State v. Vaster, 48571-2

• Citation: 659 P.2d 528,99 Wn.2d 44
• Decision Date: 24 February 1983
• Docket Number: No. 48571-2,48571-2
• Parties: The STATE of Washington, Respondent, v. Maurice VASTER, Petitioner.
• Court: United States State Supreme Court of Washington

Page 44

99 Wn.2d 44

659 P.2d 528

The STATE of Washington, Respondent, v. Maurice VASTER, Petitioner.

No. 48571-2.

Supreme Court of Washington En Banc.

Feb. 24, 1983.

Eastside Defender Ass'n, Michael J. Trickey, Seattle, for petitioner.

Norman K. Maleng, King County Prosecutor, Chris Quinn-Brintnall, Deputy Pros. Atty., Seattle, for respondent.

STAFFORD, Justice.

Petitioner Maurice Vaster appeals from his convictions for first degree rape and first degree robbery while armed with a deadly weapon. The Court of Appeals affirmed his convictions, rejecting petitioner's contention that the inadvertent destruction of a seminal fluid sample violated his due process rights. We affirm the Court of Appeals.

Petitioner waived his right to a jury trial and submitted his case to the court on stipulated facts. The trial judge found him guilty of raping and robbing a 19-year-old woman. The crime is described in the trial court's unchallenged findings of fact as follows:

Shortly after 7 a.m. on 31 December 1979, [the victim] was standing on the corner of Renton Avenue South and South Norfolk waiting for a bus. She was not a regular bus rider; her car was not operating. She observed a turquoise blue Toyota or Datsun drive by her on Renton Avenue South and turn onto South Norfolk. She saw the driver's face as he drove by. The driver then joined her at the bus stop. There was a street light at the bus stop. She described him as a black male, age 26-27, about 5'6" to 5'7", weighing 160 lbs., having a medium, stocky build, 2-inch Afro, brown eyes, and a mustache, wearing blue jeans, navy blue sweater, a navy blue watchcap and a dark brown, leather, waist-length coat. She looked at him and spoke to him when he came up to the bus stop. She then looked at a schedule posted at the bus stop, and realized she had missed the bus and that another bus would not be coming for about 30 minutes. She looked at him again and said that apparently they had missed the bus. He nodded and stretched as if he were sleepy. She began walking East on South Norfolk to her home. About 50 feet from the corner the man grabbed her from behind, held a small revolver to her head, and asked if she had any money. She gave him her purse, which contained about $37. She saw the man's face again at this time, and saw and felt the revolver. She asked the man several times not to hurt her. He told her, "don't say another word or I'll shoot you." He kept his left arm around her and held the revolver to her head with his right hand as he forced her to walk up into the front yard at 5531 South Norfolk. He forced her to take off her coat and lie down on her back. She saw his face again at that time. He made her pull her skirt up over her face and he put her coat over her face. He pulled off her pantyhose and underpants, then had sexual intercourse with her. During this time he was still holding the revolver, and she held the barrel of it with her hand to keep it away from her head. He then told her to wait five minutes, and he left. Her purse and money were gone.

Finding of fact 1.

Immediately after the rape, the victim returned home and called the police. After giving the police a detailed description of her assailant and his car, the victim was taken to the Harborview Medical Center. As is usually done in sexual assault cases, a fluid sample was taken from the victim's vagina. Laboratory analysis of the sample confirmed the presence of sperm.

Petitioner was arrested on January 6, 1980 for outstanding traffic warrants. At the time of his arrest he was driving a turquoise blue Datsun. He also was wearing a dark brown, waist-length leather jacket and matched the victim's physical description given the previous week.

The next day the victim was asked to attend a lineup. According to the undisputed findings of fact, she recognized the petitioner immediately. Although she was accompanied by police officers, she was fearful when she recognized petitioner. All seven men in the lineup were asked to repeat "Don't say another word or I'll shoot you." The victim recognized petitioner's voice when he spoke those words. She positively identified petitioner as the man who robbed and raped her on December 31, 1979.

At this juncture it should be noted that this remarkably detailed description, as well as the lineup identification, was made by a victim who, according to the unchallenged findings of fact, "attended schools ... with many black students. She works and socializes regularly with black people. She sees black people as individuals." Finding of fact 4.

In accordance with a recently established procedure, on January 3, 1980, officials at Harborview Medical Center sent a letter to the Seattle Police Department's Sexual Assault Unit informing them that, unless notified to the contrary, 20 vaginal fluid samples, including the victim's, would be discarded on February 4, 1980. Because this particular case had been assigned to the Robbery Unit, the Sexual Assault staff did not recognize the victim's name and thus did not request preservation of the sample. The Robbery Unit detectives who interviewed the victim upon her release from the hospital were not aware the sample had been taken or of its potential materiality as evidence. Thus, the sample was destroyed. The trial court found, however, that the loss of the vaginal fluid was inadvertent and that it had not occurred as a result of bad faith by the police department.

On March 13, 1980, the day before trial was scheduled to begin, petitioner requested that a secretor test be done on the vaginal fluid sample. He was informed the sample had been destroyed more than a month earlier. Petitioner then moved to dismiss the charges due to destruction of material evidence which he asserts had a possibility of creating a reasonable doubt about his guilt.

According to expert testimony presented by petitioner in support of his motion to dismiss, only about 80 percent of the population secretes their blood type in other body fluids, such as saliva, semen and vaginal fluid. Typing tests conducted on both the petitioner and the victim revealed him to be a type O secretor and her to be a type A secretor. A secretor will always secrete type O in addition to his or her own blood type. Thus, the victim revealed both A and O blood types in her sample whereas petitioner showed only type O.

A blood type testing of seminal fluids will show whether a particular person matches the profile of the seminal donor. The test cannot positively determine, however, whether a particular person in fact was the actual donor. See Boyce & McCloskey, Legal Application of Standard Laboratory Tests for the Identification of Seminal Fluid, 7 J. Contemp. L. 1 (1982). Thus, if the true assailant were a type B or AB secretor, a test of the victim's vaginal fluid sample would establish that someone other than the petitioner must have been the assailant. ¹ The presence of type A or O, however, would show only that petitioner was of the same profile as the true assailant. It would not establish that he actually had been the assailant.

Approximately 15 percent of the population is type B or AB, while types A and O make up the remaining 85 percent. The probability of any fluid sample showing a type B or AB secretion is 14 to 15 percent or less. Given the 80 percent chance that the true assailant is a secretor, the actual probability that the secretor typing test of the vaginal fluid would tend to exonerate petitioner drops nearer to 12 percent.

After hearing expert testimony regarding the science of type matching seminal fluid, the trial court denied the motion. Petitioner waived a jury trial and presented his case to the court on stipulated facts. The court found him guilty on both counts as well as two other counts of rape and robbery stemming from a separate incident. ² He was sentenced to serve concurrent life terms for three of the four counts and 10 years on the fourth.

Petitioner appeals from the trial court's denial of his motion to dismiss. The Court of Appeals affirmed, reasoning that the destroyed evidence was not sufficiently material to warrant dismissal. The sole issue presented for review is whether petitioner's due process rights were violated by the inadvertent destruction of the vaginal fluid sample in this prosecution for rape.

I

The duty of the State to preserve material evidence is derived from the duty to disclose exculpatory evidence. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Brady Court adopted a materiality test holding that due process requires a state to disclose evidence when it is material to the issue of guilt or innocence. In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Supreme Court applied the Brady rule to three distinct suppression situations. First, where prosecutorial misconduct is involved, a conviction must be set aside if there is any "reasonable likelihood" that the undisclosed testimony could have affected the jury's decision. Agurs, at 103, 96 S.Ct. at 2397. Second, if the defense has made a pretrial request for specific evidence, the test focuses on whether the suppressed evidence "might have affected the outcome". Agurs, at 104, 96 S.Ct. at 2398. The last situation is one in which a general "Brady" request has been made or no request has been made at all. The duty to disclose evidence in such a situation arises only if the evidence "creates a reasonable doubt that did not otherwise exist". Agurs, at 112, 96 S.Ct. at 2402.

In State v. Wright, 87 Wash.2d 783, 557 P.2d 1 (1976), we extended the application of the duty to preserve material evidence to governmental loss or destruction of such evidence. " '[If the constitutional duty to disclose applied] only when the exact content of non-disclosed materials was known, the disclosure duty would be an empty promise, easily circumvented by suppression of evidence by means of destruction rather than...