State v. Mena

• Decision Date: 03 February 1981
• Docket Number: No. 5026-PR,5026-PR
• Citation: 128 Ariz. 226,624 P.2d 1274
• Parties: STATE of Arizona, Appellee, v. Jamie Ledezma MENA, Appellant.
• Court: Arizona Supreme Court

Page 1274

624 P.2d 1274

128 Ariz. 226

STATE of Arizona, Appellee, v.Jamie Ledezma MENA, Appellant.

No. 5026-PR.

Supreme Court of Arizona, In Banc.

Feb. 3, 1981.

Rehearing Denied March 17, 1981.

Roy A. Mendoza, Pinal County Atty., William J. Pearlman, Deputy County Atty., Florence, for appellee.

Jeffrey Blackman, Oracle, for appellant.

GORDON, Justice:

DefendantJamie Mena was convicted by a jury of aggravated assault, escape and disorderly conduct following an incident during which Stephen Koors was attacked by three assailants and stabbed with a steak knife outside a bar in Pinal County, Arizona.Defendant sought reversal of his convictions for aggravated assault and escape in the Court of Appeals on three grounds: (1) admission of testimony from the victim without proper foundation regarding his pretrial hypnosis, (2) insufficient evidence of arrest to support a conviction of escape, and (3) denial of effective assistance of counsel.The Court of Appeals affirmed defendant's convictions.We accepted his petition for review, taking jurisdiction pursuant to A.R.S. § 12-120.24andRule 31.19, 17 A.R.S. Rules of Criminal Procedure.While we approve the reasoning and result of the Court of Appeals as to defendant's second and third grounds of appeal, we reverse the conviction of assault based on defendant's first ground of appeal in light of our prior holding in State v. La Mountain, 125 Ariz. 547, 611 P.2d 551(1980), and remand for a new trial.So much of the opinion of the Court of Appeals, 128 Ariz. 244, 624 P.2d 1292(App.1980), which refers to hypnotically adduced testimony is vacated.

The record reveals that sometime after the assault out of which these convictions arose, the victim, Koors, went to Tucson with a Casa Grande police officer to see two doctors who hypnotized him in an attempt to increase his recollection as to the details of the assault.The doctors questioned Koors about the incident while he was under hypnosis and told him that he would remember what he had related to them during the hypnotic session after he came out of hypnosis.

At trial, an objection was raised to admitting Koors' testimony regarding the events of the assault in the absence of "foundational evidence that what he remember(ed)he remember(ed) because of his true recollection (and not) because it might have been implanted in his mind by the hypnotist."Defense counsel argued that Koors should not be allowed to testify "without testimony from the hypnotist that he does remember this independently of any suggestion from the hypnotist."The trial court denied this motion "on the basis that it was untimely brought" under Rule 16.1(b), 17 A.R.S. Rules of Criminal Procedure.

On appeal, the Court of Appeals correctly noted that La Mountain, supra, stands for the proposition that "(t)estimony developed as a result of hypnosis is inadmissible."Agreeing with the trial court that defendant's motion was precluded as untimely brought, however, the Court of Appeals concluded that admitting the victim's testimony was not fundamental error and affirmed the trial court judgment.This conclusion was based in part on the Court of Appeal's finding that "there is respectible authority for the proposition that hypnotically adduced evidence is admissible, the fact of hypnosis affecting its credibility but not its admissibility."

Motions not raised within the time limits of Rule 16.1(b), 17 A.R.S. Rules of Criminal Procedure, are precluded by Rule 16.1(c), 17 A.R.S. Rules of Criminal Procedure, "unless the basis therefore was not then known, and by the exercise of reasonable diligence could not then have been known, and the party raises it promptly upon learning of it."Had La Mountain, supra, been decided prior to defendant's trial, his motion to exclude Koors' testimony would have been untimely.Defendant's motion was based not on La Mountain, however, but on the absence of the hypnotist whom defendant believed to be necessary to supply the foundation for Koors' hypnotically refreshed testimony.The state's decision not to call the hypnotist was disclosed to defendant only one day before trial.Because we feel defense counsel was not required to anticipate the state's failure to supply adequate foundation for the introduction of evidence, we believe the trial court's ruling on the ground the defense motion was untimely made is in error.

It is unnecessary, therefore, for us to determine whether admission of Koors' testimony was fundamental error.We need only consider whether testimony possibly tainted by hypnosis should have been excluded upon timely objection.

It is generally agreed that hypnosis is a state of altered consciousness and heightened suggestibility in which the subject is prone to experience distortions of reality, false memories, fantasies and confabulation (the "filling in of memory gaps with false memories or inaccurate bits of information").Dilloff, The Admissibility of Hypnotically Influenced Testimony, 4 OhioN.U.L.Rev. 1, 5(1977).See 9 Encyclopedia Britannica 133 (1974);Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Calif.L.Rev. 313(1980);Dilloff, supra;Spector & Foster, Admissibility of Hypnotic Statements: Is the Law of Evidence Susceptible? 38 OhioSt.L.J. 567(1977);8 UtahL.Rev. 78(1962-64).In the context of pretrial interrogation under hypnosis, these distortions, delusions and confabulations are apparently aggravated by the tendency of a subject to respond in a way he believes is desirable to the hypnotist.This may happen even without any intent or awareness on the part of the hypnotist or the subject.For example, Spector & Foster, supra, state, at page 578:

"The hypnotized subject may respond to implicit stimuli unintentionally emanating from the hypnotist, and unrecognized by him.The desire to please the hypnotist may induce the subject to mirror the attitude detected in the hypnotist's questions and in his behavior.⁵⁸

58 " For example, a subject might confess to a crime if the hypnotist's questions unintentionally implied guilt."

In addition, a person may assimilate the distortions, delusions and confabulations he develops under hypnosis as part of his own memory.After the hypnotic session has ended, the subject would then perceive those hypnotically induced impressions to be reflections of his actual past observations.9 Encyclopedia Britannica, supra."(T)he subject may actually believe he is remembering * * * on his own, when in reality the 'memory' was implanted by the hypnotist."Dilloff, supra, at 4.

A recent law review article by an author who is both a professor of law at the University of California at Berkeley and a clinical professor of psychiatry at the University of California at San Francisco contains the following opinion:

"I believe that once a potential witness has been hypnotized for the purpose of enhancing memory his recollections have been so contaminated that he is rendered effectively incompetent to testify.Hypnotized persons, being extremely suggestible, graft onto their memories fantasies or suggestions deliberately or unwittingly communicated by the hypnotist.After hypnosis the subject cannot differentiate between a true recollection and a fantasy or a suggested detail.Neither can any expert or the trier of fact.This risk is so great, in my view, that the use of hypnosis by police on a potential witness is tantamount to the destruction or fabrication of evidence."Diamond, supra, at 314.

Few reported cases have addressed the issue of the admissibility of testimony offered by witnesses who have undergone hypnosis in an attempt to increase their memories concerning events about which they may testify.As the Court of Appeals correctly noted, most courts which have considered the question have concluded that prior hypnosis neither renders a witness incompetent nor renders a witness' testimony inadmissible.SeeUnited States v. Awkard, 597 F.2d 667(9th Cir.)cert. denied, 444 U.S. 885, 100 S.Ct. 179, 62 L.Ed.2d 116(1979);United States v. Adams, 581 F.2d 193(9th Cir.)cert. denied, 439 U.S. 1006, 99 S.Ct. 621, 58 L.Ed.2d 683(1978);Kline v. Ford Motor Co., Inc., 523 F.2d 1067(9th Cir.1975);Wyller v. Fairchild Hiller Corp., 503 F.2d 506(9th Cir.1974);Creamer v. State, 232 Ga. 136, 205 S.E.2d 240(1974);People v. Smrekar, 68 Ill.App.3d 379, 24 Ill.Dec. 707, 385 N.E.2d 848(1979);Harding v. State, 5 Md.App. 230, 246 A.2d 302(1968), cert. denied, 395 U.S. 949, 89 S.Ct. 2030, 23 L.Ed.2d 468(1969).State v. McQueen, 295 N.C. 96, 244 S.E.2d 414(1978);State v. Brom, 8 Or.App. 598, 494 P.2d 434(1972);State v. Jorgensen, 8 Or.App. 1, 492 P.2d 312(1971).

The first of this series of cases which hold testimony of a previously hypnotized witness to be admissible, Harding, supra, handled the admissibility question cursorily, relying solely onthe witness' declaration that she was testifying from her own recollection:

"The admissibility of Mildred('s) * * * testimony concerning the assault * * * causes no difficulty.On the witness stand she recited the facts and stated that she was doing so from her own recollection.The fact that she had told different stories or had achieved her present knowledge after being hypnotized concerns the question of the weight of the evidence which the trier of facts, in this case the jury, must decide."5 Md.App. at 236, 246 A.2d at 306.

The court then considered the sufficiency of the hypnotized witness' testimony to support the verdict.

None of the early cases following Harding which approved the admission of testimony from previously hypnotized witnesses contain any analysis of the effects of hypnosis or even acknowledge its power to distort memory.Most of those cases instead follow Harding's lead, citing it as authority for admission of such testimony, and rely generally on (1) the witnesses' statements that they were testifying from their own recollections, seeK...