Stout v. Gladden

SLOAN, J. In this post-conviction proceeding plaintiff challenges his prior conviction for the rape of his stepdaughter. He now claims that his conviction was constitutionally defective because the district attorney suppressed evidence that would have been favorable to him. The trial court found that he had failed to sustain his burden of proof and denied the petition. We agree. With some insignificant modification, we take the following statement of facts from plaintiff’s brief: “On February 23, 1965, petitioner was found guilty of the crime of rape of his step-daughter. The principal evidence at trial was the daughter’s testimony against the petitioner’s. Prior to the trial, petitioner’s defense counsel, requested the deputy district attorney, to obtain a psychiatric report concerning the daughter, which the deputy district attorney agreed to do. “Following the examination, the psychiatrist reported to the deputy district attorney that the girl was suffering from a ‘mild undifferentiated schizophrenic reaction manifested by poor mental concentration and by impaired reality contact, shyness, sadness, tendency to withdraw and marked sensitiveness.’ “Several days later, when defense counsel asked the deputy district attorney for the results of the examination by the psychiatrist, the deputy re [492] ported that the girl was ‘all right although suffering from some sort of emotional reaction . . . and that it was the doctor’s opinion that Christine, the stepdaughter, would be a competent witness and that she was telling the truth.’ Defense counsel relied upon the District Attorney’s narration concerning the psychiatric examination and did not request the actual report. [The doctor’s report to the deputy district attorney was made orally. The only record of the report was some brief notes made by the deputy]. The post conviction court found orally that ‘it’s logical to say at least that any other defense attorney would have acted just as defense counsel would have done I suppose, and he didn’t ask for any other report from the doctor.’ “At the petitioner’s trial, his stepdaughter testified and was cross-examined by defense counsel in an attempt to impeach her credibility. At his post conviction hearing petitioner’s counsel testified that had he not been mislead as to the contents of the psychiatric report by the Deputy District Attorney, he would have attempted to impeach the daughter’s veracity by calling a psychiatrist to testify as to her mental condition. Also at the post conviction hearing, Dr. Norman Stewart, a psychiatrist at Eastern Oregon Hospital and Training Center in Pendleton, Oregon, testified concerning the effect of ‘undifferentiated schizophrenic reaction’ on the ability of an individual to tell the truth. In answer to a hypothetical question concerning this mental disease, the doctor stated that: a) such a disease could affect a person’s ability to tell the truth; b) the existence of this mental disease is relevant to the determination of whether a person is telling the truth; c) a full psychiatric examination would be needed for an expert to testify whether a person with such a mental disease could state in terms of probability whether the individual had the ability to tell the truth.” Even if we take for granted that the deputy district attorney did unintentionally mislead defense counsel [493] and that this failure of the prosecutor did deprive the defense of an opportunity to consider if he would' have called the psychiatrist as a witness, we think the failure of the prosecutor did not violate due process standards for these reasons: The only record before us of what the testimony would have been that might have been offered by the examining psychiatrist was an affidavit which is attached to plaintiff’s petition. Without more information we cannot tell whether his testimony would have been admissible. In State v. Walgraeve, 1966, 243 Or 328, 412 P2d 23, 413 P2d 609, we noted the different viewpoints expressed relative to this subject in Ballard v. Superior Court, 1965, 44 Cal Rptr 291, a decision by a California District Court of Appeals, and the same case when it was reversed by the Supreme Court of California, 1966, 49 Cal Rptr 302, 410 P2d 838. It does appear from the affidavit that his testimony would probably have been unfavorable to defendant. Brady v. Maryland, 1963, 373 US 83, 83 S Ct 1194, 10 Led2d 215, states that due process is violated when evidence favorable to a defendant is suppressed. The materiality of the suggested evidence was doubtful. Brady v. Maryland, supra. The record does not persuade us that the trial and its result was caused to be unfair or prejudicial for the reasons alleged. Affirmed.