State v. Harwood

• Decision Date: 23 March 1972
• Docket Number: No. 10712,10712
• Citation: 94 Idaho 615,495 P.2d 160
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Floyd G. HARWOOD, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 160

495 P.2d 160

94 Idaho 615

STATE of Idaho, Plaintiff-Respondent, v. Floyd G. HARWOOD, Defendant-Appellant.

No. 10712.

Supreme Court of Idaho.

March 23, 1972.

John B. Kugler, Pocatello, for defendant-appellant.

W. Anthony Park, Atty. Gen., Martin R. Ward, Deputy Atty. Gen., Boise, James C. Herndon, Pros. Atty., Salmon, for plaintiff-respondent.

SHEPARD, Justice.

This is an appeal from a judgment of conviction of a misdemeanor. Appellant-defendant Harwood was found guilty of having had in his possession a game animal, specifically a mountain goat, taken in an area outside that specified in his permit in violation of I.C. § 36-805. The trial court imposed a fine of $300 and a fifteen day sentence in the county jail. We reverse the judgment and remand the cause for a new trial.

Of appellant's assignments of error, we need consider only two. First, that a portion of the carcass of a mountain goat was seized from appellant's motor vehicle unlawfully and therefore the admission of that carcass into evidence over his objection was erroneous. Second, appellant contends that the trial court erred in denying his motion for a new trial. That motion was made on the basis of newly discovered evidence which was in the possession of the prosecutor at the time of trial and was not disclosed by the prosecutor. It is asserted that such evidence established the innocence of the defendant with certainty.

Defendant-appellant and a companion had engaged in a hunt for mountain goat. Defendant-appellant possessed a valid permit to hunt and kill a mountain goat within a certain specified geographical area. Having successfully finished their hunt, the two men were having lunch at an eating establishment near Cobalt in Lemhi County at about mid-day. There they met one Baird, a conservation officer for the State Fish and Game Department. During the course of a conversation, appellant-defendant described generally the area where he claimed the goat had been shot. The officer apparently formed a suspicion in his mind that the goat had not been shot in the correct area, evidently based on Baird's belief that the two men could not have walked the distances in the time involved. It later developed, however, that Baird had never previously walked the particular trail in question. The three men went outside the establishment, at which point Baird demanded that appellant display his license and permit. Baird noted the head, cape and rear hams of a goat, all of which were easily visible in the rear of appellant's vehicle. Baird thereupon removed the goat from appellant's vehicle and placed it in his own vehicle. It was not until a considerable period of time later that appellant was arrested.

The following day Baird and another officer traveled to the Fritzer Gulch area, which is only a few miles by road from the eating establishment. There they encountered a deer hunter and, after questioning that hunter, found the remains of a mountain goat which consisted of the front hams and paunch. The deer hunter had seen the kill of the goat the previous day but could not identify either the hunters or their vehicle. A bullet was found in that partial goat carcass and was forwarded to the Federal Bureau of Investigation laboratory for testing. The Fritzer Gulch area is admittedly not within the geographical area in which defendant was entitled to kill a mountain goat as set forth in his permit.

Thereafter the prosecuting attorney for Lemhi County wrote appellant's counsel indicating he would make available to the defense any ballistics report which might be received. The letter also stated, 'we would like to take a ballistic's (sic) report on the rifle used by Mr. Harwood. We understand he has a 243 Winchester or a 244 Remington.' Upon receipt of that letter counsel for appellant advised the prosecuting attorney that the appellant had a .270 Winchester model 721 Remington and did not have any of the other named rifles. Prior to the initiation of that correspondence, the prosecuting attorney had received a preliminary phone call from the FBI regarding the results of the ballistics tests.

Thereafter, the prosecuting attorney received a written report from the FBI laboratory concerning the ballistics examination of the bullet extracted from the remains of the goat carcass found in Fritzer Gulch. That report stated that the bullet in question was similar in diameter to a .243 Winchester or .244 Remington or 6 mm bullet. The report stated that the bullet in question could not have been fired in a .270 Winchester Remington Model 721 rifle. The report further stated that the bullet in question had sufficient individual barrel markings of value to sustain a comparison with test bullets from a suspect's rifle.

It is this ballistics information that appellant complains was not furnished to him as promised initially by the prosecuting attorney. This same ballistics information was the basis for appellant's motion for a new trial. It is obvious that the information in the report was highly material and perhaps conclusive on the issue of appellant's guilt or innocence. Appellant's hunting companion was an archery enthusiast and hoped to obtain a kill through the use of a bow. He carried no firearm during the hunt.

It is clear from the above that the State knew that appellant had a .270 Winchester model 721 Remington rifle; that the report showed that the bullet found in the Fritzer Gulch carcass could not have been fired from a .270 Winchester model 721 Remington; and that ballistics tests could be performed on appellant's rifle to determine if it has fired the bullet found in the goat carcass in Fritzer Gulch. The prosecuting attorney stated that his failure to supply defense counsel with the ballistics information was an inadvertence and an oversight. We hold that the trial court committed error in denying appellant's motion for a new trial based on the newly discovered evidence, to-wit: the existence of the ballistics report. The suppression of such exculpatory evidence by a prosecutor was a denial of due process. United States v. Poole, 379 F.2d 645 (7th Cir. 1967); Ashley v. State of Texas, 319 F.2d 80 (5th Cir. 1963). In both of the above cases the fact of the exculpatory report was known to the defense and was perhaps discoverable by the defense. Nevertheless it was held that the discoverability of the reports was not a bar to defendant's assertion of lack of due process because of the failure of the prosecution to turn over the reports to the defense or place the reports in evidence itself. With that proposition we agree. The case herein is even more obvious because of the promise of the prosecution to defense counsel to make the ballistics report available.

It is the duty of the prosecution to make available all evidence which tends to aid in ascertaining the truth. The prosecuting officer is expected to be impartial in abstaining from prosecuting as well as in prosecuting. See: Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959); Neill v. State, 89 Okl.Cr. 272, 207 P.2d 344 (1949); Code of Professional Responsibility of the Idaho State Bar, DR 7-103, EC 7-13; Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1218 (1958); State v. McKeehan, 91 Idaho 808, 430 P.2d 886 (1967); State v. Storms, 84 Idaho 372, 372 P.2d 748 (1962); State v. Spencer, 74 Idaho 173, 258 P.2d 1147 (1953).

The failure of the prosecuting attorney to perform his duty, albeit such failure was the result of inadvertence, obviously prejudiced the appellant's defense to the charge. Therefore the judgment of conviction must be reversed and the matter remanded for a new trial.

Since the matter is to be remanded, it is necessary that appellant's assignment of error relating to the introduction of certain evidence be considered. We note initially that no warnings of the Miranda type were given to the appellant even though, as stated by the arresting officer, he, during the time of the conversation, had formed a suspicion in his mind that the appellant had killed a mountain goat outside the area in which such hunting was permitted. Appellant asserts that the seizure of the partial goat carcass from his motor vehicle was done without a warrant, was invalid, and therefore the admission of the carcass was erroneous.

We note initially the basic proposition that searches without a warrant are per se unreasonable unless falling within certain specific and well-delineated exceptions. Coolidge v. New Hampshire,403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

The exceptions to searches conducted outside the judicial process without a warrant include the following, (See generally: Wheeler v. Goodman, 330 F.Supp. 1356 (W.D.N.C.1971)): (a) Search incident to and following a lawful arrest, but only of the suspect's person and of areas within his immediate reach or physical control necessary to protect police against hidden weapons, destruction of the evidence or fruits of the crime, etc. Chimel v. California, supra; Von Cleef v. New Jersey, 395 U.S. 814, 89 S.Ct. 2051, 23 L.Ed.2d 728 (1969). (b) Search of a vehicle upon probable cause to believe that the vehicle contains articles that the officers are entitled to seize and where the ease and probability of mobility for escape or destruction of the evidence is clear. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). (c) Consent searches where such consent is knowing and voluntary. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). (d) Search, with probable cause, for and in hot pursuit of a...