No. 82-237
I N THE SUPREME COURT OF THE STATE OF MONTANA
1983
STATE OF MONTANA,
Plaintiff and Respondent,
VS.
WARREN K. PATTERSON,
Defendant and Appellant.
Appeal from: D i s t r i c t Court of the Thirteenth Judicial District,
I n and f o r t h e County o f Yellowstone
Honorable Robert Wilson, Judge p r e s i d i n g .
Counsel of Record:
For Appellant:
G a r y E. Wilcox argued, Billings, Montana
For Respondent:
Hon. M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
J a m e s McLean, A s s i s t a n t A t t o r n e y G e n e r a l , a r g u e d ,
H e l e n a , Montana
H a r o l d F. H a n s e r , County A t t o r n e y , B i l l i n g s , Montana
C h a r l e s B r a d l e y , Deputy County A t t o r n e y , a r g u e d ,
B i l l i n g s , Montana
Submitted: February 2 8 , 1 9 8 3
Decided: A p r i l 28, 1983
Filed: APR 2 8 1983
-.
Clerk
Mr. Justice Frank R . Morrison, Jr., delivered the Opinion of
the Court.
Defendant, Warren Patterson, appeals his conviction of
sexual intercourse without consent following a jury trial.
We reverse the conviction and remand for a new trial.
The incident which gave rise to this prosecution
occurred outside of Billings in the late evening/early
morning hours of August 17-18, 1981. Detective Gary Hatfield
of the Billings Police Department investigated the alleged
offense.
Warren Patterson was named as a suspect in several
anonymous tips. Hatfield went to Patterson's residence on
August 19, 1981, and requested Patterson to accompany him to
the police station for questioning. Patterson agreed.
Hatfield read the Miranda warnings to Patterson twice prior
to questioning. Patterson denied being the suspect for whom
Hatfield was searching. A photograph of Patterson was taken
for later use in a photographic line-up and Patterson was
returned home.
Detective Hatfield submitted a report of his
investigation on August 26, 1981. Regarding his interview of
Patterson, Hatfield stated:
"I asked him to come to the Police Station and he
consented. I gave him his Rights and informed him
of the situation. He told me that he had a lot of
mental problems. That he tends to forget things
yet he is certain that he was not responsible for
the rape. "
As a result of further investigation, Patterson was
arrested September 21, 1981, and charged on September 24,
1981, with the crime of sexual intercourse without consent.
An omnibus hearing was held, and the standard omnibus order
was entered granting defendant "discovery of all oral,
written or recorded statements made by defendant to
investigating officers or to third parties and in the
possession of the State."
The prosecution interviewed Hatfield three times prior
to trial and defense counsel interviewed him once. None of
the interviews produced any information beyond that contained
in the written report. After trial started, the prosecution
learned that the interview by Hatfield of Patterson had been
more extensive than the report indicated.
Defense counsel was immediately notified of the
discrepancy. Hatfield was examined in chambers and it was
determined that Patterson had specifically denied being in
the locations or taking the routes where the victim claimed
the attack and travel took place. He also denied having had
intercourse with anyone that night. Defense counsel was
unaware of Patterson's denials. He had proceeded to trial
with a "consent" defense.
Patterson had also talked to Hatfield about his mental
problems in more detail than the report indicated. He told
Hatfield that he was having problems with smoking and the
devil. His religious convictions were also discussed in
detail.
Defendant moved for a motion in limine to prevent
Hatfield from testifying that Patterson had stated he was not
responsible for the rape or could not have committed it as he
had been having mental problems. The court denied that
motion but granted a motion to restrict any testimony
regarding the devil. and smoking or religious convictions.
Patterson was found guilty of one count of sexual intercourse
without consent.
During the trial, the victim was unable to account for
her activities between 1:30 a.m., when defendant allegedly
left her, and 3 : 5 7 a.m., when the police received the call
reporting the rape. After the trial results were published,
Annette Hopkins informed defense counsel that defendant's
story corresponded with an incident which had. happened to
her. Late one evening in mid-August, 1981, a young girl came
to Ms. Hopkins' door and asked to use the phone. She phoned
someone whom Ms. Hopkins assumed to be her brother and, in
essence, stated: "Leave the patio doors open and don't let
dad know I'm not home." Ms. Hopkins lives in the same area
in which defendant allegedly left the victim.
Following his conviction, Patterson moved for a new
trial based upon: (1) newly discovered evidence; and (2)
the District Court having erred in allowing Hatfield's
testimony since the defense was not given a summary of the
complete interview prior to trial. The motion was denied.
Defendant now appeals his conviction and presents this
Court with two issues for our reveiw:
1. Was the defendant prejudiced by the failure of the
State to supply to defense counsel a complete summary of
Detective Hatfield's interview with the defendant until
mid-trial?
2. Did the District Court err in refusing to grant
defendant's motion for a new trial- based upon newly
discovered evidence?
Our resolution of issue one renders issue two moot.
The law in Montana regarding the effect of suppression
of evidence by the prosecution is found in State v. Craig
(1976), 169 Mont. 150, 545 P.2d 649.
"Only intentional - - or deliberate suppression -of
evidence is g per se violation - - process
of due
sufficient-to reverse - nullify a conviction.
or
United states v. Keogh, 391 F. 2d 138 (2nd Cir. ) .
Negligent - passive suppression will overturn a
or
conviction - prejudice - - shown bv -
if can be the A
suppression. United States v. Consolidated
Laundries Corp., 291 F.2d 563 (2nd Cir.)
"Generally, suppressed evidence must be material to
either guilt or punishment. Brady v. Maryland, 373
U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. In order
to amount to denial of due process, negligently
suppressed evidence must be vital to the defense of
the accused. United States ex rel. Thompson v.
Dye, 221 F.2d 763 (3rd Cir.), cert. den., 350 U.S.
875, 76 S.Ct. 120, 100 L.Ed. 773. To obtain a new
trial, the accused must show more than suppression;
he must show the evidence was material and of some
substantial use to him. United States v. Tomaiolo,
378 F.2d 26 (2nd Cir.), cert. den., 389 U.S. 886,
88 S.Ct. 159, 19 L.Ed.2d 184. The suppressed
evidence must be exculpatory, i.e., would have
tended to clear the accused of guilt, to vitiate a
conviction. Brady; Loraine v. United States, 396
F.2d 335 (9th Cir.), cert. den., 393 U.S. 933, 89
S.Ct. 292, 21 L.Ed.2d 270; Lee v. United States,
388 F.2d 737 (9th Cir.)" State v. Craig, supra at
153, 545 P.2d at 651. (emphasis supplied.)
These standards apply whether the prosecutor or the
investigator is responsible for the suppression. Any
prejudice suffered by the defendant remains the same in
either circumstance. Barbee v. Warden, Maryland Penitentiary
(4th Cir. 1964), 331 F.2d 842. Limiting the standards to
suppression by the prosecutor might foster future suppression
of evidence by investigating agencies.
The District Court summarily denied defendant's motion
for new trial. Therefore, we have no way of knowing whether
or not the District Court judge found suppression of
evidence, and if he did, whether that suppression was
determined to be negligent or intentional.
The court's failure to specifically characterize the
suppression as negligent or intentional is irrevelant here
because we find that Detective Hatfield suppressed evidence
from defense counsel and that defendant was prejudiced by
that suppression.
We reach this decision because of Hatfield's suppression
of Patterson's remarks about smoking and the devil. Those
remarks were indicative of mental illness. Had defense
counsel been aware of Patterson's remarks prior to trial, he
would have had good reason to pursue an insanity defense.
Therefore, that evidence was both material and exculpatory
and its suppression was prejudicial to defendant. Pursuant
to State v. Craig, supra, defendant's conviction is reversed
and this case is remanded for a new trial.
We Concur:
B Chief Jusece &
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Justices
Mr. J u s t i c e L . C. G u l b r a n d s o n d i s s e n t i n g .
I respectfully dissent
The m a j o r i t y h a s s t a t e d s
"We r e a c h t h i s d e c i s i o n b e c a u s e o f H a t f i e l d ' s
suppression of Patterson's remarks about
s m o k i n g and t h e d e v i l . T h o s e r e m a r k s were
i n d i c a t i v e of mental i l l n e s s . Had d e f e n s e
c o u n s e l b e e n aware o f P a t t e r s o n s r e m a r k s
p r i o r t o t r i a l , he would h a v e had good r e a s o n
t o pursue an i n s a n i t y defense. Therefore,
t h a t e v i d e n c e was b o t h m a t e r i a l and e x c u l p a -
t o r y and i t s s u p p r e s s i o n was p r e j u d i c i a l t o
defendant."
D e t e c t i v e Hatf i e l d I s w r i t t e n summary, g i v e n t o d e f e n s e coun-
sel, included the following "He t o l d m e t h a t h e had a l o t of
mental problems. T h a t h e t e n d s to f o r g e t t h i n g s y e t he is cer-
t a i n h e was n o t r e s p o n s i b l e f o r t h e r a p e ."
The r e c o r d d i s c l o s e s t h a t d e f e n s e c o u n s e l m e t w i t h D e t e c t i v e
Hatfield, approximately six days prior to trial, for a short
period of time. but there is no suggestion or argument that
i n q u i r y was made o f H a t f i e l d r e g a r d i n g s p e c i f i c s t a t e m e n t s made
by t h e defendant concerning h i s mental problems. In addition,
the transcript of proceedings of July 2, 1982, attached as
exhibit 4 to defendant-appellant's brief, indicate that the
d e f e n d a n t was h o s p i t a l i z e d i n B i l l i n g s i n September 1979 f o r a
p o s s i b l e m a n i c d e p r e s s i v e d i s o r d e r , and i n J u n e 1 9 8 1 , w a s h o s p i -
talized in the psychiatric unit. Those h o s p i t a l r e c o r d s s h o u l d
h a v e b e e n r e a d i l y a v a i l a b l e t o d e f e n s e c o u n s e l , had h e i n q u i r e d
of the defendant or defendant's parents, after receipt of
Hatfield's summary. The d e f e n d a n t l i v e d w i t h h i s p a r e n t s and
both t e s t i f i e d a s defense witnesses a t the t i m e . Defense c o u n s e l
c h o s e n o t t o p u r s u e t h e d e f e n s e o f m e n t a l d i s e a s e or d e f e c t , and
did not r e q u e s t a p s y c h i a t r i c e v a l u a t i o n a f t e r c o n v i c t i o n s and
p r i o r to s e n t e n c i n g .
Here, I would n o t f i n d a p r e j u d i c i a l s u p p r e s s i o n o f e x c u l p a -
t o r y e v i d e n c e by D e t e c t i v e H a t f i e l d .