Com. v. Kater

• Decision Date: 23 March 1983
• Citation: 388 Mass. 519,447 N.E.2d 1190
• Parties: COMMONWEALTH v. James M. KATER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1190

447 N.E.2d 1190

388 Mass. 519

COMMONWEALTH v. James M. KATER.

Supreme Judicial Court of Massachusetts Bristol.

Argued Oct. 4, 1982.

Decided March 23, 1983.

Jonathan Shapiro, Boston, for defendant.

Lance J. Garth, Asst. Dist. Atty. (Patricia O. Ellis and Philip L. Weiner, Asst. Dist. Attys., with him), for the Commonwealth.

Thomas G. Shapiro, Boston, for Frederick Clay, amicus curiae, submitted a brief.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

WILKINS, Justice.

In this appeal by the defendant from his convictions of murder in the first degree and kidnapping, we consider the admissibility of testimony from witnesses who have been hypnotized. Aspects of this issue were before us in Commonwealth v. A Juvenile, 381 Mass. 727, 412 N.E.2d 339 (1980). In our opinion in A Juvenile, we declined to take an authoritative position because of the absence of findings of facts on possibly important matters. ¹ Id., 381 Mass. at ---, 412 N.E.2d 339. We did, however, indicate considerations that might be material in resolving the issue. ² In this case and in the case of Commonwealth v. Watson, 388 Mass. 536, 447 N.E.2d 1182 (1983), decided today, we have appellate records as adequate as we might reasonably expect, and we now decide questions concerning the admissibility of testimony from witnesses who have been hypnotized.

Our first conclusion is that testimony by a witness as to a fact that became available following hypnosis is generally inadmissible in the trial of criminal cases in the Commonwealth. The exclusion of what we have characterized as hypnotically aided testimony is consistent with the views recently expressed in the better reasoned opinions of other courts in this country. Hypnosis simply lacks general acceptability by experts in the field as a reliable method of enhancing the memory of a witness.

Although we announce a rule barring the introduction of hypnotically aided testimony, as we have defined it, we conclude secondly that a witness may testify based on what he knew before hypnosis. Only one jurisdiction, at this time, excludes testimony based on prehypnotic memory. For the future, we suggest certain guidelines for the introduction of testimony based on a witness's prehypnotic memory. We do not, however, impose any guidelines on the admissibility of testimony based on the prehypnotic memory of a witness hypnotized before the date of this opinion.

As applied to the facts of this case pursuant to our duty of review under G.L. c. 278, § 33E, these principles require a new trial for the defendant. There was hypnotically aided testimony introduced against him. That testimony may have had an effect on the guilty verdicts. The introduction of hypnotically aided testimony presents a substantial likelihood that a miscarriage of justice has occurred. Commonwealth v. Tavares, 385 Mass. 140, 148, 430 N.E.2d 1198 (1982). Because, however, we conclude that, even apart from the hypnotically aided testimony, there was sufficient evidence to warrant guilty verdicts, a new trial is required. We shall consider briefly such other issues argued on appeal as are likely to arise at the new trial.

We summarize the evidence that the jury could have found. This evidence, as we have said, was sufficient to satisfy the jury of each element of the crimes charged beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979). ³ We exclude, for the moment, as to any witness who had been hypnotized those facts "recalled" only after hypnosis.

On November 11, 1978, a Freetown police officer found the partially decomposed body of Mary Lou Arruda tied to a tree in the Freetown State Forest. Mary Lou, a high school student, had been missing since the afternoon of September 8, 1978. A newsboy found Mary Lou's bicycle sometime after 4 P.M. that day, lying on the ground alongside Dean Street in Raynham near her home. He called for Mary Lou, received no answer, and took the bicycle to the Arrudas' home on Church Street. A short time earlier Helena McCoy, while walking on Dean Street, met Mary Lou. Mary Lou was on her bicycle. They spoke for a few minutes and parted, going in opposite directions. McCoy had twice seen a green motor vehicle before seeing Mary Lou. She identified the defendant as the driver of that vehicle and his green Opel as the one she had seen twice on September 8 on Dean Street. McCoy also had seen a dirty blue car on Dean Street. That car was operated by one Albert Santos, Jr. He saw McCoy on Dean Street as well as another young girl on a bicycle. He also saw a green motor vehicle at two locations on Dean Street as he came and went from an errand at a grain store nearby. Santos identified the defendant's green Opel as the vehicle he had seen. Sheila Berry, driving along Dean Street about 4 P.M., also saw a green vehicle. She had a close look at the driver and noticed an object in the front of the car. She identified the defendant and his green Opel, respectively, as the driver and the motor vehicle she had seen that afternoon. Barbara Lizotte saw the defendant's Opel at the corner of Dean and Church Streets shortly after 4 P.M. that day. She thereafter saw a bicycle lying in the bushes along Dean Street and saw the newsboy at the end of the street. The victim's mother saw the defendant's Opel on Church Street shortly after 4 P.M.

Extensive investigation led the police to question the defendant. He owned a lime green 1976 Opel. Two cartons of Benson & Hedges cigarettes were found in his car. A policeman had found an unlit Benson & Hedges cigarette on the ground along Dean Street. The Opel had a nine-inch black mark, 31 5/8 inches from the ground, along the black strip on its right front fender. Mary Lou's bicycle had a rubber plug around the left end of the handlebar. The plug was 30 1/2 inches from the ground and 9/16 of an inch wide, the widest portion of the black mark on the defendant's Opel. The newsboy had noticed a hand print in the soil near where he had found Mary Lou's bicycle. A police officer also found a tire print. Because of an uneven tread and a defect in the Opel's right front wheel bearing, and for other reasons we need not detail, the prosecution was able to relate the tire print to the defendant's Opel.

Other relevant evidence bore on the defendant's guilt. He made a statement to the police concerning his whereabouts on the afternoon of September 8. That statement was contradicted, or made doubtful, in certain respects by the testimony of various witnesses. Although the defendant had had his car washed at 1 P.M. that day, he took the car to a car wash again late in the afternoon.

Four witnesses had been subjects of hypnotic sessions in the course of the investigation, Helena McCoy and Sheila Berry twice, and Albert Santos and Barbara Lizotte once. Defense counsel believed at trial that McCoy and Berry had been hypnotized. He challenged their testimony on that ground. After conducting a voir dire, the judge ruled their testimony admissible. Defense counsel did not object to the admission of their testimony following the voir dire.

New counsel was appointed to conduct the appeal. After the appeal had been entered here, he filed a motion in this court for leave to file a motion for a new trial. See G.L. c. 278, § 33E. The motion was referred for recommendation to a single justice of this court. We accepted his recommendation that the motion be remitted "to the trial court for an evidentiary hearing and written findings with respect to any available grounds urged by the defendant for a new trial." That motion raised various grounds, including a challenge to the admission of testimony from hypnotized witnesses.

The trial judge heard evidence on the motion for a new trial and made extensive findings and rulings. He denied the motion. He made no finding as to whether the four witnesses who were purportedly hypnotized were in fact hypnotized. Dr. Martin Orne, who testified at the hearing on the motion for a new trial for the defendant as an expert on hypnosis, gave an opinion that at least three of them, including Sheila Berry, had been hypnotized. The Commonwealth offered no expert testimony on the subject of hypnosis. For the purposes of this case, we find that these three witnesses were hypnotized.

The record and the judge's findings show that the procedures used in conducting the hypnotic sessions were not appropriate for assuring, as far as possible, that a record would be made of what each witness knew before hypnosis, what the hypnotist knew of the crimes, and what occurred just before and during each session. People who preferably should not have attended sessions were present. The "hypnotist" was a police officer, whose qualifications the motion judge doubted to the point of not permitting him to give an opinion whether the witnesses had been hypnotized.

The judge concluded that the defendant failed to establish that the "hypnotic" sessions developed any additional substantial or material facts or changes in testimony and that the testimony of Helena McCoy and Sheila Berry was the product of their memory as opposed to the product of hypnosis. The burden of proof is, however, on the Commonwealth to show the reliability of the testimony of its witness who has been hypnotized. Commonwealth v. A Juvenile, 381 Mass. 727, ---, 412 N.E.2d 339 (1980). We would place the same burden on the Commonwealth as to any witness subjected to attempted hypnotism. Moreover, testimony was introduced at trial that was available from Sheila Berry following her hypnosis but not before. We shall discuss this hypnotically aided testimony and its significance subsequently. We turn first to a discussion of the law relating to the admissibility of testimony from a witness who has been hypnotized.

We forbear from an exhaustive presentation of the various views of experts on hypnosis and from a detailed discussion...