State v. Brown, 906

• Decision Date: 21 July 1983
• Docket Number: No. 906,906
• Citation: 337 N.W.2d 138
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Joseph Lesley BROWN, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 138

337 N.W.2d 138

STATE of North Dakota, Plaintiff and Appellee, v. Joseph Lesley BROWN, Defendant and Appellant.

Crim. No. 906.

Supreme Court of North Dakota.

July 21, 1983.

Robert J. Snyder [argued], of Bickle, Coles & Snyder, Bismarck, for defendant and appellant.

John M. Olson, Sp. Asst. State's Atty. [argued], Gail H. Hagerty, State's Atty., and John J. Fox, Asst. State's Atty., Bismarck, for plaintiff and appellee.

PAULSON, Justice.

Joseph Lesley Brown appeals from a judgment of conviction entered on November 1, 1982, by the District Court of Burleigh County upon a jury verdict finding him guilty of felonious restraint. The major issue raised on appeal is whether or not a witness whose memory has been previously enhanced through the use of hypnosis may testify in a criminal trial in North Dakota. We conclude that a witness who has previously been hypnotized is not rendered incompetent to testify. Rather, we hold that hypnotism affects the credibility but not the admissibility of such testimony. For the reasons which follow, we affirm the judgment of conviction.

I. THE FACTS

At approximately 3 a.m. on June 4, 1982, Michelle Fender, a truck driver, was driving her truck south on U.S. Highway 83 several miles north of Bismarck. According to Fender, as she turned east onto a gravel road leading to the Cenex Asphalt Terminal, a person, later identified as the 19-year-old complaining witness ["Linda", a pseudonym], jumped out of the ditch and ran toward the truck, frantically waving her arms. Linda, who was wearing a softball uniform, began running back and forth in front of and alongside the truck and eventually climbed up on the front of the truck cab. Fender, who described Linda as "hysterical", said that Linda told her that she had been "raped" and "choked", that she had "wet her pants", and that she had broken her eyeglasses. Fender also described Linda's eyes as "crazy, just out of a horror movie". After some discussion, Fender offered Linda a ride into Bismarck for the purpose of obtaining help. During the trip to Bismarck, Linda calmed down somewhat, but remained generally incoherent. Upon arriving in Bismarck, Fender stopped at a gasoline service station and telephoned the police.

The police arrived and took Linda to a local hospital for an examination. While in the hospital emergency treatment room, Linda was interviewed by Burleigh County Deputy Sheriff David Schweitzer. Deputy Schweitzer said he initially observed that Linda "was under a great deal of emotional stress at the time, seemed a bit confused, a little disoriented", and that he was able to elicit only "bits and pieces" of information from her. Linda told Schweitzer that early in the evening of June 3, 1982, she had been playing softball. After the ballgames, Linda and her teammates drank some beer and then proceeded to the Pizza Hut Restaurant, where they ate pizza and drank some more beer. The next thing Linda remembered was driving north on U.S. Highway 83 with "Larry", her softball coach. However, Linda was unable to explain how she and Larry would have happened to have been in the car together. Linda told Schweitzer that she remembered the car turning off of the highway onto a side road and subsequently being driven into a field. Linda stated that at that point she thought that her companion became violent and attempted to have sex with her. She also recalled that her assailant started choking her and "screaming something about Vietnam". She also remembered him saying something about "Charlie". Besides identifying Larry as a possible suspect, Linda described her assailant as being "fairly well built" or as having a "husky build". Linda also told Schweitzer that she had "no idea" where her car was.

The doctor who conducted the medical examination of Linda also described Linda as "confused" and "upset". Although tests established that she had not been raped, the doctor determined that, because of the existence of petechial hemorrhages behind her eyes and ears, someone had tried to choke her.

At this stage, Linda's parents had been informed of the incident. After giving police the license number and description of the missing vehicle, a brown station wagon, her parents took her home.

At approximately 6 a.m. that same morning, police officers found the station wagon parked in a small park on the south side of Bismarck. The officers found the interior of the vehicle to be in a "very messy condition", with crushed beer cans scattered throughout and ice cream from a half-gallon container smeared over the back seat. Schweitzer stated that the hood of the station wagon felt "fairly warm to the touch".

While investigating the scene, the police officers discovered the defendant, Brown, walking in another area of the park carrying a yellow book bag and a clear plastic garbage bag containing McDonald's Restaurant food cartons. Brown was wearing a light blue T-shirt, blue jeans, a navy nylon jacket, and brownish-black soiled work boots. When questioned as to where he had gotten the book bag, Brown stated that he had found it on a picnic table behind some evergreen trees. The book bag contained several McDonald's Restaurant hamburger containers, a softball, a digital watch, a pair of eyeglasses, and a clutch purse containing Linda's identification. Brown also told the officers that he had been staying with a friend in Bismarck, but that he was not certain of the friend's address. Following a brief discussion with Brown, the police took possession of the book bag, and Brown was released pending further investigation.

In the meantime, Larry, Linda's softball coach, was questioned by officers of the Burleigh County Sheriff's Department and released.

Later that same morning, Linda, accompanied by her parents, went to the Burleigh County Sheriff's Department where she was interviewed by Detective William Yeck. Detective Yeck testified that Linda was still confused as to her recollection of the incident, but that she now knew Larry was not her assailant. Linda stated that she remembered attending a softball game and afterward going to the Pizza Hut Restaurant with her friends. At approximately midnight, they left the restaurant and she drove three of her friends home. She had no clear recollection of what occurred after dropping off the last person. She remembered traveling north on Highway 83, but that she was not the person driving the vehicle. She also remembered kicking at the brake pedal in an attempt to stop the vehicle. She further related that the car went into the ditch or median, and then was driven south toward Bismarck. Linda remembered the car eventually turning left onto a gravel road, proceeding for a short distance, and again turning left into a field near a row of trees. She said that at this point, the person who had been driving the car began to choke her. She struggled with the individual, somehow broke free, and escaped from the vehicle. As she watched, the person then drove off with her car.

Linda also remembered walking out of the field onto the gravel road and heading westbound toward the highway. She also told Detective Yeck that she recalled coming upon a parked truck with a female driver, "waking the truck driver or getting the attention of the truck driver in some way and requesting help".

When questioned as to the identity of her assailant, Linda described him as being "heavy set", and wearing blue jeans and leather work boots. She also told Detective Yeck that the individual had long dark hair, and that she thought he had a beard, but that the beard was bushier at the chin than anywhere else on his face. She could not remember if it was a goatee or if it was a beard that was just more pronounced at the chin.

Following the interview, Detective Yeck, in an effort to help restore Linda's recollection of the events of the previous evening, transported her and her parents north on Highway 83 in a Burleigh County Sheriff's Department patrol car for the purpose of attempting to ascertain the scene of the assault. While driving north on Highway 83, still within city limits, the patrol car passed a male Native American individual walking northbound along the highway. Upon seeing the person, Linda, who was seated in the front seat of the patrol car, "had a reaction", according to Yeck. Detective Yeck testified that "She began to kind of tense up and choke, and she automatically reached behind her and locked the squad car door". Linda's father, who was seated in the back seat with his wife, testified that Linda "immediately lurched down in her seat and reached over and shoved down the door lock on the side of her door and then immediately looked straight ahead and just kind of stared". When asked by Yeck whether or not the person walking along the highway looked familiar to her, Linda replied that she was not sure, but that the person could be her assailant.

Detective Yeck turned the patrol car around and passed the individual again so that Linda could have another look at the person. Yeck then called for assistance from the Burleigh County Sheriff's Department. Another squad car arrived and the individual was detained at the scene and questioned. The person turned out to be the defendant, Brown.

Yeck parked his vehicle behind the other patrol car alongside the highway, in order to give Linda an opportunity to obtain a clear look at the individual. Linda again stated that, although there was a possibility that the person could have been her assailant, she was not sure.

Brown was then transported in the other patrol car to the Burleigh County Jail for questioning. Yeck proceeded north with Linda and her parents and eventually discovered fresh vehicle tracks in a field near the Cenex Asphalt Terminal. Linda recognized the field as the place where she had been attacked. They then returned to the Sheriff's Department.

While Brown was being processed at the Sheriff's Department, Linda sat on a chair in a...