Ogle v. State ( 1976 )

OPINION

MORRISON, Judge.

The offense is kidnapping for extortion under Article 1177a, V.A.P.C.; the punishment, 50 years.

The sufficiency of the evidence is not challenged, but we briefly observe that a twelve year old boy was abducted and then released after the payment of the ransom. Through the efforts of FBI agents, appellant was arrested on the same day and the ransom money was recovered.

Grounds of error one, two and three relate to the failure of the court to provide the appellant copies of reports made by nine FBI agents in the course of their investigation. After each agent testified, appellant’s counsel requested the reports for the purposes of impeachment and cross-examination. The court denied each request. At the close of the evidence, the trial court admitted the reports in evidence for purposes of the record only. In two post trial hearings, the trial court assured appellant’s counsel that the reports would be included in the record on appeal, but the reports were not part of the record transmitted to this Court. Pursuant to an order by this Court, the reports are now before us.

It is clear that appellant, upon request, was entitled to inspect the prior statements of the nine FBI agents who testified, even though they did not use the reports to refresh their memories. Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467; Zanders v. State, Tex.Cr.App., 480 S.W.2d 708.¹

The trial court erred in not allowing appellant’s counsel use of the reports during trial, but such error is harmless when the witness’ testimony is entirely consistent with the prior statement and almost all of the information contained in the statement is developed during the trial. Stein v. State, Tex.Cr.App., 514 S.W.2d 927; White v. State, Tex.Cr.App., 496 S.W.2d 642.

However, in the ease at bar, appellant’s sole defense was that he was suffering from chicken pox encephalitis which rendered him incapable of conforming his conduct to the requirements of what he knew was right and wrong. In this defense he was supported by the testimony of Dr. Hol-brook and Dr. Reedy. Throughout the trial, references were made to a visit appellant had made to Dr. Kassanoff for treatment of chicken pox within hours after the commission of this offense and a very short while before his arrest. Dr. Kassanoff’s opinion as to the appellant’s mental condition at the time of such visit was thus of vital importance in determining the validity or invalidity of his defensive theory. Dr. Kassanoff was not a witness, and no explanation was made as to why he was not called as a witness by either the State or the appellant. His report was not introduced in evidence but repeated references were made to his report as showing that appellant exhibited no signs of abnormality.

Special Agent Meyer’s report as to his interview with Dr. Kassanoff was among the statements which appellant’s counsel made repeated demands to see so that he might use the same in cross examining Meyer, and which the trial court refused to let him see, saying that he had reviewed it and found nothing beneficial to this appellant. All through Meyer’s testimony he expressed the opinion that the appellant was “rational” when he saw him within hours after the commission of the offense.

However, Meyer’s report contains the following:

“Dr. Kassanoff stated he considered Ogle to be somewhat different in his behavior from a normal individual and he stated he had possibly indicated signs of socio-pathic behavior.

* * * * * ⅜:

Dr. Kassanoff stated that his contact with Ogle on this occasion again seemed somewhat abnormal. He said that it was his opinion that Ogle, at that time,

seemed unconcerned with his case of the chicken pox, but again exhibited problems of a possible sociopathic nature.

* * * * * *

Ogle’s competency examinations indicate he was temporarily unable substantially to appreciate right from wrong at time captioned crime committed.”

During the cross examination of Dr. Reedy, a lengthy hypothetical question was propounded by the prosecutor. We quote only a portion thereof:

“Assume that on the date he visits a Dr. Kassanoff and keeps an appointment that he had to do so at 3:15, and at that occasion Dr. Kassanoff conducts a brief neurological check which shows no abnormalities. Assume—

[APPELLANT’S COUNSEL]: To which I object, Judge, as not, that’s not in evidence.

THE COURT: He is basing this on an assumption, counsel. Go ahead.”

It is immediately apparent that under the Gaskin Rule² the appellant was entitled to examine Agent Meyer’s report and use the same in cross-examination. The fact that the FBI report in a manner supported appellant’s sole defense of insanity clearly demonstrates the harm which resulted from the trial court’s refusal to allow such cross-examination from the report.

The judgment is reversed and the cause remanded.

DOUGLAS, J., not participating.

1 . We also observe that once a federal employee testifies in a state court prosecution his reports should be available to the accused for the purpose of cross examination. Cf. Lewis v. U. S., 340 F.2d 678 (8th Cir. 1965), and cases cited therein.

2 . Gaskin v. State, supra. See also Jackson v. State, Tex.Cr.App., 506 S.W.2d 620.