People v. Shirley, Cr. 21775

• Court: United States State Supreme Court (California)
• Writing for the Court: MOSK; BIRD; RICHARDSON; KAUS
• Citation: 181 Cal.Rptr. 243,31 Cal.3d 18
• Parties: , 723 P.2d 1354 The PEOPLE, Plaintiff and Respondent, v. Donald Lee SHIRLEY, Defendant and Appellant.
• Docket Number: Cr. 21775
• Decision Date: 11 March 1982

Page 243

181 Cal.Rptr. 243 31 Cal.3d 18, 723 P.2d 1354 The PEOPLE, Plaintiff and Respondent,
v.
Donald Lee SHIRLEY, Defendant and Appellant. Cr. 21775. Supreme Court of California,
In Bank. March 11, 1982.
As Modified on Denial of Rehearing June 4, 1982.

Page 244

[31 Cal.3d 22] [723 P.2d 1355] John W. Carney, Deputy Atty. Gen., San Diego, for plaintiff and respondent.

Ephraim Margolin as amicus curiae on behalf of defendant and appellant.

Stephen C. Hosford, Garden Grove, for defendant and appellant.

MOSK, Justice.

The principal question on this appeal is whether a witness may be allowed to testify after he has undergone hypnosis for the purpose of restoring his memory of the events in issue. The question is new to this court, but has been often litigated in our sister states and extensively[31 Cal.3d 23] studied by medical science. In accord with recent and persuasive case law and the overwhelming consensus of expert opinion, we conclude that the testimony of such a witness should not be admitted in the courts of California.

I

The record discloses a classic case of conflicting stories. There were only two witnesses to the principal events: the complaining witness, Catherine C., told the jury that defendant compelled her by threat and force to submit to sexual intercourse and to orally copulate him; defendant testified, however, that Catherine willingly participated in the act of intercourse, and there was no oral copulation. The jury believed part of Catherine's story, as it convicted defendant of rape; but it also apparently found that she was lying when she described in detail the alleged act of oral copulation,

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as it acquitted defendant of that charge. ¹ The jury doubtless had a difficult task, since Catherine's performance as a witness was far from exemplary: the record is replete with instances in which her testimony was vague, changeable, self-contradictory, or prone to unexplained lapses of memory. Indeed, on occasion she professed to be unable to remember assertions that she had herself made on the witness stand only the previous day.

In such circumstances it is particularly important that the testimony of the complaining witness be free of taint, lest a mistaken conviction result. Yet as we shall see, in the case at bar the prosecution contaminated Catherine's testimony by subjecting her to a hypnotic experience on the eve of trial for the purpose of "filling the gaps" in her story. To allow her to testify against defendant after that experience was error; and in the light of the entire [723 P.2d 1356] record, we are of the view that the error caused a miscarriage of justice requiring reversal of the judgment. (Cal.Const., art. VI, § 13.)

A

Catherine was a 32-year-old bartender at a saloon named Bud's Cove, not far from the Camp Pendleton Marine base. The first prosecution[31 Cal.3d 24] witness, Marine Sergeant Charles Lockskin, testified that at 8:50 p. m. on January 25, 1979, he entered Bud's Cove and approached Catherine, whom he had known for several months. She was off duty, and "looked like she was feeling kind of bad." She had a half-consumed martini in front of her, was under the influence of alcohol, and staggered when she walked.

After talking with her for some 15 minutes, Lockskin offered to get her something to eat and take her home. They drove in his car to a take-out restaurant, purchased some food, and arrived at Catherine's apartment house at 9:30 p. m. She vomited when she got out of the car; as this was happening, defendant came up to Lockskin and addressed him by name; Lockskin asked him to leave, and defendant did so. Lockskin then helped Catherine into the apartment and went into the kitchen to prepare some drinks. When he returned to the living room, however, she had passed out on the couch and was fast asleep. After failing to rouse her by shaking her, he covered her with a blanket, turned out the lights, locked the front door, and departed. It was shortly before 10 p. m.

The next witness was Catherine. She testified that on the evening in question she went off duty at Bud's Cove at 6:30 p. m., ordered two martinis, and sat "relaxing" until Lockskin came in. Her testimony as to her activities with Lockskin generally corroborated his, and she admitted she could "feel" the alcohol she had consumed.

Catherine's version of the events occurring after she fell asleep was as follows: she testified that she awoke some time later, still lying on the couch fully clothed, and found defendant standing naked by the coffee table holding a butcher knife. ² Defendant assertedly took her into the bedroom, ordered her to remove her clothes, and compelled her to orally copulate him for several minutes. The witness admitted that she felt "like I was in a dream" and events were moving in "slow motion." ³

[31 Cal.3d 25] Catherine then stated that defendant made her get on her knees, tied her hands behind her back and gagged her with nylon

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stockings, put her head down on the bed, and had intercourse with her in that position for up to half an hour. When she tried to turn her head to see who he was, he struck her with his hand and ordered her not to look at him; later he put a pillow over her head for the same purpose, and struck her on the hip. She claimed the latter blow sobered her so that she no longer felt the effects of her prior drinking.

Until this point the apartment had remained totally dark, and she could see the intruder only as "a shadow." According to Catherine, however, defendant abruptly desisted from further intercourse, removed her bonds and gag, took her back into the living room, and turned on the lights. ⁴ For the next half hour the two sat naked on the couch, she on his lap, and chatted. Finally he asked her if she liked beer, and she [723 P.2d 1357] replied that she did; he volunteered to get some from his apartment, and told her where he lived. ⁵ He dressed and left on this errand; on his return with the beer he took his clothes off again, she got back on his lap, and the conversation resumed.

After another quarter of an hour, defendant suggested they take a shower together, and she agreed. As they entered the bathroom, however, the telephone rang. The caller was assertedly a "girlfriend" of Catherine named Mickie, who announced she was coming over to the apartment. Catherine relayed this fact to defendant, and told him that he could return at another time and she would cook dinner for him. According to Catherine, defendant then got dressed, wrapped the knife and screwdriver in an extra T-shirt he had brought, thrust them down the front of his pants, and left when Mickie arrived. Catherine testified she told Mickie she had been raped by a Marine, and Mickie gave her a strong sedative--a 100-milligram dose of a drug called Mellaril. ⁶ Mickie stayed for half an hour, and immediately after she left Catherine[31 Cal.3d 26] called the police. According to Catherine, it was 10 minutes before 1 a. m.

On cross-examination Catherine admitted that during their long conversation in the living room defendant told her numerous personal details about himself, e.g., that he lived in the next apartment building, that his name was Don, that he was 22 years old, that he was married and had a child, that he was a Marine but was not happy in the service, and that the next morning he had to go to Bridgeport, California, for cold-weather training. ⁷ She claimed that she engaged defendant in the foregoing conversation only because she was afraid he would do her further harm; yet she conceded that when defendant went to get the beer he left the knife and the screwdriver on her living room floor but that she did nothing about them, and that while he was gone she remained sitting naked on the couch. Although she had a telephone she did not call the police or anyone else for help, nor did she dress and go to the nearby apartment of the building manager who was admittedly "a big guy," nor did she even lock the front door. She also acknowledged that she did not know Mickie's last name, address, or telephone number, or where she was at the time of trial, and indeed had never seen her since the night in question. ⁸

On redirect examination Catherine testified that until defendant turned on the

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lights in the apartment, she thought the person having intercourse with her was an older man who resembled defendant and had flirted with her at the bar where she worked. ⁹

Police Officer Russell Lane testified that the telephone call reporting the rape came at 1:45 a. m., an hour later than Catherine claimed. He went immediately to her apartment and found her under the influence of alcohol: her breath had the smell of someone who "had been drinking quite heavily," her speech was slow and at times difficult to understand, and her walk was unsteady. She told the officer she had been brought home "very drunk" from Bud's Cove at midnight, that she fell asleep on the couch, and that she awoke in her bed at 12:30 a. m. She gave the officer a physical description of defendant, and repeated the personal [31 Cal.3d 27] information defendant had disclosed to her during their conversation. She then complained that her buttocks[723 P.2d 1358] hurt, and the officer took her to a local hospital.

At the hospital she was examined by a physician. He testified that he found a bruise on her right hip and "crease marks" on her wrists. But although the latter were consistent with her hands having been tied by a fabric, he could not tell their cause and described them as the kind of marks one receives from sleeping on wrinkles in the bed linen. She reported to the physician that she used "occasional Mellaril and alcohol frequently." He testified that Mellaril is "a major tranquilizer," and that in doses of 100 milligrams or more per day it is prescribed primarily for psychotic states, schizophrenia, and manic-depressive cases. ¹⁰

After the physical examination, Police Officer...