State v. Armstrong

Decision Date03 February 1983
Docket NumberNo. 81-2336-CR,81-2336-CR
Citation110 Wis.2d 555,329 N.W.2d 386
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Ralph D. ARMSTRONG, Defendant-Appellant.
CourtWisconsin Supreme Court

Edward G. Krueger, Madison, for defendant-appellant.

Edward S. Marion, Asst. Atty. Gen., for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

DAY, Justice.

This appeal is before this court by grant of a petition to bypass the court of appeals filed by the state pursuant to sec. 808.05, Stats., and Rule 809.60 1979-80. The appeal is from a judgment of the circuit court for Dane County, Hon. Michael D. Torphy, Jr., presiding, finding the defendant, Ralph D. Armstrong, guilty of violating sec. 940.01(1) 1 1 (first-degree murder) and sec. 940.225(1)(a) 2 (first degree sexual assault) and from an order denying the defendant's motion for post-conviction relief. The trial was to a jury.

There are four issues raised on this appeal. The principal issue concerns the state's use of hypnosis in an effort to refresh the recollection of Riccie Orebia. 3 The specific issue is: Did the state's use of hypnosis in an effort to enhance the recollection of a witness to a crime render inadmissible the subsequent identification by such witness of the defendant in a lineup and the subsequent in-court testimony of the witness regarding the events which were the subject of hypnosis?

The second issue is: Was the lineup identification of the defendant, under the totality of circumstances surrounding the procedure, sufficiently reliable so that such out-of-court identification could properly be admitted into evidence?

The third issue is: Was a color photograph of the victim taken at the scene of the homicide so inflammatory and prejudicial to the defendant that the trial judge abused his discretion in allowing it sent to the jury room?

The fourth and final issue is: Did the state breach its duty to disclose exculpatory evidence to the defendant when it failed to provide the defendant with an accurate copy of a parking ticket which had been received by the defendant and paid for by him with his check?

As to the first issue: we hold that the state, or other proponent, may use hypnosis to refresh the recollection of a witness to a crime providing that the proponent demonstrates that the subsequent hypnotically affected identification and testimony was not the result of an impermissibly suggestive hypnosis session and provided further that the other side is allowed to present to the jury expert testimony regarding the effect of hypnosis on recall. If challenged, the admissibility of a hypnotically affected identification or in-court testimony is to be determined by the court, preferrably in a pretrial suppression hearing. The proponent has the burden of demonstrating at such hearing to the satisfaction of the judge acting within his discretion that the conduct of the hypnosis session did not make the witness' testimony unreliable. Those requirements having been met in this case, we hold it was not error nor an abuse of discretion to admit the testimony of the previously hypnotized witness.

We also hold that the lineup procedure used by the state was not impermissibly suggestive. We further conclude that the trial judge did not abuse his discretion in allowing a photograph of the victim into the jury room nor did the state violate its duty to disclose exculpatory evidence to the defendant.

We therefore affirm the judgment and order of the trial court.

Charise Kamps, the victim, was brutally sexually assaulted and murdered early on the morning of June 24, 1980.

Ms. Kamps had been in the company of the defendant, his brother, Steve Armstrong, the defendant's fiancee, Jane May, and others the evening of June 23, 1980. During the course of the evening, the defendant, Kamps, and the others consumed cocaine and alcohol and smoked marijuana. Following a party at Ms. May's and dinner at a Madison restaurant, the defendant, Kamps and May went to a friend's house and then back to May's to watch television.

Shortly thereafter, according to the defendant's testimony, he and Kamps went to her apartment to have a drink and listen to records. They then went out, purchased cocaine and then returned to May's house. At approximately 10:45 p.m., according to the trial testimony of both the defendant and May, Kamps left May's to return to her apartment. 4 The defendant testified that he left May's for his apartment ten to twenty minutes later but ultimately returned to May's by 1 a.m. on June 24, 1980. May testified the defendant could have arrived back at her place as late as 3:30 a.m. but also admitted she had told friends that he had not returned all night. The latest time Kamps was known to be alive was between 11 and 11:30 p.m., when she called a friend in Prairie du Chien.

Brian Dillman, the victim's boyfriend, tried calling her from McGregor, Iowa, early in the morning of June 24, 1980, but the phone line was busy. After he failed repeatedly to reach her at home or at work, he called Jane May and asked her to check on Kamps. She went to Kamps' apartment and discovered Kamps' body at about 12:40 p.m. on June 24, 1980. She then went to the shop she managed and notified the police of the murder. She also called the defendant, told him what happened and asked him to come to the Kamps apartment, which he did.

In the course of the ensuing investigation, the defendant was interviewed by police regarding the events of June 23-24, 1980. He voluntarily submitted to a test which showed he had traces of blood under his fingernails and toenails and on his watch band. He attributed the blood to a cut on his knee and the fact that he had engaged in sexual relations with his girlfriend during her menstrual period. Other physical evidence connecting the defendant to Kamps' apartment was also found.

Doctor Robert Huntington, a pathologist, placed the time of Kamps' death at between midnight and 3:30 a.m. The defendant had testified that he was back in his apartment by midnight and was back with May by 1 a.m. The state countered the defendant's testimony with the testimony of Riccie Orebia. Orebia lived in the house next to Kamps' apartment building and sat on the porch of the house from 10:30 p.m. on June 23, 1980, until about 3:45 a.m. the next morning. At about 12:45 a.m., she saw a man she later identified as the defendant, in an older model white car with a black top driving down the street. The car turned a corner and a short while later came down the street again and parked in a lot across from the Kamps apartment. She saw a man cross the street and go into Kamps' building. A short while later he came out and crossed the street. About five minutes later, she saw the man cross the street again and go into the building and come out about five minutes later. This time he had no shirt on and she noticed he was muscular. Another five minutes passed and Orebia saw the man cross the street again and go into Kamps' building. He was shirtless and was running. About twenty minutes later, she saw the man exit the building. He was running faster than before. She testified that his skin was "shining." Six or seven minutes later she saw him in the white car with the black top driving out of the parking lot "very fast".

In an effort to refresh Ms. Orebia's recollection of the events she had witnessed on the morning of June 24, 1980, the police asked her to submit to hypnosis. The hypnosis session was conducted by Doctor Roger A. McKinley five days after the murder. Prior to being hypnotized, Orebia described the person she saw as being "pretty well-built", with big arms and a flat stomach, and having long dark hair. She also was very positive in stating she would be able to identify the man if she saw him again. She described the car she had seen as white with a black top and "pretty old."

Under hypnosis, Orebia's description remained substantially the same. She described the man as having dark, wavy hair covering the back of his neck, and as being of medium height with big arms, small stomach, fat nose and bushy, dark eyebrows.

Following the hypnosis session, Orebia viewed a lineup which included the defendant. All of the participants in the lineup were approximately the same height and two men had been provided with wigs "to have their hair more like everyone elses."

The lineup was conducted by having each participant handcuffed and led across the street near where Orebia had seen the man the morning of June 24, 1980. Each participant was accompanied by two officers. The defendant was the second subject to be viewed. He refused to cooperate and went limp as he was led across the street. Two other lineup participants also were carried across the street. As the defendant's head became visible above some bushes at the scene, Orebia gasped and stated, "Oh my God, that's him." The defendant was subsequently arrested and charged with first-degree murder and first degree sexual assault.

The defendant made two suppression motions before trial. The first sought suppresion of Orebia's lineup identification on the ground that the lineup was impermissibly suggestive. The second sought suppression of statements relative to identification made by Orebia subsequent to hypnosis.

A hearing was conducted on these motions. Extensive testimony was taken on the subject of hypnosis in general and on the hypnosis session with Orebia. It was agreed that the state would have the burden of proceeding on the issue of reliability regarding any statements relative to identification made by Orebia subsequent to hypnosis.

Following the hearing, the trial judge issued a joint decision on both suppression motions. He determined that the lineup procedure used was not impermissibly suggestive. He further determined that, while some suggestion regarding the defendant's height might have occurred during the hypnosis session, Orebia's lineup...

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    ...yet followed Hurd in requiring a pretrial hearing on the "suggestiveness" of the hypnotic session in each case. (State v. Armstrong (1983) 110 Wis. 555, 329 N.W.2d 386, 391-395.) Florida adhered to the old rule of Harding v. State (1968) 5 Md.App. 230, 246 A.2d 302, 306, i.e., that the fact......
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