Rodriguez v. State

• Decision Date: 29 February 1984
• Docket Number: No. CX-83-1140,CX-83-1140
• Citation: 345 N.W.2d 781
• Court: Minnesota Court of Appeals
• Parties: Alfonso RODRIGUEZ, Jr., Appellant, v. STATE of Minnesota, Respondent.

Page 781

345 N.W.2d 781

Alfonso RODRIGUEZ, Jr., Appellant, v. STATE of Minnesota, Respondent.

No. CX-83-1140.

Court of Appeals of Minnesota.

Feb. 29, 1984.

Review Denied May 15, 1984.

Syllabus by the Court

1. The trial court properly allowed a previously hypnotized witness to testify about statements, portrait sketches, and photographic lineup identifications made by the witness prior to the hypnosis.

2. Prehypnotic recall testimony should only be admissible under the standards set forth in this opinion.

C. Paul Jones, State Public Defender, Ann Remington, Asst. Public Defender, Minneapolis, for appellant.

Hubert H. Humphrey, III, Atty. Gen., Paul R. Kempainen, Sp. Asst. Atty. Gen., St. Paul, Wayne Swanson, Polk County Atty., Crookston, for respondent.

Heard, considered and decided by POPOVICH, C.J., and PARKER and LANSING, JJ.

OPINION

POPOVICH, Chief Judge.

Rodriguez appeals from an order denying post-conviction relief from a conviction for attempted kidnapping and assault in the first degree. Appellant claims the trial court committed reversible error by permitting a previously hypnotized witness to testify about statements, portrait sketches, and photographic lineup identifications made by the witness prior to the hypnosis. We affirm.

FACTS

Mrs. Ardyce Whalen went for a walk in her Crookston, Minnesota neighborhood on the evening of April 13, 1980. Shortly after 8:10 p.m., Mrs. Whalen noticed a car twenty feet ahead of her turn its headlights off. She continued walking on Elm Street and noticed a man standing on the sidewalk in front of a neighbor's house. As she approached, the man asked Mrs. Whalen for directions.

At this time, Mrs. Whalen stood three to four feet from the man. She noticed he was a young Mexican American and looked at his face to determine if he had been one of her students. The man's face was partially lit by a nearby streetlight. They spoke for about one minute when the man grabbed Mrs. Whalen's arm and said, "Get in the car or I'll kill you." Mrs. Whalen struck the man with her mittened hand. She felt a jab in her right side and screamed. She pulled loose from the man and started running home. At that point, Mrs. Whalen turned around to obtain the license number of the car. She failed, but she noticed the car was dark colored.

Mrs. Whalen ran home and discovered bleeding from her side and elbow. She called the police, who took her to the hospital for treatment of stab wounds. At the hospital the following morning, Mrs. Whalen described her attacker as a Spanish American with medium length black hair, stocky build, approximately 5'4"' tall, smooth complexion, no facial hair, and in his early 20's. Mrs. Whalen, a portrait artist and teacher with 25 years experience, also provided the police with a rough portrait sketch of the man.

After drawing the sketch, police presented her with seven photographs for identification. Mrs. Whalen was unable to identify any of the men as her assailant. At 4:30 p.m. the same afternoon, a second photographic lineup was shown to Mrs. Whalen. She picked the appellant's picture as looking most like her assailant but believed the eyes of the man in a second photograph looked familiar.

On April 17, 1980, Mrs. Whalen assisted in preparing a composite of her assailant at the Grand Forks Police Department. She was not satisfied with the results. On April 21, 1980, Mrs. Whalen drew a second sketch of her assailant which closely resembled the appellant.

On April 25, 1980, Officer Qualley drove Mrs. Whalen to the Grand Forks Police Department to undergo hypnosis. Officer Qualley discussed the hypnosis with Mrs. Whalen during the drive, stating his expectations about the hypnosis. The hypnosis was conducted by a lay hypnotist and did not comply with the safeguards contained in State v. Mack, 292 N.W.2d 764, 771 n. 14 (Minn.1980). (Compliance with these safeguards was not possible because Mack was issued May 16, 1980).

During the videotaped hypnosis, Mrs. Whalen was shown the same eleven photographs shown to her at 4:30 P.M. on April 14, 1980. Mrs. Whalen positively identified appellant as her assailant for the first time during the hypnosis. She also confirmed her earlier descriptions of her assailant and provided additional information regarding his clothing. Mrs. Whalen was given a post-hypnotic suggestion to remember everything she had recalled under hypnosis.

At the Omnibus Hearing, Appellant moved to suppress all of Mrs. Whalen's identification testimony because of the hypnosis. The motion was denied. Appellant renewed the motion prior to trial. The trial judge denied the motion but ruled that Mrs. Whalen could not testify to identification made under hypnosis. The State agreed that there would be no reference to the hypnosis session during trial.

During trial, Mrs. Whalen identified appellant as her assailant. She reaffirmed her identification of the second photographic lineup. She testified that she was sure the second sketch of her assailant was accurate.

Michael Garcia, a friend of appellant's, testified that appellant was watching television at the Garcia home on the evening of April 13, 1980. Garcia testified that appellant left the Garcia home between 7:50 and 8:15 p.m. and returned about 20-25 minutes later. When appellant finally left the Garcia home that evening, he asked Garcia to tell his parents that he had been at the Garcia home all evening.

Another witness, Beth Anderson, testified she saw appellant leave the Garcia home at 7:50 p.m. driving a green car. Officer Qualley questioned appellant in his home on April 14, 1980. At that time, appellant told Officer Qualley he had been at the Garcia home from 7:30 to 8:30 p.m. on April 13, 1980. The Garcia home was in the vicinity of the crime scene. On June 11, 1980, the jury returned a guilty verdict on charges of attempted kidnapping and assault in the first degree.

ISSUE

Whether the trial court committed reversible error error by permitting a previously hypnotized witness to testify about statements, portrait sketches, and photographic lineup identifications made by the witness prior to the hypnosis.

ANALYSIS

1. The standard governing the admissibility of evidence gained through hypnosis is contained in State v. Mack, 292 N.W.2d 764 (Minn.1980). In Mack, the Minnesota Supreme Court held testimony of a "previously hypnotized witness concerning the subject matter adduced at the pretrial hypnotic interview may not be admitted in a criminal proceeding." Id. at 772.

The Mack standard is interpreted to exclude from trial only those recollections that are recalled for the first time during the hypnosis. "[O]nly matters disclosed under hypnosis which have not been previously and unequivocally disclosed in prehypnotic statements are barred from being testified to at a criminal trial." In re J.R.D., 342 N.W.2d 162 (Minn.App.1984); see also State v. Blanchard, 315 N.W.2d 427, 430-31 (Minn.1982); State v. Koehler, 312 N.W.2d 108, 110 (Minn.1981). ¹

In this case, Mrs. Whalen's description of her assailant under hypnosis did not differ from her prehypnotic descriptions, with the exception of information regarding her assailant's clothing. The trial court excluded all testimony concerning new recollections produced by the hypnosis. Mrs. Whalen's testimony was restricted to her prehypnotic recall, which included her initial description of the assailant, the first and second photographic lineups, and her portrait sketches. The hypnosis was not referred to during trial.

In Mack, the Minnesota Supreme Court suggested, without adopting, that police follow certain procedures when conducting hypnosis interviews. 292 N.W.2d at 771 n. 14. The safeguards are designed to produce an environment where hypnotized witnesses recall events without undue influence from police officers or others. These safeguards were not followed when Mrs. Whalen was hypnotized, although the session was videotaped. The hypnotist was a police officer who had attended a short training seminar.

A similar situation is found in State v. Koehler, 312 N.W.2d 108 (Minn.1981). In Koehler, police officers conducting the hypnosis had little training and were also eye witnesses in the case. Despite the tainted hypnosis, the case was remanded with an instruction allowing the witness to testify to facts "previously and unequivocally disclosed by him to the authorities, prior to hypnosis." Id. at 110.

In State v. Blanchard, 315 N.W.2d 427 (Minn.1982), a witness was allowed to testify at trial concerning memories refreshed by hypnosis. Although the testimony resulting from the hypnosis should not have been admitted, the court held this testimony was not reversible error because it was not prejudicial. The court based its finding on the availability of other witnesses and on the fact that the witness's "pre-hypnotic memory contained devastating evidence against defendant." Id. at 431.

In this matter, Mrs. Whalen's testimony at trial was identical with her prehypnotic statement. Moreover, no testimony was introduced at trial regarding memories recalled for the first time during the hypnosis. Mrs. Whalen's prehypnotic recall was substantial and damaging. Other witnesses' testimony about appellant's whereabouts at the time of the assault corroborated her identification. Accordingly, the order denying appellant's motion for post-conviction relief is affirmed in accordance with the rule set forth by this court in In re J.R.D.

2. Our examination of the record, however, reveals that the procedures used during the hypnosis session with Mrs. Whalen were less than optimal. We find that there was no prejudice in this case because Mrs. Whalen's prehypnotic statements and sketches, in combination with the corroborating testimony of other witnesses, were sufficient to sustain appellant's conviction. Likewi...