State v. Maloney
| Decision Date | 27 January 1970 |
| Docket Number | No. 1923,1923 |
| Citation | 464 P.2d 793,105 Ariz. 348 |
| Parties | STATE of Arizona, Appellee, v. Patrick Daniel MALONEY, Appellant. |
| Court | Arizona Supreme Court |
Marshall W. Haislip, Phoenix, for appellant.
This is an appeal from a conviction and sentence of death mandated by a jury's verdict on each of two counts of an information charging defendant with murder in the first degree of his mother and stepfather. At the time of the homicides defendant was just under 16 years of age.
At a former trial on the same charges, he had been found guilty of murder in the second degree as to the stepfather, and in the first degree as to the mother. Punishment was fixed on the former to a term of years in the state prison, with life imprisonment being assessed on the latter. These convictions were subsequently reversed by this Court on the ground of denial of due process of law under the Fourteenth Amendment to the United States Constitution.
At the trial below, the State contended that defendant had, prior to killing his parents, decided to leave home with another boy, and a girl with whom he planned marriage; and that he also intended to steal his stepfather's car and money. Defendant admitted his prior intention to leave and get married, but denied any preconceived plan to commit a theft.
Defendant, on the witness chair, recounted to the jury the following events: That on the evening in question he had advised his mother of his intention to leave immediately; that she had then asked him to delay his departure until such time as her husband might be away from their apartment, as she wanted him to have 'another act of sexual intercourse' with her before he left; that later in the evening his mother came into his bedroom to inform his that the stepfather had gone; that he thereupon went into her bedroom and took off his clothes; that his mother also undressed, except for a negligence, and then procured from a dresser drawer a condom for him to use; that they had just finished having intercourse when the stepfather returned and saw them together in bed; that he, the defendant, then walked out of the bedroom and into the living room where his stepfather was standing, and that the latter appeared so distraught he could not speak; that he then continued on into the kitchen when he heard a scream from his mother.
The court and jury were further told that he thereupon grabbed a butcher knife and returned to the living room. He then entered a small hallway where he was confronted by his stepfather who was brandishing a pistol.
He testified further that a fight ensued, and that his mother ran in to help him. The stepfather then, either deliberately or accidentally, shot the mother. Further, that if she had any stab wounds on her body they undoubtedly were inflicted accidentally while he was fighting so violently with the other decedent.
The next morning, when the bodies were discovered in the apartment, a 'used' condom wrapped in a piece of kleenex, and an empty, metal, condom box were found by the investigating officers in decedents' bedroom and tossed into a wastebasket.
Defendant's main contention on this appeal is that the discard of the condom, kleenex, and box constituted a suppression of material evidence which otherwise would have substantiated his claim of self-defense. He urges that a scientific examination of such evidence would have materially supported his assertion that he and his mother had in fact engaged in an act of sexual intercourse on that evening.
He further urges (1) the unconstitutionality of the death penalty, (2) violation of the Double Jeopardy Clause of the Approaching these assertions in the order of their magnitude urged by defendant, we render the following decision:
Fifth Amendment to the Federal Constitution, by virtue of the first degree murder conviction under each count at the second trial, (3) error in giving or refusing certain instructions, and (4) misconduct by the county attorney in his closing arguments to the jury.
We are here faced with the question of whether the discard of relevant, physical evidence found by police officers at the scene of a crime constitutes a suppression of evidence in denial of due process. Defendant contends he was thereby deprived of a scientific analysis for possible fingerprints, blood, semen and/or pubic hairs that would have corroborated his defense, and that the failure to preserve and examine this evidence assumes constitutional dimensions by a denial of fundamental fairness.
We cannot agree. When applied to the facts of this case the term 'suppression of evidence' is a misnomer. According to the record the officers were acting in good faith when the condom, kleenex, and box were thrown away. They could not then have known that defendant was to later claim that his stepfather had discovered him and his mother in an act of sexual intercourse. Nor could they have known, and there was nothing to put them on notice at the time, that such evidence might tend to exonerate the accused. Certainly the destruction thereof was not the result of guile.
The fact that the items were found, and the time and place of their discovery, were testified to at the trial. The non-production of the items themselves does not constitute a 'suppression of evidence,' even if they had still been in existence. The probative effect of any laboratory examination of such items for circumstantial evidence would, obviously, have to be mere speculation. Defendant's arguments to the contrary are not convincing.
It would be comfortable if a comprehensive formula could be devised to determine when the fairness of a trial is violated by withholding or destroying evidence which is, or may be, exculpatory. An examination of the authorities, however, dictates the obvious observation that courts must look to the circumstances of the particular case in reaching a decision.
It is now, though, an established proposition that disclosure of evidence favorable to an accused is not restricted to 'discovery' rights, and that there exists a broad duty on the part of the prosecution to reveal such evidence to the accused. State v. Fowler, 101 Ariz. 561, 422 P.2d 125 (1967); United States ex rel. Meers v. Wilkins, 326 F.2d 135 (2d Cir. 1964). The Ninth Circuit in Thomas v. United States, 343 F.2d 49 (9th Cir. 1965), for example, citing the landmark case of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), invoked the 'well-recognized rule * * * that a conviction cannot stand where a prosecutor has, either wilfully or negligently, withheld material evidence favorable to the defendant.'
The obvious reason for the rule was adeptly noted by Justice Bernstein in the Fowler case:
* * *' State v. Fowler, 422 P.2d 125 at 127.
As was said in Curran v. State of Delaware, 259 F.2d 707 (3rd Cir. 1958), the trial of a capital case, or indeed any other trial, no longer can be considered properly a game of wits and skill, in which the State's function is to outwit and entrap its If the argument here advanced by defendant were to prove successful, would we not hereafter be requiring all investigating officers, at their peril, to bring the entire crime scene, 'lock, stock, and barrel,' including the ceiling, floor, and walls, into court? What if the accused here were to claim that in running from his attacker he had placed his hand on a window? Would the conviction then have to be overturned because an officer had, without knowledge of his claim, destroyed possible fingerprints by allowing a maid to wash the window in question? The principle urged could well lead to deliberate fabrication on the part of an accused after learning what items officers had discarded or failed to preserve.
quarry. But certainly such principles must be measured in terms of essential fairness of the procedures used, and not in the astuteness or foresightedness of the investigating officers. They must know, or have reason to know, that the evidence being destroyed was wither material or favorable to the accused.
Had the police retained the items in question, run appropriate tests, the results of which substantiated defendant's contentions, and then concealed both the evidence and analysis thereof from his scrutiny, he would be placing himself within the purview of the authorities on suppression of evidence. On the other hand, had the officers suppressed evidence of the 'finding' of the prophylactic, or given false testimony in regard thereto, the Due Process Clause would require redress. The fact that defendant here may have been harmed by the failure to preserve this evidence is not enough. An erroneous admission of evidence by a trial court or a bad interpretation of a state law, without more, would not raise a constitutional issue, although both errors might harm the defendant.
It is true that an accused does not have access to all the evidence, much of which has usually been removed or obliterated by the time he learns that he is to be tried for the crime. He cannot, therefore, as the State does, sift out what appears helpful to his defense. And clearly the State is not to decide for the court what is admissible, or, for the defense, what is useful. Griffin v. United States, 87 U.S.App.D.C. 172, 183 F.2d 990 (1950).
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