State v. Finnegan

• Decision Date: 29 March 1972
• Docket Number: No. 332--III,332--III
• Citation: 495 P.2d 674,6 Wn.App. 612
• Parties: The STATE of Washington, Respondent, v. Michael O'Dennis FINNEGAN, Appellant.
• Court: Washington Court of Appeals

Page 612

6 Wn.App. 612

495 P.2d 674

The STATE of Washington, Respondent, v. Michael O'Dennis FINNEGAN, Appellant.

No. 332--III.

Court of Appeals of Washington, Division 3.

March 29, 1972.

Rehearing Denied May 24, 1972.

Petition for Review Denied July 25, 1972.

Howard K. Michaelson and Francis J. Conklin, Spokane, for appellant.

James P. McNally, Pros. Atty., Newport, for Pend Oreille County.

D. Roger Reed, Asst. Atty. Gen., Spokane, for respondent.

MUNSON, Chief Judge.

Defendant Michael O'Dennis Finnegan appeals his conviction for first-degree murder. The death penalty was not recommended.

On November 23, 1967, August Nelson was found shot to death in Pend Oreille County, Washington. Approximately 2 years later, defendant and Monte Duncan were arrested and charged in separate informations with Nelson's homicide. While in custody of the Pend Oreille County authorities, Duncan confessed to his participation in the killing of Nelson and implicated defendant.

Defendant moved for pretrial discovery, including Duncan's statement. The resident judge of Pend Oreille County orally granted that part of the motion with respect to Duncan's statement. The state moved for reconsideration. Subsequent thereto the resident judge became ill and a visiting judge was assigned to the case. Upon the latter's reconsideration, the motion was denied in its entirety; however, the state was ordered to make Duncan available for questioning by defendant. Duncan's attorneys were so notified. Duncan can was made available but, on the advice of his counsel refused to discuss any aspect of the case. Defendant's trial commenced June 22, 1970.

The state established: The homicide of Nelson; the circumstances under which his body was found; the cause of his death; Duncan, Nelson and defendant were together in a Spokane tavern the night of Nelson's disappearance; the three were seen getting into defendant's car; defendant had access to a weapon the caliber of that used to Kill Nelson; and defendant had made a statement to a third person, upon his return to a Spokane tavern, that he, the defendant, had 'plugged him (Nelson) full of holes.'

During the course of trial the state granted Duncan immunity from all prosecution relative to Nelson's death and called him as a witness. The pertinent portions of his testimony may be summarized as follows: Defendant previously told Duncan he was going to kill Nelson; the three men got into Finnegan's car late November 22, 1967 and proceeded north from Spokane on the pretense of going to Pend Oreille County to commit a robbery; after driving over an hour, defendant pulled into a side road and stopped his car; defendant and Nelson left the car and went to its trunk to change clothes for the 'robbery'; while Duncan was approaching the rear of the car he heard a shot and saw Nelson slump towards the ground, whereupon Finnegan shot him again; the deceased fell to the ground; upon Duncan's request, Finnegan handed Duncan the gun and Duncan fired a shot into Nelson's held put at that time Duncan believed Nelson was already dead; thereafter defendant and Duncan returned to Spokane to frequent several bars and ostensibly establish their whereabouts.

Defense counsel vigorously cross-examined Duncan on all aspects of his testimony, his background, his understanding of the meaning of his immunity, and its effect as to his prosecution. ¹

Finnegan's defense consisted primarily of an alibi that: (1) he did not participate in the killing--he was in Spokane the night in question but Duncan had the use of his car that evening; and (2) he left for Seattle early the following morning, November 23, 1967, with Duncan and two female companions.

In rebuttal the state offered testimonial and photographic evidence placing Duncan in Spokane until Thursday evening, November 23, 1967.

The presentation of evidence concluded late Friday afternoon, June 26, 1970; whereupon counsel and court began their instruction conference. During the conference defense counsel learned for the first time, from an unidentified informer, that Monte Duncan, while confined in the Pend Oreille County Jail, ² 'attempted' to take his life on two occasions: (1) by taking an overdose of sleeping pills March 13, 1970, and (2) by slashing his neck June 5, 1970. After checking the veracity of the information with the prosecution, defense counsel advised the court it was his opinion the case should be reopened and the jury advised of these facts. However, the court said the matter could be taken up on a motion for new trial if an adverse verdict was rendered. Defense counsel apparently acquiesced in the court's informal decision and proceeded with the instruction conference. No motions were made on the record, but the state confirms the conversation as set forth above. The jury was instructed that evening. A guilty verdict was returned Saturday, June 27, 1970. On Monday, June 29, 1970, Duncan hung himself while in the protective custody of the Pend Oreille County Sheriff.

Defendant's motion for new trial was denied. The court found the evidence of Duncan's suicide attempts, as well as additional evidence corroborating the alibi, would not have changed the jury verdict and that the cross-examination of Duncan by defense counsel clearly established Duncan's competency.

The primary issues before us are: (1) whether the prosecutor had a duty to inform defense counsel of Duncan's suicide attempts prior to offering Duncan's testimony, which we answer in the affirmative; and (2) whether the prosecutor's failure to do so constituted reversible error, which we answer in the negative.

The prosecutor's duty to disclose evidence favorable to a defendant began with Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406 (1935) wherein the Supreme Court held it was reversible error for the prosecution to suborn perjury to seek a conviction. Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957) extended the Mooney doctrine to the prosecutor's use of evidence known to be false. The prosecutor's duty not to suborn perjury or to use evidence known to be false was further enlarged to place upon the prosecutor an affirmative duty to correct state witnesses who testify falsely. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). The rationale of the cases cited, and the myriad ones relying thereon, casts the duty of the prosecutor to disclose primarily in terms of the prosecutor's misconduct since the use of perjured or false testimony severely undermined the stature of the judicial system. Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967). However, as early as United States ex rel. Thompson v. Dye, 221 F.2d 763 (3rd Cir. 1955), a rephrasing of this rationale began to be enunciated, I.e., the impropriety of the suppression of evidence was being viewed in terms of the harm suffered by defendants as opposed to prosecutorial misconduct. The culmination of this rephrasing is found in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ³ when the Supreme Court did away with the bad faith aspect of the prosecutor's misconduct. Thus, as observed by Justice Traynor in Ground Lost and Found in Criminal Discovery, 39 N.Y.U.L.Rev. 228 (1964), the prosecutor's constitutional duty to reveal evidence material to either the guilt or punishment of a defendant was firmly established; however, no formula for the implementation of this duty was established. In the most recent Supreme Court case considering this issue, Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967), the court refused the challenge of the Brady decision. Although the court phrased the question before it as 'whether the prosecutor's constitutional duty to disclose extends to all evidence admissible and useful to the defense', the majority by-passed this question by using the rationale of Napue v. Illinois, Supra, to serve as the basis for its remand. Our latest case on this issue, State v. Temple, 5 Wash.App. 1, 485 P.2d 93 (1971), adopts the Brady approach.

Discovery, however, when requested by a defendant, is subject to the trial court's discretion. There must exist some reasonable basis for the request. State v. Thompson, 54 Wash.2d 100, 338 P.2d 319 (1959). In the case at bar, where those accused of this crime were lodged in separate county jails and their attorneys were residents of different cities, approximately 50 miles apart, there was no reason for the defendant or his attorney to suspect such conduct on the part of Duncan. From our analysis of the previous cases, and our understanding of the rationale inherent therein, we believe in this case there was evidence (a) favorable to the accused and material to either negate guilt or mitigate the degree of the offense or punishment, (b) known to the state, (c) that may have an effect on the outcome of the trial, (d) which the state had reason to believe was unknown to the defendant. Disclosure by the prosecutor should have been made at the earliest feasible opportunity. Brady v. Maryland, Supra; ABA Standards, The Prosecution Function and the Defense Function, § 3.11 (Approved Draft, 1971); Cf. Illinois Supreme Court Rules article 4, Rules on Criminal Proceedings in the Trial Court, Rule 412, Ill.Rev.Stat.1971, c. 110A, § 412.

Since (a) defendant and Duncan were charged by separate informations, (b) were to be tried separately, and (c) during the time leading up to the trial of defendant the state did not contemplate calling Duncan as a witness, there was no pretrial duty on the prosecutor to notify defendant or his counsel of the incidents involving Duncan. However, when the state's offer of immunity to Duncan in exchange for his testimony was accepted, the duty to disclose arose. At that instant the attempted suicides became relevant to the credibility or competency of Duncan and thus bore upon defendant's guilt and/or punishment. ⁴ The failure of defense c...