Sadler v. State, F-88-958

• Decision Date: 07 January 1993
• Docket Number: No. F-88-958,F-88-958
• Citation: 1993 OK CR 2,846 P.2d 377
• Parties: David Wayne SADLER, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 377

846 P.2d 377

David Wayne SADLER, Appellant, v. STATE of Oklahoma, Appellee.

No. F-88-958.

Court of Criminal Appeals of Oklahoma.

Jan. 7, 1993.

Rehearing Denied Feb. 17, 1993.

An Appeal from the District Court of Custer County; Alan D. Markum, Associate District Judge.

DAVID WAYNE SADLER, appellant, was originally charged with the crimes of First Degree Murder and First Degree Rape, in Case No. CRF-87-32 in the District Court of Greer County. A change of venue was granted and appellant was tried by jury for these crimes in Custer County, Case No. CRF-88-45. The jury returned a verdict of guilty and set punishment at life imprisonment for the murder charge and fifteen (15) years imprisonment on the rape charge. The trial court sentenced the appellant in accordance with the jury's verdict and ordered the sentences to be served concurrently. From this Judgment and Sentence, the appellant has perfected his appeal. AFFIRMED.

Charles V. Williams, Sp. Prosecutor, Watonga, Richard E. Hovis, Hobart, Stephen D. Beam, Weatherford, Cindy G. Brown, Asst. Appellate Public Defender, Norman, for appellant.

Susan Brimer Loving, Atty. Gen., Steven S. Kerr, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

JOHNSON, Judge:

DAVID WAYNE SADLER, appellant, was originally charged with the crimes of First Degree Murder and First Degree Rape, in Case No. CRF-87-32 in the District Court of Greer County. A change of venue was granted and appellant was tried by jury for these crimes in Custer County, Case No. CRF-88-45. The jury returned a verdict of guilty and set punishment at life imprisonment for the murder charge and fifteen (15) years imprisonment on the rape charge. The trial court sentenced the appellant in accordance with the jury's verdict and ordered the sentences to be served concurrently. From this Judgment and Sentence, the appellant has perfected his appeal.

Phillip Pat Adams, appellant's accessory and co-defendant, made a plea bargain with the District Attorney in order to avoid the death penalty. Adams pled guilty to First Degree Murder and received a life sentence with the understanding he would testify against appellant.

Adams testimony revealed that on the night of April 14, 1987, in Mangum, Oklahoma, appellant and Adams went out drinking. Adams drove the truck and appellant was a passenger. They bought four quarts of beer and drove out into the country to drink it. Later, they drove to Blair, Oklahoma, to visit a friend and buy some more beer and then went to Granite. After running out of money and beer, they discussed how they would get some more money and appellant asked Adams if he knew of any old ladies. They drove around the city of Granite and Adams pointed out Esther Steele's house, an elderly woman who had been his teacher.

Adams stated he dropped appellant off around the corner from Mrs. Steele's house. Appellant got out of the truck and grabbed a knife and put his socks on his hands. Adams drove the truck around and picked appellant up about an hour later. Appellant returned with a billfold and gave Adams ten dollars. Taking backroads, Adams drove back out into the county where he stopped to let appellant "get rid of the stuff". Appellant went into a bar ditch and returned a few moments later, bare-chested. Appellant put on some green coveralls that were in the truck.

The two men drove around until Adams lost control of the truck and rolled it over in a bar ditch. Appellant left the crash scene to find help. He was seen in Granite about 4:00 a.m. in the morning on April 15, 1987, by a passerby who took him to the police station. An ambulance was sent to the accident scene and both men were taken to Mangum City Hospital.

Later that day, a neighbor discovered Esther Steel's dead body in her bed. Testimony revealed she had been raped and stabbed to death. She had been stabbed three times in the chest and once in the neck.

The crime was investigated by the Oklahoma State Bureau of Investigation. Subsequently, both Adams and appellant were questioned, arrested and charged as co-defendants for the crime of burglary and the murder and rape of Esther Steele. Appellant confessed that he was with Adams on April 14 and 15, 1987, but denied being the rapist and murderer. Adams gave a sworn statement to the police on December 3, 1987, that implicated appellant as the rapist and murderer. He later pled guilty to being an accessory and received a life sentence. The details of these and other pertinent facts will be addressed as they relate to appellant's propositions of error.

Appellant's first proposition of error is that the trial court committed reversible error in not granting appellant's motion for a mistrial. Appellant claims that a mistrial was warranted because his due process rights, as recognized in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), were violated by the State's failure to turn over allegedly exculpatory evidence.

The evidence in issue is a technical report that contained the results of DNA testing on semen samples taken from the body of the victim and blood samples taken from appellant, Philip Adams, and the victim, Esther Steele. The State sent the samples to a private company that does DNA analysis in forensic cases. (Tr. 800) The purpose of having the tests run was to determine which co-defendant the semen belonged to, thus, providing proof on who committed the rape. (Tr. 800) The tests the OSBI were able to perform were not conclusive. (Tr. 800)

Appellant first learned of this test and report on the fourth day of trial while cross-examining Mary M. Long, a criminalist with the Oklahoma State Bureau of Investigation (OSBI). Upon discovery of this report, an in camera hearing was held. When questioned about the report, Mary Long stated that she received the report on July 22, 1987, and the result of the test was inconclusive because the vaginal swab she sent for analysis did not contain sufficient DNA. She admitted that cervical swabs were also taken but, in her opinion, they were not of a good enough quality for the lab to work with because the sperm cells were deteriorated. Therefore, she did not send them in for testing when the results from the first test came back inconclusive.

The State admits they erred in not giving appellant a copy of the report. (Tr. 812; appellee's brief at 3.) Appellant specifically requested this type of report in his motion to compel discovery, filed in October, 1987. (O.R. 55-57). At the motion hearing in January, 1988, the trial judge ruled appellant was entitled to "any report, scientific, technical, or otherwise if it's exculpatory." (M.H. Tr. 35) Further, the trial judge required that the reports be exchanged at least one week prior to trial or else the report or the subject matter of the report would not be admissible. (M.H. Tr. 34) The trial judge ordered the State to submit its materials to a reviewing magistrate for determination of exculpatory materials. (M.H. Tr. 35-36) The report in issue was not submitted.

In the in camera hearing, the prosecutor claimed that, like defense counsel, he too had no previous knowledge of the report until Mary Long was cross-examined as the report was not in his file. Defense counsel moved for a mistrial and argued that appellant was prejudiced by the omission even though the result of the test was inconclusive. He claimed prior knowledge of the report could have allowed him to: (1) have hired an expert to analyze the report; (2) used it for comparison purposes; (3) be better prepared for cross-examination; (4) be able to cross-examine the people who collected and transported the semen; and (5) had their own DNA tests performed. (Tr. 809-810)

The trial judge overruled the motion for a mistrial finding the error harmless because: First, even if the report had been given to defense counsel, there were not enough specimens left to conduct additional tests because the first test consumed all of the specimen; second, the report was negative and no conclusion could be drawn from it and although the report might have been helpful to defendant, it was not detrimental to appellant.

To establish a Brady violation, a defendant must establish that the prosecution suppressed evidence that was favorable to him or exculpatory and that the evidence was material. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). To find reversible error, the appellant must meet the burden of showing: (1) the prosecution has actually suppressed evidence after that evidence has been requested by the defense; (2) the evidence was favorable to appellant's defense; and (3) the evidence is material either to the guilt of appellant or to his punishment. Lay v. State, 752 P.2d 823, 826 (Okl.Cr.1988), citing to Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972).

As there is no question that evidence was suppressed, the only question in the first inquiry is whether her actions are to be imputed to the State. This Court views police investigators, police officers, OSBI officials, independent and police technicians or test analyzers as State actors when their testimony or reports are used by the prosecutor against a defendant in a criminal case. See Moore v. State, 740 P.2d 731, 736 (Okl.Cr.1987); Van White v. State, 752 P.2d 814, 819 (Okl.Cr.1988); Durant v. State, 717 P.2d 1161, 1164 (Okl.Cr.1986).

Recently, this Court has directly faced the issue of a prosecutor's source of information withholding evidence and the prosecutor having no knowledge of the withholding. Pierce v. State, 786 P.2d 1255, 1261 (Okl.Cr.1990). Unknown to the prosecution, an Oklahoma City Police Department chemist did not send all of the forensic evidence to an independent lab for testing. This was in direct violation of a court order. Id. We held the chemist's failure to send the evidence was the State's violation of the court order. Pierce at 1261. Reversible error was not found because the...