People v. Hughes

• Decision Date: 12 June 1979
• Parties: The PEOPLE of the State of New York v. Kirk L. HUGHES.
• Court: New York County Court

Page 643

417 N.Y.S.2d 643

99 Misc.2d 863

The PEOPLE of the State of New York v. Kirk L. HUGHES.

Onondaga County Court.

June 12, 1979.

Richard A. Hennessy, Jr., Dist. Atty. of Onondaga County, for the People; Thomas W. Ryan, Syracuse, of counsel.

Eric M. Alderman, Syracuse, for defendant.

MEMORANDUM/ORDER

ORMAND N. GALE, Judge.

Kirk Hughes, the Defendant, brought before this Court an Omnibus Motion directed at the indictment herein by which he is charged with RAPE IN THE FIRST DEGREE, in violation of Penal Law § 130.35(1); BURGLARY IN THE FIRST DEGREE, in violation of Penal Law § 140.30(2); and ASSAULT IN THE SECOND DEGREE, in violation of Penal Law § 120.05(6). Specifically, the indictment alleges that the Defendant on or about the night of May 19, 1978, in the City of Syracuse, knowingly entered or remained unlawfully in the apartment of Nancy Simmons, the victim, at 1215 N. State Street, intending to commit a crime therein and that the Defendant did, in fact, commit the crimes of rape and assault.

The victim was admitted to Crouse Irving Memorial Hospital in the early morning hours of May 20, 1978, after having been found in the hallway outside her apartment by her husband. The hospital chart face sheet indicates an initial diagnosis of facial, neck, and laryngeal trauma and sexual assault. A perusal of the admission notes reveals that Mrs. Simmons, although oriented as to time, place, and person, was unable to remember any details of the events of the preceding hours and consistently responded "I don't know" to inquiries regarding what had happened. Following emergency room examination, Mrs. Simmons was admitted to the Intensive Care Unit. At 10:00 a. m., a policeman attempted to see Mrs. Simmons but she asked not to be interviewed. At 2:00 p. m. that same day, Mrs. Simmons was transferred from Intensive Care to the fifth floor and an hour later was questioned by a police detective and visited by her husband. Sometime later that afternoon she was also visited by her parents. The next day, May 21, Mrs. Simmons still could not remember anything about the attack. The nurses' notes indicate that throughout this period of time Mrs. Simmons was vomiting, dizzy, and sleeping only fitfully. Sometime during the day of May 22 Mrs. Simmons was questioned by a police officer and a social worker was in to see her. The nurses' notes indicate that following the police interview Mrs. Simmons attempted to remember the details of the assault. She was discharged from the hospital on May 23, 1978.

On May 24, 1978, Investigator George Rendle of the Syracuse Police Department contacted Jay M. Land, a clinical psychologist with ten years' experience in hypnosis and hypnotic techniques. Investigator Rendle explained to Dr. Land that a victim in a rape/assault case was having difficulty recalling the events of the attack and Dr. Land agreed to assist in the investigation.

Mrs. Simmons met with Dr. Land on June 7, 1978. She was hypnotized on that date and again on June 29, 1978. During the course of the first hypnotic session, Mrs. Simmons was able to recall details of the events of May 19 and named the Defendant, who was known to her, as her assailant. The second hypnotic session resulted in the recall of other details and Mrs. Simmons again identified the Defendant. Her recollection of the events of May 19 has continued post-hypnotically and she professes a present ability to make an in-court identification of the Defendant.

The Defendant was a target of the investigation virtually from its inception. On May 20, 1978, at 12:30 p. m., the Defendant was invited by Investigator George Rendle to accompany him to the Public Safety Building to discuss the Simmons rape. The Defendant agreed to do so and was questioned by Investigator Rendle and Investigator Eugene Leimer. ¹

The Defendant was arrested on June 8, 1978.

The Defendant, by his Omnibus Motion, requested extensive pre-trial relief. Many of the issues presented in the Defendant's moving papers were resolved at oral argument. The Court reserved decision, however, on the Defendant's motion to suppress Mrs. Simmons' identification testimony and his request for certain items of discovery related thereto.

It is the Defendant's position that because of the two hypnotic sessions, Mrs. Simmons has been rendered incompetent to testify as to those matters elicited under hypnosis. The Defendant further contends that, should the Court fail to rule that the testimony is inadmissible as a matter of law, it is at the very least essential to hold a pre-trial hearing to determine whether the techniques used were so impermissibly suggestive that the testimony must, for that reason, be excluded. The Defendant also asserts that the hypnotic sessions were critical stages of the proceedings, requiring the presence of defense counsel, and that the failure to have counsel present deprived the Defendant of his Sixth Amendment rights and denied him due process of law.

It is the People's position that the use of hypnosis as an aid to recall has no effect on the admissibility of the evidence but merely goes to its weight and is, therefore, solely a matter for consideration at trial by the fact finder. They further argue that there has been no "prior identification" in this case within the meaning of Criminal Procedure Law § 710.30 and § 710.20 which could require a hearing because there was no Confrontation with the Defendant. As a consequence, they have withdrawn their notice of intent to use identification evidence. The People also submit that any question of suggestiveness raised by the Defendant is resolved by the affidavit of Dr. Land, attached to their answering papers, in which he expresses the opinion that the procedures used were not biased or suggestive and sets forth the basis for such opinion.

The Court is, therefore, called upon to determine (1) whether the victim's testimony, to the extent that it consists of recollection which was achieved through hypnosis, is inadmissible Per se ; (2) whether an identification made through hypnosis is a previous identification within the meaning of Criminal Procedure Law § 710.30 and § 710.20 and is, consequently, properly the subject of a suppression hearing to test its propriety; and (3) whether an hypnotic session is a critical stage of the proceedings at which the Defendant is entitled to be represented by counsel.

The resolution of these questions requires that the Court examine the subject of hypnosis and the case law which has dealt with it.

Hypnosis has been defined as:

. . . an induced state of mind characterised by heightened suggestibility, as a result of which unusual or extraordinary changes in sensory, motor and memory function may be more readily experienced than when the subject is in a normal state. As a further definition suggestibility is the capacity to be affected by influences called suggestions. These suggestions are the means by which the subject's mental processes or behavior are altered by outside influence such as another person's or persons' words. Suggestion may come either when the subject is in an hypnotic or waking (pre-hypnotic or post-hypnotic) state. (Affidavit of Sheldon Malev, p. 2).

A brief history of hypnosis is instructive. "Hypnotic techniques have been used since antiquity; healing practices by priests of ancient Egypt and Greece are striking examples. Trancelike behavior attributed to 'spirit possession' has played a role in Christianity, Judaism, and in many primitive religions. Miraculous powers ascribed to witches and the arts of faith healing throughout the ages are probably related to hypnosis." (Encyclopedia Brittanica, Hypnosis, p. 134, 15th Ed. 1974). Franz Anton Mesmer (1734-1815), an Austrian physician, is generally credited with the "discovery" of hypnosis in Europe. In 1840, physicians in Calcutta and London made extensive use of mesmeric trance, or hypnosis, in carrying out painless major operations, including leg amputations. It was in that same year that the term "hypnosis" was coined by James Baird, a Scottish physician. Hypnosis attracted widespread interest in the 1880s but declined somewhat in favor when its use was rejected by Sigmund Freud who turned instead to the technique of free association for treatment of his patients. Relatively little use was made of hypnosis from 1890 until 1940 although it enjoyed popularity during World Wars I and II in the treatment of combat neuroses. In the 1940s, in the United States, Milton Erikson pioneered a combined clinical-experimental approach which proved to be an effective research strategy and led to therapeutic applications which aroused renewed interest in hypnosis. See Encyclopedia Brittanica, supra at pp. 133-134.

Hypnosis is now receiving widespread use as a tool in criminal investigations, primarily to aid witnesses in recalling events or details which have apparently been forgotten or unconsciously absorbed. It has enjoyed spectacular successes. For example, in July of 1976, Franklin Edward Ray, a bus driver who, along with the twenty-six (26) children in his bus, vanished outside of Chowchilla, California, was hypnotized and, during the trance, was able to recall five of the six digits on the license plate of the kidnappers' van. This information proved to be a breakthrough in the investigation.

There is, however, resistance in the scientific community to the use of forensic hypnosis. Much of this resistance centers around the training of police officers as hypnotechnicians. A resolution unanimously accepted on October 19, 1978, by the Executive Council of The Society for Clinical and Experimental Hypnosis includes the following language:

Because we recognize that hypnotically aided recall may produce either accurate memories or at times may facilitate the creation of pseudo memories, or fantasies that are accepted as real by subject and hypnotist alike, we are deeply troubled by the utilization of this techniques (sic...