State v. Atwood
| Decision Date | 10 April 1984 |
| Docket Number | No. 496072,496072 |
| Citation | 479 A.2d 258,39 Conn.Supp. 273 |
| Court | Connecticut Superior Court |
| Parties | STATE of Connecticut v. Thomas ATWOOD. |
Peter D. Markle, Asst. State's Atty., for the state.
Frederick P. Devine, Jr., Enfield, for defendant.
On September 26, 1982, at about 5:30 p.m., police officers of the town of Naugatuck responded to a "domestic complaint" at 39 School Street. At that address, the investigating officers opened a closet door and found a white male, later identified as the defendant, lying on top of a white female. The defendant had a bloodstained kitchen knife in his left hand and stab wounds in his chest. His wrists were cut and he was rushed to a hospital. The female, who was dead from knife wounds and/or strangulation, was identified as the defendant's wife, Mary Atwood. The defendant was subsequently charged with murder, giving rise to these proceedings.
In the defendant's motion here "for use of testimony based on a hypnotic interview," he alleged that he had "neither a present memory nor a memory at any time in the past of the immediately preceding events surrounding the death of Mary Atwood." Claiming that this disability precludes meaningful participation in his defense and deprives him of "his right to effective assistance of counsel," the defendant moves that the court issue a pretrial ruling on the admissibility of his testimony should he decide to testify after undergoing hypnotism or a sodium amytal interview designed to refresh his memory. Over the state's objection, the court decided to hear this motion and issue a decision in limine for these reasons: Should the matter be postponed to the time of trial and a court then decide the issue in favor of the defense, a delay would then be required while interviews were scheduled with the proposed examiner, a very busy practitioner. Further, it is likely that the court hearing the case would follow the procedures of some of the states which admit testimony obtained by means of hypnosis or narcoanalysis. In attempting to achieve reliability and to avoid contamination of the subject by suggestibility, those courts have prepared and imposed strict conditions on the interview process. Since those guidelines are usually quite detailed, this too would consume considerable time and would delay the trial.
Postponement of the hearing and disposition of this motion until trial would place the defense in an untenable position. As the time for trial approached, defense counsel would not know if his client's memory could be refreshed; if it were, he would not know if he were free to use the refreshed recollection. In effect, he would be starting trial without knowing if the defendant was even available as a witness.
The court heard this motion over all or part of seven nonconsecutive days which produced over 450 pages of testimony, much of it of a technical nature. Numerous chamber conferences were also necessary and, after oral argument, briefs were filed.
The defendant's motion alleges his inability to recall the events occurring immediately prior to the arrival of the police and bases his motion on his loss of memory, asserting that extraordinary 1 measures are required to enable him to assist in his defense and to enjoy effective assistance of counsel. In his brief, however, the defendant argues that the presence or absence of amnesia is of no consequence and that a defendant may be hypnotized and have his testimony admitted because a defendant cannot be denied the right to testify in his own behalf. He also argues that the state's concerns about the reliability of the process can be addressed by safeguards employed by those administering the interview. He also claims that the trier should weigh the value of this induced testimony but that all such testimony is admissible.
The state argues that the methods proposed by the defendant to retrieve memory are not reliable, and have not received general acceptance in the scientific community. It is also the state's contention that in order for the court to grant this motion, it must first find that the defendant is suffering from amnesia, and that the defense has not proved this to be so.
After the defendant testified as to his inability to recall the events immediately prior to his wife's death and his own hospitalization with allegedly self-inflicted wounds, the defense called Howard Zonana, a psychiatrist and a practitioner of hypnotism. Zonana discussed hypnotism at length and characterized it as an "investigatory tool with risks," and one best used when confirmatory data are available. He further stated that hypnotism does not guarantee truthfulness or accuracy, and that the subject is susceptible to suggestion. He agreed that the defendant in a criminal case would have motivation to "confabulate" under hypnosis. (Confabulation is the addition to incomplete memory of suggestions, self-created fantasy, and later acquired information.)
The defense then called Robert A. Novelly, a psychologist, who gave his opinion that the defendant was suffering from amnesia. He based that opinion on the defendant's history and personality, on his lack of a brain disorder, on the fact that he retains fragments of memory, and on his loss of blood. From this loss of blood and from a reading of the hospital record, the witness concluded that the defendant's brain was deprived of oxygen, a common cause of amnesia. Novelly, however, never spoke to the defendant's treating physician. While agreeing that there are risks of contamination, suggestibility, and unreliability in the proposed techniques, Novelly felt that those risks could be minimized by careful attention to the procedures utilized.
Novelly conceded, however, that the use of hypnotism and sodium amytal to recover memory has not received general acceptance in the scientific community. When asked if he would rethink his opinion that the defendant was amnesiac if he were to be told that there had been no oxygen loss to the brain, Novelly said he felt he would.
The state presented three witnesses, including Detective Dennis Clisham, who interviewed the defendant at the hospital where he was being treated for his allegedly self-inflicted wounds. This interview occurred two days after the wounded defendant and his deceased wife were discovered by the police. In his oral statement, the defendant is alleged to have recited details of the events preceding his wife's death, most of which he did not relate to Novelly. Nor were these details related by the defendant when he testified at this hearing.
Susan Teczar, an attending nurse, in addition to testifying about the visit of Detective Clisham, described the defendant's condition while he was in her care. She stated that medically he was fine and that, although he was periodically receiving a pain killer, he was cooperative, could talk, was conscious, and could follow instructions.
The testimony of Thomas H. Lyons, the defendant's attending physician, is of particular significance. Lyons gave permission for the defendant to be interviewed by the police on September 28, two days after the episode in question. He indicated he would have given that permission on September 27 as well since the defendant was stable and there was no medical reason to deny permission. He also stated that the defendant was able to converse at all times and that constant monitoring of his condition did not indicate a loss of the supply of oxygen to his brain. He was never put on a respirator and was never in need of oxygen.
The defendant's motion claims that the unusual techniques of hypnotism or a sodium amytal induced interview are necessary because the defendant has lost his ability to recall the events preceding and surrounding his wife's death and his own hospitalization. A reading of the transcript of the defense presentation in support of the motion indicates that the purpose of the testimony offered was, to a great extent, to support the allegation that the defendant was suffering from amnesia. In fact, counsel, in calling the defendant to the stand, outlined the limited purpose of his testimony--to state that he had no recall of the events leading up to his hospitalization. The bulk of Novelly's detailed testimony dealt with amnesia and included his opinion that the defendant was amnesiac. Since the defendant in his brief now asserts a general right to testify after hypnosis whether he is suffering from amnesia or not, the court will address this claim as well as the original one based on the alleged amnesia.
The defendant's claim that he is suffering the effects of amnesia was rebutted by the state's offer of testimony which introduced statements the defendant allegedly made to the police and to his father. The contents of those statements were not included in his interview with Novelly nor in his court testimony. Those statements would indicate that the defendant, at least on September 28, two days after the incident, was able to remember and relate what occurred on September 26.
Of significance on the issue of the defendant's amnesia is the testimony of Novelly, who placed great emphasis on the hospital record, from which he presumed that, as a result of the defendant's self-inflicted wounds and his blood loss, the accompanying speedup of pulse was indicative of a reduction in the supply of blood to his brain.
The treating physician, Lyons, stated, however, that the defendant, his patient, had never suffered a loss of oxygen. When told of this fact, Novelly indicated that he would reconsider his opinion that amnesia had occurred in the defendant.
On the basis of this evidence, the court must conclude that the defense did not meet the burden of proof on its allegation that the defendant was suffering from amnesia.
Although the finding above could be construed as conclusive of the issue presented by the defendant's motion, the facts and circumstances...
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