People v. Romero
| Decision Date | 09 November 1987 |
| Docket Number | 85SC389,Nos. 85SC382,s. 85SC382 |
| Citation | 745 P.2d 1003 |
| Parties | The PEOPLE of the State of Colorado, Petitioner, v. Santos ROMERO, Jr., Respondent. Santos ROMERO, Jr., Petitioner, v. The PEOPLE of the State of Colorado, Respondent. |
| Court | Colorado Supreme Court |
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Maureen Phelan, Asst. Atty. Gen., Denver, for the People.
David F. Vela, Colorado State Public Defender, Rachel A. Bellis, Deputy Public Defender, Denver, for Santos Romero, Jr.
We granted certiorari to review the decision of the court of appeals in People v. Romero, 712 P.2d 1081 (Colo.App.1985), which reversed the conviction of Santos Romero, Jr., (defendant) for felony murder and conspiracy to commit second degree sexual assault on the ground that the defendant had received a grant of transactional immunity which barred prosecution for all these offenses. We conclude that the court of appeals erred in resolving the immunity issue. In regard to other issues not addressed by the court of appeals, we hold that the trial court properly allowed witnesses who had been hypnotized to testify at trial to the full range of their recollections after first ascertaining that their testimony was reliable and that the record supports the trial court's determination that the defendant himself had not been hypnotized. We accordingly reverse the judgment of the court of appeals.
The charges against the defendant arose out of the murder of two sisters, Rosemary Mata and Julia Mata Delossantos, in April of 1978. On the morning of April 29, 1978, the bodies of the two young women were discovered in a canyon near Fort Collins, Colorado. Near the bodies law enforcement officers found a large rock stained with blood. An autopsy indicated that the women died from blows to the head inflicted by a heavy, blunt object.
At first there were no suspects, and the investigation of the case continued for three years. In November 1978, law enforcement officers learned that the defendant might know something about the homicides. Several officers accordingly met informally with the defendant on December 19. The defendant at this time told the officers that his brother, Porfirio Romero, and Joe Salas had taken the Mata sisters to the canyon with the intent of knocking them unconscious and raping them, and that his brother later told him that they hit the women too hard and killed them. The defendant at this time offered to participate in another interview at which he would be hypnotized in order to help him better remember the events in question.
On December 23, 1978, the second interview took place. This interview was attended by the defendant, his friend Gordon Cruz, sheriff's officers, an investigator from the Larimer County District Attorney's office, and the director of the Larimer County Community Corrections, who was to perform the hypnosis. When the defendant and Cruz expressed concerns about whether any of the defendant's statements made under hypnosis might later be used against the defendant, the officers told him that anything he said under hypnosis would not be used against him, and that they would not prosecute him for "passive involvement" in the Mata homicides. The district attorney's investigator then drafted the following agreement, which was signed by the defendant, the other officers, and the community corrections director:
In agreement with the Larimer county District Attorneys office and the Larimer county sheriffs office, we here by [sic] agree to grant immunity to Santos Romero in reguards [sic] to his passive involvement in the Mata Homicide.
After the document was executed, hypnotic techniques were used in interviewing the defendant on that occasion and again on January 4, 1979. The defendant made no statements incriminating himself in the homicide at these sessions, but in the months that followed he made various inculpatory statements about the homicides to law enforcement officers, friends, and his ex-wife.
Law enforcement officers also used hypnotic techniques in interviewing other possible witnesses to events preceding the homicide. These witnesses were Cecelia Bieber and Dennis Showalter, a Fort Collins police officer. Both witnesses had been in the vicinity of the Northern Hotel in Fort Collins, where the Mata sisters were last seen alive on the evening of April 28-29, 1978. Three days after the homicide, Bieber informed a sheriff's officer that she had seen the sisters leave the hotel with a man about six feet one inch tall, dark complexioned, with a two inch Afro hair style, and with an Arabic appearance. After being hypnotized in March 1981, she gave the law enforcement officers basically the same description as previously and for the first time identified the man to the officers as Joe Salas.
Officer Showalter had been at the hotel several times on the night of April 28-29, 1978, to investigate disturbances and to break up fights. His initial report of these incidents did not mention the defendant, his brother Porfirio, Joe Salas, or the Mata sisters, but he later told officers investigating the homicide that he had seen these individuals at the hotel during the evening. After being hypnotized, Officer Showalter was able to provide the investigating officers with further details of his observations.
The defendant was eventually arrested and was charged in the Larimer County District Court with two counts of first degree felony murder and one count of conspiracy to commit second degree sexual assault. Porfirio Romero and Joe Salas were also charged in connection with the Mata homicides, but were tried separately.
Prior to his trial the defendant moved to dismiss the charges, claiming that he had been granted immunity from prosecution by the agreement of December 23, 1978. During a hearing on the motion, a sheriff's investigator testified that prior to the commencement of the hypnosis session on December 23, 1978, the defendant was told that "passive involvement" meant that he would not be prosecuted if he was present at the scene without any knowledge that the crime was happening, or if he gained knowledge only after the homicides occurred, or if he had knowledge of the crime "from the source" but did not disclose such information to the authorities. The defendant, in contrast, testified that his understanding of the agreement was that he was to have "immunity for anything that was done in the homicide as far as actual killing of the girls." The trial court denied the motion to dismiss, concluding that the December 23 agreement did not amount to either a statutory or "common-law" contractual grant of immunity from prosecution whereby the defendant would not be prosecuted for any degree of involvement of the homicides. With respect to statements made by the defendant during the hypnosis sessions, the court ruled that the scope of the agreement between the law enforcement officers and the defendant was that any statements of the defendant during the hypnosis sessions "could not be used against him in regard to any active involvement [in the homicides] upon his part." The district court accordingly suppressed any statements made by the defendant during the hypnosis sessions.
The defendant also filed a pretrial motion requesting that all witnesses who had been hypnotized during the investigation be limited to their prehypnotic recollections and that their testimony be preceded by cautionary instructions to the jury. Porfirio Romero and Joe Salas filed a motion requesting the court to bar or exclude the testimony of hypnotized witnesses on the ground that the hypnosis had rendered the witnesses incompetent. The court conducted a hearing on both motions and heard the testimony of the witnesses who had undergone hypnosis, the persons who had performed the hypnosis, and experts in the field of forensic hypnosis.
Cecelia Bieber, one of the witnesses who underwent hypnosis, testified that, although immediately after the homicide she was not able to name the man she saw leaving the Northern Hotel with the Mata sisters on the night of April 28-29, 1978, she was now able to identify that man as Joe Salas. The reason for her delayed awareness of Salas' identity, according to Bieber, was that she first met Salas in May 1979, and although she first remembered his name when she was in Iowa in 1979, she did not mention his name to the officers until a hypnosis session conducted in March 1981. Officer Dennis Showalter testified that he saw the defendant and Salas at the hotel on the evening of April 28-29, 1978, and gave that information to the investigating officers well before the hypnosis session, which was undertaken only to help him recall any further details of that evening.
The trial court found that the evidence did not support a conclusion that the defendant was actually in an altered hypnotic state during the hypnosis sessions on December 23, 1978, and January 4, 1979, and concluded that any statements made by the defendant to others after the hypnosis sessions were not rendered inadmissible as the unreliable and corrupted products of the hypnosis sessions. The court also concluded that, notwithstanding the hypnosis performed on the other witnesses, these witnesses understood the nature and obligation of the oath and were capable of accurately recollecting and narrating the facts at trial, and that the prior hypnosis sessions, while properly bearing on the witnesses' credibility, did not render the witnesses incompetent to testify.
The defendant went to trial on January 18, 1982. The prosecution's case consisted of evidence much beyond that elicited from witnesses who had been hypnotized. 1 As pertinent to the issues raised here, however, the prosecution elicited testimony in their case-in-chief from Cecelia Bieber and Officer Showalter. Bieber identified the man s...
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