State v. Martin

Decision Date07 June 1984
Docket NumberNo. 49494-1,49494-1
Citation101 Wn.2d 713,684 P.2d 651
PartiesSTATE of Washington, Respondent, v. David MARTIN, Petitioner.
CourtWashington Supreme Court

Judith Dubester, Seattle, for petitioner.

Norman K. Maleng, King County Prosecutor, Rebecca J. Roe, Deputy Pros. Atty., Seattle, for respondent.

DORE, Justice.

Defendant Martin appeals his conviction of first degree statutory rape. The issue on appeal, one of first impression here, involves the admissibility of the testimony of the alleged victim after she was hypnotized because she could not remember anything about the alleged incident. In accord with recent and persuasive case law and the overwhelming consensus of expert opinion, we conclude that testimony by a witness as to a fact which became available following hypnosis is inadmissible in the trial of criminal cases in this state. We also hold, however, a witness may testify based on what he knew before hypnosis, provided the appropriate safeguards are present. We reverse and remand for a new trial.

I

Martin was charged with first degree statutory rape. He waived his right to a jury trial and was tried by the court. Martin and his wife, Shirene, had been living with Lesha, her 10-year-old daughter, and their 2 1/2-year-old daughter. At about 4 o'clock one morning, Shirene got up to investigate the younger child's crying. She went into the girls' bedroom and found David on top of Lesha's bed with Lesha under the covers. David's pants were down to his hips, but his underwear was on. Shirene took the younger child into the living room, woke David up, and said, "I hope this isn't what it looks like". When Lesha sat up, Shirene asked her if David had done anything to her. Lesha answered that she did not know. David had become outraged by the accusation and asked Shirene if she was crazy and what she meant by her question. A violent argument ensued, which ended with Shirene taking the younger child to Shirene's mother's house and calling the police.

A King County police officer testified that he arrived at the Martin residence and met David in the front yard. David appeared to be intoxicated and was agitated about the accusation of sexual abuse. The officer stated that David wanted to take Lesha to the hospital immediately to prove his noninvolvement.

The next day Shirene took Lesha to the sexual assault center at Harborview Hospital where cultures were taken. The throat culture was positive for gonorrhea. A doctor testified that gonorrhea can be cured by antibiotics within a matter of days or, in men, by a spontaneous curing within a matter of weeks. There is no reliable test to determine whether or not a person has ever had gonorrhea. The doctor testified that transmission by kissing is possible, but unlikely.

During the following weeks, Shirene and Lesha stayed much of the time with Shirene's sister. During this time, Lesha maintained she had no memory of any sexual abuse. Shirene Martin testified, however, that on one occasion she asked Lesha "if it was David". Lesha told Shirene that she could not say it was David because that would not be true.

On June 21, 1980, Shirene met Norah Teeter, a lay hypnotist, at an open house party where Teeter worked. They discussed the possibility of Teeter treating Lesha. Shirene brought Lesha to Teeter's office at the Evergreen Hypnosis Center on June 26, 1980. Teeter allegedly hypnotized Lesha twice. These incidents form the basis of this appeal.

II

At trial, Teeter characterized herself as a clinical hypnotherapist. She said that her formal background consisted of 400 hours of training, and that she had worked 4 years in the field. The last 2 years were at Evergreen Hypnosis Center as a clinical hypnotherapist and associate director of the Center. The major part of her work involved "regressive hypnosis" to uncover repressed material. Her highest level of academic achievement was a bachelor's degree in philosophy and psychology. She was subsequently enrolled in developing her own program at Antioch College West for a master's degree in psychology, with emphasis on hypnotherapy. Thirteen months prior to this court experience, she had taken a 3-day course in forensic hypnosis and later received some additional training in this field. She had been involved in forensic hypnosis training of detectives for two local police departments. This was her first experience testifying in court.

During Teeter's testimony, the court viewed the video tape of a portion of Lesha's first session, in which she stated that David had put his penis in her mouth on the night in question. Teeter conducted a second session, and the court listened to an audio tape of this portion of the second session which subsequently was transcribed for this court and placed in the record.

The trial court was apparently unaware that during another part of this second session Teeter "regressed" Lesha back to the time before she was born, while she was in the womb. Lesha described, in some detail, thoughts which she claimed to have had while a fetus, as well as her mother's and others' conversations while she was in the womb, including a discussion of terminating her mother's pregnancy. Teeter then had Lesha recount some of the significant events in her life, including when she learned to crawl and her parents' separation.

After the hypnotic sessions, Lesha made a tape recording for her mother at her aunt's suggestion. In this tape, Lesha stated that she had the feeling that it was not David, but her grandfather, who was responsible for what had happened to her. Lesha later stated that what she said in the tape was not true. Apparently, her mother had begun a reconciliation with David, and Lesha made the tape so that she would not be separated from her mother. The grandfather testified for the State that he had never molested Lesha.

Early in the trial, Martin filed a motion in limine to exclude Lesha's testimony. The trial court ruled that the prosecutor had to lay a proper foundation by establishing "proper credentials of the hypnotist, proper recreation of the scene, the tests, [and] the hypnotic trance" before Lesha's testimony would be heard. Report of Proceedings, at 77-78. The prosecutor then called Teeter to testify. Apparently at no point during this testimony did defense counsel question Teeter's qualifications as an expert. No objection was made when the video tape of the hypnotic session was shown or when the audio tape of the second session was presented. Much later in the trial, the State moved that both the video and audio tapes be marked and admitted. Defense counsel had no objection to the admission of these tapes.

Teeter testified concerning an "ideomotor" signal response system she used to verify Lesha's verbal communication. While Lesha was under hypnosis, Teeter instructed her that raising the index finger of her right hand would represent to her deep in her mind the answer "yes". Moving the little finger of Lesha's right hand would mean "no," and the thumb would represent "I do not want to tell you." Report of Proceedings, at 93. Teeter then checked Lesha's muscular reaction, which she labeled as automatic and spontaneous, during questioning while Lesha was under hypnosis.

After Lesha and Teeter testified, the court denied the motion in limine and admitted Lesha's testimony. Lesha testified that she did not remember the alleged offense prior to the time she was first hypnotized by Teeter, but that she remembered it afterwards. She also testified on cross examination that she was aware before the hypnotic session that her mother, her aunt and her grandmother were concerned that David might have sexually molested her on the evening in question.

In his testimony, Martin denied the charged sexual offense. He said that on the evening in question he got off work at about 10:45 p.m. and then went drinking. Shortly after returning home at about 12:30 or 1 a.m., he started to feel nauseated from his drinking, so he took a pillow and went into the bathroom. He heard the younger child crying and went into the bedroom, comforted her, and then lay down on Lesha's bed, just "looking for a place--any place to lie down". Report of Proceedings,[684 P.2d 654] at 265. The next thing he knew, his wife, Shirene, came into the bedroom.

Martin further testified that he first learned that Lesha had gonorrhea on a Friday in the beginning of July. He immediately called the hospital to find out about being tested himself. He was tested the following Monday and such tests for gonorrhea were negative.

After hearing of Lesha's hypnotic sessions, Martin called Teeter so that he, too, could be hypnotized. Teeter referred him to Marguerite Hodder, another lay hypnotist. Hodder testified that she hypnotized Martin and regressed him to the evening in question, which he experienced under hypnosis as a revivification. It appeared from this revivification that he committed no sexual offense whatsoever. This hypnotic session was audio taped and the court heard the tape as an offer of proof with respect to the defense motion in limine regarding Lesha's testimony. Defense counsel had this tape marked and put into evidence.

The trial court found Martin guilty as charged, and entered findings of fact and conclusions of law. The judge at trial was thereafter appointed to the State Supreme Court. Martin was sentenced by another judge who denied the motion for a new trial. In his oral ruling, the judge said, "[T]he remedies that the defendant is applying for are ones that are available in the Appellate Court at this juncture". (Court's oral decision, at 2.)

Martin's appeal from this ruling was consolidated with his other appeal and the Court of Appeals affirmed in an opinion filed December 27, 1982. The appellate court said Teeter was shown to be well qualified, and that it was apparent from viewing the video tape that Lesha was in a deep trance and related the details of her being sodomized ...

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