Daniels v. State

• Decision Date: 23 September 1988
• Docket Number: No. 49S00-8601-PC-33,49S00-8601-PC-33
• Citation: 528 N.E.2d 775
• Parties: Michael DANIELS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 775

528 N.E.2d 775

Michael DANIELS, Appellant, v. STATE of Indiana, Appellee.

No. 49S00-8601-PC-33.

Supreme Court of Indiana.

Sept. 23, 1988.

Rehearing Denied Dec. 21, 1988.

Richard A. Waples, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

On August 21, 1979, appellant was convicted, in a trial by jury, of four counts of robbery, one count of attempted robbery, and one count of felony murder. On September 14, 1979, appellant was sentenced to twenty years for each robbery, fifty years for the attempted robbery, and to death for the felony murder. On September 9, 1983, appellant's convictions and sentences were upheld on direct appeal. Daniels v. State (1983), Ind., 453 N.E.2d 160. Appellant filed a petition for post-conviction relief on February 6, 1984. The trial court entered findings of fact and conclusions of law on February 21, 1985, and denied appellant's petition.

On appeal from the trial court's denial of his petition for post-conviction relief, appellant raises twelve issues: (1) whether the admission of Timothy Streett's identification testimony violated appellant's rights to cross-examination, confrontation, and due process of law, as a result of the hypnosis of Timothy Streett, (2) whether the charges against appellant should have been dismissed due to the impermissible amendment of these charges; (3) whether appellant received ineffective assistance of counsel; (4) whether it was error to refuse appellant's tendered instruction on voluntary manslaughter; (5) whether the prosecutor's final argument was improper and prejudicial; (6) whether the trial court erroneously instructed the jury concerning their options regarding the death penalty; (7) whether the death penalty is unconstitutional as violative of Art. 1, Sec. 18 of the Indiana Constitution; (8) whether death by electrocution is cruel and unusual punishment and violative of the Eighth Amendment to the United States Constitution and Article I, Sec. 16 and Sec. 18 of the Indiana Constitution; (9) whether the post-conviction court erroneously failed to provide appellant with expert assistance to investigate his claim that a pattern of racial discrimination pervades homicide prosecutions and capital sentences; (10) whether appellate waiver rules should be ignored in this case; (11) whether the failure to file probable cause affidavits with the information was error; and (12) whether the charged offenses were improperly joined for trial.

Appellant was convicted of the felony murder of Allen Streett. At the time of his death Streett and his fifteen year old son, Timothy, were shoveling snow from the driveway of their home when two individuals demanded their wallets. Allen Streett was shot and killed after stating his wallet was inside and taking a step backwards. The assailants then took Timothy's wallet and left.

At trial, Timothy Streett positively identified appellant as the person who shot his father. Appellant now urges that he was denied his right to confrontation and due process of law by this eyewitness identification. The foundation for his argument is the fact that Timothy Streett was hypnotized shortly after the murder and prior to his identification of appellant.

The murder occurred on January 16, 1978. Timothy Streett was hypnotized on January 19, 1978. At the time of the hypnosis, appellant was not a suspect. He was subsequently arrested and appeared in a line-up on January 27, 1978. At that time, Timothy Streett identified appellant as the man who shot and killed his father. He also positively identified appellant as such at trial.

While Timothy Streett was hypnotized, he was shown seven photographs. From these photographs he identified a picture of Franklin Welch, Jr., as possibly being the man with the gun. He also enlarged his description of that individual. The police report reflects that after the crime Timothy gave a general description of a "Black Male 5-10 Slender Build, 24-25 yrs Blue jeans, Brown leather coat." Under hypnosis he described the gunman as 5'8" to 5'10"', 140 to 150 pounds, medium build, dark complected, oval face, brown eyes and black hair. He further assisted a police artist in drawing a composite sketch, but did not believe the resulting sketch much resembled the gunman. At the line-up held several days later, Franklin Welch, whose photograph was selected as a "possible" suspect, was present along with appellant, but was not identified by Timothy Streett. The jury was never made aware of the hypnosis.

Appellant urges that hypnotically derived or renewed testimony is inherently unreliable and denies the right to meaningful confrontation and effective cross-examination. He is correct. Pearson v. State (1982), Ind., 441 N.E.2d 468. Strong v. State (1982), Ind., 435 N.E.2d 969. However, the mere fact that a witness has undergone hypnosis will not preclude that witness from testifying. Pearson, supra. The determinative factor is whether or not the witness has a sufficient basis for the identification independent of the hypnosis. Pearson, supra; Strong, supra.

It is claimed that Timothy Streett's identification of appellant was a direct result of memory enhancement during hypnosis and as such was impermissibly admitted into evidence. At the post-conviction hearing, appellant presented the expert testimony of Dr. Eugene E. Levitt, a clinical psychologist and professor at the Indiana University School of Medicine. He was qualified as an expert witness in the forensic use of hypnosis. The gist of Dr. Levitt's testimony and appellant's argument is that Timothy Streett's identification of appellant as the triggerman was the result of hypercompliance with the hypnotic suggestion that he be "positive" in any identification he made. It is essentially argued that prior to hypnosis Timothy Streett was equivocal about whether or not he could make a positive identification and that his doing so at trial was purely a result of the hypnosis.

Contrary to appellant's assertions, there is no persuasive evidence that appellant's identification was the result of hypnosis. He had previously been unable to "be sure" in any identification attempts. He had only gone so far as to state that it was "possible" an individual could have been the gunman. However, he had also not had the opportunity to identify appellant before. Upon viewing the line-up in which appellant and Franklin Welch, the individual picked as a "possible" suspect under hypnosis appeared, Timothy positively identified appellant as the gunman. Any hesitation he had felt previously vanished upon confrontation with appellant. This ability to be "positive" is explained as easily by the fact that this was the first time Timothy came face to face again with the man who shot his father as it is by a very tentative post-hypnotic suggestion.

It is difficult to perceive how there could have been an attempt by police, through the use of hypnosis, to improperly suggest that Timothy identify appellant. The police had no suspects at the time of the hypnosis. They were unaware of appellant's apparent involvement. The enhanced description obtained by way of hypnosis, and resulting from questions designed to elicit certain details which may or may not have been noticed, did not fit appellant. A connection between the hypnotic session and Timothy Streett's identification of appellant as the assailant has not been shown.

II.

On January 26, 1978, an information under Cause No. 1078 90144 was filed in Marion County Municipal Court charging appellant with the murder of Allen Streett. On February 15, 1978, an information charging appellant, Kevin Edmonds and Don Cox with the felony murder of Allen Streett was filed in Marion County Criminal Court under Cause No. CR78 047 D.

A statute in existence at the time these informations were filed, I.C. 35-3.1-1-5 (repealed September 1, 1982), prohibited amendment of a criminal information when such amendment changed the theory of prosecution or the identity of the offense charged. Appellant urges that this provision was violated by the February 15, 1978 filing of an information charging felony murder in the course of a robbery, when the first information charged murder. An amendment of this nature would have been impermissible under the former I.C. 35-3.1-1-5. However, there was no amendment in this case.

Appellant urges that since the case was "bound over" from municipal court to criminal court, the February 15, 1978 information constituted an amendment of the January 26, 1978 information. This argument is not persuasive. The information filed on February 15, 1978 contained six counts, felony murder, attempted robbery and four counts of robbery. The filing of this information was followed by a determination that probable cause existed for the issuance of an arrest warrant, the issuance of the warrant, and a determination that appellant should be held without bond.

Subsequently, Attorneys Cobb and Bowman entered an appearance on behalf of appellant and arraignment was scheduled for February 27, 1978. On that date appellant waived arraignment and pled not guilty.

The February 15, 1978 filing of the information for Felony Murder was clearly not an "amendment" of the Municipal action and therefore did not fall within I.C. 35-3.1-1-5. It was treated in every way as a new filing. Appellant was incarcerated as a result of the municipal court action. When this information was filed a new probable cause determination and a new bond determination were made. The case was then set for arraignment. While the procedure of "binding over" resulted in two separate filings in two separate courts it did not result in an amendment of the original pleading. There is no evidence that the pleading was amended. Rather, it appears that based on that pleading a new action was commenced in criminal court and all of the inherent procedural...