No. 82-237 INTHE 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: April28, 1983 

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-. ClerkMr. Justice Frank R. Morrison, Jr., delivered the Opinion of theCourt. Defendant,Warren Patterson, appeals his conviction of sexual intercourse without consent following a jury trial. We reversethe convictionand remand foranew 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 GaryHatfield 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. Pattersondenied being the suspect for whom Hatfield was searching. A photograph of Pattersonwas taken for later use in a photographic line-up and Patterson was returned home. Detective Hatfield submitted a report of his investigationonAugust 26, 1981. Regardinghis interviewof 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 toldme 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 toinvestigating officers or to third parties and in the possessionof the State." The prosecution interviewed Hatfield three times prior to trial and defense counsel interviewed him once. None of the interviewsproduced any informationbeyond that contained in the written report. After trial started,the prosecution learned that the interviewby Hatfield of Pattersonhad 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 Pattersonhad statedhewas not responsible for the rape or couldnot have committed itashe 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 countof 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 callreporting 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 inmid-August, 1981, a younggirl came toMs. Hopkins' door and asked to use thephone. Shephoned

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 inwhich defendantallegedly left thevictim. 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 Courtwith two issues forour reveiw: 1. Was the defendantprejudiced 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), 169Mont. 150, 545 P.2d 649. "Only intentional 

### -- or deliberate suppression 

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### - or nullify a conviction. United statesv. Keogh, 391 F.2d 138 (2nd Cir.)

# . Negligent - or passive suppression will overturn a conviction 

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### - the suppression. United States v. Consolidated LaundriesCorp., 291F.2d 563 (2ndCir.)"Generally,suppressedevidence must bematerial to either guilt orpunishment. Bradyv. 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 evidencemust be vital to the defense of the accused. United States ex rel. Thompson v. Dye, 221 F.2d 763 (3rdCir.), cert. den., 350U.S. 875, 76 S.Ct. 120, 100 L.Ed.773. To obtain a new trial,the accused must showmore than suppression; he must show the evidencewasmaterial and of some substantial use tohim. United Statesv. Tomaiolo, 378 F.2d 26 (2ndCir.), 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 (9thCir.), cert. den., 393 U.S. 933, 89 S.Ct. 292, 21 L.Ed.2d 270; Lee v. United States, 388 F.2d 737 (9thCir.)" Statev. Craig, supra at 153, 545 P.2d at 651. (emphasissupplied.) 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

(4thCir. 1964), 331 F.2d 842. Limiting the standards to suppressionby the prosecutormight foster future suppression of evidenceby investigatingagencies. 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 tobe negligentor 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 decisionbecause of Hatfield's suppression of Patterson's remarks about smoking and the devil. Those remarks were indicative of mental illness. Had defense counselbeen aware of Patterson's remarksprior to trial,hewould 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: 

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JusticesMr. JusticeL. C. Gulbrandson dissenting.

I respectfully dissent
The majorityhas stateds "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 HatfieldIswritten 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 certainhe was not responsible forthe rape

# ." The record discloses that defense counsel metwith 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 Hatfield regarding specific statementsmade 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 inJune 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 asdefense witnesses atthe time. Defense counsel chose not topursue the defense of mental disease or defect, and did not request a psychiatric evaluation after convictions and prior

### to sentencing. Here, I would not find a prejudicial suppression of exculpatoryevidenceby DetectiveHatfield.