Jean v. Rice

Decision Date20 August 1991
Docket NumberNo. 90-6621,90-6621
Citation945 F.2d 82
PartiesLesly JEAN, Petitioner-Appellant, v. Nathan A. RICE, Warden; Lacy Thornburg, Attorney General of North Carolina, Respondents-Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

Paul M. Green, North Carolina Prisoner Legal Services, Inc., Raleigh, N.C., argued, for petitioner-appellant.

Richard Norwood League, Sp. Deputy Atty. Gen., argued (Lacy H. Thornburg, Atty. Gen. of N.C., on brief), Raleigh, N.C., for respondents-appellees.

Before WIDENER and SPROUSE, Circuit Judges, and WARD, Senior District Judge for the Middle District of North Carolina, sitting by designation.

PER CURIAM:

Defendant, Lesly Jean, was convicted of rape and sexual assault after trial by jury in North Carolina state court and sentenced to two consecutive life terms. After exhausting his state court appeals and post-conviction remedies, he filed a petition for a writ of habeas corpus in federal district court, contending that his conviction was based on the use of hypnotically enhanced testimony that violated his rights under the Sixth and Fourteenth Amendments and that the state failed to disclose the audio recordings and reports of the involved hypnosis, despite a specific request for such material, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court denied the writ. We reverse.

I

In the early morning of July 21, 1982, Ms. Alice "Kathy" Wilson was raped and sexually assaulted. The incident occurred between 3:00 and 4:15 a.m. Ms. Wilson described her attacker as black, five feet eight inches tall, muscular, weighing about 165 or 170 pounds, with a close-cut marine haircut, kinky hair, and no facial hair. She added that he wore dark shorts, white crew socks and high-top sneakers. Ms. Wilson, however, acknowledged that she did not realize that her attacker was black until he told her.

Later that same morning, Officer James Shingleton stopped a man walking along the highway who fit the description of Wilson's assailant. He questioned the man for about one-and-one-half minutes, until the man fled into the neighboring woods. Shingleton did not get a good look at the suspect, as it was still nightfall and the only light available was from his police car's flashing blue lights. Shingleton described the person as a black male, possibly having a beard or mustache, close-cut hair, about five feet ten inches tall, 170 pounds, wearing blue shorts, a blue shirt with writing, white knee socks and white high-top tennis shoes.

The following morning, Ms. Wilson met with police officials to create a "composite" drawing of the suspect, which was subsequently reproduced and immediately circulated throughout the police station. 1 Police officials, however, decided not to reproduce a composite drawing based on Shingleton's description because the encounter had been too brief, the lighting too poor, and his description too vague.

Because of the shortcomings in Shingleton's description, Captain Collins, head of the Detective Division, hypnotized Shingleton on July 22, 1982. Collins' only training in this area had been a two-week course in investigative hypnosis at the North Carolina Justice Academy. During the hypnotic session, Shingleton's description of the man he stopped changed from his previous description. The design on the tee shirt became a sweat mark and the man was now clean-shaven. Shingleton also now remembered that the suspect had a baby-face, oval jaw, big lips, a big nose, glassy eyes 2 and that there were blue stripes on his socks, white shoelaces, and the word "Nike" written on the sneakers. Collins audio taped the actual hypnosis, but he did not tape the pre- and post-hypnotic conversations. He also did not record his own knowledge of the case, nor did he record Shingleton's pre- and post-hypnotic knowledge. 3 Afterward, Shingleton emphasized that he believed that the hypnosis greatly helped his memory and that he had actually "relived" the night in question. Investigating officers concluded that, as a result of the hypnosis, Shingleton's "description matches the one given by [the] victim."

On July 26, 1982, two police officers spotted Jean at a Dunkin' Donuts restaurant, located near the victim's home. Believing that Jean matched the description of Wilson's assailant, the two officials detained Jean and radioed for Shingleton to come view him. Shingleton arrived, and positively identified Jean as the person he had stopped, stating, "that is the man." Jean was then taken into custody, photographed, fingerprinted and his marine locker searched--all acts which Jean consented to. The search of Jean's locker uncovered a blue tee shirt, a blue pair of shorts with a white border and white stripes on each side, and a pair of white high-top basketball sneakers, with the Nike name and logo inscribed in black, and black laces in the sneakers. Shortly thereafter, Jean was released.

The next day, July 27, 1982, Ms. Wilson viewed a photo line-up, which included Jean's picture. She could not identify any of the subjects as her rapist. Ms. Wilson, however, returned to the police station the next day because one of the pictures made her "feel sick." She again viewed the photos and selected Jean's photo, saying that his was the face that made her feel sick. She also selected another photo, saying that the person in that photo looked "haunty." Wilson could not, however, make a positive identification of Jean as her assailant. During that same meeting, police showed Ms. Wilson the clothes that had been removed from Jean's locker, but she apparently did not recognize them. 4

On July 30, 1982, Captain Collins hypnotized Ms. Wilson to "improve her memory of why [the] picture makes her sick." When Collins asked her if she had ever seen the person in the photo that made her ill, she replied that she did not know. He then asked if the picture and the rapist "looked the same? especially the eyes?, shape of face?" She replied "yes." 5 Again, Collins audio taped only the actual hypnosis, though this time he filled out a "Pre-Hypnosis Information Worksheet," briefly listing the characteristics of the assailant that the victim was able to describe at that time. After the hypnotic session, Collins filled out a "During Hypnosis Information Worksheet," circling the items of "new information" as (1) a description of the assailant's eyes as grey, (2) possible Puerto Rican accent, (3) Nike emblem on his shoes, and (4) white shoelaces.

On August 3, 1982, the police made a voice exemplar tape, which included Jean's voice, along with four other voices--two with a northern United States accent, one with a Guamanian accent and the final one with a Puerto Rican accent. Jean, who was born in Haiti and spent part of his life there, has a Creole accent, which is a mixture of French and African dialects. Wilson stated that Jean's voice and the Puerto Rican voice sounded similar to the voice of her assailant, but she could not make a positive identification. One week later, Wilson telephoned the police and, without having listened to the tapes again, purported to identify Jean's voice as that of her assailant.

Six weeks later, on September 17, 1982, the police had Wilson view a three man line-up, which consisted of Jean and two other black men. One of the men was taller, the other shorter, than Jean. Neither possessed a military haircut and defendant's face is the only one which appeared in each photo identification as well as the live line-up. After viewing the line-up, Wilson positively identified Jean as her attacker.

In October 1982, Jean was indicted on charges of rape and sexual assault. Counsel for defendant filed a timely motion for discovery, which included the following request:

To disclose the facts and circumstances surrounding any ... pre-trial identification ... at least sufficient to allow the defendant to determine whether to proceed under N.C.G.S. 15A-977 [governing motions to suppress evidence].

To permit the defendant to inspect and copy ... mechanical or electronic recordings, tangible objects, or copies or portions thereof ... which are material to the preparation of his defense....

To provide ... results or reports of physical or mental examinations or of tests, measurements or experiments made in connection with the case....

Despite this request, the state did not inform defense counsel that the victim may have identified Jean's photograph, that the two key witnesses had been hypnotized, or that various records pertaining to hypnosis and identification procedures existed. In fact, defense counsel did not learn of the hypnosis until after trial had already started, and after Ms. Wilson had already testified on direct examination. 6 After learning of the hypnosis, counsel requested any recordings that might exist--inexplicably the state still did not provide its records or tapes. Though defense counsel cross-examined both Ms. Wilson and Officer Shingleton on the possible effects of the hypnosis he did not have the recordings to help contradict the witnesses' testimony or to demonstrate the pervasive procedural flaws in the hypnosis.

The state's evidence consisted of Jean's sneakers, shorts and tee shirt, a blood/semen test that placed him in the same 32% of the population as the rapist, and the identification testimony of Wilson and Shingleton, who both identified Jean at trial, though Shingleton acknowledged that he could not be absolutely certain. In his own defense, Jean offered four alibi witnesses. Three marines testified that they awakened Jean in his bunk or saw him there at the time the victim was assaulted. The fourth witness, Jean's platoon commander, testified that Jean was required to be on duty at that time, and that if Jean had not been present there would have been a record of his absence, which there was not.

On December 5, 1982,...

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  • Jean v. Collins
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • September 17, 1998
    ...for a writ of habeas corpus in the United States District Court for the Eastern District of North Carolina. In Jean v. Rice, 945 F.2d 82 (4th Cir.1991) (per curiam), we reversed that court's denial of his petition, holding that the government's failure to disclose the audio recordings and t......
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