Bundy v. State

• Decision Date: 09 May 1985
• Docket Number: No. 59128,59128
• Parties: 10 Fla. L. Weekly 269 Theodore Robert BUNDY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 9

471 So.2d 9

10 Fla. L. Weekly 269

Theodore Robert BUNDY, Appellant, v. STATE of Florida, Appellee.

No. 59128.

Supreme Court of Florida.

May 9, 1985.

Rehearing Denied July 11, 1985.

J. Victor Africano and Paul E. Risner, Live Oak, for appellant.

Jim Smith, Attorney General and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.

ADKINS, Justice.

This is an appeal by Theodore Robert Bundy from his conviction of first-degree murder and from the trial judge's imposition of the death sentence after the jury had recommended death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

On February 9, 1978, Kimberly Leach, age 12, was reported missing from her junior high school in Lake City, Florida. Two months later, after a large scale search, the Leach girl's partially decomposed body was located in a wooded area near the Suwanee River, Suwanee County, Florida.

On July 21, 1978, Bundy was indicted for the murder and kidnapping of Kimberly Leach. Trial was set in Suwanee County, Florida. Thereafter, Bundy moved for change of venue or, in the alternative, for abatement of prosectuion. The motion for abatement of prosecution was denied. However, the requested venue change was granted and the case transferred to the circuit court in Orange County, Orlando, Florida. There Bundy was convicted of kidnapping and first-degree murder. The jury recommended death. Bundy was subsequently sentenced to a term of life imprisonment for the kidnapping conviction and death for the murder.

The events and evidence leading to the investigation, trial, and conviction of Bundy are as follows: On February 15, 1978, Bundy was arrested in Pensacola, Florida, after fleeing from a stop made by an officer whose suspicions had been aroused. At that time Bundy identified himself to the officer as one Kenneth Misner. Over the next several days Bundy was extensively interviewed by officers from the Pensacola and Tallahassee Police Departments and the Leon County Sheriff's Office. During this time he revealed his true identity. It was learned that Bundy was wanted for escape and homicide in Colorado and was a suspect in thirty-six sex-related murders in the northwest United States. During these interviews and thereafter, Bundy also became the prime suspect in the January 1978 murders of the Chi Omega Sorority members in Tallahassee. Later Bundy was indicted, convicted, and sentenced to death for the Chi Omega murders. We affirmed his convictions and sentences. Bundy v. State, 455 So.2d 330 (Fla.1984), herein called Bundy v. State I.

Following Bundy's arrest in Pensacola, Detective Parmenter of the Jacksonville Police Department reported to Leon County authorities that on February 8, 1978, his fourteen-year-old daughter had been approached in a shopping center parking lot in Jacksonville by a man driving a white van. The man had fled when the girl's brother arrived. The teenagers were able to record the license tag numbers on the van. The tag had been reported stolen from a Tallahassee residence near the Chi Omega Sorority house on January 13, 1978.

At the suggestion of Leon County authorities, Detective Parmenter agreed to have his children hypnotized. After the hypnotic session, each child was asked to separately make a police composite of the man they had seen on February 8, 1978. These composites were introduced into evidence at trial. Later, during a photo review conducted by the Leon County Sheriff's Department, both Parmenter children picked out the picture of Bundy as the man they confronted on February 8, 1978, with the white van.

On February 11, 1978, Officer Dawes of the Leon County Sheriff's Department was patrolling in an unmarked car in an area of Tallahassee. He observed a man, whom he identified at the trial as Bundy, locking or unlocking a car door. Dawes asked the man for identification and the man replied he had none. Dawes then shined his flashlight into the car and spotted a license tag on the floorboard. The tag number matched the one which had been reported by the Parmenter children. When Dawes went to his car to run a radio check on the tag, the man fled.

Richard Shook, the manager at the Florida State University Media Center, testified at trial that in early February of 1978 a van belonging to the Center disappeared. The van was discovered several days later, taken into custody, and processed for physical evidence. Fingerprints and hair sample comparisons taken could not be linked to Bundy or the victim. Soil samples taken from the van were different from the soil samples taken from the crime scene. Blood stains on the van's carpet were found to be group B blood. The Leach girl had that type as does over fifteen percent of the human population. In addition, analyst Mary Hinson testified that it was extremely probable that both Bundy's and Leach's clothing had come in contact with the van's carpet and that the clothing of each had probably come into contact with each other.

The state offered the testimony of two Lake City Holiday Inn employees and the state's handwriting expert, John McCarthy. These witnesses established that Bundy had registered at the Lake City Holiday Inn on February 8, 1978, under another name.

Prior to Bundy's indictment on July 21, 1978, for the Leach murder and kidnapping, only one witness placed Bundy and the white van at the scene of the Lake City Junior High School on the morning of February 9, 1978. Chuck Edenfield, a school crossing guard at the junior high school, testified that he saw a man whom he identified as Bundy driving a white van in front of the school.

The state's one eyewitness to the abduction of Kimberly Leach was Clarence Anderson. On July 18, 1978, Anderson reported to the Lake City Police Department that the profile of a person he had seen on a television newscast bore a striking resemblance to the man that he had observed with a girl near the Lake City Junior High School several months earlier. Assistant State Attorney Dekle asked Anderson to undergo hypnosis to refresh his memory. Anderson agreed and was hypnotized twice. Thereafter, he stated that on February 9, 1978, he noticed a man leading a young girl into a white van near the Lake City Junior High School. Anderson identified the young girl as Kimberly Leach and the man in the van as Theodore Bundy.

As his first point on appeal Bundy argues that the trial judge erred in denying Bundy's several motions to suppress the testimony of certain witnesses whose recall had been affected or altered by hypnosis. The defense contended that due to the lapse of time between the disappearance of the Leach girl and the revelation of Anderson almost six months later, the massive amount of information about the events that Anderson had ingested during that period of time, and the blatant misuse of hypnosis by those who had facilitated the sessions, a substantial likelihood of an irreparable in-court misidentification of Bundy by Anderson would occur. In his argument before the trial court, Bundy relied on the case of Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In Neil v. Biggers the United States Supreme Court outlined the factors to be considered by the trial court in determining whether an identification was reliable even though the confrontation procedure was suggestive. The Court stated:

[T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Id. at 199-200, 93 S.Ct. at 382.

At the time of the suppression hearing in this case, the greater weight of legal authority was that the hypnotizing of a witness went to the credibility of the witness and not to the admissibility of his testimony, but, a number of jurisdictions have recently looked at the use and misuse of hypnosis in the forensic setting and altered this view. In State v. Mack, 292 N.W.2d 764 (Minn.1980), the Minnesota Supreme Court addressed the issue of the use of hypnotically refreshed testimony as one of first impression. The question certified to the Mack court was whether a previously hypnotized witness may testify in a criminal proceeding concerning the subject matter addressed at the pretrial hypnotic interview. The record before the Mack court contained the opinion of no less than five experts in hypnosis and memory retrieval. The court elected to view the issue as going to the admissibility of the witness' testimony and not its credibility. The court adopted the proposition advanced by the defense that the doubtful reliability of hypnosis prompted recollection raised an admissibility question which should be governed by the standards announced by the District of Columbia Circuit Court of Appeal in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). Under Frye the results of mechanical or scientific testing are not admissible unless the testing has developed or improved to the point where experts in the field widely share the view that the results are scientifically reliable as accurate.

In Bundy v. State I, we discussed the Frye test of general scientific acceptance. We noted that recent judicial treatment of hypnosis in connection with the presentation of eyewitness testimony in court reveals a growing recognition that hypnosis is not widely accepted by psychiatrists and psychologists as a consistently reliable method of refreshing or enhancing a person's memory of past perceptions and experiences. Some jurisdictions have held that the testimony of witnesses who have undergone hypnotic memory enhancement is inadmissible per se, either because the technique has not been established as reliable under Frye or because the scientifically recognized danger of unreliability...