State v. Weygandt
| Decision Date | 03 July 1978 |
| Docket Number | No. 5368-I,5368-I |
| Citation | 581 P.2d 1376,20 Wn.App. 599 |
| Parties | STATE of Washington, Respondent, v. Vernon C. WEYGANDT, Appellant. |
| Court | Washington Court of Appeals |
McBee & Lewis, Alfred McBee, Mount Vernon, for appellant.
Patrick R. McMullen, Skagit County Pros. Atty., for respondent.
Defendants Weygandt, Polanski and Davis were charged with the first degree murder of Jamie L. Grimes. Davis subsequently turned state's evidence and was granted immunity. The jury convicted Weygandt and Polanski of second degree murder. Defendant Weygandt alone appeals.
On July 18, 1976 a partially decomposed body of a stocky Caucasian male was found in the Swinomish Slough. An autopsy was performed revealing four bullet wounds in the body. The hands of the decedent were severed and mailed to Q. L. Ferguson, a qualified fingerprint expert in Washington, D.C., who examined and compared the fingerprints with known fingerprints of Jamie L. Grimes and concluded they were the same. Ferguson made silicone molds of the decedent's hands and took photographs of the molds. The hands were then returned to the Skagit County Sheriff's Office where they were cremated prior to charges being filed against defendants.
The victim, the defendants and most of the witnesses were frequenters of the Red Lion Tavern located in Anacortes, Washington. Polanski was a 50 percent owner of the tavern.
One of the witnesses at trial, Smitha, was working as a bartender on July 2, 1976 at about 8 p. m. when Grimes and Davis became engaged in a fistfight. Police were called but no arrests were made. Later in the evening defendant Polanski told Smitha to bring over a few bottles of wine and Grimes, Polanski, Weygandt, Davis and a Mr. Steve Allen began drinking the wine and things calmed down. Defendant during this time period gave Grimes some "reds" (downers) and Grimes became nearly unconscious. Later defendants Weygandt and Polanski ushered Grimes into the back room of the tavern. A short time later Davis and Smitha heard what sounded like gun shots. Davis testified that he went to the back room and saw Weygandt standing over Grimes' body, gun in hand. Grimes was on the floor and appeared dead and Polanski was in the chair next to the desk. Davis returned from the back room telling Smitha that the noise was firecrackers. Smitha testified that Weygandt and Polanski later returned to the tavern saying that they took Grimes out the back door so he wouldn't bother any of the customers.
Davis testified that Polanski and Weygandt later loaded Grimes' body into Polanski's automobile and threw the corpse into the Swinomish Slough. Davis stated that on the following day Weygandt described to him how he had shot Grimes three times in the chest and once in the head.
During the investigation criminalists examined portions of the decedent's body and determined that minute blood samples removed from the trunk of Polanski's car were the same type as Grimes type O. The cement floor of the back room of the Red Lion Tavern was examined and found to have blood on it, which corroborated Davis' testimony as to the situs of Grimes' killing. The process used by the criminalists in detecting the blood on the floor was such that the immediate area where the killing allegedly took place could not be retested by the same process to determine if blood was present.
Weygandt argues he has been denied due process of law by the destruction of the victim's hands and the cement floor from which blood tests were made. He contends that the victim's fingerprints were the only conclusive evidence which positively identified the deceased and when the hands were destroyed, he was thereby deprived of an opportunity to make an examination of the same type the prosecution conducted. He further argues that the tests conducted on the concrete floor rendered further testing impossible and amounted to the destruction of material evidence, and that his murder conviction should be set aside. State v. Wright, 87 Wash.2d 783, 557 P.2d 1 (1976).
In the alternative, defendant Weygandt claims he is entitled to a new trial for (1) alleged prosecutorial misconduct (2) failure of the trial court to allow the witness Station to testify that the state's witness Smitha was under the influence of heroin on July 2, 1976, the day she observed certain events to which she testified, and (3) the failure of the trial court to permit cross-examination to show that Davis had been convicted of a military crime, which would impeach his credibility.
DECISION
For Wright to be applicable, defendant must show (1) that the evidence in fact has been destroyed, and (2) that a reasonable possibility exists that the evidence destroyed would be material and favorable to the defendant.
The fingerprints from the hands which identified the decedent as Jamie Grimes were preserved in the form of silicone molds. At trial and even now these molds are available for the defense's inspection. To date such an inspection has never been requested. Defendant complains that the court and jury were favored only with reproductions by way of the silicone molds. However, the defendant at trial did not object nor question the qualifications of the expert who prepared the molds, or the method he employed in making them, nor the introduction into evidence of photographs of the fingerprints to identify the deceased as Jamie Grimes.
The tests conducted by the state on the cement floor of the back room of the Red Lion Tavern allowed the defense to perform similar tests on the same floor. The procedure used in testing the cement floor for blood was one which used a chemical whose reaction determined that blood had been on the floor even though it was not apparent to the naked eye. The chemical was placed on the floor's surface in a uniform polkadot fashion. Although a small portion of the slab was destroyed and is unavailable for further testing (approximately 14 percent of the total area of the slab), the remainder of the slab (86 percent of the area) is available and can be tested in a like manner.
We conclude that the defendant has failed to show that any material evidence in fact has been destroyed in the subject case.
Even if we determined that the defendant had shown that evidence had been destroyed, defendant failed the second requirement of Wright to make a showing that a reasonable possibility exists that the evidence was favorable to the defense. In Wright the defendant made a showing that the evidence destroyed possessed a reasonable possibility that it was material or favorable by arguing that any one of three known individuals other than the defendant had an opportunity to commit the murder. Also, in Wright, the appellant enunciated nine areas where the existence of the evidence destroyed could possibly have been of assistance to the defense. Wright is not applicable to the subject case for we find no material evidence has been destroyed by the prosecution, nor do we find a reasonable possibility that such evidence was favorable to the defense.
Defendant Weygandt testified as follows:
Q (By Mr. McBee) And then you went out to the 19th Hole and had breakfast, as I understand it?
A Yes.
Q After you dropped Janet off at her house, where did you next go?
A We came to my house and Don dropped me and my wife off and we just stood there in the driveway saying goodnight and stuff and then he left.
The prosecuting attorney in his closing argument made the...
To continue reading
Request your trial
-
State v. Brett, 59429-5
...of a fact in issue. The admission of opinion evidence lies within the discretion of the trial court. State v. Weygandt, 20 Wash.App. 599, 606, 581 P.2d 1376 (1978), review denied, 91 Wash.2d 1024 (1979); Hill v. C. & E. Constr. Co., 59 Wash.2d 743, 370 P.2d 255 The State contends there was ......
-
State v. Pennewell
...material to guilt or innocence and favorable to the defendant. State v. Wright, supra, at 789, 557 P.2d 1. See also State v. Weygandt, 20 Wash.App. 599, 581 P.2d 1376 (1978). In State v. Canaday, 90 Wash.2d 808, 585 P.2d 1185 (1978), it was observed that the destruction of evidence in the W......
-
In the Matter of Dempere, No. 52925-1-I (WA 10/18/2004)
...of punishment if the defendant was not afforded counsel or did not make a valid waiver of counsel. See State v. Weygandt, 20 Wn. App. 599, 607, 581 P.2d 1376 (1978). But the mere fact that Garza was not represented by counsel at his guilty plea does not automatically invalidate his convicti......
-
State v. Renfro
...that the evidence was material and favorable to defendant. State v. Ervin, 22 Wash.App. 898, 594 P.2d 934 (1979); State v. Weygandt, 20 Wash.App. 599, 581 P.2d 1376 (1978). Materiality within the scope of constitutional protection is determined not by speculation about whether the evidence ......