People v. Hayes

• Citation: 265 Cal.Rptr. 132,783 P.2d 719,49 Cal.3d 1260
• Parties: , 783 P.2d 719 The PEOPLE, Plaintiff and Respondent, v. Louis Victor HAYES, Defendant and Appellant. Crim. 25277.
• Decision Date: 28 December 1989
• Court: California Supreme Court

Page 132

265 Cal.Rptr. 132

49 Cal.3d 1260, 783 P.2d 719

The PEOPLE, Plaintiff and Respondent, v. Louis Victor HAYES, Defendant and Appellant.

Crim. 25277.

Supreme Court of California,

In Bank.

Dec. 28, 1989.

Ross Thomas, under appointment by the Supreme Court, San Francisco, for defendant and appellant.

Robert W. Brower, amicus curiae on behalf of defendant and appellant.

John K. Van de Kamp, Atty. Gen., Ronald E. Niver and Don Jacobson, Deputy Attys. Gen. for plaintiff and respondent.

EAGLESON, Associate Justice.

Defendant Louis Victor Hayes was convicted by jury trial of the first degree murder of Rigoberto G. (Pen.Code, § 187), ¹ and the robbery (§ 211), rape (former § 261, subd. 3), and forcible oral copulation (§ 288a, subd. (c)) of the deceased victim's wife, Marie G., as well as the burglary of their residence (§ 459). Hayes was found to have personally used a firearm in the commission of each offense (§ 12022.5.) Three special circumstances were found true: that defendant committed the murder while engaged in the commission of a robbery, rape, and burglary (§ 190.2, subd. (a)(17)(i), (iii), and (viii)). Hayes was sentenced to life imprisonment without possibility of parole on the murder count and determinate terms for the related offenses.

Surviving victim Marie G. was hypnotized within hours of the crimes for the purpose of assisting a police artist in the creation of a composite sketch of the face of her unmasked assailant, and to develop more information regarding the details of the crime.

For the reasons set forth hereafter, we conclude that under the rule of People v. Shirley (1982) 31 Cal.3d 18, 181 Cal.Rptr. 243, 723 P.2d 1354, made retroactive in People v. Guerra (1984) 37 Cal.3d 385, 208 Cal.Rptr. 162, 690 P.2d 635, and thus applicable to this case, the erroneous admission of Marie's posthypnotic testimony--in particular her positive identification of defendant as the unmasked assailant-- requires reversal of defendant's convictions. We further hold that, on retrial, the fact that Marie underwent hypnosis will not bar her from testifying to events which the court finds she recalled and related prior to the hypnotic session.

The following is the account of the crimes furnished by Marie to investigating officers prior to her hypnosis, as memorialized in the written police reports and testimony of the investigating officers. We also briefly summarize the testimony of several other key prosecution witnesses.

I.

Officer Ronald Reed testified that he responded to a report of a shooting in Burlingame at 4:16 a.m. on February 27, 1979. Firemen were already at the scene. He entered the apartment and found Rigoberto G. lying on his back in the front hallway, bleeding profusely from a gunshot wound to the chest. The victim died en route to the hospital.

The deceased's wife Marie was in the kitchen/living room area with her aunt and uncle, who occupied an upstairs apartment. Crying hysterically, she told Reed that two Black male adults had broken into her house, raped her, stole a ring and watch, and upon fleeing had shot her husband.

Marie described the first assailant who entered the apartment (later identified as defendant Hayes) as a Black male in his early 20's, with a "slim" build, approximately 6 feet tall, 160 to 170 pounds, black hair, brown eyes, mustache and possible goatee, wearing dark clothing and a dark, possibly black, watch cap. He was carrying a large black gun approximately four to six inches long which she believed was a revolver.

Marie described the second assailant who entered the apartment (later identified as Jack Roundtree) as a "black male adult in his twenties, about five-foot-ten, 180 pounds, stocky build, dark clothing and had a ski mask on. He was carrying a small, silver automatic pistol approximately two inches long." In a second statement given a short time later but still prior to being hypnotized, Marie further described the second assailant's "ski mask" as "a dark watch cap, possibly black, that was pulled down over his face with two eyelets cut out and cut out by hand, they were jagged."

At 4:53 a.m., Reed took Marie to Peninsula Hospital for a rape examination. She was then advised that her husband had died en route to the hospital. At approximately 7 a.m., she was taken to the police station and separately interviewed by Officer Reed and Homicide Detective James Eldridge over the next two hours. Reed testified that during this interview Marie related the following account of events:

She and her husband had sexual intercourse and went to bed at 9:15 p.m. She set her alarm clock for 3:30 a.m., as she had to be at work as a waitress at a Burlingame hotel at 5 a.m. She awoke and was dressing when she heard a knock at the front door. Marie glanced at the clock; it was 4 a.m. Her husband was still asleep. She unlocked the front door and opened it "a little" to look outside. Seeing no one, she started closing the door when unmasked "suspect one" appeared and pushed the door in. She described "suspect one" during this interview as a Black male in his early 20's, 6 feet tall, slim build, weighing approximately 160 to 170 pounds, with a mustache and possibly a goatee, wearing dark clothing and a dark colored watch cap, and holding a black gun 4 to 6 inches long.

As "suspect one" entered the apartment Marie yelled for her husband who awoke, sat up in bed, and asked what was going on. "Suspect one" yelled to his confederate to "come on in," whereupon "suspect two" entered the apartment. Marie described "suspect two" during the interview as a Black male, five feet ten or eleven inches tall, 180 pounds, also wearing dark clothing, with a watch cap pulled over his head and eyeholes cut or ripped out around the eyes. He held this "mask" down over his face with his right hand. In his left hand he held a small, silver automatic pistol, approximately two inches long.

"Suspect one" told Marie he "wanted all the money." She replied that she did not have much, and that what she had was in a jar near the couch in the bedroom. He ordered her to get it. She complied, placing a gallon jar of coins on the cabinet next to the doorway, and returned to the bed next to her husband. Marie told Reed she "begged them not to hurt us and told them to take the money and leave us alone."

"Suspect two" then ordered her into the bathroom. She complied. The lights were on and she sat down in a corner near the shower. He closed the door and directed her to sit on the toilet. He pointed his gun at her, unzipped his pants, and ordered her to suck his erect penis, pulling her forward by her shoulder. She closed her eyes and complied.

"Suspect two" then ordered Marie to get up and take off her dress, panties and pantyhose, and forcefully raped her, achieving ejaculation. He ordered her to wipe his penis with a bath towel. She complied, thereafter wrapping the towel around herself and returning to the bedroom where her husband asked what had happened.

The two assailants then started arguing: "suspect two" wanted Marie to start unhooking the stereo, "suspect one" had other plans for her. "Suspect one" next touched her breast, then started pulling at her high school ring, which she removed from her finger and gave to him. He took her husband's wristwatch from the nightstand and placed it in his pocket. He next ordered Marie into the kitchen to get her purse. She complied. He told her he wanted only bills, not coins. She could not find any currency in her purse. He then ordered her to sit on a kitchen chair and exposed his uncircumcised penis. He placed his gun to the left side of her neck and ordered her to "[s]uck on it and it better be good." When he achieved an erection, he ordered her to stand on a chair, then changed his mind and told her to lay down on the kitchen floor. "Suspect two," who was standing in the hallway with his gun pointed in the direction of the bedroom, looked into the kitchen to see what "suspect one" was doing. "Suspect one" spread Marie's legs apart, placed the gun against her head and forcibly raped her, stating: "It better be good, better be good."

As she was being raped the second time, Marie heard "suspect two" saying, "Stay in bed, get back in bed." She heard her husband say "No," after which "suspect one" joined "suspect two" in the hallway as he was backing toward the front door. Marie came running out of the kitchen, heard a shot and her husband yell "Marie," then saw him fall to the floor. She did not see which of the two assailants had fired the shot. The two assailants ran out the front door. Marie shoved it closed and telephoned the fire department.

Officer Reed testified that during this interview on the morning of the incident, Marie told him she was certain she could identify the first assailant who entered the apartment: the taller, thinner one who wore no mask.

At trial, Homicide Detective Eldridge recounted the separate statement he took from Marie after Officer Reed had interviewed her. It was his standard practice to have the "primary investigation officer" who was first to arrive on the crime scene interview the victim or witnesses, whereafter he would reinterview them. The record reflects that Marie's statement to Detective Eldridge was virtually identical in all particulars to the statement she gave to Officer Reed.

Marie was then hypnotized within hours of the crimes for the purpose of assisting a police artist in the creation of a composite sketch of the face of her unmasked assailant, and to develop more information regarding the details of the crimes. Further details regarding the hypnotic session are set forth below.

Also on that same day Jack Roundtree was arrested for an unrelated armed robbery. At that time he was wearing a dark blue knit cap with distinctive hand-cut eyeholes. Marie was immediately shown the distinctive "cap mask" and identified it as "identical" to the one worn by her masked assailant the night...