State v. Holden

• Citation: 890 P.2d 341,126 Idaho 755
• Decision Date: 19 January 1995
• Docket Number: No. 20316,20316
• Parties: STATE of Idaho, Plaintiff-Respondent, v. David HOLDEN, Defendant-Appellant.
• Court: Court of Appeals of Idaho

Page 341

890 P.2d 341

126 Idaho 755

STATE of Idaho, Plaintiff-Respondent, v. David HOLDEN, Defendant-Appellant.

No. 20316.

Court of Appeals of Idaho.

Jan. 19, 1995.

Rehearing Denied March 3, 1995.

Petition for Review Denied March 21, 1995.

Jonathan B. Hull, Kootenai County Public Defender; Brian D. Long, Public Defender, Coeur d'Alene, for appellant. Brian D. Long argued.

Larry EchoHawk, Atty. Gen., Michael J. Kane, Deputy Atty. Gen., Boise, for respondent. Michael J. Kane argued.

LANSING, Judge.

In March 1992, David Holden's wife, T.H., reported to police that he had sexually assaulted her. Holden was arrested and charged by information with nine felonies: one count of rape, I.C. § 18-6101 (subsequently amended 1994); six counts of forcible sexual penetration by use of a foreign object, I.C. § 18-6608; and two counts of infamous crime against nature, I.C. § 18-6605. At the ensuing jury trial Holden was acquitted on three counts of forcible sexual penetration by use of a foreign object and was convicted on the six remaining charges. The district court sentenced Holden, on each count, to a unified term of twenty-five years with a five-year minimum period of confinement. The court ordered that the sentences on all counts would be served concurrently.

On appeal, Holden asserts that the district court should have dismissed all charges against him due to the prosecution's loss of allegedly exculpatory evidence prior to trial. We hold that the loss of the evidence did not amount to a deprivation of due process and thus did not warrant dismissal of the charges. Holden also asserts that his prosecution for two counts of infamous crime against nature predicated upon sexual acts performed with his wife violates his constitutional right of privacy. Based upon United States Supreme Court precedent, we recognize the existence of a constitutional right of marital privacy and hold that the two convictions for the infamous crime against nature were obtained in violation of this right and, therefore, must be vacated. Holden's convictions on the remaining four charges are affirmed.

I. LOSS OF EVIDENCE

Promptly following T.H.'s report of the attack, the police responded and arrested Holden. While at the Holden residence, the police seized a number of items as evidence, including two photographs from Holden's bureau drawer. These photos depicted T.H. nude and in sexually explicit positions.

Approximately one week later the investigating officer, after consulting with the prosecutor in charge of the case, returned these photos to T.H. Some months later, after discovering that the photographs were no longer in the possession of the police or the prosecutor, defense counsel filed a motion to dismiss all charges on grounds that the State had lost exculpatory evidence and thereby deprived Holden of due process. After a number of hearings and unsuccessful searches for the photos, the district court denied the motion to dismiss. Holden argues on appeal that the district court erred in not dismissing the charges.

The due process guaranties of the Fifth and Fourteenth Amendments to the United States Constitution require the government to produce to the defendant evidence that is material and exculpatory. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). Due process interests also impose upon the government a duty to preserve exculpatory evidence for potential use by the defendant. Arizona v. Youngblood, 488 U.S. 51, 55, 109 S.Ct. 333, 335, 102 L.Ed.2d 281 (1988); California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); State v. Fain, 116 Idaho 82, 91, 774 P.2d 252, 261 (1989), cert. denied, 493 U.S. 917, 110 S.Ct. 277, 107 L.Ed.2d 258 (1989); State v. Bruno, 119 Idaho 199, 202, 804 P.2d 928, 931 (Ct.App.1990). This duty to preserve evidence arises only with respect to evidence that possesses an exculpatory value which was apparent before the evidence was lost or destroyed and is of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Trombetta, 467 U.S. at 488-89, 104 S.Ct. at 2533-34. When potentially exculpatory evidence has been lost by the government, the trial court must determine whether there has been a due process violation warranting remedial measures, which may include dismissal of the charges. Trombetta, 467 U.S. at 487, 104 S.Ct. at 2533; Fain, 116 Idaho at 91, 774 P.2d at 261.

If the evidentiary value of the lost or destroyed evidence cannot be ascertained, a due process violation is established if the court finds that: (a) the lost evidence likely was material, and (b) the State acted in bad faith in losing the evidence. Youngblood, 488 U.S. at 57-58, 109 S.Ct. at 337; Fain, 116 Idaho at 91, 774 P.2d at 261; State v. Greathouse, 119 Idaho 732, 735, 810 P.2d 266, 269 (Ct.App.1991). However, in some cases the content of the lost evidence is not unknown but, rather, can be established by other evidence or testimony. In that event, the determination of whether there has been a deprivation of due process turns upon the materiality of the lost evidence, and bad faith of the state need not be shown. Youngblood, 488 U.S. at 57, 109 S.Ct. at 337; Brady, 373 U.S. at 87, 83 S.Ct. at 1196; State v. Trumble, 113 Idaho 835, 836-37, 748 P.2d 826, 827-28 (Ct.App.1987).

In the present case, the nature of the lost evidence was not unknown. The content of the photographs was not controverted, and was known to two police officers, the prosecutor and the victim. Presumably, Holden was also familiar with the photographs inasmuch as they were found with other personal belongings in his dresser drawer. Therefore, Holden's contention that the State's loss of the photographs deprived him of due process requires that we determine only whether the photographs were material.

Evidence is material for purposes of due process analysis if there is a reasonable probability that, had the evidence been available to the defense, the result of the proceeding would have been different. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). A 'reasonable probability' is "a probability sufficient to undermine confidence in the outcome." Id.

Holden argues that the photos were material because they were relevant to his defense in two respects. First, he contends that they had impeachment value to discredit T.H. because the photos showed her voluntarily assuming a physical position that she allegedly told police was painful for her when Holden forced her into such a position on the night of the offenses. However, while T.H. may have made such a statement to police Second, Holden argues that the photographs were relevant to his defense that the sexual conduct for which he was prosecuted was consensual. Evidence is relevant to an issue in controversy if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." I.R.E. 401. It was charged in the information that Holden committed rape by use of force or violence and that forcible sexual penetration by use of a foreign object was accomplished through use of force, violence, duress or threats against the victim. Therefore, evidence of T.H.'s consent would have been helpful for the defense of these charges.

[126 Idaho 758] her trial testimony includes no statement that she was forced into such a position or that it caused her pain on the night in question. Accordingly, there was no trial testimony from T.H. that the photographs would have served to impeach in the suggested manner.

We conclude, however, that the photographs would not have been sufficiently probative on this question of consent to have altered the outcome of the trial. It is not contended that the misplaced photographs were taken during or temporally close to the commission of the charged offenses. Therefore, they do not directly evidence T.H.'s consent on the night in question. The photographs arguably have some marginal relevance on a theory that they show the victim's willingness to engage in uninhibited and unconventional sexual conduct, making it more likely that she willingly participated in the acts giving rise to the charges. ¹ However, at trial T.H. acknowledged that her past consensual marital relations with Holden had included unconventional acts, including fellatio and anal intercourse. This admission by the victim attenuated whatever evidentiary value the photographs might have had on the issue of consent.

Moreover, Holden was able to introduce descriptions of the photographs through the testimony of two policemen who had seen the photos. The jurors were thereby informed of the content of the photos although they could not view them.

Given the tenuousness of the photographs' potential probative value to show consent, and recognizing that the photos were described to the jury, we think it highly improbable that presentation of the photographs themselves would have changed the jury's verdict. Consequently, although the conduct of the police and the prosecutor in casually releasing the photographs is not to be condoned, we hold that the photos do not meet the constitutional standard of materiality and that the loss of this evidence did not deprive Holden of due process.

II. RIGHT OF PRIVACY

Holden was convicted on two counts of violating I.C. § 18-6605. ² That statute, which has not been changed in substance since its adoption in 1864 as part of the territorial laws, Laws of Territory of Idaho, Crimes and Punishments § 45 (1864), makes the infamous crime against nature punishable as a felony. The term, "infamous crime against nature" has been construed to include fellatio, State v. Izatt, 96 Idaho 667, 534 P.2d 1107 (1975); State v. Carringer, 95 Idaho 929, 523 P.2d 532 (1974); ...