Wallace v. State
501 P.2d 1036
Nev.
1972
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*1 state return to this to stand trial. His made request was as soon as he of the pending charge. knew Nevada The prose- no cutor has reason to assigned justify delay. simply ignored Although defendant’s record does not request. reflect against charge that the defendant’s to defend has been it does not follow this alone impaired, has not discussing suffered prejudice. prejudice, noted, Hooey, among Smith v. “the supra, other things, possibility that the defendant receive already prison might a sentence at least concurrent with the one he is partially serving may be forever lost if trial pending postponed.” Id. at 378. That erased possibility prosecutor’s failure the Nevada case try demand. Consequently, prevail. must reverse the denying habeas relief and direct Robert Earl discharged Wood be on the embez- custody instant zlement charge. The remittitur shall issue forthwith. Batjer,

JJ., concur. WALLACE, ROBERT WILLIAM THE Respondent. STATE Defender, Spec- Murphy, H. R. Dale Michael chio, County, Deputy Washoe Rose, List, General, District Attor- Attorney Robert Wall, Washoe Attorney, and Kathleen M. District

OPINION Court, J.: By Thompson, decision, a for the Ninth Cir- Appeals By split this case to the state district court for an evi- remanded cuit of a confession on voluntariness dentiary thereof, in lieu a new trial. or Wallace police, Wallace 1971). Hocker, The federal appellate 441 F.2d 219 that the trial record did not show with “unmis- believed court Georgia, 385 U.S. 538 that clarity,” takable Sims determined that the confession was first had judge the trial allowing before hear voluntarily given freely Denno, it, Jackson hearing and determined court held an

state district is from voluntarily given. appeal confession was that the that decision. ruling support

The record shows substantial In this affirm without hesitation.1 Normally, we would below. case, however, to the defendant became evidence favorable time at the evi- him and to his counsel for first known to of Dr. evidence was the written dentiary hearing. who, the district attor- Toller, request a psychiatrist, after the 48 hours had examined the defendant within Wallace court on that issue. we affirmed the district 1 On Moreover, that we believed P.2d met, although Denno, supra, had been of Jackson v. the intendment we, did not dis point squarely was not it. cuss doctor concluded place. had taken crime alleged with a reac- depressive this time “mentally ill at was marital problems. financial and cause appears tion. The after he is over acute phys- again, to see him like would ical trauma.” the district and was was delivered

That report a notwithstanding pre-trial never disclosed defense to submit to defense admonishing to the defendant.2 Neither was favorable counsel all evidence for in camera inspec- to the trial court submitted an issue the defendant became tion. The mental behalf, on his testifying a psychiatrist, the trial when homicide, the time of the stated that at that would stress reaction gross from a suffering call as a judgment. through another Rebuttal rebuttal witness. and who not examined who had psychiatrist mental condition on the accused’s about opinion offered his asked prosecutor. question the basis of hypothetical *3 and Dr. short, suppressed, the Toller medical In at the trial. testify Toller did not later years finally —almost reviewing. explained are now hearing we

post-conviction testified, substance, illness his report the homicide suffering shortly after Wallace was from which his intellect. that did not emotional reaction was an the dis- impelled other evidence together with his con- voluntarily gave that Wallace trict court conclude relief, was denied. Post-conviction fession. arose issue which not decide the suppression court did of the remand the beyond scope since it was think, This, was error. The court. the federal appellate became aware as soon as defense issue was tendered of it. allowed to suppress cannot be

The prosecutor facie favorable prima to the which is relevant the prosecutor process of due accused. It is a violation evidence, doing motive for so exculpatory to withhold the trial or the handle either the State did not counsel for 2 Present judgment Both occurred before following took a new district general which election the last office. 552 (1963);

is immaterial. v. cf. Brady Maryland, 488, v. 500 P.2d 693 He is O’Brien of a sovereignty obligation gov whose is to representative ern and whose interest in criminal impartially prosecution States, is done. Berger see that United U.S. justice 295 88 Such unfairness has condemned when ever it has come court’s attention. For example, Texas, (5 1963), 80 Ashley v. 319 F.2d Cir. the prosecutor withheld that the defendant psychiatric reports was not com to stand trial. United States ex rel. petent Thompson (3 1955), 763 Dye, 221 F.2d Cir. the defendant tried because he establish that was intoxicated at the time killing, he lacked either the capacity for first required least, or, murder deserve culpability to the death penalty. did not disclose to prosecutor officer who had arrested him four hours within of the crime had told the that the defendant then prosecutor appeared Texas, under the influence of liquor. In Alcorta 355 U.S. 28 that he claimed killed his wife when he one caught kissing her in a Castelleja car late parked night. The disclose defendant that Castelleja had told the and the defendant’s wife had in sexual five engaged During intercourse or six times. testified he Castelleja defendant’s wife were not in love and not had dates. this Notwithstanding testimony, the prosecutor withheld conversation he had Murdock, had with See Castelleja. also: People 237 N.E.2d (Ill. 1968); 442 Hamric v. 386 F.2d Bailey, 390 1967); Maxwell, (Ohio 1965); McMullen v. N.E.2d 449 (N.J. 1967); State v. 232 A.2d Vigliano, In re Kapatos, (S.D.N.Y. 1962). In each of F.Supp. the cited cases the conviction was set aside. relevancy

The of the Toller cannot be seriously bore questioned. directly It

accused, confession, of reliability his and the his degree of guilt. The of testimony Dr. Toller an years later at hearing before evidentiary the court cannot possibly cure of the infirmity original trial where the ultimately had decide the mental condition of as it related to reliability of his confession and the of his guilt. jury all precluded giving careful consideration to relevant evidence reason of the prosecutor’s suppression consequence Toller inevitable report. prosecu- trial, tor’s is a clear a fair and the misconduct denial of need fundamental expense, for at correct public another error, all of been avoided which would have to the defendant and mindful of his true responsibility public. aside and this case is remanded

The conviction set district court for a new trial. Batjer JJ., J., concur. and dissenting: ruling reversing from the majority’s I dissent

Respectfully, con- the order of die which held that Wallace’s district court made. voluntarily fession agree majority regarding prose- with the views duty in this case. He had a to disclose

cutor’s conduct and it was Doctor Toller’s report, defendant before trial case, however, Doctor him to do so. In this not improper hearing before Toller the subsequent to in illness of Wallace referred Judge Bowen that the mental Wal- that did not impair his was an emotional reaction Tol- see Doctor lace’s I fail to where intellect. Consequentiy, on the issues bearing ler’s would have had affirm the order I would trial. Therefore vol- district that Wallace’s confession holding untarily, I would uphold PARKUS, HERBERT

EDWARD THE STATE Cherry, Defender, Michael A. Legakes, G. Clark