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Maresca v. State

December 31, 1987

JOSEPH LOUIS MARESCA, APPELLANT, V. THE STATE OF NEVADA, RESPONDENT.


Appeal from a judgment of conviction, following a jury trial, of one count each of murder and attempted murder, and two counts of robbery with the use of a deadly weapon; Second Judicial District Court, Washoe County; Peter I. Breen, Judge.{/History}

Michael R. Specchio, Reno, for Appellant.

Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, Timothy G. Randolph, Deputy, Washoe County, for Respondent.

By the Court, Gunderson, C. J.: In February or March of 1981, appellant and his girlfriend moved to Nevada from Florida. On May 18, 1981, appellant applied for a job at the Airbase Inn, near the Stead Air Force Base outside Reno. Two days later he once again visited the Airbase Inn in the late evening. The following morning, at approximately 3:30 a.m., the police were dispatched to the Airbase Inn to investigate a shooting

[103 Nev. 669, Page 671]

The victims, owners of the Airbase Inn, were Vivian and Dean Grady. When the police arrived Vivian Grady was dead, and Dean Grady was seriously wounded, both have been shot with .38 caliber bullets. Mr. Grady informed a paramedic at the scene that "Joe" had shot him and his wife. Approximately two hours later, Grady gave the police a statement in which he provided a detailed description of "Joe." 1 Grady also stated that the couple had been robbed while they were closing out the till and counting the coins used for slot change. The police discovered that appellant, Joseph Maresca, was recently at the Airbase Inn trying to sell his personal belongings, and that he had resorted to pawning some items. Appellant's description found on the pawn shop tickets matched Grady's description of the perpetrator, and thus the investigation focused on appellant. During a subsequent lawful search of appellant's residence, the officers discovered a box containing nineteen .38 caliber bullets and over $100 in change. Three of the five bullets found at the scene of the crime spectrographically matched those in the box. While the police were at appellant's trailer, he called by telephone to speak to his girlfriend, and spoke to an investigating officer. He was made aware that he was under suspicion, and he thereupon agreed to talk to the officers. Without keeping this promise, however, appellant immediately fled this jurisdiction by bus, and returned to Florida where he lived for five years under an assumed name. A few weeks after his flight, appellant's girlfriend also disappeared from Nevada, and lived with appellant in Florida as his wife, under an assumed name, until he was apprehended in January of 1986. Thereupon, he was tried and convicted of murder, attempted murder, and two counts of robbery with the use of a deadly weapon. He was sentenced to life without the possibility of parole for murder, plus forty consecutive years for attempted murder, and two concurrent thirty-year terms for robbery with a deadly weapon. Appellant appeals from said judgment and sentence.

On appeal, appellant contends that numerous items of evidence were lost in the years between the crime and his arrest, thereby depriving him of a fair trial. 2 We disagree. When a defendant seeks reversal upon the basis of lost evidence, he must show either governmental bad faith, connivance

[103 Nev. 669, Page 672]

, or prejudice. Rogers v. State, 101 Nev. 457, 463, 705 P.2d 664, 669 (1985). The burden of proving that it could reasonably have been anticipated that the evidence sought would be exculpatory and material rests with the defense. Id. at 463, 705 P.2d at 669. Appellant does not argue, nor does the record reflect, that the state acted in bad faith. Further, appellant has failed to show prejudice. The exculpatory value of the evidence in dispute is not apparent. For example, appellant argues that the lost evidence includes photographs used in a "photographic lineup." The jury saw the picture of appellant that was used in the lineup, however, and heard testimony that Grady was not able to identify appellant from the lineup. We also see no exculpatory value in evidence of the body temperature of the deceased victim, particularly in the instant case where one victim survived the shooting. In addition, an expert witness testified that even under ideal conditions he may not have been able to determine the exact time of Vivian Grady's death. Finally, although we agree that certain police actions (e.g., throwing away the contents of a glass found at the scene and taping over a videotape of the scene) may not constitute exemplary investigative techniques, appellant has not persuaded us either of the exculpatory value of the evidence, or of any prejudice resulting from its loss. Therefore, appellant has failed to show that the absence of this evidence deprived him of a fair trial.

Second, appellant argues that the prosecutor perpetrated misconduct by commenting upon appellant's post-arrest silence when he asked appellant if it would have been easier if appellant had talked to the police on the day of the shooting rather than five years later. We are not convinced that this was a comment on appellant's silence because, even though the question may have drawn attention to the fact that appellant did not talk to the police, evidence of flight was properly before the jury. Therefore, the jury knew that appellant had not talked to the police or the prosecutor, without the question being asked. We also are not persuaded that appellant's right to remain silent was violated when the prosecutor asked appellant's girlfriend if she provided any information to the police regarding ...


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