People v. Tunstall

• Decision Date: 05 July 1984
• Citation: 479 N.Y.S.2d 192,63 N.Y.2d 1,468 N.E.2d 30
• Parties: , 468 N.E.2d 30 The PEOPLE of the State of New York, Appellant, v. James TUNSTALL, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 192

479 N.Y.S.2d 192

63 N.Y.2d 1, 468 N.E.2d 30

The PEOPLE of the State of New York, Appellant, v. James TUNSTALL, Respondent.

Court of Appeals of New York.

July 5, 1984.

William L. Murphy, Dist. Atty. (Karen F. McGee, New York City, of counsel), for appellant

Julia Pamela Heit, New York City, for respondent.

OPINION OF THE COURT

JASEN, Judge.

The critical issue presented is whether a pretrial hearing must be held to determine whether a defendant's ability to cross-examine a prosecution witness has been unduly impaired as a result of that witness's having been hypnotized in an effort to learn additional details of the crime even though the hypnotic process did not lead to the discovery of any significant new facts and the witness's testimony at trial mirrored statements which she had made prior to being hypnotized.

In the early morning hours of May 4, 1979, a rape victim and her boyfriend were talking in his car while parked in front of her home. The couple noticed two men walk by the car once and then again from the opposite direction. Shortly thereafter, the two men returned, wearing ski masks and brandishing a pistol and a shotgun or a rifle. The man with the pistol, later identified by the victim and her boyfriend as defendant James Tunstall, crouched by the curb and aimed the weapon at the victim's head, while the other man, later identified as Robert Chamberlin, trained his gun on the boyfriend. The men then forced their way into the car, ordered the boyfriend into the back seat and drove away. After the boyfriend was robbed of $40, he was ordered out of the car. The two men then drove the victim to a nearby park where they raped and sodomized her. Afterwards, she was allowed to leave the car and the men drove away.

At approximately 10:30 a.m. on the same day, the victim reported the crime to the police and described the perpetrators and the details of the attack. The victim and her boyfriend returned to the police station on May 26, 1979 to view photographs of previous offenders. The boyfriend examined the arrays alone and positively identified both defendant and Chamberlin as the men who accosted him. The victim then independently identified the same two individuals as her attackers. Both men were subsequently arrested and charged with rape, sodomy, robbery and grand larceny. The victim and the boyfriend independently identified Chamberlin and defendant once again after viewing them in a series of lineups conducted on June 4, 1979.

On December 7, 1979, the victim again related the events of May 4 in detail to an Assistant District Attorney. This statement was videotaped. Immediately thereafter, she was hypnotized in an effort to refresh her recollection as to any details of the crimes which she might have forgotten. The only further details elicited, however, were that defendant was wearing an army jacket and Chamberlin was wearing a plaid flannel shirt. The victim never testified to those details at trial and the People made no attempt to introduce them by other means.

The trial began on May 28, 1980, at which time the prosecutor turned over certain prior statements of the victim (People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881) to the defense, including the June 7, 1979 videotape interview of the victim and the subsequent hypnosis session. The following morning, defense counsel moved to suppress "any in-court identification of my client, Mr. Turnstall by on the ground that "the only purpose the District Attorney had in subjecting to the procedure of hypnosis was to bolster her testimony." Defendant also requested that a hearing be held to examine "the methods used in the conduction of this initial interview and the interview by the psychiatrist under hypnosis." Defense counsel further requested that the videotape be transcribed so that he could use it at trial to cross-examine the victim. The prosecutor opposed all of defendant's motions, basically because he did not intend to use at trial any statements which the victim made while under hypnosis. He did, however, agree to make the videotape available to defense counsel in the event he wished to use it at trial. The court denied defendant's request for a pretrial hearing and also denied the motion to suppress any in-court identification made by the victim of defendant. The court, however, granted defendant's request that the videotape of the hypnotic session not be introduced during the trial. In doing so, the court ruled that statements made under hypnosis are inherently unreliable and, therefore, inadmissible. At a later point in the trial, the court offered defendant the opportunity to use the videotape to impeach the victim's direct testimony.

Defendant was convicted of five of the six counts of the indictment, the first degree robbery charge having been dismissed by the court at the end of the trial. The Appellate Division, 97 A.D.2d 523, 468 N.Y.S.2d 32, reversed and ordered a new trial to be preceded by a pretrial hearing "to determine 'the extent of the witness's prehypnotic recollection * * * and whether the hypnosis was so impermissibly suggestive as to require exclusion of in-court testimony with respect to such prehypnotic recollections' ".

While we agree with the Appellate Division that a pretrial hearing should have been held to determine what effect, if any, hypnosis had on defendant's ability to cross-examine the victim, we do not believe at this time that a new trial must be ordered. The order of the Appellate Division should, therefore, be modified accordingly.

The problems associated with allowing a witness who has previously been hypnotized to testify against a defendant at trial were recently given thorough consideration by this court. (See People v. Hughes, 59 N.Y.2d 523, 466 N.Y.S.2d 255, 453 N.E.2d 484.) In that case, we recognized that a witness may be affected in three primary respects as a result of having been hypnotized: (1) he may become susceptible to suggestions given intentionally or unintentionally by the hypnotist or others present during the session; (2) the subject may confabulate or intentionally fabricate incidents in order to fill memory gaps or to please those conducting the hypnotic session; (3) a witness who recalls an event under hypnosis which he had previously recollected may experience an artificially enhanced confidence in his subsequent recollection of that incident, thereby unfairly impairing defendant's ability to cross-examine that witness. (People v. Hughes, supra, at pp. 534-535, 546, 466 N.Y.S.2d 255, 453 N.E.2d 484.)

All three of these problems were at the forefront of our decision in Hughes. In that case, we stated that generally the extent of the witness's prehypnotic recollections establishes the boundaries of admissible testimony (People v. Hughes, supra, at p. 546, 466 N.Y.S.2d 255, 453 N.E.2d 484) and affirmed the order of the Appellate Division which granted defendant a new trial because the court denied the defendant's motion to suppress the evidence obtained during the hypnotic session, and...