McQueen v. Garrison, 85-7513
| Citation | 814 F.2d 951 |
| Decision Date | 19 March 1987 |
| Docket Number | No. 85-7513,85-7513 |
| Parties | 22 Fed. R. Evid. Serv. 1048 Roger Lee McQUEEN, Appellee, v. Samuel P. GARRISON; Attorney General of North Carolina, Rufus Edmisten, Appellants. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Richard N. League, Sp. Deputy Atty. Gen. (Lacy H. Thornburg, Atty. Gen., Raleigh, N.C., on brief), for appellants.
Douglas E. Canders (Robin Weaver Barton, Fayetteville, N.C., on brief), for appellee.
Before SPROUSE and ERVIN, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.
The State of North Carolina 1 appeals from the district court's judgment granting a writ of habeas corpus to Roger Lee McQueen. McQueen was convicted of multiple murders in a North Carolina state court in 1977. 2 In this habeas corpus action, he contends that his sixth and fourteenth amendment rights were violated in his 1977 trial by the admission of testimony from a key witness who previously had been hypnotized to assist her recall of the details of the murders. The district court dismissed the fourteenth amendment claim, 3 but agreed with McQueen that the use of the hypnotically enhanced testimony violated his sixth amendment right to confront that witness. 4 We disagree and reverse.
In 1964 McQueen was convicted of second-degree murder in Missouri. He escaped from a penitentiary of that state in 1972. After wandering through several areas, he traveled to Bennettsville, South Carolina, and stayed with relatives who operated a house of prostitution. There he met two prostitutes: Jacqueline Christine Stanton, known as "J.C." or "Chris," and Barbara Kiser. He moved into a house with both women, maintaining a friendly relationship with Kiser and an amorous relationship with Stanton. On April 25, 1972, McQueen married Stanton. In early June, Stanton and Kiser applied for positions as prostitutes in a Fayetteville, North Carolina, house operated by Wilma Norris. Linda Lingle was then working as a prostitute at the Norris establishment. Wilma Norris and Linda Lingle were the two victims murdered in the June 23, 1972, crimes for which McQueen was convicted five years later.
Wilma Norris, the "madam," employed Barbara Kiser to work as a prostitute starting about June 6, 1972, but refused Stanton's application because she was too old. Stanton, now married to McQueen, found employment as a prostitute at a nearby location, but was soon arrested and jailed--accused of a previously committed burglary. Her bond was set at $1,000. According to trial testimony, it was McQueen's efforts to obtain money for his wife's bond that led to the murders of Wilma Norris and Linda Lingle.
Although his wife was refused employment at the Norris establishment, McQueen remained friendly with Kiser and became friends with Norris and Lingle. He visited the Wilma Norris house frequently during the month of June 1972--driving there and parking his wife's Pinto automobile by the house. According to Kiser's trial testimony, McQueen drove there on June 23, entered the house and initiated the events ending in the murders of Norris and Lingle. McQueen admitted that he was there on the morning of June 23, but swore that he left at noon--well before the women were murdered.
Kiser testified as an eyewitness to the murders. She had been hypnotized two weeks prior to trial to help her more clearly recall the details of the crime. After hypnosis, however, she related details differing in one crucial respect from prior statements. 5
In her pre-hypnosis statements, Kiser had related that she heard a shot, entered Norris' bedroom and saw Norris lying on her bed, wounded in the chest. Kiser also told how McQueen had ordered her to pack her clothes and get in the car. Going to the car, she heard four more shots while she was outside the house. She then reentered the house and encountered McQueen in a hallway. However, while under hypnosis and in her testimony in McQueen's state trial, she related that she had witnessed McQueen shoot the two women with the last four shots. According to this version, McQueen had threatened and abused Norris and Lingle in an attempt to get $1,000 for his wife's bond. Kiser heard one shot, entered Norris' bedroom and found her lying on a bed, wounded. After further abuse, McQueen ordered Norris and Lingle to lie face down on the bed. He then proceeded to fire two bullets into the head of each woman (first Norris, then Lingle) while Kiser stood there and witnessed the executions.
Although this central portion of Kiser's story thus differed, most of the details recalled in her pre-hypnosis statements were identical to her hypnotically enhanced testimony at trial. In both versions, she told of traveling to Bennettsville, South Carolina, with Stanton; of meeting McQueen; of staying in South Carolina and North Carolina; and of her friendly, but not sexual, relationship with McQueen. Moreover, in both accounts she related that McQueen parked his wife's car by the Norris house in Fayetteville, North Carolina, on June 23, entered, and demanded money and jewelry that Norris and Lingle kept in the house. McQueen shot Norris in the chest after she resisted his efforts to rob the house, but Lingle, seeing Norris shot, succumbed to his demands. He slapped the women several times with his hand and, when Norris sat up on the bed after being shot initially, he hit her with a pistol. Lingle, following his frenzied orders and threats, gathered money and jewelry and gave it to him. McQueen told the women he would not harm them further if they cooperated with him.
Kiser's recollection of events after the murders also showed a consistency between her pre-hypnosis statements and her hypnotically enhanced trial testimony. In both accounts, McQueen had ordered her to pack her clothes and go to the car. Leaving the house, Kiser saw four young boys working in a field behind the house and warned them to retreat. McQueen joined her and they drove away. He handed her a pistol and, following his instructions, Kiser threw it out the window in the vicinity of a stream. 6 The two then left the Fayetteville area and eventually traveled through a number of states. They first stopped in Roanoke, Virginia, where McQueen ordered Kiser to wire his wife $1,000 so she could post bond. They stopped in Chicago where McQueen visited Vera Hignight and renewed his acquaintance with her. 7 They later traveled to Hot Springs, Arkansas, where they met another woman, Vendell Kelly, and took her with them. After arguing with Kelly, McQueen took her to an abandoned field outside Texarkana, Arkansas. Kiser, later summoned by McQueen into the field, found Kelly laying on the ground, naked from the waist down. According to Kiser, Kelly said to McQueen, "You promised that you would not shoot me," to which McQueen replied, "I lied, Bitch," and shot her twice in the head while she lay on the ground.
During the entire odyssey, according to all of Kiser's statements, McQueen continually threatened to kill Kiser's infant child and her parents if she did not cooperate. Kiser finally left McQueen in Indiana. She returned to her parents' home in Gary, Indiana, and surrendered to the FBI. Later, the FBI fugitive warrant then outstanding against her was dropped and she was given immunity by North Carolina prosecutors, with whom she cooperated both during investigation and trial.
McQueen's defense consisted principally of his own testimony. He stated he was not at the Norris house at the time of the murders, but admitted with variations most of the circumstantial evidence produced by the state against him. Both McQueen and Vera Hignight, his prison visitor and St. Louis lover, testified that Kiser told them on separate occasions that she had killed the two women. 8
There can be no doubt that the trial evidence was sufficient to convict McQueen. In fact, either version of Kiser's story, supported by the other evidence produced at trial, would have been sufficient to sustain McQueen's murder convictions. The trial, however, was conducted in 1977, five years after the crimes, because McQueen had been captured and returned to the Missouri prison after the murders of the two prostitutes. In the meantime, Kiser had given statements in 1972 to North Carolina police and in 1977 to Arkansas police 9 which, as we have stated, contained details of the shootings that differed from her 1977 statement while under hypnosis and from her trial testimony given after hypnosis.
The state produced considerable other evidence probative of McQueen's guilt that corroborated much of Kiser's testimony. Young boys digging potatoes in a field behind Wilma Norris' house on the day of the murders saw a car matching the description of McQueen's auto park beside the house, a man exit and enter the house. They later heard women's screams and gunshots. The state proved that McQueen's wife was arrested, jailed and placed under $1,000 bond, and that the bail money was wired to her from Roanoke, Virginia, after the murders. Witnesses testified that on the evening of the murders McQueen tried to sell them jewelry matching the description of the jewelry taken from the Norris establishment. The uncontradicted testimony of investigators and pathologists was that both murder victims were "stomach down" on the bed with their hands behind them in a position similar to that of having been tied. Although the hands of the dead women were not tied when viewed by investigators, a coil of rope lay on the bed beside their bodies. 10 Lingle's face bore a discoloration mark that was consistent with a conclusion that she could have been struck. The pre-murder and post-murder movements and associations of McQueen and Kiser were traced. Pennsylvania state police related the details of McQueen's capture on the Pennsylvania Turnpike six weeks after the North Carolina murders. He was traveling as a hitchhiker in a truck and was apprehended after jumping...
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