State v. Broughton

• Decision Date: 01 March 1988
• Docket Number: No. CR-86-0062-AP,CR-86-0062-AP
• Citation: State v. Broughton, 752 P.2d 483, 156 Ariz. 394 (Ariz. 1988)
• Parties: STATE of Arizona, Appellee, v. Preston BROUGHTON, Appellant.
• Court: Arizona Supreme Court

Page 483

752 P.2d 483

156 Ariz. 394

STATE of Arizona, Appellee, v.Preston BROUGHTON, Appellant.

No. CR-86-0062-AP.

Supreme Court of Arizona, In Banc.

March 1, 1988.

Robert K. Corbin, Atty. Gen. by William J. Schafer III, Ronald L. Crismon, Robert S. Golden, Asst. Attys.Gen., Phoenix, for appellee.

Stanfield & McCarville, P.C. by Thomas A. McCarville, Garye L. Vasquez, Gilberto V. Figueroa, Casa Grande, for appellant.

MOELLER, Justice.

JURISDICTION

On June 18, 1984, defendant, Preston Broughton, was a prisoner at the Arizona State Prison serving a life sentence for murder and a twenty-one-year sentence for manslaughter.On that date, there was an altercation in the industrial yard of the central unit at the Arizona State Prison, resulting in the indictment of the defendant on two counts of dangerous or deadly assault by a prisoner.One count alleged that defendant assaulted prison guard Donald Hoefer; the other count alleged that he assaulted his fellow prisoner Floyd Evans.At trial, the court granted defendant's motion for a directed verdict on the Evans count.The jury convicted on the Hoefer count.Defendant was sentenced to a mandatory, consecutive life sentence pursuant to A.R.S. § 13-1206 as it existed at the time of the offense and now appeals.We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3)andA.R.S. §§ 13-4031 and -4035.We affirm.

FACTS

Defendant worked in the prison industrial yard where the inmates performed carpentry, metal fabrication and other craftwork.About 11:00 a.m. on June 18, 1984, the prisoners were dismissed from the yard for lunch.As they were leaving the yard, prisoner Floyd Evans allegedly called defendant a "punk," an appellation which, in prison parlance, has highly negative connotations.Defendant responded by attacking Evans with a long board about two inches thick.

Prison guard, Donald Hoefer, stepped in to break up the fight.According to Hoefer, defendant was incensed; his face was red and his teeth were clenched.Hoefer began to handcuff defendant but Hoefer's supervisor, who had not seen the fight, ordered Hoefer to guard Evans and let the defendant go to the cafeteria.

A moment later, Hoefer saw defendant, still wild-eyed and incensed, approach Evans holding a rusty utility knife blade.Hoefer stood his ground and defendant said, "Get out of my way, old man, or I'll cut you."Before Hoefer could react, defendant slashed at him.Although Hoefer felt a stinging sensation, he did not realize he had suffered a seven-inch stomach wound.Hoefer then knocked defendant to the ground.

Charles Newbold, a supervisor in the industrial yard, jumped on defendant and held him on the ground.The supervisor who had earlier ordered Hoefer not to handcuff defendant returned to the scene and led defendant away to his cell.While going to the cell, defendant told the supervisor, "If that skinny motherfucker guard ever puts his hands on me again, I will kill him too."

Guards searched the area following the attack and found a utility knife blade.This blade was, and is, the subject of controversy.The blade, while similar to hundreds of other blades in the industrial yard, was the only one found in the immediate area of the fight.The state took the blade into custody, but performed no tests on it until almost a year and a half later.The tests, when made, used up the small amount of blood on the blade.The blood could not be identified as human blood.The tests revealed no identifiable fingerprints.

Sometime after the fight the state held disciplinary hearings directed against the defendant and Evans.Tapes of the hearings were made but were routinely destroyed after the hearings and before these criminal charges were filed.

At trial, the injured guard, Hoefer, gave a detailed, eyewitness account of the attack.He testified that defendant was the only prisoner to make physical contact with him during the fight.Newbold, the supervisor, testified that he saw defendant swipe at Hoefer and saw Hoefer quickly jump back.Newbold also observed an object in defendant's hand and a deep wound in Hoefer's stomach.Joseph Hammer, who worked for the duplicating services in the prison, saw Hoefer holding his abdomen and also saw Newbold restraining the highly agitated defendant.Hoefer, Newbold and Hammer all testified that Hoefer's stomach was deeply cut in the attack.

While defendant did not testify, three prisoners, including Evans, did.Not surprisingly, their testimony was guarded.Although none of them testified directly that defendant had attacked Hoefer, each prisoner's testimony was consistent with that of Hoefer.Each acknowledged that defendant, Evans and Hoefer were in the industrial yard outside the carpentry shop where both inmates worked at approximately 11:00 a.m. on June 18, 1984.Evans and a prisoner named Harjo acknowledged that defendant and Evans interacted in some fashion at that time.Harjo and a prisoner named Tipton also testified that at that time defendant became so angry he had to be restrained.None of the three prisoners denied that defendant attacked Hoefer.

PRE-INDICTMENT DELAY

Defendant was indicted on June 19, 1985, a year and a day after the attack on Hoefer.Defendant moved to dismiss the indictment based on pre-indictment delay.At a hearing on that motion, the state explained the reason for the delay.Tom Scott, the investigator originally responsible for the Department of Corrections investigation, became seriously ill less than one month after the June 18, 1984, attack on Hoefer.As a result, Scott was off work on July 10, 1984, again from July 16 through July 20, again on August 23 and 24, and finally, from September 4 through October 9 for brain surgery.His illness and subsequent surgery caused him to lose all memory of the case.As a result, the police reports were not turned over to the county attorney's office until April of 1985, approximately ten months after the crime occurred.The indictment followed within two months.The defendant challenges the trial court's denial of his motion to dismiss based on pre-indictment delay.

We note first that defendant does not allege, and has not sought to prove, any deliberate delay on the part of the state, the Department of Corrections or the county attorney.Defendant does, however, argue that his due process rights were violated by the one-year delay.He asserts two separate sources of alleged prejudice.First, he claims that the delay resulted in the destruction of the tapes of the prison disciplinary hearings.Second, he claims that because of the delay the knife blade was not tested until a year and a half after the incident.We conclude that neither claim justifies dismissal.

With regard to the unavailability of the tapes of the disciplinary proceedings, defense counsel stated Now we look at the prejudice that's involved in this case.The State's witnesses all wrote reports in regard to this case.The CSO and also the other personnel wrote reports.Even though they have a loss of memory, they have something to refresh their memory on.

I have spoken to inmates who were at the scene where the alleged offense occurred.Every one of them cannot remember what exactly occurred ... It was over a year and a half ago ... when this thing occurred ... Now just the fact that the state has, or state's witnesses have, reports which they can look at and refer back to, any of the witnesses that we would be presenting don't have these types of reports or details to refer back.That is a tactical advantage that the state has over the defense in the prosecution of this case.

[I]f there was [sic] any inconsistent statements in regard to what the State's witnesses would present at the time of trial, we no longer have those interviews or transcripts present.And, again, this is prejudice, I believe, in the defense of our case.

The due process clause plays only a limited role in evaluating pre-indictment delay.United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752, 758(1977).The primary guarantee against a stale prosecution is the statute of limitations.State v. Van Arsdale, 133 Ariz. 579, 653 P.2d 36(App.1982).In this case, the statute of limitations is seven years.A.R.S. § 13-107(B)(1).

To establish that pre-indictment delay has denied a defendant due process, there must be a showing that the prosecution intentionally delayed proceedings to gain a tactical advantage over the defendant or to harass him, and that the defendant has actually been prejudiced by the delay.State v. Hall, 129 Ariz. 589, 633 P.2d 398(1981);State v. Torres, 116 Ariz. 377, 569 P.2d 807(1977);State v. Marks, 113 Ariz. 71, 546 P.2d 807(1976).In Hall, we noted that a "stale investigation" in and of itself is not normally violative of due process rights:

[T]he facts [do not] establish that the delay was intended to gain a tactical advantage or to harass appellants.Instead, appellants argue only that it is unfair for the State to investigate and gather statements and evidence which they did not or could not do until their indictment; hence, they were afforded a "stale investigation."Such is clearly not constitutionally violative of due process.

129 Ariz. at 593, 633 P.2d at 402(citations omitted).

In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468(1971), the United States Supreme Court first noted that any pre-indictment delay unavoidably results in some degree of prejudice to defendant."Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant's case should abort a criminal prosecution."Id. at 324-25, 92 S.Ct. at 465, 30 L.Ed.2d at 481.

This statement in Marion foreshadowed the Court's holding six years later in Lovasco, wherein the Court rejected a defendant's claim that pre-indictment delay created prejudice justifying a reversal...