State v. Youngblood

• Court: Arizona Court of Appeals
• Writing for the Court: LACAGNINA; LIVERMORE, P.J., and BIRDSALL
• Citation: State v. Youngblood, 153 Ariz. 50, 734 P.2d 592 (Ariz. App. 1986)
• Decision Date: 02 October 1986
• Docket Number: CA-CR,Nos. 2,s. 2
• Parties: The STATE of Arizona, Appellee, v. Larry YOUNGBLOOD, Appellant. 3979, 2 4364-2.

Page 592

734 P.2d 592

153 Ariz. 50

The STATE of Arizona, Appellee, v. Larry YOUNGBLOOD, Appellant.

Nos. 2 CA-CR 3979, 2 CA-CR 4364-2.

Court of Appeals of Arizona Division 2, Department B.

Oct. 2, 1986.

Review Denied March 27, 1987.

Robert K. Corbin, Atty. Gen., by William J. Schafer III, and Gerald R. Grant, Phoenix, for appellee.

Daniel F. Davis, Tucson, for appellant.

OPINION

LACAGNINA, Judge.

Larry Youngblood appeals his jury convictions for molestation of a child, sexual assault and kidnapping, with a prior conviction, and the court's imposition of presumptive concurrent 10.5-year prison terms. His defenses to the charges were misidentification and nonpresence. Youngblood argues that the convictions should be reversed and the case against him dismissed because the state failed to adequately preserve certain physical evidence and disposed of other evidence in violation of his due process rights. We agree with Youngblood's arguments and reverse.

THE INCIDENT

David, the ten-year-old victim, had left a church service he was attending with his mother around 9:30 p.m. on the night of October 29, 1983, and had gone to a nearby carnival where he was approached by a middle-aged black man of medium height and weight. David, described as a very observant youngster, testified that his assailant was a black man named Damian or Carl who had greasy grey hair, facial hair, no facial scars, and whose right eye, to David's best recollection, was almost completely white. His assailant wore brown leather or plastic loafers and drove a white medium-sized, two-door sedan with a passenger door that did not work. The evidence established that Larry Youngblood is a thirty-year old black male who has dry black hair, a scar on his forehead and a bad left eye. He wears cloth-laced shoes and walks with a noticeable limp due to a foot injury received in an automobile accident when he was a child. He always wears glasses in public.

After attempting to persuade David to get into the car, the assailant grabbed him, threw him into the car and held him by his hair, continually pushing his head down on the floorboard, while driving away. Country music was playing on the radio. At some point, the assailant stopped the car near a ravine or wash and fondled and molested David. He then took David to an unidentified, sparsley furnished house where he sodomized him four times. He threatened to kill David if David told anyone about the incident. He also told David during the acts of anal intercourse that David was "too small," that the assailant had done this with his nephew so many times that his nephew's anus "was already stretched out." Later, he used a jumper cable to start the car and returned David to the carnival. The episode lasted about an hour and a half.

THE SAMPLES

David was taken to Kino Hospital. Hospital personnel used a sexual assault kit to preserve evidence of the molestation. The kit included a tube for collecting a blood sample, a paper to collect a saliva sample, microscopic slides used to make smears (for female victims) and a set of swabs used to collect evidence. In this case, rectal and throat smears were made, and samples of the victim's blood and saliva were taken. The state's criminalist found evidence of semen present on the rectal smear. He did not attempt to quantify the amount of semen on the swab until a year after the assault had occurred. At that point he found no blood group substances on the swabs.

In addition, David's clothing was taken as evidence. The clothing was never refrigerated, and no testing was done until 15 months after the assault. Semen was found on the clothing, but no blood group substances were found on the underwear or the tee shirt stains. Samples of David's hair were taken to compare with any evidence found in Youngblood's car.

THE CAR

David described the assailant's car as a medium-sized, two-door sedan with a trashy interior and a noisy muffler. He testified that the car started with an ordinary ignition key. He also testified that there were blankets or sheets on the seats of the car but that he was not able to see them because the car was dark. The car radio was playing country music. The assailant told David the right passenger door did not work. About a month following the assault, David was brought to the police station to look at two blankets which he was told were taken from the assailant's car. Without touching them, he identified the blankets as those which were in the car.

Six weeks following the assault, the police seized Larry Youngblood's 1964 white, four-door Chrysler Imperial from the home of Alice Whigham, his former girlfriend, took it from her back yard where it was inside a chained gate, towed it to the station, took pictures of the car and dusted it for fingerprints. It was also examined for clothing and hair fibers. Because Youngblood had not transferred title to his name when he acquired the car, the police disposed of the vehicle without notice to Youngblood or defense counsel. Prior to this time, they did not determine whether the radio worked, if the ignition switch worked with a key, what channel the radio was tuned to, if the muffler was noisy, or indeed whether the car was running at all.

Youngblood and others testified that his car was not running at the time of the incident because of electrical problems and because it needed other repairs. He further testified that he had removed the battery from his car to put in Alice Whigham's car. The car ran quietly when it was functioning and did not start with a key but with a screwdriver. The radio had not worked at all since he owned the car. The examination of the car failed to reveal any fingerprints, hair or clothing fibers from David; the only fingerprints were those of Youngblood.

THE IDENTIFICATION

Nine days after the assault, a police detective came to David's school, took a taped statement from him, told him they had arrested the man who raped him, and asked him to pick the assailant out of a photographic lineup. Three of the photographs had the left eye whited out, and three had the right eye whited out. David's optometrist testified at trial that David had an astigmatism and "was instructed to wear glasses whenever he was in school [or] doing close work, [or watching] T.V." He was not wearing glasses the night of the incident nor when he first viewed the photographic lineup. After looking at the pictures by holding them very close to his face, David picked Youngblood as his assailant, saying he was "pretty sure." Later, David identified another man in the lineup as the possible assailant.

THE ALIBI

Alice Whigham testified that on the night of the assault she had been at her mother's house until 9:30 p.m. preparing for her sister's birthday. When she returned home, the 10:00 o'clock news was coming on the television, and Youngblood was asleep on the living room sofa. Her house is a 30 to 45 minute drive from the place where David was abducted. The police interviewed Whigham four or five weeks after the incident. They woke her up at 4:00 a.m. and began asking her if she knew where Larry had been "around Halloween." She responded that he was not with her that night, but that he was living there at the time. When Whigham later learned the actual date of the incident, she made several calls to the police department and defense counsel to tell them that Youngblood had been with her that night. Those calls were never returned. Youngblood testified that he was living with Alice at the time of the incident.

SANCTIONS FOR DESTRUCTION OF EVIDENCE

We have previously held that law enforcement officers have a duty to preserve semen samples in a sexual assault case, including a duty to refrigerate them. State v. Mitchell, 140 Ariz. 551, 683 P.2d 750 (App.1984). The United States Supreme Court has held that the due process clause of the fourteenth amendment requires "that criminal defendants be afforded a meaningful opportunity to present a complete defense." California v. Trombetta, 467 U.S. 479, 484, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413, 419 (1984). This imposes a "constitutional duty on the prosecution to turn over exculpatory evidence that would raise a reasonable doubt about the defendant's guilt." Id. Such evidence is considered material if its exculpatory value was apparent before the evidence was destroyed and is "of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. at 488, 104 S.Ct. at 2534, 81 L.Ed.2d at 422, citing United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

However, in Mitchell we concluded that the failure of the state to preserve the sample did not merit dismissal but only suppression of any bloodgrouping evidence, citing Scales v. City Court of City of Mesa, 122 Ariz. 231, 594 P.2d 97 (1979). We further held in Mitchell that the improper admission into evidence of the bloodgrouping test results was harmless error beyond a reasonable doubt because of the overwhelming evidence against the defendant.

Since our decision in Mitchell, we have again considered what circumstances would warrant dismissal of a case for destruction of evidence. In State v. Fierson, 146 Ariz. 287, 705 P.2d 1338 (App.1985), we stated:

There is a difference between the destruction of physical evidence used in the commission of a crime and the destruction of statements by witnesses who are available for examination and cross-examination. The loss of physical evidence as in State v. Hannah, 120 Ariz. 1, 583 P.2d 888 (1978), with a clear showing of prejudice requires dismissal....

146 Ariz. at 289, 705 P.2d at 1339. In Fierson, we found the accused had access to the evidence in other forms and was able to cross-examine the witnesses concerning the evidence. Therefore, we concluded that Fierson suffered no prejudice. To the same effect was the Supreme Court's conclusion in Trombetta that the defendants were not...