Drake v. State

Decision Date31 August 1984
Docket NumberNo. 1282S464,1282S464
Citation467 N.E.2d 686
PartiesJohn W. DRAKE, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

John Richard Walsh, II, Anderson, for appellant.

Linley E. Pearson, Atty. Gen., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was convicted by a jury of First Degree Murder.

The facts are these. Ruth Heaton, an elderly woman living alone, was killed in her home in Anderson, Indiana. Her assailant struck her about the head with a candlestick and then strangled her by placing a rope around her neck and attaching the rope to a door. The autopsy revealed strangulation to be the cause of death.

The police initially suspected M.C., an acquaintance of appellant, to be the assailant. He had befriended the victim and had been seeking large sums of money from her as well. The police did arrest M.C. for the murder but later dropped the charge.

About two years later the police received a tip from a member of appellant's family that appellant had confessed to them that he had killed a woman in Anderson, Indiana. After investigation, appellant was charged with the instant crime.

Appellant claims the trial court erred when it permitted a previously hypnotized person to testify. The witness was Nancie Ward, appellant's former wife. She was one of those persons present when appellant made his statement. The Anderson police first took her statement over the telephone from her home in New Jersey. The police tape-recorded the telephone call and reduced the conversation to writing. The police then went to New Jersey with the typed statement. Ward reviewed the statement and signed it. She then allowed herself to be hypnotized by one of the Anderson police. This session was also taped and a transcript was prepared from it.

When Ward was called to the stand to testify, appellant objected to her testimony in its entirety based upon her prior hypnotic experience. The trial court ruled:

"[T]he Court finds that the conduct of the hypnosis does not follow the guidelines in that it was not conducted by an experienced psychologist or psychiatrist experienced in hypnosis and that the hypnosis session was not conducted by an independent party, but somebody that was in fact an agent of the Anderson Police Department. And, therefore, the Court will deny the introduction of any [of] the products of the hypnosis, but will allow testimony of the witness that can be shown to the Court to be independently based outside of any product of the hypnosis." (Tr. 1671, at 6-19.)

Appellant asserts this was error and this Court should establish a per se rule that bans all testimony given by a witness who has been hypnotized. We rejected that position in Pearson v. State, (1982) Ind., 441 N.E.2d 468 (Prentice, J., concurring in result with opinion). We indicated in Pearson the fact that a witness had been hypnotized was a matter of weight to be considered by the trier of fact and not grounds for a per se disqualification.

This Court has barred the testimony of a witness when that testimony was the product of a hypnotic session. We have not barred other testimony from that same witness when it can be shown by clear and convincing evidence that the testimony is the product of a factual basis independent of the hypnosis. See Peterson v. State, (1983) Ind., 448 N.E.2d 673; Pearson, supra; Strong v. State, (1982) Ind., 435 N.E.2d 969.

In the case at bar, the direct testimony of Ward was limited to her recollections as evidenced by her statement made prior to the hypnosis. Although she was permitted to review the transcript of the hypnotic session prior to her in-court testimony, the trial court carefully limited the direct testimony to the statement taken over the telephone. We find an ample independent basis for the in-court testimony. The trial court did not err.

During the course of Ward's cross-examination, appellant brought out, for the first time before the jury, the fact that Ward had been hypnotized. Ward was extensively questioned about the incident and the court permitted appellant to introduce the transcript of the session into evidence. Later, in appellant's case in chief, appellant sought to place on the stand an expert witness, Dr. Levitt, to criticize the use of hypnosis at trial.

Appellant maintains it was error for the court to exclude Dr. Levitt's testimony as the jury needed the expert testimony to properly evaluate the hypnotic session and its product. In both Peterson and Pearson, the trial court permitted the testimony of the defendant's expert witness regarding the effect of hypnosis on testimony. However, in each of those cases, the State submitted the hypnosis-related testimony in their case in chief. In the case at bar, it was the appellant who injected the question of hypnosis.

The trial court was correct in his ruling. Essentially appellant was creating a straw man in the cross-examination and attempting to attack it during his case in chief. As the court did not permit the issue to be raised on direct examination we believe the court was correct in refusing to permit the testimony of Dr. Levitt.

Appellant contends the trial court erred in denying his Motion for Mistrial following the alleged violation of a witness separation order. One of the first of the State's witnesses was Amy Drake, appellant's sister-in-law. On the same day Drake testified, the court also heard a portion of Ward's testimony. Before Ward was finished, the court recessed for the day. The court admonished both Drake and Ward not to discuss their testimony with others. When the court assembled the next day, appellant sought to strike the testimony of both Drake and Ward, and to prevent the testimony of Charles Drake. Charles is the husband of Amy and the appellant's brother.

Appellant placed before the court the testimony of two persons who claimed that the Drakes and Ward had discussed their testimony during the prior evening, and that Amy Drake and Ward were attempting to influence Charles to testify in a particular way against his brother. Ward denied this had occurred, but did acknowledge they were all housed in the same motel complex in close proximity to one another. After hearing this evidence, the trial court ruled against appellant on both the Motion to Strike and the subsequent Motion for Mistrial.

The decision whether to allow or to exclude the testimony of a witness once it is discovered that a violation of the witness separation order has occurred is within the trial court's discretion in the absence of connivance or collusion on the part of the party calling the witness. Hudgins v. State, (1983) Ind., 451 N.E.2d 1087; Grimes v. State, (1983) Ind., 450 N.E.2d 512. Appellant argues that there was connivance as the State was responsible for the lodging of the witnesses in a manner which made it not only possible for the witnesses to confer, but, in fact, encouraged the witnesses to confer. In the alternative, he argues an abuse of discretion.

The trial court was in the best position to evaluate the testimony of the parties. There is sufficient evidence to support the trial court's ruling.

Appellant alleges a violation of Ind.Code Sec. 35-1-37-4 (since repealed) (for current version see Ind.Code Sec. 35-37-2-6). The statute states in pertinent part:

"After hearing the charge, the jury may either decide in court or retire for deliberation. They may retire under the charge of an officer, who must be sworn by the clerk to keep them together in some private and convenient place, and furnish them food as directed by the court, and not permit any person to speak or communicate with them ...."

Appellant's counsel filed an affidavit in conjunction with his Motion to Correct Error. This was nearly six months after the trial. The affidavit asserted that the court baliff had indicated to him that the jury had been allowed to travel from the courthouse to the motel in their own private cars. This he contends was a violation of the requirement that the jury once charged must remain together.

The record provided does not indicate when or why the jury was released. Nor does it indicate why this mode of transportation was chosen.

Barring exigent circumstances, a jury should not be permitted to separate once deliberation has begun. Bales v. State, (1981) Ind., 418 N.E.2d 215; Walker v. State, (1980) Ind., 410 N.E.2d 1190. Both Bales and Walker dealt with the releasing of the jury for several days after deliberations had begun. Here the jury was released for a few minutes while the jurors drove a short distance. Nor is this a case where the jurors were sent to their private homes during the course of deliberations. See Follrad v. State, (1981) Ind., 428 N.E.2d 1201; McGaughey v. State, (1981) Ind.App., 419 N.E.2d 184.

The affidavit does not point to any instance in which a juror was, in fact, exposed to a prejudicial influence, nor does it allege that any irregularity of any nature occurred. We therefore hold appellant...

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  • People v. Romero
    • United States
    • Colorado Supreme Court
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    ...recalled prior to hypnosis); People v. Wilson, 116 Ill.2d 29, 106 Ill.Dec. 771, 506 N.E.2d 571 (1987) (same result); Drake v. State, 467 N.E.2d 686 (Ind.1984) (testimony which can be shown by clear and convincing evidence to have basis independent of hypnosis is admissible); State v. Haisli......
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    ...conviction being reviewed in a United States district court under 28 U.S.C. Sec. 2254. Drake v. Clark, 14 F.3d 351, 353 (7th Cir.1994). In Drake, the prosecution's witness, Nancy Ward, had suggested to the police that she be hypnotized to aid her memory, and the police who were doing the in......
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