Com. v. Kater

• Citation: 409 Mass. 433,567 N.E.2d 885
• Parties: COMMONWEALTH v. James M. KATER.
• Decision Date: 04 March 1991
• Court: United States State Supreme Judicial Court of Massachusetts

Page 885

567 N.E.2d 885

409 Mass. 433

COMMONWEALTH v. James M. KATER.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Dec. 3, 1990.

Decided March 4, 1991.

Jonathan Shapiro (Patricia Garin with him), Boston, for defendant.

Elspeth B. Cypher, Asst. Dist. Atty., for Comm.

Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ.

ABRAMS, Justice.

We address for the third time the Commonwealth's prosecution of James M. Kater for the murder of Mary Lou Arruda. The defendant was convicted of murder in the first degree and kidnapping in 1979. In 1983, we reversed those convictions and remanded the case because the prosecution had introduced hypnotically-aided testimony. Commonwealth v. Kater, 388 Mass. 519, 447 N.E.2d 1190 (1983) (Kater I ). Preliminary to a retrial, an evidentiary hearing was held on the defendant's motion to suppress all testimony of the witnesses who had been hypnotized. After hearing part of the evidence, the trial judge concluded that it was not his function to determine the extent of a witness's prehypnotic memory and denied the defendant's motion to suppress. He reported the case to the Appeals Court, and we allowed the defendant's application for direct appellate review. We held that the judge should not have terminated the evidentiary hearing. Rather, he was required to resolve the issue of admissibility by separating admissible testimony based on prehypnotic memory from inadmissible testimony as to facts remembered only after hypnosis. We remanded the case for further proceedings. Commonwealth v. Kater, 394 Mass. 531 476 N.E.2d 593 (1985) (Kater II ). The suppression hearing was completed and the defendant was again tried for the murder in the first degree and kidnapping of Mary Lou. He was convicted in 1986. He now appeals, claiming that the trial judge did not properly follow the mandates of Kater I and Kater II. The defendant claims that the judge allowed testimony at the retrial which had not been shown to be based on the witnesses' prehypnotic memory. We agree that the judge erred in his application of our rules concerning posthypnotic testimony, and therefore reverse these convictions and again remand the case for further proceedings.

The facts surrounding the disappearance and death of Mary Lou, which were adduced by the Commonwealth at the first trial, were set out in some detail in Kater I, supra 388 Mass. at 522-523, 447 N.E.2d 1190. The Commonwealth introduced substantially identical facts at retrial. We recite here only the facts relevant to the evidentiary issues before us, as the jury could properly have found them.

Mary Lou Arruda disappeared around four o'clock on the afternoon of September 8, 1978. She was last seen riding her bicycle on a road near her home only minutes before she disappeared. The last person to see Mary Lou was Helena McCoy, one of Mary Lou's school friends. McCoy was walking along Dean Street and noticed two automobiles, each of which passed her twice as she walked. One was a small, bright green compact driven by a man with dark curly hair and dark-rimmed glasses. The other was a dirty blue automobile driven by a young man with long brown hair, a light beard, and a baseball cap. As McCoy walked down Dean Street, she met Mary Lou, who was riding her bicycle in the opposite direction. The two girls chatted briefly, then continued in opposite directions.

Sheila Berry was driving along Dean Street when she observed a bright green compact automobile driven by a man with dark curly hair and dark-rimmed glasses. The green automobile pulled out onto Dean Street in front of Berry from the entrance to a pile of loam, and went down Dean Street very fast toward the opposite end of the street. She thought that there was some bulky object in the passenger's seat. Berry then proceeded down Dean Street.

At about the same time, Barbara Lizotte was driving on a cross street when she observed a small bright green automobile exiting Dean Street. She saw the driver do something on the passenger side of the car before the automobile passed her going in the opposite direction. As she drove down Dean Street, she noticed a bicycle lying by the side of the road.

Albert Santos was the driver of the blue automobile on Dean Street. He saw a green automobile parked at the side of the road near one end of Dean Street. As he drove down the road and then back again, he observed both McCoy and Mary Lou on her bicycle. The green automobile was still parked by the side of the road when Santos left Dean Street.

Police officers interviewed McCoy and Berry in the days immediately following the disappearance of Mary Lou. Each described the green automobile and the driver in very similar terms. A police officer assisted each in preparing a composite likeness of the driver of the green automobile. McCoy also prepared a composite of the driver of the blue automobile. Police drove Berry and McCoy to various automobile lots to look for cars similar to the one they had seen on Dean Street. Neither Berry nor McCoy identified an automobile. McCoy and Berry then agreed to be hypnotized. A police officer hypnotized them and questioned them about the automobile and the driver they had seen on Dean Street. Approximately a week later McCoy and Berry were hypnotized again.

Lizotte did not talk to the police until several days after Mary Lou's disappearance. She described the green automobile and its driver, and participated with a police officer in preparing a composite likeness. She was then hypnotized and further questioned about what she had seen.

Santos contacted the police several days after the abduction. The composites prepared by McCoy of the drivers she had seen on Dean Street were published in the newspaper, and Santos recognized one of them as his own likeness. He gave a signed statement to police on September 12, 1978, detailing his activities and his observations of the green automobile he saw on Dean Street on September 8. He was later hypnotized and questioned further about his observations on Dean Street.

All four of these witnesses testified at the defendant's retrial. McCoy and Berry identified the defendant in court. Berry testified that a few weeks after the abduction, she had identified the defendant's automobile and the defendant at the Brockton Dunkin' Donuts shop where he worked. Both Berry and McCoy testified that they had identified the defendant on other occasions prior to the retrial.

Berry and McCoy identified the defendant's automobile in court. They also testified that they had identified the defendant's automobile in a parking lot in Brockton on September 19, 1978. Santos identified the defendant's automobile in court and testified that he had identified it on prior occasions. Lizotte did not positively identify the defendant's automobile in court, but did testify that various features of that automobile were consistent with the automobile she saw on Dean Street.

1. Testimony of the hypnotized witnesses. The defendant claims that the trial judge should have excluded all of these identifications because the Commonwealth failed to meet its burden by proving that the identifications were untainted by hypnosis. We conclude that the evidence is not adequate to support a ruling that these identifications were based solely on the witnesses' prehypnotic memory.

In Kater I, we announced that "testimony by a witness as to a fact that became available following hypnosis is generally inadmissible in the trial of criminal cases in the Commonwealth.... Hypnosis simply lacks general acceptability by experts in the field as a reliable method of enhancing the memory of a witness." ¹ Id. at 520-521, 447 N.E.2d 1190. We made it clear, however, that "a witness may testify based on what he knew before hypnosis." Id. at 521, 447 N.E.2d 1190.

We have applied the principle announced in Kater I on the inadmissibility of hypnotically-aided testimony to several cases in which a defendant sought to suppress the identification testimony of a witness who had been hypnotized. In a case decided on the same day as Kater I, we considered it to be error to allow an in-court identification of the defendant and to admit evidence of a positive posthypnotic photographic identification when the witness's prehypnotic photographic identification was only eighty per cent certain. We noted that, although hypnosis had not produced any new evidence, it had altered the witness's certainty as to the identification. Commonwealth v. Watson, 388 Mass. 536, 447 N.E.2d 1182 (1983) (the error was held to be nonprejudicial in the circumstances of the case). We have held it to be reversible error to allow identification testimony from a witness who gave a detailed description of her attacker before hypnosis, but was unable to identify a photograph of the defendant during hypnosis and made a positive identification of the photograph after hypnosis. Commonwealth v. Brouillet, 389 Mass. 605, 451 N.E.2d 128 (1983). We again held the admission of posthypnotic identification testimony to be reversible error where a witness gave inconsistent descriptions and was unable to develop composite likenesses before hypnosis, but could positively identify his attackers after hypnosis. Commonwealth v. Dodge, 391 Mass. 636, 462 N.E.2d 1363 (1984). In none of these cases did we find it necessary to adopt a rule that a posthypnotic identification is admissible only if the witness has made a prehypnotic identification. ² We decline to adopt an absolute prohibition of all posthypnotic identifications. We leave to another day whether we should adopt a rule excluding all posthypnotic identification or leave it to the discretion of the trial judge to determine whether the witness's prehypnotic memory is adequate to justify admission of a posthypnotic identification. Cf. Watson, supra.

In Kater II, we emphasized that it is the judge who must resolve the question of admissibility which arises when...