Iness v. State

*316TOM G. DAVIS, Judge,

dissenting.

Appellant contends that the trial court’s refusal to provide him with a police report relating to an interview with the complaining witness on the night of the offense was error. He maintains that he was entitled to see the report under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,10 L.Ed.2d 215 (1963). This contention requires a review of the evidence.

The complaining witness testified that she was picked up on the street by the appellant and taken to eat at a local restaurant. When they left the restaurant the appellant drove out of town and ultimately down an unpaved secondary road. He forced the complaining witness out of his car and to disrobe. He then made her perform oral sodomy upon him under threat of death. The woman then attempted to run away, but was caught and struck in the face. Appellant then brought her back to the front of the car where he forced her to submit to anal intercourse. The victim’s responses to questioning regarding whether penetration of her vagina occurred were muddled.1

When asked whether “regular intercourse” was performed, she replied that the appellant mostly “did it from behind.” When again asked if penetration of her vagina occurred, she answered, “I am not certain really, I believe.” The prosecutor again questioned her regarding penetration as follows:

“Q. Okay. Now, both ways, by that do you mean in the rectum?
“A. And in the other.
“Q. Is that in your vagina?
“A. Uh-huh.
“Q. He did it from behind?
“A. Yes.
“Q. And not from in front?
“A. Right.
“Q. But it was in your vagina also?
“A. Yes, I’m sure he tried to, you know, to get in the vagina, but-
“Q. Didhe-
“MR. BURNETT [defense counsel]: Don’t interrupt, she said but.
“THE COURT: Finish that, please, Ma’am.
“MR. BURNETT: She said he tried in the vagina but, but what, please?
“A. I didn’t mean to say the word but. Both ways.
“Q. Well.
“A. Repeat the question.
“Q. I don’t know what is going on. He didn’t reach a climax as you recall, or do you recall?
“A. He didn’t.
“Q. You know? Did his sexual organ pass the outside of your vagina when you said he was trying? In other words you mentioned a moment ago both ways.
“A. Yes. He tried both ways.
“Q. Okay. And did he put it in?
“A. Yeah, in from behind. Yeah.
“Q. In your vagina?
“A. Yes. I mean yes.”

A friend of the victim testified that she had come to his apartment on the night of the offense about 2:00 a.m. and stated that she had been raped.

Cross-examination of the witness failed to change her testimony from that above. It did reveal, however, that the victim had made and signed a statement at the sheriff’s office on the night of the offense.

Defense counsel then tendered into evidence for the purposes of a bill of exception a statement of the victim that the prosecutor had given him. This statement is dated two days after the offense. Defense counsel then asked for the statement made on the night of the offense. The prosecutor responded that he knew of no such statement, and that the only written material he possessed regarding any statements made that night was a police report.

*317The complaining witness was then taken on voir dire where she again stated that she made and signed a statement on the night of the offense, but could not recall if she had made any statement subsequent to that date. She did feel that Deputy Eaton would remember, however. Deputy Eaton was then called to testify.

Deputy Eaton’s testimony established that a Deputy Hammack had talked with the victim on the night of the offense and made a report. Eaton was then sent to the sheriff’s office to get the report. This report was marked as Court’s Exhibit No. 1. It was established that Hammack had left the employment of the sheriff’s department about a month after the date of the offense. Deputy Eaton did not know the whereabouts of Hammack at the time of the trial.

Defense counsel then made a motion that he be allowed to examine Court’s Exhibit No. 1, maintaining that statements contained therein would be exculpatory as to the appellant.2 This motion was overruled, but a copy of the report was sealed and forwarded to this Court along with the records of this case.

In Holloway v. State, 525 S.W.2d 165, it was stated:

“Police reports generally are not subject to pre-trial discovery, and the State is not required to exhibit them to the defendant prior to the officer taking the stand. See Article 39.14, Vernon’s Ann. C.C.P.; Gutierrez v. State, Tex.Cr.App., 502 S.W.2d 746; Bradshaw v. State, Tex. Cr.App., 482 S.W.2d 233. However, if the facts reflect that the prosecutor actively or negligently suppresses or fails to disclose evidence which may exonerate the accused or be of material importance to the defense, reversible error is committed. Crutcher v. State, Tex.Cr.App., 481 S.W.2d 113 and authorities cited.”

The sealed police report which is before us lists the offense as “Rape,” recites the victim’s name as complainant, her address, a “Serial No.,” the date of the offense, a time approximately three hours after the offense, and Hammack’s name. This portion of the report is slightly over one page and reads as follows:

“At the above time and date I was advised by 0-5 that the City P.D. was bringing a girl to the S.O. that had been taken into the County and raped. When I got to the office the girl S-H_ was in the radio room. I then took the girl to my office where I talked with her for a few minutes. She had blood on her face and arms which she advised was from a bloody nose that the attacker had given to her. I then took her into the I.D. room and took three pictures of her.
“I then took her to the hospital where R.N. Nurse 0. Pina Examined the [sic] her and advised that the results of the test would be advised by Dr. William Brantley. The nurse did advise that she had several bruises on the back and hips. S_ did advised [sic] that she was raped from the back and the nurse advised that she could have meant the rectum.
“When we left the hospital Capt. Scott asked S_if the attacker had forced her from the rear and she advised that that was correct. This girl has a mental problem and it is hard to get a message across to her.
“We then came to the office where I was to take the statement from her. She did not know where the rape had taken place but that it happened in a field somewhere. See statement.
“She advised that the subject that picked her up gave that name of Roy Franklin. She advised that she met this subject while walking to Samboos [sic] with a friend by the name of B-C-She advised that this subject had stoped [sic] and was talking with B- and she thought that they were friends she advised that she could not hear what they were talking about due to the fact she *318was standing behind them. She advised that B_ told this subjet [sic] that she had to go to work and he then asked if she wanted to go get a piza [sic]. Due to the fact that she thought this was a friend of B_’s it would be O.K. she advised that she would like that.
“They then went to the Piza [sic] Hut on 42nd st. where she ate a piza [sic]. She advised that they then went ridding [sic] around. She advised that he would stop the car at every gate to cheek and see if it was locked or not. He advised her that he wanted to find a place where they could talk.
“She advised that the car was a blue mustang with blue seat covers and it had bucket seats. Some where she got the lincense [sic] number DCG 670.
“After he had found a gate that was opened he parked the car and forced her to set [sic] on the hood of the car. He then forced her to take her clothes off with the headlights shinning [sic] on her. Then he forced her to lay down on his pants that he had but [sic] on the ground. He forced her to get on her knees with her head on the ground. Due to what I can understand from her he forced her to committ [sic] sodomy.”

The third page of the police report is dated 11:00 p. m. of the same day and summarizes a conversation in which nurse 0. Pina, who assisted in the examination of the victim, gave the following information to the officer:

“At the above time and date I talked with R. N. Nurse O. Pina and she advised that from the test she had taken from S_ H_ she could say in her opinion peneration [sic] was made in the rectum. She advised that there was a lot of blood. She advised that there was no sperm show up in the test. She also advised that there were several bruises on the back and hips. She also advised that X-rays did not show any broken bones.”

The officer’s report regarding his interview with the victim some three hours after the offense sets out details that would constitute only the offense of sodomy rather than rape. This tends to support the appellant’s position that no penetration of the vagina occurred. The later report regarding information received from the nurse would also tend to show that only sodomy had been committed. Since the appellant’s defense was to show that no penetration had occurred, the importance that this information could have had is emphasized by the communications between the judge and the jury during the jury’s deliberations.

In Court’s Exhibit (Ct. Ex.) No. 2, the jury asked to hear the testimony over. Ct. Ex. No. 3 instructed the jury that they could be read only the part of the testimony that was in dispute.

Ct. Ex. No. 4 contained the following communications from the jury:

“At the beginning of where [the victim] was being questioned by the DA about actual penetration. We are in disagreement as to her answers concerning this matter.
/s/ Foreman”

In Ct. Ex. No. 5 the jury stated that they needed a break. The jury then asked to hear the cross examination of the victim in Ct. Ex. No. 6.

Ct. Ex. No. 7 reflects the state of jury deliberations as follows:

“We feel this 12 people can never agree. What do we do?
/s/ Foreman”

Ct. Ex. Nos. 8 and 8a asked the following questions:

“Could I please talk to the Judge.
/s/ Foreman”
“What happens if we never come to a unanimous agreement.
/s/ Foreman”

The court answered that he could not converse with the jury.

Suppression by the prosecutor of evidence favorable to the accused violates due process where the evidence is material to guilt or punishment. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Frank v. *319State, Tex.Cr.App., 558 S.W.2d 12; Ransonette v. State, Tex.Cr.App., 550 S.W.2d 36.

In United States v. Agurs supra, the Supreme Court set out three different general situations in which a prosecutor failed to disclose exculpatory evidence and the standard of review which would apply in each. The first situation was where the prosecutor’s case included what he knew or should have known was perjured testimony. The Supreme Court cited Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935), as typical of this situation. 427 U.S. at 103, 96 S.Ct. at 2397. The standard applied in Mooney was that the conviction must be set aside “if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” 427 U.S. at 103, 96 S.Ct. at 2397.

The second situation was that found in Brady v. Maryland, supra. In Brady, a request had been made for the exculpatory evidence and it had been withheld from the defendant. The test in this situation is whether the evidence was material on guilt or punishment in that it might have had an effect on the outcome of the trial. 427 U.S. at 106, 96 S.Ct. at 2398; Smith v. State, supra.

The final situation was that presented in United States v. Agurs, supra. In Agurs, no request for the evidence had been made, nor was the prosecutor knowingly allowing perjured testimony to be entered at trial. The undisclosed information in Agurs was the deceased’s criminal record which showed convictions for assault and carrying a deadly weapon. The defendant argued that this tended to support a theory of self-defense and thus the prosecutor should have disclosed this information. The Supreme Court held in Agurs that unless the undisclosed evidence creates a reasonable doubt of guilt that did not otherwise exist, no reversal would result. 427 U.S. at 112 13, 96 S.Ct. at 2401-2402.

The present case squarely falls into the second situation, characterized as the Brady situation. Thus the standard of review is whether the undisclosed information may have had an effect on the outcome of the trial. Ransonette v. State, supra; Smith v. State, Tex.Cr.App., 516 S.W.2d 415. In Ransonette, this Court found that the key elements under this standard of review are:

“(a) suppression of evidence by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the evidence. Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972).”

We find that the facts in the present case establish all three of these criteria. A proper request was made by defense counsel when the materiality of this evidence became known to him. The evidence would have been favorable to the defense in that it tended to show that no penetration of the vagina occurred. Finally, notes from the jury and the substance of the complaining witness’ testimony reveal that penetration was a highly contested issue in the case, and as such was of material importance to the defense.

In Means v. State, 429 S.W.2d 490, this Court considered the suppression of the results of a test that showed the presence of hair on the deceased that belonged to neither her nor the defendant. Defendant had refused to submit to the taking of a sample of hair until 5:30 p.m. on January 26. At noon on the 27th, defense counsel conferred with the prosecutor and inquired as to the results. The prosecutor did not know of any results, but said he would check. Later on the afternoon of the 27th, the State was told that the hairs matched neither the deceased nor the appellant’s hair. The State called one more witness and rested, without disclosing the evidence.

A newspaper carried the results of the test in its last January 27th edition. Defense counsel admitted having read the results in the newspaper, but did not state when. The jury deliberated from 4:00 p.m. on the 27th to 11:10 a.m. on the 28th.

This Court held that the findings of the test were not inconsistent with the prosecutor’s case.

*320The Court further stated:

“We cannot conclude that the evidence allegedly suppressed would have materially affected the determination of appellant’s guilt or the punishment to be imposed and that the failure to disclose such evidence, under the circumstances here presented, was so prejudicial as to warrant a reversal on the basis of denial of due process.”

Further, the Court observed:

“It appears that prior to the receipt of the jury’s verdict that the results of the test by virtue of the newspaper coverage was a matter of some public knowledge in Harris County and if having learned of such test the appellant could have moved the court to allow him to reopen in order to introduce other testimony. See Article 36.16, V.A.C.C.P. We find no evidence in the record that the appellant made such request.
⅜ sfc * ⅜ ⅜ ⅜
“Therefore, even if we were to conclude that the actions of the State’s attorney constituted suppression of the evidence, which may have had an effect on the outcome of the trial, still reversible error is not shown in view of the fact that appellant has failed to show that he did not know the results of the test involved before the receipt of the jury verdict at this one stage trial.”

In the instant ease, unlike Means, there is no showing that defense counsel knew of the undisclosed information. In Means, defense counsel knew of the tests, knew of the results (although when is not clear), could have discovered the results, and, moreover, the evidence was not inconsistent with the State’s theory of the case.

Under Means’ facts, there could be a duty to show that defense counsel did not know the results of the test before the end of the trial because of defense counsel’s admission that he had learned of the results from another source. But Means does not hold that there is no error unless appellant makes an affirmative showing that he had no knowledge of the facts in the suppressed report. How would it ever be possible to negate knowledge of facts contained in a report that the trial court refuses to allow the appellant access to?

It is true that the victim testified to facts which showed that the offense of sodomy had been committed on her. The police officer’s report which set forth the results of an interview with the victim and the nurse who examined her relates facts consistent with the offense of sodomy having been committed, but details no acts or results of the examination which would tend to show that the victim was raped.

While details in the report relating to the offense of sodomy are not inconsistent with the victim’s testimony, it must be remembered that the appellant was being tried for the offense of rape. I deem it significant that the report made on the day of the offense sets forth no facts relating to the offense of rape. Under such circumstances, I cannot conclude that the undisclosed information contained in the report would not have been so beneficial to appellant as to have had an effect on the outcome of the trial.

I would hold that the suppression of the police report after the appellant’s request for same was reversible error in light of the testimony and issues present in the trial.

I dissent.

. The victim suffered from cerebral palsy and a birth defect which caused brain damage. Her education ended at the ninth grade.

. Defense counsel also made a motion for continuance as to gain Hammack’s attendance at trial. This too was denied.