Peterson v. State, 780S200

• Citation: 448 N.E.2d 673
• Decision Date: 11 May 1983
• Docket Number: No. 780S200,780S200
• Parties: Anthony E. PETERSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 673

448 N.E.2d 673

Anthony E. PETERSON, Appellant, v. STATE of Indiana, Appellee.

No. 780S200.

Supreme Court of Indiana.

May 11, 1983.

David M. Adams, Bruce A. Boje, Castor, Richards, Adams & Boje, Noblesville, for appellant.

Linley E. Pearson, Atty. Gen., Latriealle Wheat, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

On July 12, 1979, Defendant-Appellant Anthony E. Peterson was found guilty of murder by a jury in the Hamilton Circuit Court. After further deliberation, however, the jury did not recommend the death penalty. The trial judge subsequently sentenced Peterson to fifty years imprisonment. Although several meritorious issues are presented to us in this direct appeal, we consider only one issue pertinent as we find that Appellant's conviction must be reversed. The issue upon which we reverse concerns the identification testimony of State's witness Gary Szeszycki, who was able to identify Appellant Peterson only after having been hypnotized.

On October 25, 1978, Marjorie Carter worked as a cashier at Brock's Pharmacy in the 3800 block of 38th Street in Indianapolis. Specifically, she testified that she worked with Karen Jeter behind the cashier counter at the front of the store. At approximately 5:15 p.m., Carter observed a young man walk into the store and proceed to the rear where he disappeared from her view. At about 5:37 p.m., Carter was approached at the cashier counter by two other young men, one of whom pulled a shotgun on her. The two men placed Carter, Jeter and the store's customers on the floor and took various objects from them as well as money from the cash register. Shortly thereafter, Carter heard a gunshot from the back of the store. Carter then saw the man whom she observed walking into the store at 5:15 come from the back of the store wearing a mask over his face and carrying a shotgun. He had Gary Szeszycki, the store's stockboy, in tow. The three men walked out the store's front door with Szeszycki. Szeszycki returned a few minutes later and the police alarm was sounded. Carter initially could not identify Peterson as the man who came into the store at 5:15 and walked to the rear, later emerging with a mask over his face. She did, however, subsequently determine that Peterson was that man and, over objection, identified Peterson at trial.

Gary Szeszycki testified that he was near the prescription department in the rear of the store when a young man came to the rear of the store at approximately 5:15. Szeszycki said that the man asked him where he could find some asthma medicine. After assisting the man, Szeszycki resumed his stock duties but soon noticed that the same young man was behind the prescription counter with Pharmacist John Stockdale. Knowing that customers ordinarily were not allowed behind the counter, Szeszycki approached the counter only to discover that the man had a gun pointed at Stockdale. The man ordered Szeszycki and Stockdale, at gunpoint, to a different location in the store. Stockdale told Szeszycki to remain calm and to do what the gunman directed as the gunman followed Stockdale, who followed Szeszycki. The man ordered Szeszycki and Stockdale to return to the pharmacy department. When they were again near the prescription counter, Szeszycki heard a shot and felt a blow to his head. He did not become unconscious. Szeszycki heard a man come from the front of the store and ask: "What's taking so long?" This man and the gunman grabbed Szeszycki by the arms, pulled him to his feet and took him into the pharmacy area. Szeszycki there noticed John Stockdale lying on the floor in a pool of blood. The two men demanded to know where certain drugs were kept and ordered Szeszycki to aid them in collecting the drugs. After the two seemed satisfied with what they had collected, they took Szeszycki to the front of the store. The three men then left the store taking Szeszycki out into the parking lot where they released him. The man who came into the store at 5:15 and who apparently shot Stockdale said to Szeszycki: "If you identify me, I will kill you."

When the police came to investigate, Szeszycki could recount the details of these crimes but could not identify any of the perpetrators. After three men were subsequently arrested in Muncie on a tip from a police informant, Szeszycki was unable to identify the man who shot Stockdale from a photographic array which included Peterson's picture. Szeszycki also attended a lineup including Peterson but again was unable to identify Peterson or anyone else as the person who shot Stockdale. Szeszycki subsequently agreed to be hypnotized in an attempt to aid his memory recall. On January 29, 1979, Detective Sergeant Virgil Vandagriff of the Marion County Sheriff's Department hypnotized Szeszycki at the Indianapolis Police Department's Headquarters. After this one session, Szeszycki identified a photograph of Peterson as the gunman behind the prescription counter. He also selected a photograph of a man he called "the second guy."

Peterson consistently objected to Szeszycki's testimony because of the use of hypnosis on Szeszycki. Peterson initially filed with the trial court a Motion to Suppress. After a hearing, this Motion was overruled. Peterson later filed a Motion in Limine, which also was overruled. Finally, Peterson objected to Szeszycki's testimony at trial. The trial judge overruled Peterson's objection but indicated that the record would reflect Peterson's continuing objection to Szeszycki's testimony. Peterson's objection to Szeszycki's identification testimony following hypnosis is based upon the following three grounds:

1. hypnosis has not gained such general acceptance in the scientific community so as to constitute a reliable and legally valid procedure for enhancing memory 2. permitting Szeszycki to testify and to identify Peterson after having been hypnotized denied Peterson his right to properly confront and cross-examine Szeszycki; and

3. by subjecting Szeszycki to hypnosis, the State may have destroyed material evidence by tampering with his original memory of the events in question.

Although this Court has considered hypnosis before, the specific issue now before us is new to Indiana. In Strong v. State, (1982) Ind., 435 N.E.2d 969, reh. denied, Witness Miller observed Defendant Strong murder her husband while standing three to four feet away from her. Prior to being hypnotized, Miller provided the police with Strong's description and selected his photograph from an array of photographs. Sergeant Vandagriff, the hypnotist in the instant case, hypnotized Miller to obtain a drawing of the perpetrator. The composite picture drawn from the description Miller proffered while in a hypnotic trance was admitted into evidence over Strong's pretrial suppression motion and objection at trial. Justice Prentice authored this Court's opinion which held that evidence derived from a witness while in a hypnotic trance is inherently unreliable and should be excluded as having no probative value. We held specifically:

"Assuming, arguendo, that hypnosis can effect recall not otherwise attainable, the product is not susceptible of cross examination and should be excluded for this reason alone. The record shows that the composite drawing was such a product. It was, therefore, error to admit it into evidence."

Strong, 435 N.E.2d at 970. We further addressed Miller's in-court identification of Defendant Strong as follows:

"Assuming, arguendo, that the hypnotic session was impermissibly suggestive, we must, nevertheless, determine whether or not the State demonstrated, through clear and convincing evidence, that the in-court identification of the defendant has a factual basis independent of the hypnotic session. Merrifield v. State, (1980) Ind., 400 N.E.2d 146, 149; Williams v. State, (1976) 265 Ind. 190, 197, 352 N.E.2d 733, 740. The factors that we consider in determining whether or not a potentially tainted identification has a sufficient independent factual basis are reviewed in Morgan v. State, (1980) Ind., 400 N.E.2d 111, 113, and are in substantial compliance with the due process requirements of Manson v. Brathwaite, (1977) 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154."

Id. The record in Strong showed that on the day following the murder and some five days before Miller's hypnotic session, Miller selected a photograph of Strong as being the perpetrator. Moreover, Miller testified at trial that she had seen Strong on several occasions prior to when she first saw him on the day of the murder. We found, therefore, ample factual evidence of a sufficient basis independent of hypnosis to support Miller's in-court identification.

In the instant case, Szeszycki first identified Peterson's photograph on the day after his hypnotic session. He subsequently identified Peterson in person in court. Szeszycki's renewed memory thusly resulted from his hypnotic session although it was not the same type of product as Miller's composite drawing in Strong. This difference is insignificant, however, since both products are the direct results of a hypnotic session and must satisfy the same test to constitute probative evidence. We note that Szeszycki's identification testimony cannot be supported by any factual basis independent of his hypnotic session. Szeszycki could not explain how and why he was suddenly able to identify Peterson. Furthermore, he could not relate his identification to any facts relative to the observations he made during Stockdale's murder nor could he explain his identification by referring to any particular incident during his hypnotic session, except that Vandagriff told him that after the session he would remember. Szeszycki simply testified at trial that he was then able to identify Peterson as the murderer. This brings us to Peterson's precise issue which is whether or not a previously hypnotized witness should be permitted to testify in a criminal proceeding...