Little v. Armontrout

Decision Date23 December 1987
Docket NumberNo. 86-1278,86-1278
Citation835 F.2d 1240
Parties, 25 Fed. R. Evid. Serv. 30 Leatrice LITTLE, Appellant, v. Bill ARMONTROUT, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Toby H. Hollander, Lewiston, Me., for appellant.

Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before LAY, Chief Judge, HEANEY, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, and MAGILL, Circuit Judges, En Banc.

ARNOLD, Circuit Judge.

Leatrice Little appeals the summary dismissal of his petition for a writ of habeas corpus, 28 U.S.C. Sec. 2254, by the District Court. Because we hold that Little's Fourteenth Amendment right to due process of law was violated when the state trial court refused to appoint an expert in hypnosis for him, we reverse. 1

I.

On the evening of August 13, 1980, the victim, M.B.G., was raped in her apartment in Cape Girardeau, Missouri. The assailant entered her apartment, hid in her closet, and then attacked her when she opened the closet doors. He wore one of her blouses over his head during the assault. Though she did not mention it to the policewoman who came to her aid, M.B.G. told her sister that the blouse slipped for between two and 60 seconds, allowing her to see the man's face. M.B.G. said she saw a partial right profile of the defendant: his cheekbone, jaw, lips, nose, and eye.

Two days after the attack, M.B.G. was hypnotized by Officer B.J. Lincecum of the Cape Girardeau Police Department in the hope of enhancing her memory of the assailant. Officer Lincecum's only training in hypnosis was a four-day course he attended at the Law Enforcement Hypnosis Institute, Inc. M.B.G. was Officer Lincecum's twenty-seventh subject.

Officer Lincecum used the "TV screen" or third-person method of hypnosis, in which the subject is told to view the events as though they were taking place on a TV screen. The subject is supposed to be able to control the unfolding story as though it were on videotape; she can stop the action and zoom in for close ups. In a session lasting several hours, attended by M.B.G her sister, and the hypnotist, M.B.G. was unable to add to her previous description. At the end of the session, Officer Lincecum told M.B.G. that her memory of the event would improve. An audio tape was made of the session, but was destroyed 15 days later, pursuant to department regulations. 2

M.B.G. was shown photographs of suspects on four occasions. On the first three, October 16, November 5, and November 10, Little's photo was not included. M.B.G. picked one picture out of the first group of photos, saying that it resembled the man who raped her. On December 23, 1980, M.B.G. was shown a photo array containing Little's picture. She picked Little as the man who raped her. Between December 25 and 31, when she was at the police station, M.B.G. was shown two other pictures of Little. Again, she identified him as her assailant. On January 26, 1981, M.B.G. viewed a lineup of six men. She quickly eliminated four, then picked Little after viewing the right profiles of the remaining two men.

The only substantial issue at trial was identification. M.B.G. testified that Little was her assailant. The maintenance man working the night M.B.G. was attacked said he saw a man resembling Little in the area. However, under cross-examination, he stated he was unsure of his identification. The maintenance man was hypnotized to improve his memory. A policeman patrolling nearby testified he saw Little jogging that night. When the policeman stopped the patrol car to speak to him, the man ran away. Defendant Little and several alibi witnesses testified that Little was 78 miles away in Poplar Bluff when the crime took place. The jury found Little guilty of rape, Mo.Rev.Stat. Sec. 566.030.1, and burglary, Mo.Rev.Stat. Sec. 569.160. He was sentenced to 25 years in jail.

The Missouri Supreme Court affirmed, holding that no improper suggestion occurred during the identification. State v. Little, 674 S.W.2d 541, 543-44 (Mo.1984) (en banc), cert. denied, 470 U.S. 1029, 105 S.Ct. 1398, 84 L.Ed.2d 786 (1985). 3 The Court noted that Officer Lincecum was not involved in the investigation of the case, and that M.B.G. did not identify the accused until months after the session took place. The hypnotic session yielded no further information. The Court rejected Little's protests about the hypnotist's lack of qualifications, noting that there was no evidence that the officer's ineptitude, if any, had led to improper suggestion. The Court concluded that the witnesses did not act in a way indicative of improper suggestions.

Little argued that the reason he could not prove to the Court's satisfaction there had been improper suggestions was that the public defender's office, which represented him, did not have sufficient funds to hire an expert in hypnosis. The Court responded: "[t]here is a state university in Cape Girardeau with a faculty of Psychology and library facilities, and we are confident that a resourceful lawyer would not be helpless in obtaining expert information sufficient for a preliminary inquiry, at little or no expense." 674 S.W.2d at 544.

II.

On appeal to us from the District Court's denial of the writ, Little argues (1) that because of the pretrial hypnosis, M.B.G.'s identification testimony lacked the reliability necessary for admission into evidence consistent with due process; (2) that the use of hypnosis violated the defendant's Sixth Amendment right to confrontation; (3) that the deliberate destruction of the tape recordings of the hypnotic session deprived the defendant of his right to due process; and (4) that the trial court's refusal to appoint an expert for defendant violated his right to due process. 4

The panel which originally heard this case, in a scholarly and comprehensive opinion, held, in substance, that M.B.G.'s identification testimony was so unreliable as to violate due process. Posthypnotic identification testimony is admissible, according to the panel opinion, only if (1) the hypnosis is properly conducted with scientifically recognized safeguards, and (2) the identification testimony is corroborated by other evidence. We find it unnecessary to go that far in order to hold that Little is entitled to a new trial. In our view, the denial of a state-provided expert on hypnosis to assist this indigent defendant rendered the trial fundamentally unfair and requires that the conviction be set aside. We deem it unnecessary to address the broader and more far-ranging issues about hypnotically enhanced testimony addressed by the panel opinion. 5 If the State chooses to try Little again (we understand he is now on parole), these issues may not recur, especially since, under Alsbach v. Bader, supra, hypnotically enhanced testimony is not now admissible in Missouri courts, as a matter of the state law of evidence. (We assume the rule of Alsbach would be applied by the state courts at any retrial of Little's case.)

When the state brings criminal charges against an indigent defendant, it must take steps to insure that the accused has a meaningful chance to present his defense. See Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). While the state need not provide the indigent with all the tools the wealthy may buy, it must provide the defendant with the "basic tools of an adequate defense." Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971). In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the Supreme Court extended the definition of "basic tools" to include the appointment of a psychiatric expert for a defendant in a capital case when the defendant's sanity would be a significant issue at trial. Failure to appoint an expert in such a case would be a denial of due process. Justice Marshall, writing for the Court, noted that the defendant's interest in preventing an inaccurate determination of guilt would outweigh the state's interest in avoiding the additional cost in a case where the assistance of an expert could reduce the risk of an erroneous outcome. Id. 105 S.Ct. at 1094-95.

In Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), the Court declined to rule explicitly on whether the state had an obligation to appoint a nonpsychiatric expert for an indigent defendant. However, the Court based its decision on the fact that the defendant only baldly asserted his need for aid, making no showing as to the reasonableness of his request. Id. at 323 n. 1, 105 S.Ct. at 2637 n. 1. We must first decide whether the rule of Ake should be applied at all in the present context, where the expert in question is not a psychiatrist, and the death penalty is not a possibility. We think the answer is yes. There is no principled way to distinguish between psychiatric and nonpsychiatric experts. The question in each case must be not what field of science or expert knowledge is involved, but rather how important the scientific issue is in the case, and how much help a defense expert could have given. Nor do we draw a decisive line for due-process purposes between capital and noncapital cases. To be sure, the defendant's interest in staying alive is greater and different in kind from his interest in avoiding a prison term, but the latter interest, in our opinion, still outweighs the state's interest in avoiding the relatively small expenditure that would be required.

Ake and Caldwell taken together hold that a defendant must show more than a mere possibility of assistance from an expert. Rather, the defendant must show a reasonable probability that an expert would aid in his defense, and that denial of expert assistance would result in an unfair trial. Moore v. Kemp, 809 F.2d 702, 712 (11th Cir.) (en banc), cert. denied, --- U.S. ----, 107 S.Ct. 2192, 95 L.Ed.2d 847 ...

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