No. 82-237 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS. 

WARREN K. PATTERSON, 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone 

Honorable Robert Wilson, Judge presiding. 

Counsel of Record: 

For Appellant: 

Gary E. Wilcox argued, Billings, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

James McLean, Assistant Attorney General, argued, 

Helena, Montana 

Harold F. Hanser, County Attorney, Billings, Montana 

Charles Bradley, Deputy County Attorney, argued, 

Billings, Montana 

Filed: 

Submitted: February 28, 1983 

Decided: April 28, 1983 

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 3:57 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 -- of due process 

sufficient-to reverse - or nullify a conviction. 

United states v. Keogh, 391 F. 2d 138 (2nd Cir. ) . Negligent - or passive suppression will overturn a 

conviction - if prejudice - can - be shown A bv - the 

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: 

Bk4a @&- 

Chief Jusece 

,- 1 1; L C.. a. /viJy1 

Justices 
Mr. Justice L. C. Gulbrandson dissenting. 

I respectfully dissent 

The majority has stated s 

"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." 

Detective Hatf ield Is written summary, given to defense counsel, included the following "He told me that he had a lot of 

mental problems. That he tends to forget things yet he is certain he was not responsible for the rape ." 

The record discloses that defense counsel met with Detective 

Hatfield, approximately six days prior to trial, for a short 

period of time. but there is no suggestion or argument that 

inquiry was made of Hatf ield regarding specific statements made 

by the defendant concerning his mental problems. In addition, 

the transcript of proceedings of July 2, 1982, attached as 

exhibit 4 to defendant-appellant's brief, indicate that the 

defendant was hospitalized in Billings in September 1979 for a 

possible manic depressive disorder, and in June 1981, was hospitalized in the psychiatric unit. Those hospital records should 

have been readily available to defense counsel, had he inquired 

of the defendant or defendant's parents, after receipt of 

Hatfield's summary. The defendant lived with his parents and 

both testified as defense witnesses at the time. Defense counsel 

chose not to pursue the defense of mental disease or defect, and 

did not request a psychiatric evaluation af ter convict ions and 

prior to sentencing. 

Here, I would not find a prejudicial suppression of exculpatory evidence by Detective Hatfield.