State v. Howard

• Decision Date: 07 July 1988
• Docket Number: No. 8319-5-III,8319-5-III
• Citation: 52 Wn.App. 12,756 P.2d 1324
• Parties: STATE of Washington, Respondent, v. Noyes Russell HOWARD, Appellant.
• Court: Washington Court of Appeals

Page 12

52 Wn.App. 12

756 P.2d 1324

STATE of Washington, Respondent, v. Noyes Russell HOWARD, Appellant.

No. 8319-5-III.

Court of Appeals of Washington,

Division 3, Panel Two.

July 7, 1988.

Susan Hahn, Schwab, Kurtz & Hurley, Yakima, Timothy Ford, Seattle, for appellant.

Gregory Canova, Asst. Atty. Gen., Seattle, for respondent.

GREEN, Judge.

Noyes Russell Howard was convicted of the first degree murder of his wife, Donna Howard. He appeals contending the court should have dismissed the charge because (1) the State failed to preserve potentially exculpatory evidence in violation of his due process right to a fair trial; and (2) the delay between the victim's death and the trial was prejudicial. He further contends the court erred by (3) admitting testimony from his second wife, Pepper Howard, in violation of the marital privilege; (4) refusing to grant a mistrial based upon prosecutorial misconduct; and (5) excluding evidence of prior dangerous behavior of a horse owned by Donna Howard. We affirm.

On the morning of January 10, 1975, Mr. Howard found Donna lying on the ground in the loafing shed attached to a horse corral behind their home near Yakima. She had suffered severe head injuries. Medics were summoned; they confirmed Donna was dead. Sheriff's detectives arrived and investigated the scene, taking several black and white photographs of the body and surrounding area. Measurements were taken, but evidence from the scene was not tested or gathered by the detectives.

An autopsy performed the following day by Yakima County Coroner Dr. Richard Muzzall revealed two separate injuries to the skull--a massive fracture to the lower left portion and a small ovoid fracture above the right temple. Photographs were not taken of the autopsy and tissue samples from around the wounds were not preserved. On January 11 Dr. Muzzall and Detective Robert Langdale examined the scene and concluded Donna Howard was killed when a horse kicked her in the back of the head as she knelt near a railroad tie. They believed the kick forced her into the railroad tie with a sharp protrusion causing the smaller ovoid fracture. On January 13 Mr. Howard was interviewed by sheriff's detectives and gave an alibi statement. The death was ruled accidental and the case was closed on that date.

During April Detective Langdale reopened the investigation at the request of Bobbi Bennett, the victim's sister. Over the next several months, he conducted interviews and re-visited the scene of Donna's death. No inference of foul play was discovered; the case was again closed in December.

In September 1976, after further requests from Ms. Bennett, Yakima County Prosecutor Jeff Sullivan requested Dr. William Brady, the Oregon State Medical Examiner, to conduct an exhumation autopsy to determine whether possible prosecution was warranted. Dr. Brady concluded Donna's death could have been caused as Dr. Muzzall theorized. At that time, the Bennett family retained a private expert, Dr. Robert Bucklin, who attended the autopsy and took the victim's skull to Los Angeles for reconstruction and preservation. When he was unable to state with medical certainty that Dr. Muzzall's conclusions were wrong, it was again concluded Donna's death was accidental. No further official investigation was conducted until June 1980.

Meanwhile, in June 1975 Mr. Howard married Karen Howard, nicknamed "Pepper", with whom he had been having an affair prior to Donna's death. In 1978 they were divorced and Pepper left the area. She returned on two or three occasions and, on at least one of those occasions, she lived with Mr. Howard. During June 1980, Mr. Howard and Pepper were disputing over who owned certain furniture; a sheriff's deputy, who was a personal friend of Pepper, accompanied her to Mr. Howard's home--she demanded the furniture and Mr. Howard refused. After the deputy told her he wished he could do something to help her because Mr. Howard had no respect for the law, Pepper then stated to the deputy "off the record" that in 1975 Mr. Howard told her he had killed Donna with a claw hammer. A few days later she gave a similar statement to Detective Jerry Hafsos and the investigation was re-opened. In October 1980 Deputy Prosecutor Robert Hackett interviewed Pepper, but no record of the interview was made. He reviewed the prior investigative reports, and on January 8, 1981, concluded in a memorandum to Mr. Sullivan that charges should not be filed, in part because Mr. Howard's "detailed 'confession' was made, according to [Pepper] while they were married."

Later in 1981, at the request of the Bennett family, the governor's office requested the attorney general to intervene. After a 2 1/2-year investigation, the State in November 1984 formally charged Mr. Howard with first degree murder. The attorney general prosecuted the case due to the likelihood a Yakima deputy prosecutor would be called to testify. On December 17, 1984, Mr. Howard sought an order requiring the State to pay the attorney fees and costs of his defense. The order was granted and the State appealed ( State v. Howard, 106 Wash.2d 39, 722 P.2d 783 (1985)). After a delay of almost 2 years, trial commenced on October 21, 1986--nearly 12 years after Donna Howard's death. On October 31 the jury returned a verdict of guilty and Mr Howard was sentenced to life imprisonment with a 20-year minimum.

First, Mr. Howard contends his due process rights were violated because the State failed to preserve potentially exculpatory evidence, citing State v. Wright, 87 Wash.2d 783, 557 P.2d 1 (1976) and State v. Pennewell, 23 Wash.App. 777, 598 P.2d 748, review denied, 92 Wash.2d 1036 (1979). Additionally, citing State v. Vaster, 99 Wash.2d 44, 659 P.2d 528 (1983), he argues there is a reasonable possibility the missing evidence affected his ability to present a defense; instead, the court assumed the lost evidence would prove guilt, thereby stripping away his presumption of innocence when to the contrary the evidence would have raised a reasonable doubt which did not otherwise exist as to guilt. State v. Canaday, 90 Wash.2d 808, 815, 585 P.2d 1185 (1978).

On the other hand, the State argues the court correctly determined there was no affirmative duty to preserve particular evidence, as investigators concluded no crime was committed. Moreover, the State does not have a duty to search for and preserve all potentially exculpatory evidence. State v. Jones, 26 Wash.App. 551, 614 P.2d 190, review denied, 94 Wash.2d 1008 (1980); State v. Hall, 22 Wash.App. 862, 593 P.2d 554, review denied, 92 Wash.2d 1021 (1979). We agree.

The State is required to preserve all potentially material and exculpatory evidence under its control in order to afford due process protections to the accused. State v. Wright, supra, 87 Wash.2d at 788-90, 557 P.2d 1. This duty is based on the obligation to disclose exculpatory evidence to insure a fair trial for the accused. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963); Wright, 87 Wash.2d at 791, 557 P.2d 1. The duty also applies to agents (including private citizens) acting under prosecutorial authority, State v. Vaster, supra, 99 Wash.2d at 53, 659 P.2d 528; Wright, 87 Wash.2d at 793, 557 P.2d 1. Good faith or inadvertent failure to preserve evidence does not abridge the right to a fair trial unless there exists a reasonable possibility it was material and favorable to the defense; "reasonableness" is determined in light of the circumstances of each case, Vaster, 99 Wash.2d at 52, 659 P.2d 528, including all the other evidence which could be presented. Seattle v. Duncan, 44 Wash.App. 735, 740, 723 P.2d 1156 (1986); State v. Huxoll, 38 Wash.App. 360, 366, 685 P.2d 628, review denied, 102 Wash.2d 1021 (1984).

While much of the evidence was immediately available to investigators, Donna Howard's death was ruled accidental and the case was closed on January 13, 1975, 3 days after her death. ¹ Thus, any duty to preserve potentially exculpatory evidence was extinguished at that time. When the investigation was re-opened in April 1975, the State had the duty to preserve available evidence. However, the duty was again extinguished in December 1975 when no inference of foul play was uncovered and the case was again closed. Assuming an investigation was in progress during the September 1976 exhumation autopsy, it again was determined no criminal act was involved. Further investigation did not occur until 1980. During the interim, there was no duty to preserve any evidence.

In State v. Hall, supra, defendant argued the State failed to preserve samples of a charred bridge which might have supported his claim he accidentally caused a fire. The State conceded that arson was initially suspected. The court declined to expand Wright to require investigators to search for exculpatory evidence or exhaustively pursue every angle:

The police are required only to preserve that which comes into their possession either as a tangible object or a sense impression, if it is reasonably apparent the object or sense impression potentially constitute material evidence.

Hall, 22 Wash.App. at 867, 593 P.2d 554. Similarly, in State v. Jones, supra, the court declined to expand the Wright doctrine when defendant argued his due process rights were violated because the State did not investigate an additional alleged suspect and failed to identify other fingerprints from the crime scene. We likewise decline to expand the Wright decision to the facts presented in the instant case. ²

Second, Mr. Howard contends the lapse of nearly 12 years between Donna's death and his trial was presumptively a prejudicial delay which justifies dismissal of the charges. State v. Haga, 8 Wash.App. 481, 507 P.2d 159, review denied, 82 Wash.2d 1006 (1973) (Haga I). He also argues the 2-year pretrial delay caused by the State's interlocutory appeal over whether the county or state should pay for his defense...