Chapman v. State, 5505

• Citation: 638 P.2d 1280
• Decision Date: 14 January 1982
• Docket Number: No. 5505,5505
• Parties: Robert A. CHAPMAN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1280

638 P.2d 1280

Robert A. CHAPMAN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 5505.

Supreme Court of Wyoming.

Jan. 14, 1982.

Ronald P. Jurovich, Thermopolis, for appellant.

Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Criminal Division, and Sharon A. Lyman, Asst. Atty. Gen., Cheyenne, for appellee.

Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

ROONEY, Justice.

Appellant-defendant appeals from a judgment and sentence rendered on a jury verdict which found him guilty of burglary in violation of § 6-7-201, W.S.1977. He words the issues on appeal as follows:

1. Did the trial court err in allowing the victim to testify because his memory was refreshed during two hypnotic sessions?

2. Was defendant denied effective assistance of counsel because of the failure to adequately record the hypnotic sessions?

3. Was it reversible error for the prosecution to withhold the testimony of Max Gehring from their case in chief and to present this witness during rebuttal?

We affirm.

The victim (hereinafter referred to as witness) found an intruder in his house when he returned home from work. In the ensuing struggle, the intruder struck the witness on the hand and above the right eye with a hammer. The intruder then fled.

The witness gave a general description of the intruder after the incident. Later, the witness was hypnotized by a Thermopolis city police officer on two occasions. The witness added some details to the previously given description after each session. The reason given for the second session was that the authorities had more than one suspect that matched the description given by the witness during the first session. These sessions were videotaped; however, the tapes, for the most part, were inaudible.

Appellant, on the day of trial prior to any testimony being given, objected to the identification testimony of the witness since it was enhanced by the use of hypnosis. Appellant further asserted that the failure of the videotapes prevented effective assistance of counsel by denying effective cross-examination and by prohibiting appellant's expert to view the procedures used by the State's hypnotist. The court ruled that the State would not mention hypnosis during opening statements and would not present any evidence on hypnosis unless the "defendant opens the gate" on the subject of hypnosis. The State was to be restricted to witness' identification of appellant based on what the "State contends was by reason of the episode that took place where he was assaulted."

In its case in chief, the State presented testimony from the witness and from the investigating officer. The witness testified to the occurrences at the time of the discovery of the intruder, and he identified appellant in court as the burglar. He had previously identified him from a photographic lineup, and the investigating officer so testified.

However, in cross-examination of the witness, the appellant did "open the gate" by inquiring at length into the hypnotic sessions, and in its case in chief, appellant called the hypnotist and examined him extensively concerning such sessions. Appellant also presented evidence relative to hypnotism from his own expert witness on hypnotism. Finally, appellant presented four alibi witnesses, including himself.

In rebuttal, the State presented testimony from one who was incarcerated at the time appellant was incarcerated to the effect that appellant had made statements in the form of a confession. Appellant objected to the testimony on the ground that it should have been presented in the State's

case in chief. The objection was overruled. Appellant then presented a surrebuttal witness who testified that he was present at the time the alleged statements in the form of a confession were made and that they were not, in fact, made.

TESTIMONY BY PREVIOUSLY HYPNOTIZED WITNESS ¹

The issue relative to the admissibility of testimony of witnesses who were previously hypnotized is whether the product of the hypnosis was to refresh or develop the witness' own recollection or to teach the witness and add additional facts to the recollection beyond that which has been mentally stored in the memory, consciously or unconsciously. The issue is properly one for the fact finder-as are all issues relative to the credibility of the witness.

Appellant had ample opportunity to test the credibility of the previously hypnotized witness-to determine whether or not his recollection as to the identity of appellant had been enhanced by the hypnotic sessions and, if so, whether such enhancement was only to the extent of a recall of his own memory or whether it included suggested items which were not a part of his own memory. In all of this, appellant did not elicit any indication that the witness' testimony was other than from his own recollection or that impermissible suggestions were made during the hypnotic sessions which added to that actually within the memory of the witness.

The witness had given a description of the burglar immediately after the burglary. Later, the witness was subjected to the hypnotic sessions. The witness testified that his recollection was refreshed in part thereby. Thereafter, the witness identified appellant as the burglar from a photographic lineup. He subsequently identified appellant in court as the burglar.

The jury had before it the circumstances of the identification, including the part played therein by the hypnotic sessions. Appellant's attack on the credibility of the witness was before the jury. The success of such attack was for determination by the jury.

The majority of the states are in accord. Such testimony is allowed, leaving it to the fact finder to gauge the credibility of it on the basis of that presented to the fact finder concerning the effect of hypnotism generally and in the specific case. See Annot.: Admissibility of Hypnotic Evidence at Criminal Trial, 92 A.L.R.3d 442, § 8; Harding v. State, 5 Md.App. 230, 246 A.2d 302 (1968), cert. denied 395 U.S. 949, 89 S.Ct. 2030, 23 L.Ed.2d 468 (1969); United States v. Awkard, 597 F.2d 667 (9th Cir. 1979), cert. denied 444 U.S. 885, 100 S.Ct. 179, 62 L.Ed.2d 116 (1979); United States v. Narciso, 446 F.Supp. 252 (D.C.Mich.1977); Clark v. State, Fla.App., 379 So.2d 372 (1979); Creamer v. State, 232 Ga. 136, 205 S.E.2d 240 (1974); People v. Smrekar, 68 Ill.App.3d 379, 24 Ill.Dec. 707, 385 N.E.2d 848 (1979); People v. Hughes, 99 Misc.2d 863, 417 N.Y.S.2d 643 (1979); State v. McQueen, 295 N.C. 96, 244 S.E.2d 414 (1978); State v. Jorgensen, 8 Or.App. 1, 492 P.2d 312 (1971).

A few states have rejected testimony of a previously hypnotized witness as incompetent. They held such testimony as inadmissible per se in a criminal trial. State v. Mena, 128 Ariz. 226, 624 P.2d 1274 (1981); State v. Mack, Minn., 292 N.W.2d 764 (1980); Commonwealth v. Nazarovitch, --- Pa. ---, 436 A.2d 170 (1981). Although there may be considerable merit to such holding, appellant does not request that we go so far. But he does urge us to treat the issue on the basis of competency rather than credibility. He urges us to adopt the following procedural requirements set out in State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981) ² to be met and demonstrated to the court before testimony can be received from a previously hypnotized witness:

1. A psychiatrist or psychologist experienced in the use of hypnosis must conduct the session.

2. The professional conducting the hypnotic session should be independent of and not regularly employed by the prosecutor, investigator or defense.

3. Any information given to the hypnotist by law enforcement personnel or the defense prior to the hypnotic session must be recorded, either in writing or another suitable form.

4. Before inducing hypnosis the hypnotist should obtain from the subject a detailed description of the facts as the subject remembers them. The hypnotist should carefully avoid influencing the description by asking structured questions or adding new details.

5. All contacts between the hypnotist and the subject must be recorded.

6. Only the hypnotist and the subject should be present during any phase of the hypnotic session, including the pre-hypnotic testing and the post-hypnotic interview. State v. Hurd, supra, 432 A.2d at 96-97.

The party proffering the testimony ³ of a previously hypnotized witness may well be advised to fortify the credibility of such witness by complying with some or all of these safeguards, but there are too many variables in hypnotism to mandate such requirements.

Since suggestion is a keystone to hypnosis, a form of hypnosis or attempts at hypnosis, are common in our daily lives. Advertising agencies depend upon it for their existence. Repeated suggestions of pleasant results from use of a product or service anticipates an acceptance of such and a desire to use it. Subliminal advertising messages on television ⁴ were recognized as productive, but their use was restricted. Driving on an open road, watching the monotonous white line, listening to soothing music or to the hum of the motor can produce a form of hypnosis. Self-hypnosis is taught by psychiatrists to assist in eliminating emotional trouble, in overcoming bad habits, for relaxation, etc. Removing oneself from the real world by daydreaming is a form of hypnosis. It has been taught to some of the members of the Air Force to assist in coping with post-crash survival problems.

Conditions for bringing about a hypnotic state include concentration of attention, monotony, inhibition of stimuli, limitation of field of consciousness and limitation of voluntary movement. Under such conditions, one can induce a hypnotic state in others. An induced hypnotic state results from the hypnotist obtaining the attention of the subject and presenting to him a series of suggestive instructions to be accepted in progression from that probable to the subject to that which...