464 A.2d 1055 (Md. 1983), 107, Simkus v. State

Docket Nº:107.
Citation:464 A.2d 1055, 296 Md. 718
Opinion Judge:[10] Smith
Party Name:John G. SIMKUS, Jr. v. STATE of Maryland.
Attorney:[7]
Case Date:September 08, 1983
Court:Court of Appeals of Maryland
 
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Page 1055

464 A.2d 1055 (Md. 1983)

296 Md. 718

John G. SIMKUS, Jr.

v.

STATE of Maryland.

No. 107.

Court of Appeals of Maryland.

September 8, 1983

Page 1056

[296 Md. 719] Clarence W. Sharp, Assigned Public Defender, Annapolis, for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellee.

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

SMITH, Judge. [296 Md. 720]

This is yet another of the cases involving hypnotically enhanced testimony which were argued on the same day. Because in this case we find that identification of the accused was made prior to hypnosis, we shall be obliged to address other issues. The convictions will be affirmed.

Appellant John G. Simkus, Jr., was convicted by a jury in the Circuit Court for Howard County of rape in the first and second degrees and theft under $300. The second degree rape conviction was held by

Page 1057

the trial judge to have been merged into the first degree conviction. An appeal was entered to the Court of Special Appeals. We granted the petition of the State for a writ of certiorari prior to argument in the latter court that we might consider the issue relative to hypnosis with other such cases.

In addition to the issue of hypnotically enhanced testimony, we have here questions as to whether the trial court erred in denying Simkus' motion to suppress extra-judicial statements; in denying his motion to suppress in-court identification based on alleged impermissibly suggestive out-of-court photographic identifications; in admitting the testimony of Charles W. McCoy, an alleged participant with Simkus; and "in permitting the State to impeach Charles W. McCoy, its own witness." By Simkus' express direction we also have presented the issue of sufficiency of the evidence as to rape.

I

Simkus and McCoy were both charged with the first degree murder of Debbie Napieralski. They were tried separately. McCoy was convicted of murder and theft.

Napieralski was last seen by her friend, Deborah Hurdel, after they had visited the Hidden Valley Country Club in Baltimore County and left there together on the early morning of February 15, 1981. Her body was discovered a week later in a field near Columbia in Howard County.

Near midnight on February 15 Mrs. Hurdel went to the Baltimore County Police with Miss Napieralski's father to [296 Md. 721] report the victim as missing. The police officer who took the report testified at the suppression hearing as to what he was told:

"[E]arly that morning, early Sunday morning, the fifteenth, approximately at one forty, they went to Miss Hurdel's house, and Miss Napieralski advised Miss Hurdel that she was going to breakfast with two gentlemen, at which point, Miss Hurdel, or Miss Napieralski left the car there and left with the two gentlemen. I asked Miss--Miss Hurdel what the gentlemen looked like who they--who she left with, and she described them as follows: The first subject was described as a white male, twenty-five or twenty-six years old, approximately five eight, thin build, blonde hair and blonde mustache. The second gentleman was described as a white male, twenty-five or twenty-six years old, five seven, thin build, with short, curly blonde hair, wearing black rimmed glasses."

On February 19 Mrs. Hurdel was shown a photograph of a suspect named Ronnie Alder. She said that he looked similar to the person she had seen on the evening in question but she was not positive he was that individual, there being discrepancies between the photograph and the persons she had seen. She could add nothing to her prior description at that time. After Miss Napieralski's body was found, Mrs. Hurdel did supply a more detailed description. Testimony of the Howard County detective involved with the investigation was as follows as to his conversation with Mrs. Hurdel:

"She described the driver of this vehicle as a white male with a dirty blond mustache, hair parted in the middle, the haircut was like collar length, approximately twenty-four years old, six foot tall, thin build, and she described the passenger that was in the vehicle as a white male about twenty-four years old, five foot eight, medium build, possibly wearing a long-sleeved insulated vest, [296 Md. 722] which was dark in color, wearing glasses, which were possibly brown or wire-framed, that he possibly had crooked front teeth, that he had dirty, curly hair, and he was cleanshaven."

A part of the record is a written statement by Mrs. Hurdel to the detective describing the suspects in detail. It and the detective's notes were filed in evidence in connection with the motion to suppress. Subsequently, on February 25, Mrs. Hurdel assisted a police artist in preparation of a sketch of both men.

Page 1058

On February 27 Mrs. Hurdel and Ronald Eyler, the doorman at the Hidden Valley Country Club, each were shown, separately, an array of seven photographs which contained Simkus' picture. Eyler wrote on the back of the one of Simkus, "[T]his is the guy is [sic] saw to [sic] Debbie Mapieralski [sic] Feb. 14, 1981." He then signed his name. She selected Simkus' photograph and told the officer, "This is the man I saw lean in the window and kiss the victim the night in question." She was then asked on a scale of one to ten to indicate how sure she was. She replied, "I'm an eight-no, I'm ninety per cent sure that's the man." She then wrote on the back of Simkus' photograph, above the writing of Eyler, "This is the man who followed Debbie Naperalski [sic] and my self [sic] from Hidden Valley." She then signed her name and the date of February 27, 1981.

On March 3 police met with Mrs. Hurdel and showed her a photographic array of seven pictures including one of McCoy. No positive identification was made. It was after this that Mrs. Hurdel was hypnotized by Dr. Daniel Stern, a Baltimore clinical psychologist.

The trial judge (Fischer, J.) who heard Simkus' motion to suppress the hypnotically induced testimony stated that he was required by Reed v. State, 283 Md. 374, 391 A.2d 364 (1978), to apply the standard enunciated in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). He said in relevant part:

"While the experts agree that hypnosis is a reliable tool for memory retrieval, there is vast [296 Md. 723] disagreement in the scientific community with respect to the accuracy of the information obtained. A person under hypnosis may inadvertently distort or invent information and relay such memory with a belief that it is accurate. Obviously, a person suffering from these tendencies makes a most undesirable witness.

"This Court, however, does not believe that it necessarily follows, in light of the factual situation existing in this case, that Miss Hurdel's testimony must be excluded from the trial. It is clear to the Court that any evidence obtained through the use of hypnosis must be excluded. However, Miss Hurdel gave numerous statements prior to the hypnotic session and her recollection of the events given prior to the hypnosis is well documented. In view of this, the Court finds that she should be permitted to testify as to only those matters related by her in statements prior to the hypnosis and not to new information gained through hypnosis.

"The remaining issue is whether or not the testimony of the State's witness, Debra Hurdel, is admissible in light of the concern of the defense that their right of cross-examination has been impaired by the hypnosis."

The trial judge went on to discuss State v. Mack, 292 N.W.2d 764, 769-70 (Minn.1980), which we also discussed at some length in State v. Collins, 296 Md. 670, 464 A.2d 1028 (1983), the first of the cases involving hypnosis which we considered. He found Mack to be factually distinguishable in that there the hypnotic subject was the victim of the criminal sexual conduct, the hypnotically induced recollections were procured by an unqualified hypnotist with virtually no safeguards imposed, the victim had little independent recall of the incident because of an emotional block and use of alcohol, and "[t]he information adduced from the hypnotic session was not corroborated and was counter to the facts the [296 Md. 724] authorities had within their control." He pointed out that in this case Mrs. Hurdel "had significant independent recall that was verified and...

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