State v. Iwakiri, No. 14316

• Court: Idaho Supreme Court
• Writing for the Court: BAKES; DONALDSON, C.J., and McFADDEN; SHEPARD; BISTLINE; HUNTLEY
• Citation: 682 P.2d 571,106 Idaho 618
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Juanita IWAKIRI, Defendant-Appellant.
• Docket Number: No. 14316
• Decision Date: 07 May 1984

Page 571

682 P.2d 571 106 Idaho 618 STATE of Idaho, Plaintiff-Respondent,
v.
Juanita IWAKIRI, Defendant-Appellant. No. 14316. Supreme Court of Idaho. May 7, 1984.

[106 Idaho 620]

Page 573

R.D. Toothman, Boise, for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for plaintiff-respondent.

BAKES, Justice.

On March 30, 1977, Brandi Summers and Tiffany Wise disappeared from their home in San Bernardino, California, after their mother, Beverly Wise, was murdered. The older girl, Brandi, was the natural daughter of Beverly and her first husband, Roy Summers, while Tiffany was the daughter of Beverly and Claude Wise, Beverly's husband at the time of the murder.

The girls and Roy Summers were subsequently sighted in various locations in Nevada and the southwest. In 1980 a Garden City resident positively identified Brandi as having been in Boise from viewing a picture that investigators ran in The Idaho Statesman. Further investigation revealed witnesses who could place both girls in the care of appellant and led ultimately to appellant's arrest in Boise in 1980.

At appellant's trial on kidnapping charges the testimony of Rebecca Boyer was presented. Boyer had been hypnotized twice prior to trial in order to refresh her memory. The first hypnosis session was conducted by a detective with the Boise Police Department. Also present at that session were Boyer's attorney, Robert Aldridge, another detective, two investigators, an operator and recorder. Defense counsel was aware of the session, part of which was tape recorded. The second session took place shortly before trial at the Boise Hypnosis Center and was conducted by a Dr. Streib. The existence of a second hypnosis session was not revealed during discovery.

The key portion of Boyer's testimony consisted of an account of having seen the two missing children in appellant's home. She also testified to seeing a man, later identified as Roy Summers, in the house.

The testimony of attorney Robert Aldridge, who was under subpoena, was also presented at trial. In 1977 Boyer had referred appellant to Aldridge, and on two occasions in the summer of 1977 appellant had contacted Aldridge by phone to talk to him about adoption questions she had. Both conversations resulted in Aldridge informing appellant that he could not or would not take her case. Preparatory to trial, Aldridge and appellant had a third conversation wherein she told him to tell her defense attorney, Mr. Wyman, anything Wyman wanted to know. At trial, the judge ruled that the 1977 communications between appellant and Aldridge were privileged communications, but the privilege had been waived. Aldridge was ordered, over the objection of appellant, to testify to the content of the two conversations.

Appellant was convicted of second degree kidnapping and sentenced to an indeterminate[106 Idaho 621]

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term of five years. She was granted probation after four months and her conviction was later reduced to a misdemeanor.

On appeal, appellant contends that the trial court erred in two respects: (1) by admitting the testimony of a witness who had been hypnotized to refresh her recollection; and (2) by ruling that appellant had waived her attorney client privilege and allowing the testimony of Robert Aldridge to be admitted. We will consider the latter allegation first.

I. WAIVER OF ATTORNEY-CLIENT PRIVILEGE

The trial court was correct in ruling that the 1977 phone conversations between appellant and Aldridge were privileged. Communications between attorney and client made in the course of professional employment are protected by the attorney-client privilege. I.C. § 9-203(2). The privilege extends to communications made with a view toward employing the attorney by a potential client, whether or not actual employment results. People v. Squitieri, 49 A.D.2d 374, 375 N.Y.S.2d 124 (1975); see also Com. v. O'Brien, 377 Mass. 772, 388 N.E.2d 658 (1979). The trial court's ruling that the privilege had been waived, however, was erroneous. I.C. § 9-203(2) provides that an attorney cannot be examined regarding confidential communications made in the course of employment "without the consent of his client." The statute thus makes it clear that the client is the holder of the privilege. Accordingly, only the client can waive the privilege. The only possible ground for waiver in the instant case arises from appellant's directions to Aldridge that he tell Wyman, her defense attorney, anything Wyman wanted to know. Her obvious purpose was to ensure that Wyman was as well prepared as possible for her trial. As such, the communications remained privileged. It is well established that communications between attorneys for the same client are protected by the attorney-client privilege in the absence of any showing of waiver. See Annot., Attorney-Client Privilege As Affected By Communications Between Several Attorneys, 9 A.L.R.3d 1420, 1424 (1966). There being nothing to indicate that appellant intended to waive the privilege, the subject communications were protected.

The improperly admitted testimony was highly prejudicial. Aldridge testified that he responded to appellant's statement that she had an adoption question she wanted to ask, by the following statement:

"Wait a second. I don't handle black market or under-the-counter types of adoptions. I will handle them if they are health and welfare type of adoption or if there is some religious or other organization involved that has a child, but I don't take things under the counter, next of kin or otherwise." Tr., p. 1617, lines 16-22.

It was not until sometime after he completed that statement that he turned down potential employment by appellant. ¹ It was therefore within the scope of the attorney-client privilege and should not have been admitted. Its prejudicial effect is obvious and mandates reversal of the conviction. See State v. Goodrich, 97 Idaho 472, 546 P.2d 1180 (1976); State v. White, 97 Idaho 708, 551 P.2d 1344 (1976), cert. den. 429 U.S. 842, 97 S.Ct. 118, 50 L.Ed.2d 111.

II. ADMISSION OF HYPNOTICALLY REFRESHED TESTIMONY

Appellant also assigns as error the admission of the testimony of a witness whose memory was hypnotically refreshed. Because we reverse this case for a new trial, we must give the trial court some direction on the admissibility of hypnotically refreshed testimony. This is an issue that has received a great deal of attention in recent years, in both law review articles and judicial opinions. See, e.g., Beaver, Memory Restored or Confabulated by Hypnosis[106 Idaho 622]

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--Is it Competent? 6 Univ.Puget Sound L.Rev. 155 (1983); Falk, Post-hypnotic Testimony--Witness Competency and the Fulcrum of Procedural Safeguards, 57 St. John's L.Rev. 30 (1982); Testimony by Previously Hypnotized Witnesses: Should It Be Admissible? 18 Idaho L.Rev. 111 (1982); Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Cal.L.Rev. 313 (1980). See also, People v. Gonzales, 415 Mich. 615, 329 N.W.2d 743 (1982); State v. Patterson, 213 Neb. 686, 331 N.W.2d 500 (1983); State v. Brown, 337 N.W.2d 138 (N.D.1983); State v. Armstrong, 110 Wis.2d 555, 329 N.W.2d 386 (1983).

The issue presented in this case is: Does the fact that a witness has been hypnotized prior to trial to refresh memory render that witness incompetent to testify? This is a question of first impression in this jurisdiction and requires our considered analysis.

The basic issue presented is one of competency of a hypnotized witness. We begin our analysis by noting the evolution of the general rule on competency of witnesses. At early common law, certain witnesses were deemed to be incompetent per se merely because they were included in a certain group of persons. Groups which were commonly disqualified as witnesses included those holding certain religious beliefs, persons deemed to be insane, persons convicted of a crime, and persons of immature age. Later, these rules were modified in favor of a general rule of competency, giving to the jury the duty of judging the credibility of witnesses. However, some per se disqualification exceptions were retained, for example, the disqualification of children as competent witnesses. See I.C. § 9-201; I.C. § 9-202.

The recently adopted Federal Rules of Evidence, applicable in the federal courts, provide a further example of the continued evolution of a general rule of competency by establishing a rule which reads, "Every person is competent to be a witness except as otherwise provided in these rules." Federal Rule of Evidence 601. The rule then provides an exception only for judges and jurors participating in the trial at hand. The commentary to Federal Rule 601 states, "A witness wholly without capacity is difficult to imagine. The question is one particularly suited to the jury as one of weight and credibility, subject to judicial authority to review the sufficiency of the evidence." ² Thus, the trend of the law in other jurisdictions in favor of a general rule of competency, which leaves to the discretion of the trial court the determination of whether circumstances render the witness incompetent, has been evolving over the last century, resulting in rejection of any per se rule of incompetency. The evolution is based upon the premise that per se rules which disqualify witnesses with knowledge of facts pertinent to the case are serious obstructions to the ascertainment of truth, the ultimate goal in our legal system. See McCormick, Evidence, § 71, p. 150 (1972).

On the other hand, there are a number of generally recognized problems with hypnotically induced testimony. In the early experience with hypnosis it was the general belief, as a basic underlying assumption of the use of hypnosis, that memory was similar to a videotape machine, in that it merely recorded the perceptions of the viewer and stored them away for recall, which...