State v. Metscher

• Decision Date: 08 September 1983
• Docket Number: No. 106,106
• Citation: 464 A.2d 1052,297 Md. 368
• Parties: STATE of Maryland v. Lawrence William METSCHER.
• Court: Maryland Court of Appeals

Page 368

297 Md. 368

464 A.2d 1052

STATE of Maryland v. Lawrence William METSCHER.

No. 106.

Court of Appeals of Maryland.

Sept. 8, 1983.

Richard B. Rosenblatt, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen. and Ann E. Singleton, Asst. Atty. Gen., Baltimore, on brief), for appellant.

Arthur A. DeLano, Jr., Asst. Public Defender, 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.

This is yet another of the cases involving hypnotically enhanced testimony which were argued the same day. We shall affirm the judgment of the Court of Special Appeals here. It, in an unreported opinion, reversed the conviction of Lawrence William Metscher and remanded the case for a new trial.

Metscher was convicted by a Montgomery County jury of first degree sexual offense and assault with intent to maim. Prior to trial he filed a motion to suppress evidence pertaining to testimony from the victim. He contended that the evidence was inadmissible because she was subjected to hypnosis prior to her testimony. The trial court denied the motion, holding that none of the evidence was the product of hypnosis. Our recitation of facts, except for the professional qualifications of the psychologists, is gleaned from a statement of facts to which the parties agreed pursuant to Maryland Rule 828 g.

I

At approximately 2:00 a.m. while driving to the home of a friend the victim heard a thud against her car. Thinking she had struck something, she got out of the car. She found a man lying in the road. When she got close to him, he grabbed her by the hair and dragged her into the woods. At knife point he forced her to perform fellatio. He sawed her breasts with his knife and otherwise threatened her. Her assailant ran off when he was startled by a passing car. She then ran to a nearby home where she called police. She described her attacker as a white male in his early 20's, five feet seven inches tall, with several days growth of beard and a mustache, wearing a black or dark T-shirt and jeans, and armed with a knife.

About an hour later Metscher was arrested as he came out of the woods less than a mile from the scene of the attack. He fit the description the victim had given, including the fact that he was carrying a knife. K-9 units were able to track a scent leading from the scene of the attack to the house where the victim called police. They were also able to track another scent leading from the scene of the attack to the place where Metscher was apprehended.

Immediately upon his apprehension Metscher was taken for a one-on-one showup for the victim to attempt to identify him. She was in an extremely upset condition and asked to be taken to a hospital for treatment instead. However, she did finally agree to the showup. Friends virtually had to carry her out of the house. She cried hysterically. As to whether Metscher was her assailant, she said, "I can't be sure. It was dark. I don't know."

One or two days after the incident the victim notified police that Metscher was her assailant, saying that the reason she had not identified him earlier was because she was so upset and physically afraid of Metscher. She said if a lineup were arranged she could pick him out. On the advice of the State's attorney's office a lineup was not arranged.

As time passed the State's attorney and police became concerned that the victim was experiencing additional anxiety and having increasing difficulty in recalling what she had originally told the police. In an effort to solve that problem she was hypnotized by an officer of the Montgomery County Police Department who had been trained in hypnotism. Also present at the hypnotic session was a member of the Maryland State Police who had been involved with hypnosis for the previous two years and who was trained by Dr. Daniel Stern of the Investigative Hypnosis Institute. A tape recording of the hypnotic session was made. Unfortunately, thirty minutes of the tape has been erased inadvertently.

The victim identified Metscher as her assailant at the hearing to suppress her identification of Metscher because of the hypnosis. She said she had studied his features very carefully during the incident and that she was able to see fairly well because there had been a full moon on the night in question.

The victim was questioned at the suppression hearing relative to the hypnotic session. In response to a question as to whether her memory was better after that session she said:

"Was my memory better? I would not say it had anything to do with my memory at all.

"The best thing I got out of the entire hypnosis was finally--I had never actually repeated the story to anyone in that kind of detail since the night of the incident and my first meeting with Mr. Ceppos [, an assistant State's attorney]. It was a great relief. It was just a feeling of relief. It was not a feeling that I had remembered any more or any less than before.

"In fact, I still could not imagine what anyone was looking for that I had not already recalled or already known."

Subsequent to that hearing she addressed a letter to the Chief of the Montgomery County Police Department in which she said in part:

"On Friday evening, September 26, 1980, I met with Lt. Robey and Sgt. White (Md. State Police) who conducted the procedure. Although the main goal of hypnosis is to help the victim remember specific details with reference to the case, both gentlemen showed the utmost concern for my well-being. They assured me that at no time would I 'lose control' while under hypnosis, and I can assure you that through their proficiency we obtained good results. Through hypnosis I was able to recall specific, step-by-step details of the assault, and clearly and positively identify the defendant."

Testimony was adduced at the suppression hearing from two licensed clinical psychologists. One, Dr. Melvin Gravitz, produced by Metscher, helped formulate hypnosis guidelines for the Federal Bureau of Investigation. He is a Diplomate in Clinical Psychology, Forensic Psychology, Clinical Hypnosis, and Experimental Hypnosis by certification of the appropriate boards. Dr. Gravitz has been in the full-time independent practice of psychotherapy and clinical hypnosis since 1964. He currently is a consultant to the U.S. Department of State, the Walter Reed Army Medical Center, and the National Naval Medical Center. Dr. Gravitz believed that one or more suggestive statements was made to the victim by the hypnotist (e.g., "Everything is secure in your memory."). He regards hypnosis as a proper investigative tool if strict guidelines are followed, such as those used by the FBI or those laid down in State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981). He is of the view that everyone confabulates in relating something, whether under hypnosis or not. He said there was no way of knowing whether the victim's perception was any different under hypnosis.

The State called Dr. Daniel Stern, a clinical psychologist, stipulated by the parties to be an expert in the field. He 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...