464 A.2d 1028 (Md. 1983), 105, State v. Collins

Docket Nº:105.
Citation:464 A.2d 1028, 296 Md. 670
Opinion Judge:[10] Smith
Party Name:STATE of Maryland v. Leon COLLINS.
Attorney:[7]
Case Date:September 08, 1983
Court:Court of Appeals of Maryland
 
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Page 1028

464 A.2d 1028 (Md. 1983)

296 Md. 670

STATE of Maryland

v.

Leon COLLINS.

No. 105.

Court of Appeals of Maryland.

September 8, 1983

Page 1029

[296 Md. 671] Richard B. Rosenblatt and William C. Rogers, III, Asst. Attys. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellant.

Arthur A. DeLano, Jr. and Isaac S. Kershner, Asst. Public Defenders, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

SMITH, Judge.

In this case we face for the first time the issue of testimony by a witness after hypnosis. This is one of five cases currently pending before us involving that issue. We shall affirm the judgment of the Court of Special Appeals in Collins v. State, 52 Md.App. 186, 447 A.2d 1272 (1982), although not, insofar as the issue of hypnosis is concerned, for the reasons stated by that court.

Leon Collins was convicted of the first degree murder of his wife by a jury in the Circuit Court for Worcester County. The Court of Special Appeals vacated that judgment on the basis of error relative to the hypnotically enhanced testimony and remanded the case for a new trial. The State petitioned us for a writ of certiorari. Collins filed a conditional cross-petition. We granted both petitions.

The State claims:

The testimony of the witness Davis was properly admitted by the trial court despite the fact that his testimony was hypnotically refreshed where there was only minor variation between the pre and post-hypnotic testimony and where sufficient safeguards were employed to ensure that the [296 Md. 672] post-hypnotic testimony was not the product of suggestiveness.

Collins contends:

1--The trial court erred in denying his motion to suppress his statements to

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the police where the statements were involuntary and were not made pursuant to a valid waiver of the privilege against self-incrimination and the right to counsel.

2--There was error in denying his motion to suppress extra-judicial statements obtained during an unreasonable delay in presenting appellee before a judicial officer in violation of Maryland District Rule 723a.

These, of course, are in addition to his claim that the hypnotically enhanced testimony was improperly admitted.

I

The facts relative to the points raised by Collins are set forth in the opinion by Judge Liss for the Court of Special Appeals. We shall set forth only such brief facts as are necessary to a clear understanding of our decision relative to hypnosis.

Shortly after midnight on July 16, 1980, a State trooper was advised that Alfred Davis had reported that Olivia Collins had been shot by her husband at a truck stop on Rt. 13, south of Pocomoke City in Worcester County. Her whereabouts were then unknown but Davis said that she was alive and bleeding before she was taken from the scene. Collins was the first individual whom the police approached. He was taken to the scene of the shooting for a showup with Davis. Davis was unable to identify him. The body of Mrs. Collins ultimately was recovered from her car in the Pocomoke River near a boat ramp. Collins was charged with murder. [296 Md. 673]

At the first trial the jury was unable to agree. At that trial Davis testified that he was not in the victim's car at the time of the shooting. Between that trial and the second trial Davis was hypnotized by Dr. Edmond T. Delaney, a professor of psychology at Salisbury State College. The session was tape recorded by a special investigator with the office of the State's Attorney for Worcester County. He was present during the entire session.

On the motion to suppress the hypnotically enhanced testimony the State called as an expert Dr. Daniel Stern, a clinical psychologist. He was accepted by the defense as an expert. Dr. Stern has been Director of the Investigative Hypnosis Institute since 1979, Director of Psychological Service at North Charles General Hospital since 1974, and assistant professor of psychology at Loyola College since 1975. He was asked what process takes place during memory, to which he replied:

"The old idea was that our brain was like a computer and that everything that occurs to us is somehow imprinted into the brain. And that was the theory of what happened with memory for a very, very long time. And what we found out through scientific research is that's not true at all. That's not what happens.

"There are many factors which are being intermediated within the memory process that shows us that our brain is not a computer. What occurs is that first of all, sensations impinge upon us and then we, as human beings, as imperfect things, begin, because of our own motivation or because of interpretations we make on our senses, this is what structures our memory. If memory is not pure data, is not raw data, we put on, though, these sensations that we have, our own feelings, our own motivations, our own perceptions, and in that way memory is really a reconstructive type of process where once we get the raw data that comes through our senses, our smell, our taste, our sight, [296 Md. 674] and so forth, things are then put upon it, okay, and including our own perceptions, our own interpretations. And that's basically the theory of memory as it exists now. That we take in this raw data and this raw data is then changed based upon our interpretation of what's taking place within our environment. And it's called the reconstructive theory of memory."

He said, "In proving that hypnosis is not sleep, we know that hypnosis is a heightened state of awareness." He then went on to say that a second part in terms of defining

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hypnosis "is that hypnosis is a heightened state of relaxation." He referred to "confabulation" as "fill[ing] in the gaps in our memory." He explained:

"We tend to confabulate if there is something in our memory, if there is a block in our memory or if there is a phase in our memory. We tend to try to fill it in.... We try to close up and fill in the gaps, and we intend to do that by memory. All memory is confabulation. And these are the two major problems."

He said there are no different problems which affect memory under hypnosis, adding, "The same problems that affect memory out of hypnosis are the same exact problems that affect memory under hypnosis. There is no other.... [T]here is no scientific research to indicate that a person is more likely to confabulate in recalling memory under hypnosis than when he is out of hypnosis."

Dr. Stern saw the following as the necessary safeguards for hypnotically refreshing the memory of a witness:

  1. The person performing the hypnosis should be well trained.

  2. The individual conducting the hypnosis session should be independent of the case that is involved.

  3. Any information given to the hypnotist should be very limited because this lessens the chances of suggestibility. [296 Md. 675] 4. All contact between the hypnotist and the person hypnotized should be recorded. Videotaping it would be even better.

  4. The hypnotist and the person hypnotized do not need to be the only persons in the room.

Dr. Stern specified that when he is doing hypnosis he wants the investigator in the room. He explained:

"First of all, the investigator is not to say a word, and I tell them that. If they want to ask a question or something like that, they write it down on a piece of paper for me and hand it to me and I do the asking to make sure the question that is asked is in as non-suggestive a way as possible; okay? So the investigator never says a word, but they are there, and the basic reason for that is, one, I don't think having the investigator in there will influence the session in any way, number one. Number two, I have found in my experience, and I have done about a hundred and ninety-seven forensic hypnosis cases in the last six years, that it kind of puts the person hypnotized at ease. In many cases they were being hypnotized for the first time, so there is apprehension there. The investigator, who they have seen usually on several occasions, puts them at ease a little bit. So I want them there for that.

"True, I am not an investigator. I am not a lawyer. I am not a law-enforcement person. I am a psychologist. I am not an interviewer in that sense. I am not so sure being a psychologist and not a police officer or an investigator exactly what information is needed. I want the investigator there to feed me notes to help me with the session. So I prefer that the investigator be there. I don't think it should be a three-ring circus and having everybody in creation there, but I do like to have the investigator there, and I think it's very proper." [296 Md. 676]

He indicated his familiarity with Dr. Martin T. Orne, about whom we shall have more to say later, adding that he had testified in the same case with Dr. Orne on several occasions. He recognized that his preference for having the investigator in the room was at odds with the safeguards laid down by Dr. Orne. Dr. Orne's standards were adopted by the New Jersey court in State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981), which we shall discuss later.

The trial court ruled the hypnotically enhanced testimony of Davis was admissible.

As a result of the hypnosis Davis was able to recall that he was actually in the car at the time of the shooting. At the second trial he testified that a car, identified by Mrs. Collins as her husband's car, pulled up beside the car in which they were then seated. A man got out, approached the car

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and ordered Davis to get out of his "wife's car." An argument ensued between this man and Mrs. Collins, after which the man pulled a rifle from his car and shot her...

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