State v. Mitchell

• Decision Date: 19 January 1984
• Docket Number: Nos. 2,CA-CR,s. 2
• Citation: State v. Mitchell, 140 Ariz. 551, 683 P.2d 750 (Ariz. App. 1984)
• Parties: The STATE of Arizona, Appellee, v. Gary Arland MITCHELL, Appellant. 2774, 2 2979-2.
• Court: Arizona Court of Appeals

Page 750

683 P.2d 750

140 Ariz. 551

The STATE of Arizona, Appellee, v. Gary Arland MITCHELL, Appellant.

Nos. 2 CA-CR 2774, 2 CA-CR 2979-2.

Court of Appeals of Arizona Division 2.

Jan. 19, 1984.

On Motion for Reconsideration

March 13, 1984.

Review Denied June 5, 1984.

Robert K. Corbin, Atty. Gen. by Bruce M. Ferg, Asst. Atty. Gen., Tucson, for appellee.

Frederic J. Dardis, Pima County Public Defender by Frank P. Leto, Asst. Public Defender, Tucson, for appellant.

OPINION

HOWARD, Judge.

Appellant was indicted on three counts of sexual assault in violation of A.R.S. § 13-1406 and one count of attempted sexual assault in violation of A.R.S. §§ 13-1001 and 13-1406. All of the counts involved different victims and allegations of prior conviction were filed for enhancement purposes pursuant to A.R.S. § 13-604. Count three, attempted sexual assault, was later dismissed by the state and appellant was tried separately on counts one and two. He was found guilty by a jury of count one and the jury also found the allegations of dangerousness and prior conviction to be true. He was found not guilty by a separate jury in a separate trial on count two. He thereafter pled guilty to count four.

The trial court, in sentencing defendant on count one noted, inter alia, that the crime was committed within one month after appellant's release on parole. It sentenced him to 21 years' imprisonment to commence upon the completion of the sentence he was serving in Jackson, Mississippi.

Count one was alleged as a prior conviction in count four to which appellant pled guilty. He was sentenced on count four to 28 years' imprisonment to run concurrently with the sentence on count one. This appeal concerns both counts one and four.

On July 2, 1981, the victim came home at 11:30 p.m. and went to sleep. Her roommate was at work. She was awakened shortly thereafter by the doorbell and upon going to the door she saw, through the peephole, a black man, the defendant. She did not open the door at first but asked him who he was. He said he was Gary and gave her a last name which she could not remember. She asked him if he was a friend of her roommate and he said that he was. She told him her roommate was not there and when he asked when she was going to return, she told him that her roommate would be back about 1:30 a.m. The defendant then asked if he could leave a note. The victim assented, opened the door and let him in the house. Although there was no light in the living room, the lights were on in the kitchen and both bedrooms.

She gave the defendant a piece of paper and a pen and he went into the kitchen and started writing. She went back to her bedroom to put on a robe but when she turned around the defendant was there with a knife in his hands. He told her that if she screamed or did anything wrong he would kill her. She begged him not to hurt her and he put down the knife and raped her. He then had her get into the shower and clean herself while he went to get the pen and paper she had given him. After she got out of the shower, she put on a robe and sat down on the bed and talked with him. He apologized to her but also threatened her if she told anybody what happened.

She had been calling him Gary all of this time and he said, "You don't think my name is really Gary, do you? You don't think I'd actually tell you my real name?"

He then left the house but cleaned off the doorknob with his handkerchief before departing. All of this took about fifteen minutes and the victim clearly saw appellant's face in the bedroom light. She also noticed that the defendant's left ear was pierced and that he was wearing an earring. Two or three minutes after the defendant left, she called her roommate at work who in turn hailed a police unit. When the police arrived the victim was in a corner of the living room, hysterical and with a large knife by her side. A vaginal swab was utilized to collect any semen, and a slide was made and it was sent to Edward Heller, a criminalist at the Tucson Police Department Crime Laboratory, who received it on July 14.

Starting the day after the rape, the victim was shown one physical lineup and three photographic lineups. She did not see the defendant in the first three lineups, one of which was the physical lineup. In fact, he was not in any of these. During the fourth lineup, she immediately picked out his photograph as soon as she saw it and told the police that he was definitely her assailant. Appellant was arrested on September 27, 1981, in Tucson, and at the tiral the victim unhesitatingly and positively identified the defendant as her attacker.

Heller's examination of the slides revealed the presence of sperm. In November 1981, Heller took a blood and saliva sample from both the defendant and the victim for comparison with the semen sample. His tests showed that the defendant was a group O secretor, the victim a group B secretor and that the semen sample came from a group O secretor. He also explained that secretors secrete the same bloodtype from their blood into their body fluids and that some people are non-secretors. Heller also testified that the largest segment of the black population, approximately 40 per cent, were type O secretors.

Heller further testified that it is possible to analyze semen by breaking it down into its PGM enzyme types. About 58 per cent of the population has a PGM 1 type; PGM 2-1 is found in approximately 36 per cent of the population and PGM 2, approximately 6 per cent. In July 1981 his lab did not have the capability of performing the PGM analysis, and if the semen is not refrigerated the enzymes deteriorate within a month. If it has been refrigerated, the enzymes would probably last three to six months. Even if he had a fresh sample of semen and was able to do a PGM analysis, Heller testified that doing enzyme typing of secretions of semen is very difficult and that if you get readable, interpretable material 40 per cent of the time you would be doing fairly well. Utilization of bloodtype, and the PGM enzymes, can eliminate a person as being the one who secreted the semen.

Appellant did not testify but presented a female witness who said that she gave appellant an earring and that she had never seen him with the type of earring described by the victim. Appellant also called the victim's roommate who testified that on July 2, 1981, two blacks arrived in a van and talked to her while she was washing her car and that she was later shown a three-man lineup and that one of the persons in the lineup looked like one of the men who was talking to her.

On appeal appellant contends that the trial court erred in (1) failing to suppress his in-court identification by the victim because the pretrial identification procedures were unduly suggestive; (2) failing to dismiss the indictment on count one because of the loss or destruction of the photographic lineups, and (3) failing to dismiss count one because of the negligent destruction of possible exculpatory evidence. As for count four, his only argument is that since count one has to be dismissed because of the foregoing errors, he will have to be resentenced on count four. We affirm.

We first discuss the loss of the first two photographic lineups. The first lineup was shown to the victim prior to the time that appellant had even been arrested. Neither of the lineups contained a photograph of appellant. Had the victim selected appellant's picture from out of a photographic lineup, then the materiality of the other photos in the lineup is evident. One cannot show that the lineup was unduly suggestive if one does not have the rest of the pictures in the lineup. However, when the victim has failed to identify anyone in the lineup as being the assailant, then the existence of a photo lineup is immaterial. See State v. Nebeker, 657 P.2d 1359 (Utah 1983).

As far as the undue suggestiveness of the photographic lineup in which she did identify appellant, there is no evidence to substantiate this contention. Although there was a mug shot number and a date on the photographs, the names of the persons were covered and not seen by the victim. No argument can be made that the dates on the photographs made them unduly suggestive.

The testing of the semen specimen taken from the victim involves a more serious problem. The slide did not reach Heller until July 14, 1981. However, he did not have the capacity to perform the PGM enzyme grouping until January 1982. The enzymes deteriorate rapidly and can be found in the semen up to six months later if the semen is refrigerated. Heller testified that even though there was only a possibility that the enzymes would still be there in January 1982, he would have used the new equipment to test the specimen in January 1982 if it had been refrigerated.

By the time Heller received a request to conduct a bloodtyping analysis, in November 1981, the PGM enzymes had already deteriorated in the specimen and no PGM analysis could have been made.

The facts here raise two questions. Did due process principles as set out in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), require the police to refrigerate the semen slide and if so, whether the failure to do so mandates a reversal or dismissal of count one. We believe that the first question is answered by Scales v. City Court of City of Mesa, 122 Ariz. 231, 594 P.2d 97 (1979). There the court held that the test ampoule used in the Breathalyzer must be retained so that it can be tested by defense counsel.

So too in the case of semen samples. It has been held that if the state recovers the semen sample of one who is the victim of a sexual assault, it has the duty to take reasonable steps to preserve that evidence and to make it available for the defense. In People v. Nation, 26 Cal.3d 169, 161 Cal.Rptr. 299, 604 P.2d 1051 (1980), contrary to the facts in our case, the state made no effort at all to test a semen sample. The court said:

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