Polk v. State
| Decision Date | 09 April 1981 |
| Docket Number | No. 781,781 |
| Citation | 427 A.2d 1041,48 Md.App. 382 |
| Parties | Kenneth Edgar POLK v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Arthur A. DeLano, Jr., Asst. Public Defender, with whom was Alan H. Murrell, Public Defender of Maryland, on the brief, for appellant.
Michael A. Anselmi, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen. of Maryland and Neal P. Myerberg, State's Atty., for St. Mary's County on the brief, for appellee.
Argued before GILBERT, C. J., and MOORE and LISS, JJ.
This appeal presents anew the issue of the admissibility of hypnotically induced testimony. 1 The testimony here was that of an eight-year-old boy, the prosecuting witness in the trial of appellant, a forty-year-old man, for alleged sexual offenses. Under the circumstances shown, and for the reasons stated, we reverse and remand for a new trial.
The appellant, Kenneth Edgar Polk, resided in St. Mary's County in a common-law relationship with Sharon K. Crusie, a divorcee, and her two subteen daughters. Their next-door neighbors, a family of four, included an eight-year-old boy named "Bobby." Sharon Crusie's younger daughter, Kim, was a playmate of Bobby's and the boy was a frequent visitor at appellant's home.
Appellant was charged in a four-count information with committing second and fourth degree sexual offenses unnatural or perverted sexual practices and assault and battery against Bobby on June 10, 1979. 2 The factual and procedural details of the case against Mr. Polk, relevant to this appeal, have to be distilled from the pretrial hearing on Polk's motion to suppress Bobby's testimony, 3 as well as the subsequent trial.
The State apparently disclosed to appellant's counsel prior to trial that Bobby had been subjected to hypnosis by a State Trooper, Sergeant Lloyd E. White. Appellant thereupon moved to suppress the testimony of the boy and/or the Sergeant on the ground that such testimony was inadmissible as a matter of law.
Some two weeks before trial, a hearing on the motion was held in open court. The only witness was Sergeant White. The transcript of the hearing discloses that White was a criminal investigator with the Maryland State Police, Annapolis Barracks, and a veteran of 20 years' service. He was the supervisor of the Mobile Crime Lab, a polygraph examiner, and had a college degree in psychology. He testified that he had trained for several months in the use of investigative hypnosis. This training consisted of attendance at a two-day seminar conducted by Dr. Daniel Stern, a clinical psychologist in Towson, Maryland, and the reading of three books on the subject of hypnotism. He had never qualified as an expert in hypnosis in any court.
According to the Sergeant, he was requested by Corporal Whitney of the Maryland State Police to engage in an hypnotic procedure with Bobby who was suffering an apparent "retrograde amnesia" pertaining to an incident which had occurred at appellant's home. Word of the incident had, it seems, been communicated to Bobby's mother by the mother of another little boy, a friend of Bobby's, and Bobby's mother then contacted the Maryland State Police. An hypnotic session took place at Sergeant White's office on November 20, 1979, approximately five months after the alleged incident. This was the third such experience by the Sergeant with a subject. 4
In a discussion with Corporal Whitney and the boy's mother prior to the session, Sergeant White was informed that the purpose of the hypnotic procedure was to determine whether Bobby could remember any sexual contact with appellant. There then ensued a "preliminary" interview with Bobby for 20 to 25 minutes, followed by an hypnotic session of some 25 to 30 minutes duration. The Assistant State's Attorney in charge of the case was present, as was the boy's mother. Defense counsel was not then in the case, no charges having been filed until December 27, 1979. The entire session was taped but Sergeant White testified that, through some inadvertence, the tape of the preliminary session had been erased.
At the suppression hearing, the remainder of the tape was played for the court. Near the beginning, the Sergeant called upon his subject to relax, and suggested that he recall an occasion when he was in a bedroom in appellant's house, with Kim, Mrs. Crusie's daughter. 5 After the boy responded that appellant came into the bedroom and sent Kim on an errand, the tape continued:
"Q. All right, so, you go back in the room and what did Kenny (appellant) say to you?
A. He asked me questions about sports.
Q. Okay. Take another deep breath. Relax, relax, deep breath. I see you are yawning and that means that you are completely relaxed. And, that is good. Okay, relax. Deep relax, okay. Now, after Kenny asked you about the sports, I want you to tell me what is the next thing he said?
A. He didn't say nothing else.
Q. Okay. Did he then walk over to you? Okay. Then what did he do?
A. He unzipped my fly.
Q. He unzipped your fly. And, did he take your penis out? All right. In your mind's eye, I want you to relax and take a deep breath. Excellent, that's good. Now, I want you to tell me the next thing he did? Completely relax.
A. He sucked my privates.
Q. Okay. And, after he finished sucking your privates, I want you to tell me what he said after that.
A. He said are we still friends.
Q. Are we still friends. And, what did you say?
A. Uh-uh.
Q. Now, after you said uh-uh now, take another deep breath. That's good. That's good. Okay, after you said uh-uh what did he say?
A. He didn't say nothing.
Q. What happened after he didn't say anything did you just
A. He opened the door and went out.
Q. Okay. Did he expose himself to you? Did he have his penis out?
A. What?
Q. Did he have his penis out?
A. Uh-uh.
Q. All right, okay. Were you afraid of Kenny? Why are you afraid?
A. Because of what he done.
Q. Are you still afraid of Kenny?
A. No, because he moved away." 6
Appellant's pretrial motion to suppress the testimony of the boy and/or the Sergeant contended that such testimony would be the product of "an inexact and unproven science" and was inadmissible as a matter of law. At the suppression hearing, defense counsel also argued that Sergeant White would not qualify as an expert in the field of hypnosis, that his questions to the boy were improperly suggestive and that there was an impermissible lapse of time more than four months between the date of the alleged incident and November 20, when the hypnotic session was conducted. The State argued that the testimony was admissible, and asserted that the question of its sufficiency "will be a matter for the court to deal with at the trial."
In denying appellant's motion to suppress, Judge Mattingly stated, in part:
At the trial, Sergeant White was not called. 7 The State's witnesses were, in the order presented, Bobby's parents, his twelve-year-old sister, and Bobby himself. When Bobby was called, appellant objected on the ground that it would be improper for him to testify "until a foundation was first laid" by the testimony of the Sergeant. The court overruled the objection, stating:
"The Court has already ruled on the motion to suppress and I can't tell the State how to try the case."
Bobby's testimony was substantially the same as his responses to Sergeant White at the hypnotic session. 8 On cross-examination, for reasons not disclosed on the record but presumably explainable as "trial tactics" appellant's counsel did not interrogate Bobby about the hypnotic procedure. Counsel came no closer to that subject than to elicit the boy's affirmation that he had no recollection of the incident and "forgot the nasty part" until he spoke with "Mr. White."
At the close of the State's case, appellant moved for judgment of acquittal on the ground that the alleged victim's testimony had been erroneously received. The motion was denied. The court again observed, "I don't think it is proper for me to tell the State who to call."
Appellant took the stand in his own defense and also presented the testimony of Sergeant White, Sharon Crusie, and three character witnesses. Oddly perhaps, the Sergeant was interrogated on a collateral point, unrelated to hypnosis. Mr. Polk's trial counsel also intended to offer the testimony of a psychologist, a Doctor Gravitz, that hypnotically induced testimony is unreliable and that the procedure employed by Sergeant White was improper.
The State's objection to any such testimony by Dr. Gravitz was sustained by Judge Mattingly on the ground that "there is no evidence whatsoever in this case of hypnosis."
At the conclusion of all the evidence, appellant again moved for a judgment of acquittal, arguing that the hypnosis procedure had not been "fully exposed in the evidence." Motions were also made by appellant to strike the boy's testimony and for a mistrial. All motions were denied. 9
On this appeal, two principal contentions are advanced. The first is that the trial judge erred in admitting hypnotically induced testimony. In support of this proposition appellant contends (a) that hypnotically induced testimony is per se inadmissible, and (b) that in this case the alleged victim's testimony was hypnotically induced by an unqualified police investigator. The second contention is that the court erred in excluding from the jury's consideration evidence that Bobby's testimony had been hypnotically induced. Specifically, appellant argues (a) that the State was improperly permitted, over objection, to call Bobby without ...
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