State v. Clark

• Decision Date: 12 June 1986
• Docket Number: No. 8673,8673
• Citation: 104 N.M. 434,722 P.2d 685,1986 NMCA 58
• Parties: STATE of New Mexico Plaintiff-Appellee, v. Terry D. CLARK, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 685

722 P.2d 685

104 N.M. 434

STATE of New Mexico Plaintiff-Appellee, v. Terry D. CLARK, Defendant-Appellant.

No. 8673.

Court of Appeals of New Mexico.

June 12, 1986.

Certiorari Denied July 23, 1986.

[104 NM 435] Paul G. Bardacke, Atty. Gen., Barbara F. Green, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Jacquelyn Robins, Chief Public Defender, Wendy York, Asst. Public Defender, Santa Fe, for defendant-appellant.

OPINION

GARCIA, Judge.

Defendant was charged with kidnapping and first degree criminal sexual penetration, contrary to NMSA 1978, Section 30-4-1(A) and Section 30-9-11 (Repl.Pamp.1984). Prior to trial, defendant filed a motion to exclude all in-court identifications made by the victim. Additionally, defendant moved for a change of venue and for individual voir dire of prospective jurors. His motions were denied and at trial, evidence was presented concerning the victim's photographic identification of defendant. The victim also made an in-court identification. Defendant was convicted and he takes a timely appeal.

ISSUES

Defendant raises issues relating to the use of hypnosis, identification and the fairness of the court's proceedings. An additional issue, appearing in his docketing statement, but not briefed, is deemed abandoned. State v. Gammill, 102 N.M. 652, 699 P.2d 125 (Ct.App.1985).

1. Whether the trial court erred in permitting the "hypnotically enhanced testimony" of the victim.

2. Whether the trial court erred in allowing the in-court identification of defendant.

3. Whether the trial court erred in refusing to grant a change of venue.

4. Whether the trial court erred in barring individually sequestered voir dire.

FACTS

The victim was a six-year-old child who was abducted while walking from school. A man pulled her into a car and drove to a brushy, isolated area. The child's vagina was penetrated, probably digitally, until the child bled. The assailant pushed the child out of the car and sped away. Although bleeding profusely, the child walked approximately one mile to a house, where she sought assistance.

The police were summoned. In the child's interview with police, she described the assailant as a white man, not a boy, approximately the age of her father. She indicated the man was dressed in blue pants, a blue checked shirt and had short hair. The child identified the car as a little white and blue car with a blue interior with "baby stuff" inside. The "baby stuff" was further identified as the "stuff" babies sit in.

The child was taken to a hospital for medical care and an examination. Medical specialists confirmed that the child's vagina had been penetrated and that the child suffered first degree lacerations.

Two witnesses, who live near the scene of the crime, testified that they observed a vehicle speeding away about the time the crime was committed. One witness identified the car as a white sports car with blue stripes; the other described the vehicle as a white Camaro with Z-28 markings. The vehicle sped past one witness at approximately 3:15 p.m.

The police broadcast a description of the vehicle and were soon flooded with calls and tips. Suspicion focused on defendant, who owns a white Camaro with blue stripes and a blue interior. He has two child restraint seats in the back of his vehicle. When the police arrived at defendant's residence, they noted that the carpet and seat on the passenger side of defendant's Camaro were wet. Damp floor mats from the passenger's side were hung on a fence to dry. The carpet, seat and floor mats on the driver's side were not wet. The police took photographs of defendant and his vehicle. Additionally, they seized blue checked shirts from his home.

The two witnesses who had observed the vehicle near the scene identified the photograph of defendant's car as being similar to the car they had seen speeding away. The child, however, was unable to identify either the vehicle or the articles of clothing confiscated by police.

Further investigation indicated that defendant had not gone to work on the day of the incident. School let out at approximately 2:45 p.m. After the incident, the child walked to a house for help; she arrived at 3:15 p.m. The investigation indicated that defendant was home sometime after 4:00 p.m., when his boss arrived to visit with him. Additionally, evidence was presented that defendant's wife received a telephone call from defendant at 3:00 p.m.

Two days after the incident, the child was taken to a hypnotist to see if hypnosis could assist the child in recalling details or information which she may have forgotten or suppressed. The hypnotist was neither a psychiatrist nor a psychologist, but rather, a private investigator and polygrapher. He had no experience in forensic hypnosis and had never hypnotized a child. In two sessions, one on October 10th, the other on October 15th, he sought to induce a hypnotic state.

In both sessions, the child was frightened, agitated and uncooperative. She resisted the hypnotist's efforts. She cried and wanted to go home. The hypnotist and others present during the sessions, including individuals investigating the case, repeatedly urged the child to "let herself go" and allow herself to be hypnotized so that the police "could catch the guy."

No details of the incident were suggested to the child or discussed during the sessions. Rather, the child was told that she would remember more and more about the incident. No suggestions were made to the child, excepting that she would remember all the things she was forgetting. No photographs were shown to the child during the process, nor was the child questioned about the attack.

On October 17th, two days after the second hypnotic episode, the child was shown a photographic array consisting of nine photographs, including a photograph of defendant. The photographs were shown to the child one at a time. Defendant's was the fifth in line. As each of the first four were handed to her, the child shook her head no. As the fifth photograph was handed to her, the child shook her head indicating yes. She was asked if she was sure, and she responded yes. The remainder of the photographs were shown to the child and she reviewed them. She said, "No, that's the one," and went back to defendant's photograph.

The child subsequently made an in-court identification of defendant. Upon being asked how she knew that defendant was the one who hurt her, she replied, "I look at him." Both identifications were the subject of defendant's motion to exclude.

HYPNOTICALLY ENHANCED TESTIMONY

State v. Beachum, 97 N.M. 682, 643 P.2d 246 (Ct.App.1981), is the leading New Mexico case on the admissibility of "hypnotically induced testimony." In that case, the victim of a rape and robbery identified defendant's voice in a lineup procedure, but could not make a positive visual identification. Several weeks later, the witness was hypnotized by a police chief in a session attended by numerous individuals associated with the investigation. While in a hypnotic state, the victim was shown a photographic array which included a photograph of defendant. She identified defendant during hypnosis and again immediately after the session.

Defendant sought to exclude all of the victim's testimony, and after a hearing, the Beachum trial court did not allow the victim to testify to any evidence "developed from the hypnotic sessions." The trial court, however, allowed her to testify to the prior voice identification and to details of the rape and robbery.

On appeal, this court analyzed the utility of hypnosis as a tool for refreshing the memory of witnesses or crime victims. The court examined the various approaches taken by other jurisdictions and ultimately adopted an approach espoused by the New Jersey Supreme Court in State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981). In State v. Beachum, this court indicated that pre-hypnotic recollections could be admitted at the discretion of the court, "but post-hypnotic recollections, revived by the hypnosis procedure, are only admissible in a trial where a proper foundation has also first established the expertise of the hypnotist and that the techniques employed were correctly performed, free from bias or suggestibility." Beachum, 97 N.M. at 688, 643 P.2d at 252.

The Beachum court rejected the "per se" admissible or "per se" inadmissible approach approved by other jurisdictions. See Comment, A New Standard for the Admissibility of Hypnotically Refreshed Testimony, 63 Wash.U.L.Q. 325 (1985). Contreras v. State, No. 3042 (Alaska April 18, 1986); Rock v. State, 288 Ark. 566, 708 S.W.2d 78 (1986). Instead, this court adopted a reasoned approach which conditions the admissibility of hypnotically refreshed testimony upon adherence to procedures which make the testimony more reliable. Those procedures are contained in six guidelines fashioned by the New Jersey Supreme Court in State v. Hurd and adopted in New Mexico in State v. Beachum.

Defendant argues that the court erred in allowing the victim to testify. He contends that her testimony was irreparably tainted by suggestions given to her during the hypnotic sessions. Relying heavily on the undisputed failure of the hypnotic procedure to conform to the Beachum guidelines, defendant argues that the victim's "hypnotically enhanced" testimony should have been excluded.

At the conclusion of the evidentiary hearing on defendant's motion, the court ruled that whether or not the child was under hypnosis to any degree, the identification was not made during the hypnotic session. The court determined that the testimony was not "hypnotically revived;" therefore, the Beachum standards did not apply. The trial court determined that the fact of the hypnotic sessions went to the weight of the child's testimony, not to its admissibility.

Our task is not to reweigh the evidence to determine whether the child was or was not hypnotized during the sessions, but only to determine whether the...