Giles v. Maryland/Concurrence White

Mr. Justice WHITE, concurring in the judgment.

I concur in the judgment of the Court, although I am unable to join the opinion of my Brother BRENNAN. In my view, there was no violation of the rule of Napue v. People of State of Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217. The argument is that at the trial the police officers testified that the complaining witness had said, all along, that three men had raped her, whereas the police reports supplied to the Court after oral argument clearly indicate that the complaining witness had told the officers at one point that only two men had raped her. Although the fact misstated by the police at trial bears primarily upon the credibility of the officers who testified, it might be argued that in addition the false testimony bore some relationship to the credibility of the prosecuting witness and to the question whether both of the petitioners had in fact committed rape. But these issues were not overlooked by petitioners' counsel at trial, who then confronted the complaining witness with the inconsistency in her allegations. Had petitioners' counsel been less diligent, the false testimony might rise to the level of a Napue violation.

Concerning the testimony given by Foster as to why he was with the complaining witness on the evening of the alleged rape there can be no argument under Napue, a point made clear by the opinion of my Brother HARLAN.

Nevertheless, for the reasons which follow I concur in the judgment remanding the case to the Maryland Court of Appeals for further consideration.

Petitioners here were appellees in the Maryland Court of Appeals, having prevailed in the trial court in their post-conviction attempt to win a new trial. In the Maryland appellate court, they sought to sustain the judgment not only on the grounds stated by the Circuit Court-supression of evidence with respect to an alleged false rape claim and a suicide attempt but on the additional ground that the State had suppressed other evidence, including evidence with respect to the rape victim's reputation for promiscuity and evidence with respect to her mental condition. The Maryland Court of Appeals apparently considered it appropriate and important to dispose of these additional suppression claims. With respect to reputation for unchastity the court acknowledged the admissibility of such evidence where consent is an issue. The court held, however, that the prosecution could not be charged with withholding reputation evidence since the defense itself had ample knowledge of the promiscuous conduct of the prosecuting witness. As to her mental condition, the court cited with approval People v. Bastian, 330 Mich. 457, 47 N.W.2d 692 (1951), apparently conceding that evidence of 'nymphomania'-which the court referred to as a 'type of mental illness'-was admissible in a case such as this. But the court held (1) that the prosecution could be charged only with the knowledge that the mother of the victim had at one time taken her to a psychiatrist; (2) that there was nothing in the record to show that the victim was suffering from nymphomania; and (3) that even if she was so afflicted, 'there is nothing to show that this made her incompetent as a witness or that she consented to the acts for which the appellees were convicted.'

Of course, the court's ultimate result unavoidably followed from these factual determinations and it would appear that the evidence now in the record is consistent with these conclusions. But this does not end the matter in my view, if the inquiry permitted the petitioners in the trial court was not all that the Maryland law allows or that the constitution requires. And based on the record as it comes here, I am not at all sure that there has been a full airing of the suppression issue or that the petitioners are responsible for the obvious shortcomings in the evidence with respect to the mental condition of the rape victim and the prosecution's knowledge with respect to this matter. I am sufficiently unsure that I would remand for further consideration by the Maryland Court of Appeals.

To set in perspective those parts of the record which concern me, a brief summary of the facts is necessary. In chronological order, this case involves the alleged rape by petitioners, a subsequent occasion upon which the complaining witness experienced sexual intercourse with two young men (which led to the so-called false rape claim), a suicide attempt by the complaining witness followed by temporary hospitalization in a psychiatric ward, a juvenile court proceeding as a result of which the complaining witness was sent away from her home, and finally the trial at which the petitioners were convicted. While the complaining witness was hospitalized, she was subjected to a psychiatric examination by Dr. Doudoumopoulis, who related his opinion to Dr. Connor, who in turn spoke with the parents of the complaining witness. In addition, and highly relevant to the issue of suppression, the record of the juvenile court proceedings reflects the fact that Lieutenant Whalen of the Montgomery County Police Department had discussed the matter of confinement of the complaining witness with Dr. Connor and had arranged for and participated in the juvenile court hearing.

The following excerpts from the post-conviction hearing transcript are the source of my concern with the record as it comes to us.

Dr. Connor testified that he had seen the complaining witness daily during her hospitalization following the suicide attempt.

'Q. And on the subsequent days could you tell us what part of     the hospital you saw her, which ward?

'A. I saw her on A Wing, which is the psychiatric ward.

'Q. Did you request Dr. Doudoumopoulis to make a psychiatric     evaluation of Miss Roberts?

'A. Yes, I did.

'Q. And did he report to you his evaluation or diagnosis of     her case?

'A. Yes, he did.

'Q. Did you concur with him?

'A. Yes, I did.

'Q. Could you tell us what that disgnosis or evaluation was?

'Mr. Kardy: Just a minute, doctor. Object, Your Honor.

'The Court: Objection sustained.'

Subsequently, Dr. Connor, who had not performed the psychiatric examination, was allowed to testify concerning his nonpsychiatric diagnosis of the patient, and his conclusion was 'adolescent reaction.' The failure of the hearing to produce, through Dr. Connor, any meaningful testimony regarding the psychiatric condition of the complaining witness might have been presaged by the testimony the same Doctor was allowed to give on deposition prior to the post-conviction hearing, the contents of which follow:

'Q. Did you see (Joyce Carol Roberts) during the     hospitalization?

'A. During the hospitalization, yes.

'Q. At that time did you have occassion to speak to     Lieutenant Whalen of the Montgomery County Police Department      about Joyce?

'A. I spoke to someone from the Montgomery County Police     Department during that period. I don't know just exactly who     it was or the exact date, but I do recall talking to someone      about her.

'Q. And where did that conversation take place?

'A. I believe it was in my office at 4713 Berwyn Road, in     College Park. My office was there.

'Q. Will you state the substance of that conversation?

'Mr. Kardy: I object.

'The Court: The objection is sustained.

'Mr. Witt: Your Honor, we are seeking to find out what     information was given to the State about the credibility of      this witness.

'The Court: He has not testified that he talked to anyone     from the State; he said he talked to someone in Montgomery      County.

'Mr. Witt: Montgomery County Police Department, Your Honor.

'The Court: He said 'to someone,' as I heard his answer.

'Mr. Witt: Can we have the answer read back?

'The Court: Doctor, can you identify the person to whom you     talked?

'The Witness: No, sir; I cannot. I recall there was someone     from the police department.

'Mr. Kardy: Of Montgomery County?

'The Witness: Of Montgomery County.

'The Court: Counsel, do you proffer to show that from that     conversation the State's Attorney had knowledge that there      was evidence suppressed which would have been a defense to      the crime?

'Mr. Witt: Yes, Your Honor.

'The Court: What specifically do you proffer to show?

'Mr. Witt: We proffer to show that State had knowledge of     this girl's psychiatric condition at the time.

'The Court: What difference would that make?

'Mr. Witt: It is under Napue against Illinois. Evidence     respecting the credibility of a witness which is in the      possession of the State at the time of the trial and which is      suppressed by State is a violation of due process.

'The Court: I will sustain the objection.

'Q. Did you at that time have occasion to speak to  either or both of Joyce's parents?

'A. Well, I was speaking to her mother on frequent occasions,     and I spoke to her father on one or more occasions, I don't      recall how often.

'Q. And did you discuss with them what should be done for     Joyce?

'A. Yes.

'Q. Will you state what was said?

'Mr. Kardy: Just a minute, Doctor. I object.

'The Court: Objection is sustained.

'Q. Did either of them tell you about any other alleged rape     of Joyce?

'Mr. Kardy: I object.

'The Court: Sustained.

'Q. Did any member of Joyce's family tell you about any other     alleged rape of Joyce?

'Mr. Kardy: I object.

'The Court: Sustained.

'Q. In the course of your treatment of Joyce during this     period, did you have occasion to call in another doctor?

'A. Are you referring to hospitalization?

'Q. Yes.

'A. Yes, I did.

'Q. And who was that doctor?

'A. Dr. Doudoumopoulis.

'Q. Did you discuss Joyce with him after he had seen her?

'A. Yes, i did.

'Q. Did he diagnose her as a juvenile schizophrenic?

'Mr. Kardy: Just a minute; don't answer that. I object.

'The Court: The objection is sustained.

'Q. Did you discuss with Dr. Doudoumopoulis what  treatment Joyce should receive?

'Mr. Kardy: I object. * *  *

'The Court: I think it is immaterial. I will sustain the     objection.'

Immediately after Dr. Connor's deposition was taken, Lieutenant Whalen of the Montgomery County Police Department was put under oath. Lieutenant Whalen testified that he had contacted Mr. Kardy, the prosecutor, and that they arranged for a hearing in the juvenile court in Montgomery County on September 5, 1961. The reason for seeking protective custody for the girl was that, in Whalen's words: '(T)he boys in the area were harassing the girl so bad that she (the mother) would like to get some help for the girl. * *  * '

'Q. Were you present throughout that juvenile court hearing     of September 5, 1961?

'A. I was in and out of the courtroom. I was not there every     second.

'Q. Let me go back a minute; isn't it a fact that prior to     this hearing you had talked to Dr. Connor with respect to      Joyce Roberts' mental condition?

'Mr. Kardy: I object.

'Mr. Forer: * *  * Your Honor, we had Dr. Connor on the stand      earlier today, and Dr. Doudoumopoulis; we were trying to lay      a foundation by showing that the girl's condition was such      that it would have affected her credibility. Dr. Doudoumopoulis actually was qualified, as a qualified     psychiatric expert, to say if it would have affected her      credibility. It would have been relevant to whether or not     she invited this intercourse or rejected it. And with Dr. Connor we also brought out whatever the doctors     discovered he had told some representatives from the      Montgomery County police. But Your Honor excluded our     questioning designed to go into the mental condition of the      girl. Now, Your Honor is excluding my asking him whether he     knew about it on the grounds that we have not established the      significance of the mental condition.

'The Court: I will sustain the objection. I do not think it     is proper in this procedure.

'Q. Now let us go back to this juvenile court hearing in     Montgomery County, September 5, 1961. Was anything said at     the juvenile court hearing about the fact that Joyce Roberts      had attempted to commit suicide shortly before that date?

'Mr. Kardy: I object.

'The Court: I will sustain the objection.' The day before the post-conviction hearing began, Dr. Doudoumopoulis, although subject to a bench warrant had 'left for Maine' for two weeks. In all fairness to the presiding judge, it should be noted that he offered to continue the hearing until the Doctor could be reached for his testimony. But on the other hand, the counsel for petitioners perhaps had no reason to expect that the course of the post-conviction hearing would run any differently for that at the deposition proceeding in advance of the hearing, where Dr. Doudoumopoulis, and the petitioners' counsel, could achieve only the following interchange.

'Q. Dr. Doudoumopoulis, on or about August 26, 1961, in the     course of your practice, did you have occasion to see a girl      by the name of Joyce Carol Roberts?

'A. I saw her on the 28th of August, 1961.

'Q. Where did you see her?

'A. At Prince George's Hospital.

'Q. What caused you to see her?

'Mr. Kardy: I object.

'The Court: I will overrule it. I will permit that.

'Q. You may answer.

'A. Dr. Charles D. Connor had asked me to make a psychiatric     evaluation of her.

'Q. Did you interview her?

'A. Yes, I did.

'Q. Did you reach any conclusions about her condition?

'Mr. Kardy: Just a minute, Doctor. I object.

'Mr. Witt: Your Honor, we are seeking to discover what  the doctor's diagnosis was, and then to link it up with   the knowledge of the State with respect to that   condition. That is the purpose.

'The Court: The objection is sustained.

'Q. Do you know Dr. Charles Connor?

'A. Yes.

'Q. Did you discuss Joyce with him?

'A. Yes.

'Q. Did you tell him your conclusions-

'Mr. Karby: I object.

'Q.-in respect to Joyce's condition?

'Mr. Kardy: I object.

'The Court: He can answer it yes or no.

'The Witness: Yes.

'Q. Did you discuss with him what should be done for Joyce?

'A. Yes.

'Q. Will you tell us the discussion with respect to what     should be done with Joyce at that time?

'Mr. Kardy: I object.

'The Court: Sustained.

'Q. Did you talk to Joyce's parents?

'A. I think it was the mother that I talked to.

'Q. Did you have any discussion with her with respect to what     should be done for Joyce? * *  * Did you discuss a      hospitalization of Joyce?

'Mr. Kardy: I object.

'The Court: The objection is sustained.'

Because the record of the juvenile court proceeding clearly indicated that psychiatric evidence concerning the complaining witness had flowed from the doctors into that hearing, the record of which also reflected the presence of Lieutenant Whalen, the petitioners' counsel sought to pursue their inquiry through Mr. Lynn Adams, an officer of the juvenile court who had been instrumental in the juvenile court proceedings. This inquiry was likewise cut short:

'Q. Now, it is a fact, is it not, a Lieutenant Detective     Whalen of the Montgomery County Police Department was also      present at that hearing?

'A. Yes, according to my information it was.

'Q. It is a fact, is it not, that the charge against Joyce     Roberts was that she was out of parental control and living      in circumstances endangering her well-being?

'Mr. Kardy: Object.

'The Court: Sustained.

'Q. Was it brought out at this hearing that Joyce Roberts had     attempted to commit suicide shortly before the hearing?

'Mr. Kardy: Just a minute, Mr. Adams. Object.

'The Court: Sustained.

'Q. Was it brought out at this hearing that in late August of     1961 Joyce Roberts had accused two men of raping her?

'Mr. Kardy (To the Witness): Just a minute. Object.

'The Court: Sustained.

'Q. Did you speak, by telephone or otherwise, with a     psychiatrist by the name of Dr. Alexander Doudoumopoulis?

'A. Yes.

'Q. Did he give you any information regarding the mental  condition or mental health of Joyce Roberts in this   conversation that you had with him?

'A. Did he-yes, regarding the mental health, yes.

'Q. What was the information that he gave you regarding Joyce     Roberts' mental health in this conversation?

'Mr. Kardy: Just a minute. Object, Your Honor.

'The Court: Sustained.'

The presiding judge seems to have closed off Mr. Adams as a source of information on the ground that he had no other choice under Rule 922 of the Maryland Rules of Procedure governing juvenile causes. The rule specifies that:

'A person having a direct interest in a case may examine any     part of the record thereof, except medical and case histories      and other reports which the court may designate confidential. Such a person may also examine such histories and     confidential reports with prior written permission of the      court. The court may, however, from time to time, designate     by general orders persons or agencies who may inspect any      record, or specific classes of records, without additional      written permission. Except as provided herein, no other     person may examine any juvenile record, including the docket,      without prior written permission of the court.' Md. Ann.Code,      c. 900, Rule 922.

At the post-conviction hearing, the petitioners held an authorization of the juvenile court to examine the records concerning the September 5, 1961, hearing. The authorization included permission to 'make available said records for use, including introduction into evidence * *  * and to any persons with knowledge thereof to testify about any aspect of the proceedings *  *  * involving said Joyce Carol Roberts.' The presiding judge in the post-conviction hearing was of the view that Rule 922 allowed the juvenile court only the power to make the record available for examination, not to 'put it in evidence.' See Vol. I, Post-Conviction Hearing Transcript, at 66. This, of course, does not explain why the judge himself did not examine the record, as he had expressly been authorized to do by the juvenile court. Had the judge made such an examination, he might have concluded that his decision regarding the admissibility of the record and of testimony by witnesses who had attended the hearing would require a more complete consideration of the purpose of and policies served by Rule 922. And in any event-although this is a matter of Maryland law about which I am not at all sure-the Rule would not seem to be a bar to testimony by those who had attended the juvenile court hearing when asked questions concerning information obtained outside the juvenile court hearing. If I am correct in this regard, the Rule could not stand in the way of testimony by Dr. Connor as to his conversations with Dr. Doudoumopoulis, or as to his conversations with the Montgomery County police officer, or as to any conversations either of the doctors might have had with Mr. Lynn Adams outside the juvenile court hearing. An additional matter raises my doubts further about the force which Rule 922 should have had at the post-conviction hearing. The State has since supplied this Court with what is apparently the complete file and record of the September 5, 1961, juvenile court proceedings involving the complaining witness. The State apparently no longer considers Rule 922 a bar to judicial consideration of these items. I do not wish to suggest that the presiding judge's exclusion of the juvenile court record, and of possible testimony of Adams, Whalen, Connor, and Doudoumopoulis was necessarily incorrect. But the duty to make that decision and the right to make it in the first instance belongs to the Maryland court, and my point simply is that the circumstances of the post-conviction hearing in this case compel a more complete consideration of the issue.

There is another matter for the consideration of the Maryland court: the prosecuting attorney of Montgomery County was not charged with the knowledge of Prince George's County officers but he was charged with what the police officers of Montgomery County knew. Was he also charged with the knowledge of other Montgomery County officials such as Lynn Adams, and, to the extent of their involvement with Montgomery County agencies, Dr. Connor and Dr. Doudoumopoulis?

In the end, any allegation of suppression boils down to an assessment of what the State knows at trial in comparison to the knowledge held by the defense. It would seem that the Maryland Court of Appeals would reverse as unconstitutional a conviction in a trial that included suppression of evidence tending to prove nymphomania, or more comprehensively, suppression of evidence concerning the mental condition of the complaining witness and the interrelated issues of her consent and credibility. If such is the case, it would be helpful to have the Maryland Court of Appeals' views as to whether on this record the petitioners have been afforded a full and fair hearing on this issue.