Ogden v. Wolff, s. 75-1042
| Decision Date | 16 October 1975 |
| Docket Number | Nos. 75-1042,75-1083,s. 75-1042 |
| Citation | 522 F.2d 816 |
| Parties | Gary OGDEN, Appellant, v. Charles L. WOLFF, Jr., Warden, Nebraska Penal and Correctional Complex, Appellee. Danny ATKINSON, Appellee, v. Charles L. WOLFF, Jr., Warden, Nebraska Penal and Correctional Complex, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James M. Kelley, Lincoln, Neb., for Gary Ogden, appellant, in No. 75-1042 and Danny Atkinson, appellee in No. 75-1083.
Terry R. Schaaf, Dept. of Justice, Sp. Asst. Atty. Gen., Lincoln, Neb., for Charles L. Wolff, Jr., appellee in No. 75-1042 and appellant in No. 75-1083.
Before GIBSON, Chief Judge, and HEANEY and STEPHENSON, Circuit Judges.
The sole issue in these consolidated state habeas appeals, brought under 28 U.S.C. § 2254, is whether the non-disclosure to petitioners' attorney of the written record of the polygraph examination and pre-test interview conducted upon the prosecutrix in petitioners' trials for statutory rape resulted in a denial of fundamental fairness at those trials. We find that it did not. Accordingly, we affirm the district court's 1 denial of a writ of habeas corpus to petitioner Ogden and reverse the granting of the writ to petitioner Atkinson.
Petitioners were charged with the crime of having carnal knowledge of a female child under 15 years of age in violation of Neb.Rev.Stat. § 28-408 (Cum.Supp.1972). The charges arose out of an incident that occurred in Holt County, Nebraska in May of 1972. The prosecutrix was 14 years old and in the eighth grade at the time she was allegedly raped by petitioners Ogden and Atkinson and one Gary Seger. 2 Petitioners were respectively 19 and 23 years old. A detailed account of the facts in this case would serve no purpose here. A full, factual statement may be found in the Nebraska Supreme Court opinions rendered in each petitioner's appeal. See State v. Atkinson, 190 Neb. 473, 209 N.W.2d 154 (1973); State v. Ogden, 191 Neb. 7, 213 N.W.2d 349 (1973).
Atkinson was initially tried and convicted by a Nebraska state court jury in September 1972. However, that conviction was vacated when the court granted his post-conviction motion for a mistrial. He was subsequently tried again and convicted in October 1972. Ogden was convicted by a state court jury in December 1972. In each of these trials the petitioners steadfastly maintained that they had not personally engaged in intercourse with the prosecutrix, nor had they witnessed any of the other defendants doing so. The testimony of the prosecutrix was the sole evidence at each trial that the individual defendants had raped her. Her testimony was corroborated by the testimony of a doctor who examined her and found evidence that sexual intercourse had taken place. 3 Further corroboration is discussed in State v. Atkinson, supra, 209 N.W.2d at 158. Both men received sentences of not less than four or more than seven years imprisonment.
In January 1973 counsel for petitioners was apprised of the existence of a written report and transcription of the polygraph examination and a summary of the pre-test interview conducted with the prosecutrix on August 8, 1972, prior to petitioners' trials. This report contained statements by the prosecutrix that were somewhat inconsistent with her testimony at petitioners' trials. These inconsistencies related to the issue of penetration and to a variety of minor factual details regarding the rape incident. Following this discovery, the attorneys for Ogden made a motion for a new trial based on newly discovered evidence. The motion was subsequently joined in by Atkinson and Gary Seger, the third man charged and convicted. At the hearing which was held on the motions, testimony was taken from the attorneys involved plus the polygraph examiner.
The evidence adduced at that hearing revealed the following facts. The polygraph examination of the prosecutrix took place on August 8, 1972, approximately three months after the alleged rapes. Trial counsel for petitioners stated that he had verbally suggested to the court attorney that such an examination be conducted for the purpose of determining whether petitioners and Gary Seger had had sexual relations with the prosecutrix as charged. Counsel heard nothing further about the matter until after the test had taken place.
The examination was administered by Nebraska State Patrolman Vern C Omer, who had been contacted by the county attorney for that purpose. The examination was conducted in two parts. First, the polygraph operator interviewed the prosecutrix informally regarding the events that were alleged to have occurred on the night in question. This process provided background information from which specific questions could be formulated for use in the monitored segment of the examination. The second portion of the test involved asking these specific questions and monitoring the responses in an attempt to determine their veracity.
Within two days following the examination, the operator submitted a written report to the county attorney which contained a summary of the pre-test interview 4 and a transcription of the specific questions and answers 5 and the operator's evaluation of the individual. Upon receipt of that report, the county attorney telephoned the defense attorney who represented both petitioners and informed him that the prosecutrix had been given and had "passed" a polygraph examination. He mentioned, however, that the young woman had expressed some doubt as to penetration by the defendants.
Petitioners' attorney maintains that he was at no time prior to the trial of his clients informed of the existence of a written report. In the absence of any mention by the prosecutor, he presumed that the results were simply transmitted orally to the county attorney. As a result of this presentation, the defense attorney did not request a copy of the report. It was the failure of the county attorney to supply petitioners' attorney with a copy of this report prior to trial that led to the filing of these actions. 6
Subsequently, these petitions for writs of habeas corpus were filed in the federal district court alleging, on the basis of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that the non-disclosure of the written polygraph report constituted a denial of due process. A hearing was held in the district court at which testimony was received from the attorneys involved in the case. Based on this evidence and the trial transcripts, the district court concluded that the non-disclosure of the written polygraph report constituted a denial of fundamental fairness as to Atkinson but not as to Ogden. In this court, the state appeals from the granting of the writ to Atkinson, and Ogden appeals from the denial of habeas relief to him.
It is well established that a prosecutor has a duty to disclose to the accused all favorable evidence within his control and knowledge that is material to the defense. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This court in Evans v. Janing, 489 F.2d 470 (8th Cir. 1973), explored in detail the principles applicable to the "evolving law of favorable evidence." Id. at 474. No useful purpose would be served in reciting once again those general principles or in listing the dozens of cases in which they have been applied and expanded. See generally Annot., 34 A.L.R.3d 16 (1970, Supp.1974).
As was noted in Evans, the specific tests that must be applied in non-disclosure cases in order to determine whether a violation of due process had occurred were discussed and succinctly set forth in Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972). As stated by the Supreme Court in Moore :
The heart of the holding in Brady is the prosecution's suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression 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.
Id. at 794-95, 92 S.Ct. at 2568. Petitioners' claims must be measured against these standards in order to determine whether the alleged deprivation of due process has taken place.
The initial question is whether or not the prosecutor in this case suppressed the written report of the prosecutrix's polygraph examination. In this context, "suppression" means non-disclosure of evidence that the prosecutor, and not the defense attorney, knew to be in existence. Evans v. Janing, supra, 489 F.2d at 475.
In the instant case, it is conceded that Robert Finn, the county attorney for Holt County, was aware of the polygraph report's existence in written form prior to the trial of either petitioner. Finn testified that he was sent a copy of the report shortly after the examination, discussed its contents with the examiner, and used it to some extent in preparing his case.
There is a slight degree of uncertainty regarding the defense attorney's knowledge of the written report. Attorney Edward Hannon, who represented both petitioners in their state trials, indicated that he was merely informed by Finn that the prosecutrix had "passed" the examination and that she had expressed some doubts concerning the issue of penetration. He testified that he did not know of the existence of a written transcription until after his clients were convicted. While Finn admits that he never told Hannon that the report was written, he asserts that neither did he deceive Hannon into believing that the report was oral; nor did he ever refuse anyone access to the report. Finn claims that he would have furnished Hannon a copy of the report had a bequest been made. It is undisputed that no such request was made.
We have concluded that the...
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