State v. Rodriquez, 1

CourtCourt of Appeals of Arizona
Citation700 P.2d 855,145 Ariz. 157
Docket NumberNo. 1,CA-CR,1
PartiesSTATE of Arizona, Appellee, v. Louis Anthony RODRIQUEZ, Appellant. 5126.
Decision Date23 November 1984
Robert K. Corbin, Atty. Gen. by William J. Schafer III, Chief Counsel, Crim. Div., David R. Cole, Asst. Atty. Gen., Phoenix, for appellee

GRANT, Presiding Judge.

On January 10, 1980, a fifteen-count indictment was returned against Louis Anthony Rodriquez, the appellant (defendant). The offenses arose out of sexual assaults committed against six victims. Defendant was also alleged to have committed acts of burglary, kidnapping and sexual abuse against the various victims. All of the assaults occurred between November 17 and December 25, 1979.

Prior to trial, defendant's counsel filed numerous motions, including motions to sever, suppress physical evidence and evidence of pretrial identifications. All motions were denied and defendant proceeded to trial. Following a lengthy jury trial, defendant was convicted on all counts. The trial judge ordered the sentences in Counts I through IX, XI, XII, and XV to run concurrently. He ordered the sentence in Count X to run consecutive to Count VIII, Count XIII consecutive to Count X and Count XIV consecutive to Count XIII. The total sentence imposed upon defendant was 101 years.

On appeal, defendant has raised the following number of issues:

1. Did the trial court err in permitting two victims to testify at trial when they had undergone pretrial hypnosis?

2. Did the trial court err in finding that pretrial identification procedures were not unduly suggestive?

3. Was defendant's right to counsel violated during a compelled physical lineup the day after his arrest?

4. Did the prosecutor commit misconduct by allowing a witness to view the defendant in a compelled lineup in an unrelated case?

5. Did the trial court abuse its discretion in refusing to allow defendant to call an expert witness on the issue of identification?

6. Was defendant entitled to a new finding of probable cause based on a discriminatory grand jury selection system?

7. Did the trial court abuse its discretion when it denied a request for a "neurological" examination of the defendant?

8. Did the trial court commit clear and manifest error when it denied defendant's motion to suppress physical evidence?

9. Did the admission of a photograph of one of the victims constitute error?

10. Did the trial court err in refusing to sever the counts for trial?

11. Did the trial court commit clear and manifest error when it denied defendant's motion to suppress statements?

12. Did the trial court err in refusing to give defendant's instruction?

13. Was the aggravated sentence imposed upon defendant lawful?

14. Did the prosecutor commit reversible error in his closing argument?

The counts alleged against defendant involved the sexual assaults of young women in the Mesa or Tempe area. The assaults occurred between November 17, 1979 and December 25, 1979. Defendant was arrested on January 2, 1980, when he was apprehended during the commission of an attempted burglary. Later that day, he was identified in a photographic lineup presented to one of the victims. On January 3, 1980, he was interviewed by a Mesa police officer and admitted committing numerous rapes in the Tempe and Mesa area. In the afternoon, he appeared in a physical lineup and was identified by three of the victims. Finally, the next day, he accompanied officers from Mesa and Tempe in a ride-around in which he identified several of the areas where he had committed the sexual assaults against the victims. Statements made during the ride-around, on the previous day to Detective Hays, and written statements made by him were admitted into evidence at trial.

Further facts will be set forth as necessary to resolve the numerous issues raised by defendant.


During the first day of trial, defense counsel advised the court that victims H. and M. had undergone hypnosis by the sheriff's department in an attempt to develop a "composite" identification of a suspect. Victim H. was shown no photographic lineups prior to her hypnosis which occurred on December 10, 1979, approximately two days after she was assaulted. Thereafter, she was unable to identify her assailant in any pretrial, photographic lineups or physical lineups and did not identify him at trial. The other assault victim, M., underwent hypnosis on December 19, 1979, within two days of her assault. Thereafter, she was shown a photographic lineup, which did not include defendant's photograph, on January 1, 1980. She did not identify anyone at that time, but did identify defendant in the physical lineup on January 3, 1980.

During the second day of trial, the jury was excused while the court conducted a lengthy hearing into the events surrounding the hypnosis of these two victims. The entire hypnosis session had been tape recorded and the trial judge listened to the tapes. After listening to the evidence presented, including the tapes, the trial judge found that the hypnosis session had been confined solely to an attempt to reconstruct a composite picture of the suspect. The trial judge considered State v. La Mountain, 125 Ariz. 547, 611 P.2d 551 (1980), to be controlling. He relied upon the language in that case which stated: "A witness who has been under hypnosis ... should not be allowed to testify when there is a question that the testimony may have been produced by that hypnosis." Id. at 551, 611 P.2d at 555.

The trial judge, after listening to the tapes, stated that he was unable to find any evidence of suggestions being made during the hypnosis session. He found that simply putting a person under hypnosis and enhancing the memory in an attempt to produce a composite photograph was different than "developing or producing testimony by virtue of the hypnosis." The trial judge went on to state that there were no suggestions made during the hypnosis with regard to subsequent testimony and, therefore, the witnesses were allowed to testify.

The hypnosis and testimony in this case preceded the decision in State v. Mena, 128 Ariz. 226, 624 P.2d 1274 (1981), and, therefore, according to the decision in State ex rel. Collins v. Superior Court, 132 Ariz. 180, 644 P.2d 1266 (1982), the decision in Mena does not apply because it is given prospective application. In any event, we note that the holding, referred to above, in La Mountain was reaffirmed by the court in Mena. 128 Ariz. at 232, 624 P.2d at 1280. The court in Mena held that, "testimony ... which has been tainted by hypnosis should be excluded in criminal cases." Id. at 231, 624 P.2d at 1279. The court concluded by stating that:

[T]estimony from witnesses who have been questioned under hypnosis regarding the subject of their offered testimony [is inadmissible] in criminal trials from the time of the hypnotic session forward.

Id. at 232, 624 P.2d at 1280.

At the outset, we note that the factual situations dealt with in La Mountain and Mena are strikingly different from that which faced the trial court in this case. The danger sought to be controlled by the decisions in La Mountain and Mena was the "production" of testimony through hypnosis. To the extent that the court could not determine what testimony had been "created" through hypnosis, the court determined that a witness who had been questioned "regarding the subject of their offered testimony" while under hypnosis would be incompetent to testify. In La Mountain, the victim was shown a photographic lineup prior to going under hypnosis, was brought out of hypnosis and shown a lineup, then "put back under" and shown the lineup again. In Mena, the victim was questioned regarding the facts surrounding the incident that he would later testify to in court. The court was obviously concerned that the "facts" concerning the incident might have been implanted by the hypnotist during the session. 128 Ariz. at 228, 624 P.2d at 1276.

However, in this case, there was a complete recording of the sessions involving both victims. They were not questioned concerning their proffered testimony in court. They were not questioned regarding the facts surrounding their assaults. Both hypnotists were unfamiliar with the facts surrounding the assaults and sought solely to recreate a "composite" photograph of the suspect through memory enhancement. All of these precautions safeguarded against suggestibility in the hypnotic session. State v. Stolp, 133 Ariz. 213, 650 P.2d 1195 (1982). The trial judge correctly determined that their testimony regarding the incident in this case was not "produced" by that hypnosis. The hypnosis session was of limited duration, approximately 1 1/2 to 2 hours and was recorded. The recording allowed the trial judge to determine whether the session "tainted" or "produced" testimony or concerned facts other than those testified to by the victims at trial. Furthermore, we note that victim H. was never able to identify the defendant and that victim M. did not identify anyone in a lineup shown on January 1st, but positively identified the defendant in a physical lineup on January 3, 1980. Her identification of defendant occurred within approximately two weeks of the date she had been sexually assaulted.

In State v. Stolp, our supreme court said:

... evidence obtained from leads developed from a hypnotic session is not susceptible to the unreliability problems connected with posthypnotic testimony, so long as the evidence is not a post-hypnotic statement of the person hypnotized. Such evidence cannot be suggested or confabulated; nor is it subject to any of the other dangers of hypnosis.

Id. at 215, 650 P.2d at 1197.

Finally, we hold that even had victim M.'s identification of defendant at trial been considered incompetent...

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