State v. Ward
| Citation | 98 Idaho 571,569 P.2d 916 |
| Decision Date | 28 September 1977 |
| Docket Number | No. 11931,11931 |
| Parties | The STATE of Idaho, Plaintiff-Respondent, v. Danny J. WARD, Defendant-Appellant. |
| Court | United States State Supreme Court of Idaho |
Vernon K. Smith, Boise, for defendant-appellant.
Wayne L. Kidwell, Atty. Gen., James F. Kile, Asst. Atty. Gen., Lynn E. Thomas, Deputy Atty. Gen., Boise, for plaintiff-respondent.
On August 31, 1973, John Brennan was shot and killed in front of the Hi Ho Club in Garden City, Idaho. At a jury trial held February 24 to 27, 1975, defendant-appellant Danny Ward was found guilty of second degree murder. He was sentenced to life imprisonment and appeals both the conviction and the sentence.
The facts of the crime, as established at trial, are that Danny Ward and his friend Larry LaFrainer stopped their motorcycles in front of the Hi Ho Club at 1:00 o'clock on the morning of August 31, 1973, as Brennan exited along with two unidentified acquaintances and two women, Judy Cole and April Jo Lavala. Lavala, who had recently dated both Ward and Brennan, climbed aboard Ward's motorcycle, leaving her purse on the ground next to it. Brennan moved to pick the purse up, but was warned by Ward to leave it alone. Brennan did as requested and turned to walk back toward the Hi Ho Club. Ward asked for and received a handgun from LaFrainer who was carrying the weapon for him. All of those who were present at the scene and who testified at trial (neither Ward nor Lavala testified) alleged that they did not actually see the shooting take place. Judy Cole testified, however, that she heard a loud noise and turned to see Ward with his arm outstretched pointing a gun at the back of the victim. She also described a small silver derringer-type gun in appellant's hand, the smoke coming from the barrel of the gun, and the blood spurting from Brennan's shoulder. LaFrainer, who claimed to be picking up a motorcycle helmet at the time of the shot, testified that he asked what had happened and Ward replied that he thought he had shot Brennan. Ward fled the state and was not apprehended for several months, but before leaving he phoned Connie LaFrainer and told her that he had shot and killed a man.
After Ward fled the scene, Judy Cole joined April Jo Lavala in the latter's car. Lavala was in possession of a gun which she had taken from Ward, stating that they would not get her man. Cole drove out of Garden City and Lavala fired the gun once en route. Cole stopped the car near the Ridenbaugh Canal while Lavala wrapped the gun in a scarf, left the car and went down the embankment towards the canal. She returned a few minutes later without the gun. The gun was retrieved from the canal later that same day by divers working for the Garden City police. The gun had two spent cartridges.
These are the basic facts of the crime. However, the issues on appeal turn on certain events not directly connected with the crime. Ward was returned to Idaho sometime in May or June of 1974, having waived extradition. A preliminary hearing for Ward and Lavala was held on July 8, 1974. Cole and the pathologist were the only witnesses called by the State and no items of physical evidence were introduced. In the last week of July, 1974, the police chief of Garden City packaged the evidence in question the murder weapon (a small silver derringer-type .357 magnum), a .38 caliber slug found in the ceiling beam in the Hi Ho Club, two spent cartridges and the victim's clothing for shipment by REA Air Express to the FBI laboratory in Washington, D. C. In September, an FBI agent notified the Garden City police that the package had not been received. An attempt to trace the package proved fruitless and by December 11, 1974, the police had written confirmation that neither REA nor the FBI could locate the package.
Defendant's main assignment of error on appeal is that he was denied a fair trial because of the prosecution's failure to make available for him these items of allegedly material and exculpatory evidence. Defendant relies on the case of State v. Harwood, 94 Idaho 615, 495 P.2d 160 (1972), for the proposition that suppression of material exculpatory evidence is grounds for reversal. He argues that the absence of the gun and slug operates, as in Harwood, to deprive defendant of ballistics tests which could have proved exonerating. It is urged that such tests might have proved that the bullet recovered from the ceiling of the Hi Ho Club was not fired from Ward's gun or, if it was, that it could not have produced the type wound from which the victim died.
The Harwood case involved a conviction for illegal possession of a game animal. The conviction was based entirely upon circumstantial evidence, mainly the conservation officer's suspicion that the animal could not have been shot in an authorized area because of his estimate that the defendant could not have walked the distance in the time stated. The prosecuting attorney promised to supply defense counsel with ballistics information as it became available. The ballistics report from the FBI showed that the bullet found in the carcass of the animal could not have been fired from a .270 Winchester Model 721 Remington which was the sole weapon possessed by defendant. This Court held there that the suppression of such highly material, indeed, conclusively exculpatory evidence, even though inadvertence, was a denial of due process and reversed the defendant's judgment of conviction.
The United States Supreme Court has also had occasion recently to deal with the question of what standard is to be applied in determining whether a defendant has been prejudiced by a prosecutor's failure to volunteer evidence available to him. Mr. Justice Stevens, speaking for a majority of the Court held:
U. S. v. Agurs, 427 U.S. 97, 112-13, 96 S.Ct. 2392, 2401-02, 49 L.Ed.2d 342 (1976).
Mr. Justice Brennan urged a higher standard as the appropriate norm in determining whether prosecutorial non-disclosure has prejudiced a defendant's case:
". . . if there is a significant chance that the withheld evidence, developed by skilled counsel, would have induced a reasonable doubt in the minds of enough jurors to avoid a conviction, then the judgment of conviction must be set aside." 427 U.S. at 119, 96 S.Ct. at 2404-05.
The Court of Appeals, whose judgment was reversed in Agurs, had adhered to an even stricter standard, namely,
". . . if there is any reasonable likelihood that the (missing evidence) . . . could have affected the judgment of the jury." 427 U.S. at 103, 96 S.Ct. at 2397.
Whether, in a close case, this Court would choose to adopt any of the above standards, or still another of...
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