Harmon v. State

• Decision Date: 08 May 1985
• Docket Number: No. F-83-301,F-83-301
• Citation: 700 P.2d 212
• Parties: Michael Eugene HARMON, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 212

700 P.2d 212

Michael Eugene HARMON, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-83-301.

Court of Criminal Appeals of Oklahoma.

May 8, 1985.

Mark Barrett, Special Counsel, Appellate Public Defender System, Norman, for appellant.

Michael C. Turpen, Atty. Gen., Tomilou Gentry Liddell, Asst. Atty. Gen., Deputy Chief, Crim. Div., Oklahoma City, for appellee.

OPINION

BRETT, Judge:

Michael Eugene Harmon was convicted of Murder in the First Degree in the District Court of Cleveland County, Case No. CRF-82-248, pursuant to 21 O.S.1981, § 701.7(B). A verdict of life imprisonment ¹ was returned by the jury, and judgment and sentence was imposed in accordance with the jury's verdict.

On March 6, 1982, seventeen-year-old Tamara Denise Carter was assaulted at, and abducted from, Sharp's Cleaners in Moore, Oklahoma. Her body was found two days later in a nearby river. An autopsy revealed Miss Carter died from asphyxia (drowning), associated with blunt force head injuries and puncture wounds to the chest.

The State sought to prove appellant was one of three men ² who robbed the cleaners and killed Miss Carter. The dispositive issue on this appeal is whether Robert Simmons' post-hypnotic identification of appellant was improper. We hold this evidence was inadmissible and reverse and remand this case for a new trial.

The most damning evidence against Harmon was witness Robert Simmons' identification of the appellant as the man he saw at the cleaners immediately before the robbery-killing. After Simmons first heard about Miss Carter's death, he contacted the Moore Police, to whom he gave a statement. When asked by police whether he could identify the man in the cleaners, however, Simmons replied:

I doubt it. I thought about it coming over now--or now would I recognize him. I really don't think I would. Maybe from a distance. You know, anybody with long hair or black hair with a coat and, you know, I was trying to think whether he had on blue jeans or denims or something. And I don't even remember seeing the shirt. It seemed to me like the coat was unzipped, but I don't remember seeing the shirt or I guess that's the exasperating thing. Well, here I sit and I can't tell you everything I ought to be able to tell you.

The next day, March 9, 1982, Simmons underwent hypnosis at the Moore Police Station in an attempt to refresh his memory. The hypnosis session was not tape recorded. ³ Subsequently the police called Simmons and on March 20, 1982, he viewed three sets of photographs and selected appellant's photograph from the third group. At trial Simmons testified that about 5:00 p.m. on the day of the crime he went to the cleaners where he was waited on by Miss Carter. Simmons observed a man repairing the electrical system in the back of the cleaners but said the lighting was not good, and that he saw the man's profile only. Miss Carter seemed aware of the man's presence. At both preliminary hearing and trial, Simmons identified appellant as the man he saw at the cleaners.

The appellant alleges it was improper to admit Simmons in-court identification, or any testimony relating to post-hypnotic memories. We agree.

In Robison v. State, 677 P.2d 1080 (Okl.Cr.) cert. denied, 467 U.S. 1246, 104 S.Ct. 3524, 82 L.Ed.2d 831 (1984), this Court held that a witness may not make an in-court identification following hypnosis when no identification has been made prior to the hypnosis. Although the hypnosis does not render a witness incompetent to testify, the witness' testimony is limited to those facts which can demonstrably be shown to have been recalled prior to hypnosis. Id. at 1085.

Our opinion in Robison was based on the conclusion that hypnosis, as a technique of memory retrieval, does not meet the evidentiary standard of "general scientific acceptance." See Henderson v. State, 94 Okl.Cr. 45, 230 P.2d 495, cert. denied, 342 U.S. 898, 72 S.Ct. 234, 96 L.Ed. 673 (1951) (results of scientific tests will not be admitted without a showing such tests have attained accuracy and general recognition in the scientific community). We have concluded that science has not established hypnosis as a reliable memory-enhancing technique; in fact, the forensic use of hypnosis is frought with danger. See Diamond, Inherent Problems in the Use of Pre-Trial Hypnosis on a Prospective Witness, 68 CALIF.L.REV. 313 (1980). See also Spector & Foster, Admissibility of Hypnotic Statements: Is the Law of Evidence Susceptible? 38 OHIO ST.L.J. 567 (1977); Mickenberg, Mesmerizing Justice: The Use of Hypnotically-Induced Testimony in Criminal Trials, 34 SYRACUSE L.REV. 927 (1983). Evidence obtained from, or developed by, an unreliable scientific method must be excluded.

Recently, the North Carolina Supreme Court came to the same conclusion. The following discussion of the pitfalls of hypnotically refreshed testimony is excerpted from that Court's opinion in State v. Peoples, 311 N.C. 515, 319 S.E.2d 177 (1984):

The basis for the use of hypnotically refreshed testimony hinges on the notion that memory involves the storage of information received by the body's senses in the brain and, therefore, an inability to remember is merely an inability to retrieve previously stored information.... Under this theory, hypnosis operates in a fashion which allows the subject to overcome the difficulties in retrieving this stored information....

Hypnosis, however, involves more than the mere retrieval of stored or suppressed information. What often seems to be recall is in reality a process through which information received after an event is transformed by the subject's mind into a memory of that event.... Essentially the apparent recollection of a hypnotized subject may actually be a view which he has created subconsciously. This composite may evolve from a number of sources, including information gathered from other events, original recall, suggestions occurring during hypnosis from a variety of sources, and the unconscious adding of missing details....

Given this basic description of the theory underlying hypnosis, it is illuminating to examine the specific aspects of hypnotic recall relevant to its use in a judicial proceeding. Such aspects center on the reliability, or potential for accuracy, of recall stimulated by hypnosis.

Scientists generally agree that a number of flaws exist in the hypnotic process which can contribute to inaccurate recollections. These include the subject's eager suggestibility to the hypnotist's words or actions, his desire to accomodate the hypnotist, and his inability to distinguish between actual memory and pseudo memory arising from the hypnosis. Barnard L. Diamond, [a] recognized expert in the area, explains that hypnosis is

a state of increased suggestibility....

[S]uch suggestions cannot be avoided. The suggestive instructions and cues provided to the subject need not be, and often are not, verbal.... Especially powerful as an agent of suggestion is the context and purpose of the hypnotic session. Most hypnotic subjects aim to please....

It is very difficult for human beings to recognize that some of their own thoughts might have been implanted and might not be the product of their own volition.... Normally, mental processes are rationalized and experienced as the product of free will, even when it should be obvious that they are not.

Diamond, "Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness," 68 Cal.L.Rev. 313, 333-34 (1980). These considerations operate in tandem with the accepted notion that hypnotized subjects confabulate, i.e. invent details to supply unremembered events in order to make their account complete and logical, as well as acceptable to the hypnotist. Id. at 342.

The possibility that a person's testimony might be the result of suggestion from another person presents a firm indictment of the reliability of such testimony. The potential for suggestion is exacerbated by the fact that the hypnotic process is directed by a particular individual and the attention of the subject is wholly focused upon that person. Furthermore, suggestions can be entirely unintended and even unperceived by the hypnotist as well as the subject.... Likewise, the subject experiences an overwhelming desire to please the hypnotist and, hence, becomes even more susceptible to suggestion. The subject may unwittingly produce responses which he perceives to be expected. Since a subject under hypnosis undergoes an impaired critical judgment, he may give undue credence to vague and fragmentary memories upon which he would not have relied outside the hypnotic state.... A combination of a susceptibility to suggestion and a compelling desire to please the hypnotist causes the subject to experience an unwillingness to admit that he cannot recall certain events. Thus he becomes susceptible to creating the event.

If we accept as true the notions of suggestibility and a tendency to confabulate, the dangers surrounding hypnotically refreshed testimony become even more pronounced when we realize that it is virtually impossible for the subject or even the trained, professional hypnotist to distinguish between true memory and pseudo memory.... Both the subject and the hypnotist would tend to accept the accuracy of the post-hypnotic recall. Certainly if neither the subject nor the hypnotist can distinguish between true memory and confabulation, a lay observer, be it judge or juror, could hardly make the distinction. Absent objective, independent means to verify this recall, its accuracy must remain both unknown and unknowable.

In addition to resulting in this inability to distinguish between actual and created memory, the process of hypnosis...