State v. Johnston, s. 86-1547

• Decision Date: 05 October 1988
• Docket Number: 86-1548,Nos. 86-1547,s. 86-1547
• Citation: 529 N.E.2d 898,39 Ohio St.3d 48
• Parties: The STATE of Ohio, Appellant, v. JOHNSTON, Appellee.
• Court: Ohio Supreme Court

Page 48

39 Ohio St.3d 48

529 N.E.2d 898

The STATE of Ohio, Appellant, v. JOHNSTON, Appellee.

Nos. 86-1547, 86-1548.

Supreme Court of Ohio.

Submitted May 1, 1988.

Decided Oct. 5, 1988.

Syllabus by the Court

1. Testimony supplied by a witness under hypnosis is inadmissible per se.

2. Testimony supplied by a witness regarding events recalled and related prior to and independent of hypnosis is admissible if the trial court determines that the proposed testimony is substantially in conformance with the pre-hypnosis memory of the witness. (State v. Maurer [1984], 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768, approved and followed.)

3. Testimony supplied by a witness whose memory has been refreshed by hypnosis prior to trial is admissible only if the trial court determines that, under the totality of the circumstances, the proposed testimony is sufficiently reliable to merit admission.

4. The suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. (Brady v. Maryland [1963], 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, followed.)

5. In determining whether the prosecution improperly suppressed evidence favorable to an accused, such evidence shall be deemed material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. This standard of materiality applies regardless of whether the evidence is specifically, generally or not at all requested by the defense. (United States v. Bagley [1985], 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481, followed.)

At approximately 4:00 p.m on October 4, 1982, Margaret Annette Cooper, a.k.a. Margaret Annette Johnston, and Todd Leroy Schultz, her fiancee, left the Schultz family home in Logan, Ohio. They did not return.

On October 14, 1982, two nude and decomposing human torsos were discovered in the Hocking River near the city's edge. Two days later, the arms, legs, and heads of Annette and Todd were found buried in a cornfield adjacent to the river.

The victims had been shot several times with a .22 caliber weapon and dismembered with a sharp instrument. Expert testimony established that the victims had been killed on or about October 4. Various kinds of circumstantial evidence linked Annette's stepfather, Dale N. Johnston, to the crime.

On September 29, 1983, an indictment was issued charging Dale N. Johnston, appellee herein, with two counts of aggravated murder in violation of R.C. 2903.01. The indictment contained death penalty specifications charging that the murders were a part of a course of conduct involving the purposeful killing of two or more persons, as provided in R.C. 2929.04(A)(2).

Appellee waived his right to a jury trial, and the case was tried before a three-judge panel. After hearing the evidence, the panel found appellee guilty of all charges and specifications on January 31, 1984. Following a mitigation hearing, the panel sentenced appellee to death on March 27, 1984.

On July 6, 1984, appellee filed a motion for a new trial pursuant to Crim.R. 33(A)(6), citing newly discovered evidence. The panel considered all the exhibits, affidavits, memoranda and briefs submitted, and denied the motion for a new trial on October 25, 1984.

On August 6, 1986, the court of appeals unanimously reversed appellee's conviction and remanded the case for a new trial. In case No. 412 (Supreme Court No. 86-1547), the appellate court found that the trial court had erred in admitting the testimony of a witness who had been hypnotized and in issuing an opinion without findings and reasons for its conclusion at the sentencing phase. In case No. 425 (Supreme Court No. 86-1548), the appellate court held that evidence material to appellee's guilt or innocence had been improperly withheld by the state.

The causes are now before this court pursuant to the allowance of motions to certify the record. The causes have been consolidated for purposes of review and disposition by this court.

Christopher E. Veidt, Pros. Atty., and Charles A. Gerken, Logan, for appellant.

Thomas M. Tyack & Associates Co., L.P.A., Thomas M. Tyack, Robert W. Suhr & Associates and Robert W. Suhr, Columbus, for appellee.

Randall M. Dana, Public Defender, and Michael W. Gleespen, Toledo, urging affirmance for amicus curiae Ohio Public Defender Com'n.

LOCHER, Justice.

Having exhaustively examined the record and the issues raised by appellant in the cases before us, it is the decision of this court that the judgments of the court of appeals should, to the extent described herein, be affirmed in part, modified in part, and reversed in part. In the following analysis, we address each case in turn.

No. 86-1547

I

In its first proposition of law, the state contends that the testimony of one of its witnesses, Steven R. Rine, who had been hypnotized prior to trial, was competent, credible and admissible. The court of appeals held that Rine's testimony had not been shown to be sufficiently reliable, and that it had therefore been erroneously admitted.

Over the years, hypnosis has become widely accepted by the relevant scientific and medical communities as a reliable investigative tool. ¹ As the United States Supreme Court recently commented in Rock v. Arkansas (1987), 483 U.S. 44, ----, 107 S.Ct. 2704, 2713-2714, 97 L.Ed.2d 37, 50-51:

"Hypnosis by trained physicians or psychologists has been recognized as a valid therapeutic technique since 1958, although there is no generally accepted theory to explain the phenomenon, or even a consensus on a single definition of hypnosis. See Council on Scientific Affairs, Scientific Status of Refreshing Recollection by the Use of Hypnosis, 254 J.A.M.A. 1918, 1918-1919 (1985) (Council Report). [Footnote omitted.] The use of hypnosis in criminal investigations, however, is controversial, and the current medical and legal view of its appropriate role is unsettled.

"Responses of individuals to hypnosis vary greatly. The popular belief that hypnosis guarantees the accuracy of recall is as yet without established foundation and, in fact, hypnosis often has no effect at all on memory. The most common response to hypnosis, however, appears to be an increase in both correct and incorrect recollections. [Footnote omitted.] Three general characteristics of hypnosis may lead to the introduction of inaccurate memories: the subject becomes 'suggestible' and may try to please the hypnotist with answers the subject thinks will be met with approval; the subject is likely to 'confabulate,' that is, to fill in details from the imagination in order to make an answer more coherent and complete; and, the subject experiences 'memory hardening,' which gives him great confidence in both true and false memories, making effective cross-examination more difficult. See generally M. Orne, et al., Hypnotically Induced Testimony, in Eyewitness Testimony: Psychological Perspectives 171 (G. Wells and E. Loftus, eds., 1985); Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Calif.L.Rev. 313, 333-342 (1980). Despite the unreliability that hypnosis concededly may introduce, however, the procedure has been credited as instrumental in obtaining investigative leads or identifications that were later confirmed by independent evidence. See, e.g., People v. Hughes, 59 N.Y.2d 523, 533 , 453 N.E.2d 484, 488 (1983); see generally R. Udolf, Forensic Hypnosis 11-16 (1983)."

Because of the limited scientific understanding of hypnosis and its effects on memory, and because of the uncertainty as to the reliability of its results, courts have had trouble accepting evidence obtained through hypnosis. Generally, those courts that have addressed the subject have divided the testimony of a witness who has been hypnotized into three categories for purposes of ruling on its admissibility: testimony supplied while under hypnosis, testimony regarding matters recalled prior to hypnosis, and testimony that has been refreshed by hypnosis.

A

As to the first category, the consensus among the courts is that testimony supplied by a witness under hypnosis is inadmissible per se. See, e.g., Harker v. Maryland (C.A. 4, 1986), 800 F.2d 437, 441, citing State v. Collins (1983), 296 Md. 670, 681, 464 A.2d 1028, 1034; People v. Shirley (1982), 31 Cal.3d 18, 33, 181 Cal.Rptr. 243, 251, 723 P.2d 1354, 1362, certiorari denied (1982), 459 U.S. 860, 103 S.Ct. 133, 74 L.Ed.2d 114. In the case sub judice, Rine did not testify while under hypnosis.

B

Regarding the second category, most courts have ruled that testimony of a witness who has undergone hypnosis is admissible if it relates to matters recalled prior to hypnosis, so long as its independence is reliably shown. See, e.g., State, ex rel. Collins, v. Superior Court (1982), 132 Ariz. 180, 209-210, 644 P.2d 1266, 1295-1296. ² But, see, People v. Shirley, supra. This court previously addressed this question in State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768. Therein, we held that testimony supplied by a witness regarding events recalled and related prior to and independent of hypnosis is admissible if the trial court determines that the proposed testimony is substantially in conformance with the pre-hypnosis memory of the witness. Id. at 260, 15 OBR at 397-398, 473 N.E.2d at 788, and at fn. 16.

In the case at bar, the only record of Rine's pre-hypnosis memory consists of some non-verbatim, handwritten notes by the interviewing officer. The notes were not signed or initialed by Rine at the time. Nevertheless, the trial court found that the events Rine related to the police prior to hypnosis were consistent with the contents of his post-hypnosis statement. ³ The trial court ruled that Rine...