State v. Peoples, 106PA83

• Decision Date: 28 August 1984
• Docket Number: No. 106PA83,106PA83
• Citation: 311 N.C. 515,319 S.E.2d 177
• Parties: STATE of North Carolina v. Elmer Leroy PEOPLES, Sr.
• Court: North Carolina Supreme Court

Page 177

319 S.E.2d 177

311 N.C. 515

STATE of North Carolina v. Elmer Leroy PEOPLES, Sr.

No. 106PA83.

Supreme Court of North Carolina.

Aug. 28, 1984.

Rufus L. Edmisten, Atty. Gen., by Fred R. Gamin, Asst. Atty. Gen., Raleigh, for the State.

James R. Parish, Asst. Public Defender, Fayetteville, for defendant-appellant.

EXUM, Justice.

The crux of the present case concerns the admissibility of testimony by a witness who undergoes hypnosis prior to testifying. Defendant challenges the trial court's admission of a witness's hypnotically refreshed testimony and of a video tape recording of the hypnotic session. We find error in both rulings and reverse the decision of the Court of Appeals.

I.

In the early morning hours of 26 May 1980, Bruce Crockett Miller participated in the armed robbery of the Borden Chemical Plant in Fayetteville, North Carolina. He, along with two other men, took several buckets of almost pure silver, used by the plant in its manufacture of formaldehyde, valued at over $90,000. Defendant was arrested on 29 April 1981 in connection with the robbery. An eyewitness to the robbery, a shift supervisor at the company whom the perpetrators forced to open the building containing the silver, identified defendant as one of the robbers.

Pursuant to a plea agreement in an unrelated case, Miller testified against defendant who was tried with Robert Peele, the third man involved in the Borden Chemical robbery. Miller outlined, in considerable detail, the planning and robbery of Borden Chemical in which he, Peele, and defendant participated. Specifically, he related that defendant, whom Miller had known since high school and had seen occasionally during the ensuing twenty years, called him in April or May 1980; inquired of his interest in making "some easy money"; and arranged a meeting with a third man, Peele. The three men met a number of times to discuss and plan the robbery.

According to Miller, defendant called him at his Raleigh home on 24 May 1980 and told him to come back to Fayetteville. Miller went to defendant's home, and the two men completed plans for the robbery. Defendant told Miller that a large amount of silver was at the plant; that the number of people at the plant was reduced after the shift changed on Sunday evenings; that company policy prohibited guns on the premises; that the shift supervisor's name was Steve; and that, once the alarm sounded, the police could arrive at the plant after no less than five to seven minutes.

On Sunday evening, Miller, defendant, and Peele went to the plant. After the shift changed, Miller, armed with a gun, went to the supervisor's office. He instructed the supervisor to take him to the white building where the silver was kept. They went there and were joined by defendant and Peele. After prying open a second door and triggering an alarm, the men loaded a number of black buckets containing silver into the car. They left the premises. ¹ Later they sold some of the silver and divided the remainder and the money among themselves.

Miller was arrested on 27 March 1981 in connection with an armed robbery unrelated to the instant case. On 15 April 1981, he gave police officers a statement concerning the robbery of the Borden Chemical Plant, in which he implicated defendant and Robert Peele. That statement was neither introduced at defendant's trial nor included in the record on appeal.

On 8 October 1981, Detective S.C. Sessoms, Jr., of the Fayetteville Police Department, conducted a hypnotic session with Miller. Sessoms had previously attended a two-week training course in hypnosis at the North Carolina Justice Academy. He stated that the course

consisted of the history and current status of hypnosis, myths and misconceptions of hypnosis, illegal aspects of hypnosis, self-hypnosis training, brain psycho-dynamics, development and training in different techniques of hypnotic induction, deepening techniques, supervising subjects while they were in a hypnotic state, taking statements from subjects in hypnotic conditions, taking composite drawings from people in hypnotic conditions, consisting of written testimony, practical exercises and demonstrations also.

During the course, Sessoms hypnotized between eight and ten people. Prior to hypnotizing Miller, Sessoms read none of Miller's statements concerning the case. The attempted hypnosis was to seek additional recall of the robbery which Miller did not have in a normal state. Sessoms explained the process to Miller and proceeded to induce him into a hypnotic state. In Sessoms' opinion, he successfully hypnotized Miller. The process lasted for about an hour. During the hypnotic session, Miller related facts which corresponded with his subsequent testimony. Miller also testified that he did not believe he had been hypnotized by Sessoms.

Defendant was tried and convicted for the armed robbery and conspiracy to commit armed robbery of the Borden Chemical Plant. Judge Robert L. Farmer consolidated the cases for judgment and sentenced defendant to a minimum term of seven years and a maximum term of ten years. The Court of Appeals affirmed. We allowed defendant's petition for discretionary review on 5 April 1983. N.C.Gen.Stat. § 7A-31.

II.

The issue before us is whether hypnotically refreshed testimony is admissible. We do not write, however, on a clean slate. Numerous state and federal courts which have considered this issue can be categorized as follows: (1) cases holding that the effect of prior hypnosis goes only to the weight and credibility, not the admissibility of a witness's testimony; (2) cases holding that hypnotically refreshed testimony is admissible only if the hypnosis followed certain guidelines; and (3) cases holding that testimony based on hypnotically refreshed memory is inadmissible. ²

We have, until today, adhered to the first position. State v. McQueen, 295 N.C. 96, 119, 244 S.E.2d 414, 427 (1978). In McQueen we observed that [t]he circumstance that this witness was hypnotized prior to trial would bear upon the credibility of her testimony concerning the occurrences at the Norris house at the time the two women were killed, but would not render her testimony incompetent. [T]he jury was fully advised that the witness had been so hypnotized. Her credibility, as a result of this circumstance, and of other matters bearing thereon, was for the jury.

Id. At the time of our decision in McQueen, however, we were not apprised of the problems inherent in hypnosis. Much of the literature and judicial analysis regarding hypnosis has emerged since McQueen was decided. Because of recent developments in the understanding of hypnosis as a tool to refresh or restore memory and the judicial trend away from acceptance of hypnotically refreshed testimony, we now reexamine our position in McQueen in light of the facts before us.

We are also cognizant of the vast array of scholarly literature on hypnosis contained in both legal and scientific journals. These sources provided great insight into the process of hypnosis, and we defer to them for this purpose. Our goal is to analyze the legal question of evidentiary admissibility so as to secure a just result. Unfortunately, we cannot achieve this without some treatment of the hypnotic process itself. We will, however, follow a simple approach. First, we explain briefly the process of hypnosis, emphasizing its potential relationship to the judicial process. Second, we examine and evaluate the three categories of judicial decisions regarding the admissibility of hypnotically refreshed testimony. Third, we announce the rule to be applied in the courts of this state.

III.

The basis for the use of hypnotically refreshed testimony hinges on the notion that memory involves the storage of information received by the body's senses in the brain and, therefore, an inability to remember is merely an inability to retrieve previously stored information. Orne, "The Use and Misuse of Hypnosis in Court," 27 Int. J. Clinical and Experimental Hypnosis 311, 321 (1979). Under this theory, hypnosis operates in a fashion which allows the subject to overcome the difficulties in retrieving this stored information. United States v. Valdez, 722 F.2d 1196, 1200 (5th Cir.1984) (quoting Putnam, "Hypnosis and Distortions in Eyewitness Memory," 27 Int. J. Clinical and Experimental Hypnosis, 437, 439-40 (1979)). An explanation for this position, simply stated, draws an analogy between the memory process and a multi-channel video tape recorder. All sensory impressions are supposedly recorded and stored in their pristine form inside a person's head to be played back at the time of recall. Theoretically hypnosis activates the video tape recorder. Orne, supra, at 321.

Hypnosis, however, involves more than the mere retrieval of stored or suppressed information. What often seems to be recall is in reality a process through which information received after an event is transformed by the subject's mind into a memory of that event. See id. Essentially the apparent recollection of a hypnotized subject may actually be a view which he has created subconsciously. This composite may evolve from a number of sources, including information gathered from other events, original recall, suggestions occurring during hypnosis from a variety of sources, and the unconscious adding of missing details. Martin T. Orne, one of the leading recognized experts on hypnosis, flatly rejects the video tape recorder theory of memory and casts serious doubts on the inherent reliability of hypnotically refreshed testimony.

Given this basic description of the theory underlying hypnosis, it is illuminating to examine the specific aspects of hypnotic recall relevant to its use in a judicial proceeding. Such aspects center on the reliability, or potential for accuracy, of recall stimulated by hypnosis.

Scientists generally agree that a number of flaws exist in the hypnotic process which can contribute to inaccurate...