
    264 La. 36
    STATE of Louisiana v. Charles LEE.
    No. 52234.
    Supreme Court of Louisiana.
    Nov. 28, 1972.
    Rehearing Denied Jan. 9, 1973.
    Dissenting Opinion Dec. 5, 1972.
    
      Seale, Smith & Phelps, A. G. Seale, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Sargent Pitcher, Dist. Atty., J. David McNeill, III, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant, Charles Lee, was charged with murder and, after a trial by jury, was found guilty of manslaughter and sentenced to fifteen years in the State Penitentiary. On this appeal, defendant argues only one bill of exceptions to obtain a reversal of his conviction and sentence.

The basis of the defendant’s bill is that he was denied due process under the Louisiana and United States Constitutions because of the alleged destruction of evidence (the State’s failure to run fingerprint and blood tests before deterioration set in) material to the accused’s defense, whether due to willful inaction or to gross ngligence on the part of the State, thus allegedly making a fair trial impossible.

The appellant Charles Lee shot and killed Elaine Madison during a heated argument in a Baton Rouge apartment building. He then reported the shooting to the police, freely and voluntarily giving a statement wherein he told police investigators that he shot the deceased in self-defense when she attacked him with a “sharpened” (and/or “shortened”) broom handle. Five months later, upon request of court-appointed counsel , the District Attorney acknowledged possession of the “jagged broom handle” and “bloody, diaper-like rag” (wrapped around the broom straw) found at the scene of the crime, but admitted that neither fingerprint nor blood tests had ever been performed on the items. When tests were finally run (still another month later), the results were negative due to the deterioration which had occurred during the five-month stay in the evidence room. It is this “deterioration” through the. alleged negligence by the State of evidence the defense says was favorable to him that is the basis of this complaint.

The question before this Court is whether, by allowing all links between the broken, jagged broom handle and the shooting of Elaine Madison to be destroyed, albeit through deterioration, the State withheld material evidence favorable to the defendant. And if so, was it reversible error.

Over State objections, the defendant did introduce into evidence at the trial, the jagged broom handle and the bloody rag. There followed testimony by two State’s witnesses to the effect that the dusting for fingerprints on the round broom handle would have been futile which went unre-butted. Further, testimony disclosed that the accused’s body was examined for bleeding or bruises on those parts receiving alleged blows from the deceased with the broom handle yet no bleeding was disclosed.

Defendant’s brief appears to be arguing the police deprived him of a degree of absolute connexity between the evidence and the crime, which the law does not require. He argues that but for the deterioration of the tell-tale signs, either the deceased’s prints on the broom handle, or an indication that the blood on the rag was the defendant’s, he had no evidence to support his plea of self-defense. The fact is that the evidence was put before the jury who, alone, could determine the weight to give it in evaluating the accused’s defense.

We do not find there was any nondisclosure of evidence or what the defendant terms “suppression of evidence favorable to the defendant” by the State, either through deliberate deception or negligent conduct inconsistent with the rudimentary demands of justice. Cf. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We do not see that the admitted omission of tests on the evidence, had they been run and the results therefrom put before the jury, would have reduced the defendant’s offense below manslaughter, for which the defendant was convicted.

For these reasons, the. conviction and sentence are affirmed.

BARHAM, Justice

(dissenting).

Under the rationale of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), I must conclude that defendant’s only bill of exceptions has merit and that this defendant was denied due process of law. After a homicide, the defendant immediately called the police, admitted the killing, but stated facts leading up to the homicide that could establish self-defense. The police officials had defendant’s statement that he shot the victim when she collared him and began hitting him with a shortened broom handle. They had in their possession a broken maroon broom with blood on it and a bloody rag which had been found by the apartment manager on the day of the shooting in the garbage container behind the apartment. The police had picked up a green-handled, unbroken broom which the State introduced into evidence as the only object in the hand of the victim when she was shot. Certainly fair and equal treatment of this defendant demanded that the police officials test the other broom for fingerprints and blood type in an effort to determine whether it was the broom handle weapon of which the defendant spoke.

It was said in Brady :

* * * In Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 [1221], we extended the test formulated in Mooney v. Holohan, [, 294 U.S. 103, 55 S. Ct. 340, 79 L.Ed. 791] when we said: ‘The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.’ * * *
“We now hold that the suppression 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.
“The principle of Mooney v. Holohan is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. * * * ”

If these holdings require that the defendant must timely request evidence favorable to him, I note that this defendant was unable to keep counsel. Appointed counsel who stayed with the defendant through the trial was not assigned until approximately five months after the crime. Under the circumstances I do not believe this defendant could have acted sooner in making his request. This defense counsel filed the motion to quash on the basis of suppression of favorable evidence after the request through the district attorney for blood examination and fingerprint examination of the broom handle was not complied with because the delay in examination had destroyed any ability to successfully make such examinations. The contention of the defense, with which I agree, is that the prosecution’s permitting the evidence to be stored away without proper examination and classification is tantamount to the suppression of evidence by reason of the destruction of the evidence.

The majority opinion points out that since no bleeding was evidenced by defendant, it was not necessary to test the blood sample to ascertain its type. This answer misses the argument made by defendant. He contends that if he had been able to establish that the broken broom handle was the one used by the victim as he said in his statement, then he would have had strong evidence to support his plea of self-defense. The victim’s fingerprints or the victim’s blood would have established that it was this broken and pointed broom handle that had been used, and not the whole broom found by the police in the hall of the apartment building. Such evidence would certainly have strengthened, if not maintained, the plea of self-defense.

For this reason I dissent. 
      
       Defendant had two attorneys prior to present counsel, neither of whom was able to represent him before present counsel was appointed. However, there is nothing in the record to preclude that the opportunity did not exist for either of these counsel to have requested an examination of these items.
     
      
       The defendant’s statement given voluntarily immediately after the crime was recorded on tape. There is some argument that the defendant not only said that the broom handle was “shortened” hut said it was “sharpened”. The trial judge apparently believed that what lie heard from the tape was only the word “shortened”. The transcription of the tape made by the court reporter reads as follows:
      “ * * * she collared me here so I couldn’t run; she collared me; and I had a little pistol in my back pocket. I just took it out, and I didn’t say anything to her and she had a handle in her hand and she rapped me once like that with it, and I just went on and— sir?
      “Q With what kind of handle,
      “A A broom — broom handle.
      
        She had it shortened and she had it shortened; she went to hit me; she hit me once like that, and I shot her, and she wouldn’t let go of me; and I think I shot it again. She fell and I went on to my place and I called the law.” (Emphasis supplied.)
     