State v. Wright

• Decision Date: 09 December 1976
• Docket Number: No. 43797,43797
• Parties: STATE of Washington, Respondent, v. Andrew James WRIGHT, Appellant.
• Court: Washington Supreme Court

Page 783

87 Wn.2d 783

557 P.2d 1

STATE of Washington, Respondent, v. Andrew James WRIGHT, Appellant.

No. 43797.

Supreme Court of Washington, En Banc.

Dec. 9, 1976.

Dore & Dubuar, Fred H. Dore, Albert G. Lirhus, Seattle, for appellant.

Christopher T. Bayley, Prosecuting Atty. for King County, James Lamont, Senior Deputy Pros. Atty., Crim. Div., Seattle, for respondent.

UTTER, Associate Justice.

Andrew James Wright was convicted in a jury trial of first-degree murder, while armed with a deadly weapon, in the death of his wife, Kathleen Wright. He urges reversal of this conviction on several grounds, including a claimed violation of due process by the destruction of numerous items of material evidence prior to trial. The destruction was undertaken by or at the direction of officers investigating the crime without consent of appellant or the superior court. Finding a serious breach of appellant's due process rights, we must reverse the conviction and dismiss the charges.

I

Appellant and his wife resided on the second story of a home owned by appellant's great-grandmother, Mrs. Kupoff. In November 1974, the parents of Kathleen Wright filed a missing person report with the Seattle Police Department when it came to their attention that Kathleen was not to be found at her residence or place of employment. Proceeding to investigate this report, a Seattle Police Department detective spoke to Mrs. Kupoff who indicated she had not seen Kathleen Wright since October 20, 1974. Subsequent to that time, one of the appellant's co-workers told the detective about a story to the effect that appellant had told his employer his wife had been killed in an automobile accident. The same detective also learned that Kathleen had not been to work for approximately 3 weeks and that appellant had been forging and cashing payroll checks.

The officer, accompanied by a homicide detective, returned to the Kupoff residence on November 21 to see if any of Kathleen's clothes were missing and to try to resolve conflicting stories concerning her disappearance. The second story of the house contained three bedrooms, a small bath, a small kitchen and a common room. In a small, locked bedroom, the officers discovered a female corpse. The Wrights occupied living quarters separate from the bedroom where the body was found. ¹

The body lay on a bed, wrapped in blankets. Portions of the body were in an advanced state of decomposition and the hands were mummified. Facial features were, in large part, so distorted and decayed it was difficult to distinguish identifiable features. Maggots had infested both the body and the surrounding bed and bedclothes. The body was moved to the King County Medical Examiner's office for autopsy where the clothing was removed, itemized and turned over to a Seattle Police Department detective. The items removed were a pair of blue socks, a pair of blue shoes, pantyhose, underwear, blouse, brassiere, and a pair of blue jeans. A police department sergeant, a criminologist and a detective made the decision to destroy the evidence after it was released to them by the morgue, apparently because personnel in the police property room were reluctant to store the evidence. The testimony at trial indicated it would have been necessary to store the evidence in a small freezer in the property room and that, if the containing package broke, it would probably contaminate other evidence in the freezer.

No attempt was made to check for blood on any of the items before they were destroyed. There was no discussion about making the evidence available to the defense prior to its destruction or about renting another freezer to preserve the items. There was, however, no indication the evidence was destroyed with the intent of handicapping the defense.

After removal of the body, numerous items remained in the room where it was discovered. The blanket, pillowcase and sheet the body was wrapped in, the blanket and mattress the body lay on, the rugs and pillows on the floor and a man's coat found on a chair next to the body were all in the room. These items were destroyed by the stepfather of appellant, who obtained permission from the police before doing so. His purpose was to 'clean the room up' for Mrs. Kupoff.

The destruction of the evidence took place while appellant was in custody and unrepresented by counsel. Once retained, appellant's counsel requested to see the evidence removed from the room where the body was found and was informed of its destruction. Prior to trial, appellant moved for 'an order dismissing the charge of Murder One, and all lesser included offenses, on the grounds that he has been denied due process of law in that the state has suppressed material evidence by causing it to be destroyed and/or by allowing it to be destroyed by private parties.'

Appellant's conviction was based in its entirety on circumstantial evidence. While there was evidence from which a jury could infer the defendant had, in fact, committed the crime, there was no confession and no eyewitness to the crime. The identity of the body was open to question. No dental comparisons or other tests which could confirm its identity were undertaken. The evidence was conflicting as to the identity of the bullets in the body. The time and date of the killing could not be determined precisely; it was estimated that death occurred sometime between October 29, 1974 and November 8, 1974. The place of death was not established nor was the method of killing certain. The deceased had three bullet wounds and a circular would in the left superior chest.

II

Due process imposes certain obligations on law enforcement and investigatory agencies to insure every criminal trial is a 'search for truth, not an adversary game.' United States v. Perry, 153 U.S. App.D.C. 89, 471 F.2d 1057, 1063 (1972). One such constitutional obligation, the disclosure of evidence to the defendant, is well established. '(S)uppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.' Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 215 (1963). See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Seattle v. Fettig, 10 Wash.App. 773, 519 P.2d 1002 (1974).

Under the rule governing suppression of evidence, the circumstances surrounding the nondisclosure, including the motivation of the party responsible for the suppression, are irrelevant. See e.g., Jackson v. Wainwright, 390 F.2d 288, 295 (5th Cir. 1968); United States v. Consolidated Laundries Corp., 291 F.2d 563, 571 (2d Cir. 1961). This is so because the constitutional requirement is 'not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused.' Brady v. Maryland, supra, 373 U.S. at 87, 83 S.Ct. at 1197. The United States Supreme Court has not attempted to precisely define 'material evidence' or the degree of prejudice which must be shown by the defendant to make out a violation. See Giles v. Maryland, 386 U.S. 66, 73--74, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967). Other courts have defined materiality quite broadly. See, e.g., Levin v. Katzenbach, 124 U.S.App.D.C. 158, 363 F.2d 287, 291 (1966) (evidence which 'might have led the jury to entertain a reasonable doubt about (the defendant's) guilt'); Griffin v. United States, 87 U.S.App.D.C. 172, 183 F.2d 990, 993 (1950) ('evidence that may reasonably be considered admissible and useful to the defense'); Curran v. Delaware, 259 F.2d 707, 711 (3d Cir. 1958) ('pertinent facts relating to (the) defense'). Of course, neither the police nor the prosecution are to decide for the defense what is favorable or material evidence. Cf. Barbee v. Warden, 331 F.2d 842, 845 (4th Cir. 1964); Griffin v. United States, supra at 993. If the defense has established that the suppressed evidence is material, the court may conclude that due process has been denied and that the error can be corrected by a new trial at which the defendant will have full access to the evidence.

In cases like the one before us, however, the approach outlined above is not feasible. Here the suppressed evidence the numerous items found with the body in the upstairs room, has been destroyed. We therefore are unable to determine whether some or all of the evidence would have been favorable to the defendant and material to the issue of guilt or innocence. ²

Several recent decisions are of assistance in determining what principles govern the resolution of a defendant's claim for relief where the evidence sought to be discovered no longer exists. These cases respond to the need, enunciated in United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642, 644 (1971), to prevent the subversion of the truth-finding process, so carefully monitored in its formal stages, by unreviewed government decision making in its informal stages. In Bryant, the court adapted the mandate of the suppression of evidence cases to situations in which the government has lost or destroyed potential evidence. The Court of Appeals for the District of Columbia Circuit observed, at page 648:

Were Brady and its progeny applicable only when the exact content of the 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 mere failure to reveal. The purpose of the duty is not simply to correct an imbalance of advantage, whereby the prosecution may surprise the defense at trial with new evidence; rather, it is also to make of the trial a search for truth informed by all relevant material, much of which, because of imbalance in investigative resources, will be exclusively in the hands of the Government.

The court found the crucial nature of the missing evidence, a tape recording of a conversation with the...