree murder to second degree murder. In addition, it vacated its earlier determination that a capital offense was involved and that the proof was evident or the presumption great, ⁶ and set bail. The trial court also suppressed from use as evidence in the prosecution's case the results of the trace metal test conducted after the victim's hands had been cleansed by the mortician. In this original proceeding the People challenge only the order reducing the charge to second degree murder.

Although we have considered on several occasions whether due process of law was violated by prosecutorial conduct depriving a defendant of relevant evidence and the appropriate remedies for such an infringement of a defendant's constitutional rights, this case presents a novel fact pattern for application of familiar legal principles. We first address the question of whether the defendant's due process rights were violated and then consider whether the relief granted by the trial court was appropriate.

I.

In determining whether the defendant's due process rights were violated by the failure of the prosecution to conduct a trace metal test or to make the victim's body available to the defendant for testing we begin with the principles established in the seminal case of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), where the United States Supreme Court 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.

Id. at 87, 83 S.Ct. at 1196-97, 10 L.Ed.2d at 218; accord, e.g., Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972); People v. Garries, 645 P.2d 1306 (Colo.1982); Garcia v. District Court, 197 Colo. 38, 589 P.2d 924 (1979); People v. Hedrick, 192 Colo. 37, 557 P.2d 378 (1976). For convenience in analysis, the Brady v. Maryland criteria commonly have been broken down into three parts: (1) suppression by the prosecution after a request by the defense, (2) the evidence's favorable character for the defense, and (3) the materiality of the evidence. Id. ⁷ Only if all three parts of the test are met is there a due process violation....