Clay v. Vose

• Decision Date: 31 December 1984
• Docket Number: Civ. A. No. 83-4034-K.
• Citation: 599 F. Supp. 1505
• Parties: Frederick CLAY, Petitioner, v. George VOSE, Respondent.
• Court: U.S. District Court — District of Massachusetts

599 F. Supp. 1505

Frederick CLAY, Petitioner, v. George VOSE, Respondent.

Civ. A. No. 83-4034-K.

United States District Court, D. Massachusetts.

December 31, 1984.

COPYRIGHT MATERIAL OMITTED

Thomas G. Shapiro, Shapiro & Grace, Boston, Mass., for petitioner.

Frances Robinson, Asst. Atty. Gen., Boston, Mass., for respondent.

Opinion

KEETON, District Judge.

Petitioner Frederick Clay, now in the custody of the Commonwealth at the Massachusetts Correctional Institute in Norfolk, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982). Clay is seeking relief from a 1981 state court conviction for first degree murder, which resulted in a sentence of life imprisonment. Clay argues that testimony identifying him at trial, given by a witness who had been interviewed under hypnosis before trial, was so inherently untrustworthy and unreliable that the admission of the testimony denied him due process of law under the Fourteenth Amendment. Also he argues that hypnosis left the witness invulnerable to effective cross-examination, thus violating his Sixth Amendment right to confrontation of witnesses, applicable to state criminal proceedings through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The Commonwealth has moved to dismiss the petition, arguing that the petitioner has failed to exhaust his state remedies and has failed to state a claim of constitutional dimension. I conclude that Clay has exhausted his state remedies and therefore his claims are properly before this court. I conclude further that Clay's right to confrontation was not violated by a ruling that permitted his conviction to stand even though the jury was permitted to hear the identification testimony of a witness who had been "80 per cent" or "pretty sure" when he identified a photograph of petitioner among a non-suggestive array of twelve photographs before hypnosis and was "100 per cent" sure of the identification after hypnosis. Finally, I conclude that the identification of Clay at trial did not violate Clay's due process rights. Accordingly, the petition for a writ of habeas corpus will be denied.

I. Facts and Previous Proceedings

According to the testimony of the hypnotized witness, Richard Dwyer, he was seated in a taxicab on Washington Street at about 4:00 a.m. on November 16, 1979, parked immediately behind ITOA taxicab No. 649. He saw three young men, two tall and one short, cross the street toward him and enter cab No. 649. The three had first approached Dwyer's cab, but he did not like their looks and declined to give them a ride.

Other evidence offered by the Commonwealth supported findings that the taxicab was operated by Jeffrey Boyajian, that a few minutes later Boyajian was killed by gunshots outside his taxi on Brookway Terrace in the Archdale Housing Project in the Roslindale section of Boston, and that Clay and his co-defendant, James Watson, were identified by a witness who observed the incident from the window of an apartment in the project.

Later that day, after learning of the death of the driver of cab No. 649, Dwyer called the police, went to a police station, and gave a somewhat vague description of the three men. Detective Henry Berlo asked Dwyer if he would be willing to undergo hypnosis to improve his memory of the men, and Dwyer agreed. Before the hypnosis Berlo showed Dwyer a group of twelve photographs of black males who lived in the Archdale Housing Project, where the body of Jeffrey Boyajian was found. The trial judge, who ruled on petitioner's motion to suppress, found that the pictures appeared to constitute a fair photographic array and that there was no evidence that Berlo or any other police officer attempted to influence Dwyer as he examined the photographs (Petition for Habeas Corpus, Appendix ("App."), p. 18). Dwyer positively identified one of the photographs, that of James Watson, as one of the three men he had observed entering the taxicab. He then picked out a second photograph, that of petitioner Clay, and said he was "pretty sure" it depicted another of the three men. Dwyer said his certainty in identifying Clay, on a scale of one to ten, was "somewhere around an eight." He was unable to identify the third young man (App. 17-19).

After Dwyer finished looking at the photographic array, Berlo introduced him to Detective Patrick Brady, who had previously not been present. Brady, the director of the Boston Police Hypnosis Investigation Unit, was found by the trial judge to be a qualified investigator in the field of forensic hypnosis. (App. 19).

Brady and Dwyer talked with each other for approximately ten to fifteen minutes. This conversation was not recorded. At the moment he began to induce hypnosis, Brady turned on a tape machine to record the session. Brady hypnotized Dwyer, using the so-called "TV-technique." He told Dwyer that Dwyer was viewing a television screen at home, and that he would see a "documentary" of the events he had seen the previous morning on Washington Street. The trial judge found that Dwyer was somewhat better able to describe the clothing on the three men, but was not able to describe their facial characteristics in any more detail. Detective Berlo, two other police officers, and three assistant district attorneys were present at the hypnotic session.

After the hypnotic session had terminated, Brady spoke to Dwyer for a few minutes and then departed. Berlo then showed Dwyer the photographic array once again. Dwyer this time made a positive identification of both Watson and Clay. He was again unable to make a photographic identification of the third young man.

Brady conducted a second hypnotic session with Dwyer on November 27, 1979. Detective Berlo and another police officer were in the room. This second session elicited only a little more information. Dwyer was again unable to identify the third young man. The trial judge found that Dwyer's description and identification of petitioner remained the same after the second session as before it. (App. 25).

At trial, the court received evidence of Dwyer's in-court identification of Watson and Clay and his pretrial identification of photographs of Watson and Clay, together with evidence of Dwyer's increase of confidence in his identification of Clay after hypnosis. The jury also heard extensive testimony concerning the hypnotic sessions, including a tape recording of each session. They heard conflicting expert testimony about hypnosis from Dr. Martin Reiser, who testified for the Commonwealth, and from Dr. Martin Orne, petitioner's expert. As the Massachusetts Supreme Judicial Court concluded, the jury was given a full opportunity to assess the possible effects of hypnosis on Dwyer's testimony; possible weaknesses in the hypnotic procedures used were fully aired before the jury. Commonwealth v. Watson, 388 Mass. 536, 541-42, 447 N.E.2d 1182, 1185-86 (1983).

The Commonwealth's chief additional witness against petitioner was Neil Sweatt, who lived on Brookway Terrace in the Archdale Housing Project. Sweatt testified that at 4:20 a.m. on November 16, 1979, he looked out a parlor window in his apartment and saw Watson, Clay, and a third man pull Boyajian from the taxicab. Sweatt recognized Clay, whose first name he knew, from seeing him around the neighborhood. Sweatt testified that he saw Clay go through Boyajian's pockets while Watson held him. He saw the three men beat up Boyajian. Sweatt's view of what happened next was partially blocked by a dumpster, but he eventually saw petitioner reach into his belt or a pocket and bring his left arm across his body. Sweatt testified that he then heard at least three shots, at which point the men ran away. Parts of Sweatt's testimony, but not the identifications, were corroborated by his mother and a friend, each of whom was looking out the parlor window. The jury also heard testimony that Sweatt initially told police he had not seen anything and could not identify any of the photographs shown to him by police, including those of Watson and Clay. The jury also heard testimony that Sweatt initially told police he had not seen anything and could not identify any of the photographs shown to him by police, including those of Watson and Clay. The jury heard testimony that the Sweatts were the only white family living in the project at the time. It heard testimony that Detective Berlo said he would arrange to move the family if Sweatt cooperated and that Sweatt subsequently identified the photographs of Watson and Clay.

The trial judge, in ruling on Clay's motion to suppress Dwyer's testimony, found that there was no evidence that Sweatt's identification was suggestive or improper, and the identification thus constituted independent corroboration of Dwyer's identification (App. 24). The judge denied petitioner's motion to suppress, but did instruct the jury to consider the influence of hypnosis on Dwyer's testimony. The jury found both Watson and Clay guilty of murder in the first degree.

On appeal, the Massachusetts Supreme Judicial Court affirmed Clay's conviction. Commonwealth v. Watson, 388 Mass. 536, 447 N.E.2d 1182 (1983). The court concluded that Clay was not prejudiced by the admission of testimony concerning Dwyer's post-hypnotic positive identification of Clay's photograph or by Dwyer's in-court identification of Clay. Id. at 542, 447 N.E.2d at 1186. In the view of the Supreme Judicial Court:

The process of hypnotizing Dwyer produced no new evidence against either defendant. We are, therefore, not dealing with what we have called hypnotically aided testimony. We are, however, dealing with the fact that hypnosis apparently enhanced Dwyer's confidence in his identification of Clay.

Id. at 541, 447 N.E.2d at 1185. The court noted that the prosecutor, in his closing argument, asked the jury to disregard Dwyer's post-hypnotic certainty and only to use Dwyer's pre-hypnotic identification as...