Lawson v. State, 61820
| Decision Date | 27 June 1979 |
| Docket Number | No. 61820,61820 |
| Parties | Donald LAWSON, Appellant, v. STATE of Iowa, Appellee. |
| Court | Iowa Supreme Court |
Patrick J. Life of Life Law Office, Oskaloosa, for appellant.
Thomas J. Miller, Atty. Gen., and Ann Fitzgibbons, Asst. Atty. Gen., for appellee.
Considered by REYNOLDSON, C. J., and UHLENHOPP, McCORMICK, McGIVERIN, and LARSON, JJ.
This appeal from denial of postconviction relief questions the validity of a verdict where, without the knowledge of either party, a witness was hypnotized before testifying in the prior trial.
In 1972 petitioner Donald Lawson was convicted and sentenced for second-degree murder. In 1976 he commenced the present postconviction proceeding, claiming in part that a witness in the murder trial had been hypnotized. Section 663A.2 of the Code of 1975 provides that a convicted person may institute proceedings to secure relief when:
1. The conviction or sentence was in violation of the Constitution of the United States or the Constitution or laws of this state;
4. There exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice; (or)
6. The conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error formerly available under any common law, statutory or other writ, motion, petition, proceeding, or remedy . . . .
Marilyn Yeager, a material witness in the homicide trial, testified in that case for the State and for Lawson. The evidence at the postconviction trial establishes beyond question that in connection with the prior trial Yeager underwent some type of hypnosis on at least three occasions: before she originally testified for the State, before she testified on rebuttal for the State, and later to obtain headache relief. We may safely say that the third time did not affect her testimony. The record shows that neither the State nor Lawson knew, at the time of the homicide trial, about the hypnotization. The hypnotization was administered by a neighbor, Ed Augustine, ostensibly to calm Yeager's nerves so she could face the ordeal of taking the stand. Lawson learned about it later when Yeager informed him at the penitentiary where she came with a friend who desired to see another inmate. In the present postconviction proceeding Lawson claims violation of his constitutional and nonconstitutional rights in the homicide trial.
The postconviction trial court found that Lawson "failed to establish that (Yeager) was in a hypnotic condition when she testified at the trial of (Lawson)." The State's position on appeal is essentially the same: "There is no showing that (Yeager) was in a hypnotic state when she testified." This position seems to be based on the theory that if Yeager was not in a state of hypnosis when on the stand, any prior hypnosis was immaterial. We believe this theory requires further analysis.
The present case is governed by the following principles enunciated in Snyder v. State, 262 N.W.2d 574, 576 (Iowa 1978):
Petitioner has alleged violation of constitutional safeguards and thus we make our own independent evaluation of the whole record under which the postconviction court's ruling was made. (Citations omitted.) However, the burden of proof is on petitioner to establish the facts asserted by a preponderance of the evidence. (Citations omitted.)
We first consider the evidence and then the legal effect of the hypnosis.
I. The evidence. Portions of Yeager's direct testimony in the postconviction proceeding follow:
Q. Please state to the Court under what circumstances and when you were hypnotized during the process of the trial? A. I imagine the first time would have been at Mr. Augustine's home before I came to the courthouse, I imagine, and then one time when I had to go back on the stand for the prosecution the last day, and I was upset and didn't want to go back on the stand, and he hypnotized me in Mr. Fenton's office. Mr. Fenton had gone out and he told me I would just relax and be able to go through it. One time when we left the courthouse and I was upset and had a headache, he hypnotized me in the car to relieve the headache. Those are the times I remember.
Q. Now, do you know whether or not Mr. Augustine was also a witness for the prosecution? A. Yes, he was.
Q. And that was on rebuttal evidence; is that correct? A. Yes.
Q. And was he also a friend of Penny Clark (homicide victim), if you know? A. Yes.
Q. Now, at the time you were hypnotized on any one of the particular three occasions, were you given any suggestions such as to relax or anything like that, if you know? A. Yes.
Q. Would you answer? A. I was told I would relax and that I would answer the questions clearly and they would come to me, but it would come to me, but it would seem more like a drama unfolding in front of me so it wouldn't bother me quite so much.
Q. Do you recall a matter of being nervous around Lawson's presence? A. Yes.
Q. And were you advised you would not be nervous around Don's presence? A. Yes.
Q. How was that communicated to you by Mr. Augustine, if you know? A. I can't remember what he said about Don exactly except that I would be able to look at him and it wouldn't bother me, you know, so much to see him there. Something to that effect. I don't know.
Q. Now, you say the first time you were hypnotized at your home? A. No, not at my home. Ed's home.
Q. This is the morning of the first day you appeared at the trial? A. As far as I can remember; yes.
Q. And the second time you were hypnotized was where? A. I can't remember them in order really.
Q. Okay. A. But I do know once in Mr. Fenton's office.
On cross-examination, Yeager testified in part:
Q. And you knew it was a murder trial? A. Yes.
Q. And you weren't disoriented in any way or anything like that? A. No, other than being nervous.
Q. You were nervous? A. Yes.
Q. That is not uncommon for a witness in any trial to be nervous. When you testified, you were able to understand the questions the attorneys asked you without any trouble? A. Yes.
Q. You responded to those questions telling the truth? Is that right? A. Yes.
Q. You did tell the truth each time you testified? A. Yes.
Q. The sole reason you were so-called hypnotized is merely to relax you; is that correct? A. Yes.
Q. You were nervous; is that right? A. Yes, very.
Q. And you used that for when you were learning how to drive a car? A. Yes.
Q. Did that enable you to drive the car okay? A. Yes, it helped very much.
Q. Your testimony at the trial was not influenced in any way by that hypnotism was it? (Objection, overruled.) A. I don't believe it was.
Q. Nothing was suggested to you by way of what answer to give? A. No.
Q. Other than anything of your own personal knowledge? A. That's right.
Q. And you testified as to your own personal knowledge, is that right? A. Yes.
Yeager also testified:
Q. Do you know where Mr. Augustine was during the process of the trial, the actual trial? A. No, I don't think he attended the trial, to my knowledge, until the last day.
Q. Do you know whether he was ever in the courtroom at the time of the trial? A. I don't know, but I just cannot remember him being there except that last day when he went on the stand.
D. Eric Elster, a clinical psychologist, was a witness. He testified that hypnotism has various stages, "from a very, very light level of hypnosis to a very, very deep level called somnambulism, similar to sleepwalking." He described the stages thus:
Stage 1 is a stage in which there is minor alteration of consciousness that a person could function in or make a very, very light stage people go into very rapidly. The second stage you go in would be where you would have some rapid eye movement. The third stage you would have some you could develop some rigidity of the limbs. The fourth stage would be even more rigidity, even more concentration, and the fifth stage would be complete somnambulism where there would be loss of memory, loss of recall.
Relevant portions of Elster's testimony follow:
Q. Please state under the first stage of hypnosis what can be done by the person who is inducing the hypnosis insofar as the manner of control of the person is concerned? A. You don't have contrary to belief, you don't have control over the person. You can't make that person jump out of a window or commit suicide or do anything that is going to be injurious to themselves. You are simply concentrating their mind where the external stimuli are not disturbing to them, that they shut out certain things, and their focus is narrowed down.
Q. What is the manner of control in the second stage of hypnosis? A. Again, you have no control. The person could get up and walk out if they wanted to.
Q. If they did not want to, then could they be controlled as to performing physical acts? A. They are allowing you to direct them.
Q. What is the manner of control in the third stage of hypnosis? A. The patient or subject still retains control only that they are giving you more allowance to direct them.
Q. Now, Mr. Elster, insofar as the matter of hypnosis is concerned, is there a reverse let's go into the matter of hypnotic suggestion. What are hypnotic suggestions, pre-hypnotic suggestions, post-hypnotic suggestions, and hypnotic suggestions while in the trance? A. Pre-hypnotic suggestions are the suggestions you are giving the person prior to inducing hypnosis. When you induce hypnosis, the mind or brain becomes more susceptible to suggestions. . . . The hypnotic suggestions during hypnosis, which is there I was, and that is direct suggestions to the patient, and post-hypnotic suggestions are suggestions that are given during hypnosis which will be carried out after the hypnosis session is finished. That means the person would be in the wakened state, fully normal state, and you could give them a suggestion or a certain command, a certain cue, a certain indication, that certain types of...
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