Little v. Armontrout

• Decision Date: 05 August 1987
• Docket Number: No. 86-1278,86-1278
• Citation: 819 F.2d 1425
• Parties: 23 Fed. R. Evid. Serv. 61 Leatrice LITTLE, Appellant, v. Bill ARMONTROUT, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1425

819 F.2d 1425

23 Fed. R. Evid. Serv. 61

Leatrice LITTLE, Appellant, v. Bill ARMONTROUT, Appellee.

No. 86-1278.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 12, 1986.

Decided May 6, 1987.

Rehearing Granted Aug. 5, 1987. ^*

Toby H. Hollander, St. Louis, Mo., for appellant.

Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before HEANEY, Circuit Judge, and GIBSON, Floyd R., Senior Circuit Judge, and HUNTER, ^* Senior District Judge.

ELMO B. HUNTER, Senior District Judge.

Appellant-Petitioner Leatrice Little appeals the summary dismissal of his petition for a writ of habeas corpus, 28 U.S.C. Sec. 2254, by the United States District Court for the Eastern District of Missouri. Little contends that he is confined in state custody in violation of his Constitutional rights. This court has jurisdiction pursuant to 28 U.S.C. Sec. 2253.

We reverse the district court's dismissal of Little's Petition and grant a Writ of Habeas Corpus. We hold that Little's right to due process of law guaranteed by the fourteenth amendment was violated by admitting the victim's posthypnotic identification testimony into evidence at trial. Because of our holding, we do not reach the merits of the other three issues asserted by Little in this appeal. ¹

I. FACTS

On the evening of August 13, 1980, the victim, M.B.G., was raped in her apartment in Cape Girardeau, Missouri. Her assailant entered her apartment through a window, hid in a closet and attacked her when she opened the closet doors. The assailant was wearing one of M.B.G.'s blouses wrapped around his head and another of her blouses around his torso.

M.B.G., in an attempt to escape, fled to her living room. Before she could open her front door, the assailant grabbed her from behind and pulled her away from the door. A struggle ensued. Eventually M.B.G. was thrown onto a chair and raped. During the struggle, M.B.G. noticed that the assailant's hands were black. She later told her sister that the blouse wrapped around her assailant's head had slipped off for anywhere from two to sixty seconds. During this time, she was able to view a partial right profile of his face including, "his cheekbone, his jaw, his lips, his nose, [and] his eye".

A policewoman, responding to M.B.G.'s screams for help, interrupted the attack when she knocked at M.B.G.'s door. By the time M.B.G. was able to open her apartment door, her assailant had fled through an open window. M.B.G. described the assailant to the policewoman as a young, broad-shouldered black man with a slender body, 16 to 20 years of age, weighing 145 pounds and approximately 5 feet 7 inches tall.

Another officer, Lieutenant Ross, who was patrolling the area, heard about the rape on a police broadcast. At approximately the same time, he saw a man resembling M.B.G.'s description of the rapist approaching on the sidewalk. Lieutenant Ross slowed his patrol car and then turned it around to talk with the man. The man on the sidewalk, however, ran down an alley and Lieutenant Ross was unable to locate him.

Two days later, on August 15, 1980, M.B.G. was hypnotized by Officer B.J. Lincecum of the Cape Girardeau Police Department. The session lasted several hours. The purpose of the session was to enhance M.B.G.'s recall of the identity of her assailant. M.B.G. was unable, under hypnosis, to add any detail to the description she had previously given of the assailant. An audio tape was made of the session, but it was erased fifteen days later pursuant to departmental policy.

M.B.G. viewed photographic displays on October 16, November 5, and November 10, 1980, in an attempt to identify her assailant. Little's picture was not included in any of these displays. During the October 16, 1980, photographic display, M.B.G. picked out a picture of someone other than Little who she thought resembled her assailant.

Sometime during December, 1980, M.B.G. was hypnotized, for a second time, by Officer Lincecum. M.B.G. testified that she underwent hypnosis this time because she was having difficulty sleeping. Officer Lincecum testified that the case was not discussed during the hypnotic session. There was no record made of this session. ²

She next was shown photographic displays on December 23, 1980. Little had become a suspect in the rape sometime in November or December. She picked Little's picture out of the display. Between December 25 and 31, 1980, she was shown two more photographs, one of Little alone and the other showing him prominently in a group shot. She again identified him as the assailant. On January 26, 1981, M.B.G. viewed a body lineup of six persons. She immediately eliminated all but two of the persons. She then picked Little out as the rapist after viewing his right profile.

Little was convicted of rape, Sec. 566.030.1 R.S.Mo.1978, and burglary, Sec. 569.160 R.S.Mo.1978, after a jury trial in the Circuit Court of Cape Girardeau County, Missouri. He was sentenced to consecutive terms of twenty years on the rape conviction and five years on the burglary conviction. The Missouri Court of Appeals for the Eastern District of Missouri reversed the convictions and remanded the case for a new trial. That court, because of a perceived conflict with a case from the Western District Court of Appeals, ³ certified the case for transfer to the Missouri Supreme Court. The Missouri Supreme Court affirmed Little's conviction holding that he had failed to prove that the identification testimony was tainted by impermissible suggestion. State v. Little, 674 S.W.2d 541, 542 (Mo.1984) (banc), cert. denied, 470 U.S. 1029, 105 S.Ct. 1398, 84 L.Ed.2d 786 (1985). ⁴

As mentioned, Officer Lincecum of the Cape Girardeau Police Department conducted both of the hypnotic sessions of M.B.G. He joined the department in 1976. His training in hypnosis consists of a four-day class conducted by Dr. Martin Reiser ⁵ of the Law Enforcement Hypnosis Institute, Inc. The class met for eight to nine hours a day and involved some practical exercises where the students were divided into groups and took turns playing the roles of hypnotist, subject, and observer. This four-day course was Lincecum's only training in the field of hypnosis. M.B.G. was the 27th subject that Lincecum had hypnotized since his training course. In conjunction with the case, Officer Lincecum also hypnotized three other persons. ⁶ When hypnotizing the victim, Officer Lincecum utilized the third person or "TV screen" technique. This technique asks the subject to view the event as though it was occurring on a television screen. This apparently allows the subject to stop the event and focus in on any specific details that are in question.

Since no record was kept of either hypnotic session, both the trial court and petitioner Little were forced to rely on the testimony of those present at each session to determine what happened during each session. M.B.G., her sister, and Officer Lincecum were the only persons present during the entire first hypnotic session. Officer Geracke, a special officer with the department for the investigation of rape cases, was in and out of the room during the session. Each of these persons testified that Lincecum did not suggest a description of the rapist during the session. Officer Lincecum did tell M.B.G. during the first session that she would see the event as it was happening and that she would be able to remember what she wanted to. As noted, Officer Lincecum testified that the case was not discussed in the second session.

II. EXHAUSTION

The State contends that Little failed to exhaust all of his habeas claims in state court. ⁷ Thus, it argues that Little had a mixed petition of exhausted and unexhausted claims which the district court properly dismissed. See Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982). We disagree with this characterization of the Petition.

To exhaust his state remedies a habeas petitioner only needs to have " 'fairly presented' to the state courts the 'substance' of his federal habeas corpus claim[s]." See Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 75 L.Ed.2d 3 (1982) (per curiam); see also Picard v. Conner, 404 U.S. 270, 276-77, 92 S.Ct. 509, 512-13, 30 L.Ed.2d 438 (1971). We have examined each of the four claims asserted by Little in his Petition and find that each was either expressly raised by him in state court proceedings or discussed by the state courts. Thus, Little provided the state courts with a "fair opportunity" to rule upon each of the four claims presented in his Petition.

III. HYPNOSIS

As mentioned, the first issue raised by Little is that his fourteenth amendment right to due process of law was violated by the admission of the victim's posthypnotic identification testimony. Before directly addressing that question, we will first discuss some of the problems associated with using hypnotically-enhanced testimony and then look at the various approaches adopted by courts to deal with such testimony.

A. Problems Associated with Hypnosis

Two theories have been hypothesized regarding the human memory and its interaction with hypnosis. One is the retrieval theory. A chief proponent of this theory is Dr. Martin Reiser, the person who taught hypnosis to Officer Lincecum. The basic tenet of this theory is that the human memory accurately records and stores the details of each experience. The use of hypnosis allows the subject to reach back in his memory and recall additional details. M. Reiser, Handbook of Investigative Hypnosis (1980). Proponents of this theory analogize the human memory to a video recorder "capable of 'playing back' the exact images or impressions it has received." People v. Shirley, 641 P.2d 775, 781 repub. 31 Cal.3d 18, 181 Cal.Rptr. 243, 723 P.2d 1354 (Cal.1982). This theory is rejected by many scientists who work in the field. See F. Bartlett, Remembering, (1932, reprinted 1964); D. Hintzman, The Psychology of Learning and...