Rowley v. State

• Decision Date: 16 October 1985
• Docket Number: No. 184S34,184S34
• Parties: Paul O. ROWLEY, Jr., Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 1078

483 N.E.2d 1078

Paul O. ROWLEY, Jr., Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 184S34.

Supreme Court of Indiana.

Oct. 16, 1985.

Susan K. Carpenter, Public Defender, Melanie C. Conour, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Justice.

The petitioner-appellant, Paul O. Rowley, Jr., is before this Court appealing from the denial of his second petition for post-conviction relief. He was charged initially with two counts of armed robbery, a class B felony, Ind. Code Sec. 35-42-5-1 (Burns 1979 Repl.), recodified as Ind. Code Sec. 35-42-5-1 (Burns 1985 Repl.). Appellant received concurrent sentences of fifteen years. His convictions were affirmed on direct appeal in Rowley v. State (1979), 271 Ind. 584, 394 N.E.2d 928, and on post-conviction relief in Rowley v. State (1982), Ind., 442 N.E.2d 343. Appellant's sole issue in this appeal from denial of post-conviction relief is whether the admission of hypnotically related evidence at his trial violated appellant's right to confront witnesses.

These are the facts pertinent to this issue. On January 12, 1978, two armed men--one with a gun and the second with a knife--robbed the Geiser family. At 9:30 p.m. Drew Geiser was accosted by two men while he was putting his car in the garage. The men took Drew's watch and wallet and searched Drew's car. The men then followed Drew into his parents' house where they took additional money from the Geiser family and coins from Mr. Geiser's coin collection. During the course of this robbery the men threatened the Geiser family several times, stating they would kill for money. The garage sequence of this crime and the house sequence each were approximately four minutes in duration. While the Geiser house was fairly well lighted, the evidence is contradictory regarding the lighting conditions outside by the garage.

Drew testified that he told the police on January 12, 1978, shortly after the robbers left, that the knife-armed robber wore a ski cap, dark clothing, black and white tennis shoes and was a black male, 5'10"--5'11". The responding police officer, Thomas J. Winkel, testified Drew was "rather shook up and over excited at the time." Winkel talked with Mr. Geiser more than with Drew because Mr. Geiser was able to provide a better description.

Mr. Geiser gave a description of the gunman, co-defendant Cox, to Officer Virgil Vandagriff, and Vandagriff drew a composite of Cox. However, neither Drew nor his father was able to give a sufficient description of the knife-armed robber, or able to identify anyone from a photographic array shown to them at the police station. On January 18, 1978, Vandagriff hypnotized Drew. During the hypnosis session, Vandagriff interviewed Drew about the crime events and suspect description. While under hypnosis Drew described the robber who was armed with a knife. Vandagriff then gave Drew a post-hypnotic suggestion that he would retain a visual picture of the suspect. After hypnosis, with Drew's aid, Vandagriff made a composite sketch with the features of the accused, which was admitted into evidence at appellant's trial as State's Exhibit 1. The composite was based on the following description which Drew gave Vandagriff:

[M]ale negro, eighteen years of age, 5'10", one hundred forty-five pounds, slender build, dark complexion, oval face, brown eyes, medium nose, medium lips, short brown hair, spoke in a desperate voice, was wearing a dark coat but zipped up, was hip length, was wearing dark pants and had on black tennis shoes with high tops, and had on white soles on the tennis shoes; had on a blue ski hat that had a yellow rim, or a yellow trim around it.

Subsequently two lineups were conducted on February 8, 1978. At the first lineup Drew did not identify anyone, and his mother identified Michael Daniels. At the second lineup Drew identified appellant, his father identified co-defendant Cox, and his mother did not identify anyone.

At trial Drew testified appellant wore dark clothing, high top black and white tennis shoes, and a blue and yellow ski hat. Mr. Geiser testified Drew was literally shaking after the robbers left their house. Mr. Geiser never got a good look at the robber who was armed with a knife. Mr. Geiser stated appellant could possibly be this man, but that he could not positively identify appellant as the knife-armed robber. Drew identified appellant in court as the knife-armed robber. Appellant did not make a contemporaneous objection to either the composite drawing or the identification testimony.

Kevin Edmonds, who had criminal charges pending against him, testified appellant gave an extra-judicial confession wherein appellant admitted his participation in a robbery which broadly resembled the facts of this case. Edmonds also admitted he had told the police on another occasion that appellant had been involved in an unrelated murder charge and then later recanted.

The testimony of Drew Geiser and Kevin Edmonds and the composite were the central pieces of evidence against the defendant. The police did not find any identifiable fingerprints from the crime scene; a police search did not find any weapons or recover any stolen items; and appellant did not give a confession to the police.

Appellant argues the admission of hypnotically induced evidence violated his right to confront witnesses. He maintains the trial court improperly admitted the composite sketch and identification testimony which he alleges to be products flowing from the victim's hypnosis session. Appellant therefore maintains his convictions were based entirely upon inherently unreliable evidence, as little additional evidence was presented to sustain his convictions.

Appellant did not raise this issue in his direct appeal or first petition for post-conviction relief. The State contends that the appellant has waived his right to raise this issue now, and the trial court so found. In a recent series of cases discussing fundamental error, this Court has clarified what issues may be raised under Indiana Rules of Procedure for Post-Conviction Remedies Sec. 1. As Chief Justice Givan wrote:

[A]ny issue set forth in a post-conviction petition must be raised within the purview of the post-conviction rules, e.g., deprivation of the Sixth Amendment right to effective assistance of counsel, or be an issue demonstrably unavailable to the petitioner at the time of his trial and direct appeal.

Bailey v. State (1985), Ind., 472 N.E.2d 1260, 1263. In Bailey, the Court concluded that a claim based on a subsequent interpretation of law constituted "an issue demonstrably unavailable at the time of his trial and direct appeal." Bailey, 472 N.E.2d at 1263. Although this may entitle a petitioner to present the issue, whether the subsequent interpretation of law is one on which relief will be granted depends upon the extent to which this Court makes that interpretation retroactive. We therefore proceed to examine our decisions on hypnosis in light of principles governing retroactivity.

A. HYPNOSIS EVIDENCE

In Merrifield v. State (1980), 272 Ind. 579, 400 N.E.2d 146, the appellant argued the victim's identification testimony was improperly admitted because the police department hypnotized the victim several days after the crime occurred. This Court found an independent basis to support the identification. Moreover, the State did not offer any evidence from the hypnosis session at trial. The issue of the admissibility of hypnosis testimony and evidence obtained solely as the result of hypnosis was not presented in Merrifield. We subsequently held evidence derived from a hypnotically entranced witness to be inherently unreliable as not having probative value and therefore inadmissible. Strong v. State (1982), Ind., 435 N.E.2d 969. Such evidence should be excluded because hypnotically induced evidence is affected by confabulation, a process whereby the hypnotic subject fills in memory gaps with fantasy. The post-hypnotic subject is confident that any memory recalled is accurate and factually based, a conviction which cannot be tested through cross-examination. Pearson v. State (1982), Ind., 441 N.E.2d 468.

In this case, appellant argues admission of both the composite and the in-court identification violated his right of confrontation. The Strong court clearly held a composite which is the product of a hypnotic trance to be inherently unreliable. Admission of a hypnotically induced composite was deemed reversible error in Strong even though the hypnotic subject had both described the appellant and identified appellant from a photographic array before the hypnosis session. Here, Drew's pre-hypnotic description of the knife-armed robber was deemed to be so inadequate by the police that Winkel relied on Mr. Geiser for such information as he could provide, and Vandagriff used hypnosis to assist in making the composite.

Drew's hypnosis session was not tape recorded. Assuming arguendo the hypnotic session was impermissibly suggestive, the inquiry is whether the State demonstrated clear and convincing evidence the in-court...