State v. Weston
| Decision Date | 31 August 1984 |
| Docket Number | No. CA83-02-013,CA83-02-013 |
| Citation | 16 O.B.R. 309,475 N.E.2d 805,16 Ohio App.3d 279 |
| Parties | , 16 O.B.R. 309 The STATE of Ohio, Appellee, v. WESTON, Appellant. * |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. The application of the test set forth in Frye v. United States, 293 Fed. 1013 (D.C.Cir.1923), to hypnotically refreshed testimony mandates the general acceptance of hypnosis within the scientific community to which it belongs as a method which, in some cases, may aid the recollection of witnesses.
2. In determining the admissibility of hypnotically refreshed testimony, the trial court should first consider the appropriateness of using hypnosis for the kind of memory loss encountered and whether the witness has any discernible motivation for remembering or not remembering certain events.
Once it is determined that hypnosis is appropriate for use in the case under consideration, the following procedural safeguards should be applied. None of these factors should be considered absolute prerequisites to admissibility, nor are they exclusive. They are listed to illustrate the nature of the inquiry:
a. A psychiatrist or psychologist experienced in the use of hypnosis must conduct the hypnotic session.
b. The professional conducting the session should be independent of and not regularly employed by the prosecution, the defense, or investigators involved in the case. However, the hypnotist may collect a fee from the party engaging his services.
c. Any information given the hypnotist must be recorded, either in writing or in another suitable form.
d. Before inducing hypnosis, the hypnotist should obtain a statement of facts from the subject as the subject remembers them.
e. All contacts between the hypnotist and the subject must be recorded.
f. Only the hypnotist and the subject should be present during all phases of the hypnotic session, including during pre-hypnotic and post-hypnotic interviews.
3. The admission of hypnotically refreshed testimony which substantially complies with the safeguards described above does not violate the accused's constitutional right to confront witnesses against him.
George E. Pattison, Pros. Atty., for appellee.
R. Daniel Hannon, County Public Defender, for appellant.
This cause came on to be heard upon an appeal from the Court of Common Pleas of Clermont County, Ohio.
In the early morning hours of July 6, 1981, William Stevenson, his wife, Linda Stevenson, their five-year-old son, William Stevenson, Jr., and Linda Stevenson's thirty-year-old brother, Edward Dowell, were found dead in their home, located at 2610 Swings Corner Road in Clermont County, Ohio. The victims died of .22 and .38 caliber gunshot wounds. After the murders were committed, the residence was set ablaze using an accelerant later determined to be gasoline. Cash in the amount of $60,000 to $80,000 was believed to have been taken from the Stevenson residence, as well as an undetermined amount of jewelry and several handguns.
The Stevenson family owned and operated three fireworks stands along Ohio State Route 125. Gold and silver jewelry was also bought and sold at the stands. The two or three weeks immediately preceding July 4 were the peak season for the Stevenson businesses; during this period the fireworks stands grossed an estimated $200,000.
Carol Thompson, Linda Stevenson's daughter by a prior marriage, testified that she was in the company of the four victims on the evening of July 5, 1981. After closing the fireworks stands at 6:00 p.m., Thompson, her mother, brother, stepfather and Dowell purchased an automobile, went out to dinner, and returned to the Stevenson residence on Swings Corner Road at approximately 10:00 p.m. As Thompson prepared to leave the Stevenson home at approximately 10:30 p.m., two men arrived at the front door and were greeted by Linda Stevenson. One of the men Thompson immediately recognized as Ronald Thomas, a friend and business associate of her stepfather, William Stevenson. Thompson did not recognize the other man, whom she would later describe as a white male of stocky build with dark, messed-up curly hair. Thompson conversed with Thomas for a short time in a dimly lit hallway inside the Stevenson residence while the unknown individual stood nearby. At approximately 10:45 p.m., Thompson left the Stevenson residence and proceeded to her own home.
At approximately 5:00 a.m. on July 6, 1981, Thompson returned to the Stevenson residence after being notified by telephone that the residence was on fire. She was subsequently advised of the shootings, and furnished a preliminary description of the man she had seen with Thomas the previous evening. On July 10, 1981, Thompson viewed a photographic line-up of five individuals who were known associates of Thomas, and selected a photograph of defendant-appellant, Richard L. Weston. Thompson stated that Weston resembled the man who was with Thomas at the Stevenson residence the night of July 5, except that the man's hair was longer and more disheveled than defendant's hair appeared in the selected photograph. On July 14, 1981, Thompson was hypnotized by two Ohio State Highway Patrol officers in an attempt to cause her to more accurately recall the physical attributes of the individual.
At approximately 3:00 a.m. on July 6, 1981, an Amelia, Ohio, police officer, Jeffery Jenkins, observed a blue pick-up truck with a white camper cap exceeding the posted speed limit along State Route 125. The truck had Indiana license plates, and the driver carried an Indiana driver's license. Jenkins stopped the truck but elected not to issue a citation and did not call the driver's license number or social security number into the police dispatcher. The incident was dismissed by Jenkins as of little importance until two handbags belonging to Linda Stevenson were found in the Whitewater River near Brookville, Indiana, two days after the robbery-murder. Jenkins subsequently identified the defendant as the driver of the truck he stopped the morning of July 6. Jenkins was subjected to hypnosis by two members of the Ohio State Highway Patrol in an unsuccessful attempt to cause him to remember the license number of the truck and more details about the appearance of the vehicle and its operator. Evidence presented at trial revealed that Thomas owned a blue pickup trick with a white camper shell at the time the Stevenson-Dowell murders were committed. * * * 1
Defendant was arrested and taken into custody on July 14, 1981, for a parole violation, and subsequently convicted of the parole violation and of interstate transportation of stolen property, the latter charge being related to the instant case. Trial on these matters was held in federal district court in Indianapolis, Indiana, and defendant was subsequently incarcerated at the United States Penitentiary in Terre Haute, Indiana, until transferred to Ohio to stand trial on state charges related to the Stevenson-Dowell homicides. * * *
Defendant was transferred from the federal penitentiary in Terre Haute, Indiana, to Clermont County, Ohio, on July 6, 1982. On July 7, 1982, an arraignment was held, and defendant pleaded not guilty to four counts of aggravated murder. Defendant then filed a series of pre-trial motions: On October 7, 1982, a motion to dismiss the indictment due to denial of a pre-transfer hearing before being transported to Clermont County from the federal penitentiary in Terre Haute was filed; * * * on November 5, 1982, defendant filed a motion to suppress in-court identification testimony to be given by Thompson and Jenkins; on November 24, 1982, motions for change of venue, for view, and to sequester the jury were filed. In the following weeks, hearings were held on the various motions described above and other motions relating to discovery procedure. All motions were subsequently denied except the motion for view, which was granted in an entry dated January 10, 1983. On January 3, 1983, defendant filed a notice of alibi.
On January 14, 1983, a trial by jury was begun in the Clermont County Court of Common Pleas. The trial continued until February 9, 1983, and on February 10, 1983, a verdict was rendered finding defendant guilty of each of the four counts of aggravated murder. On February 11, 1983, Weston was sentenced to four consecutive terms of life imprisonment, the sentences to be served consecutively to defendant's federal convictions as well. Notice of appeal to this court was timely filed on February 15, 1983. Defendant presents the following assignments of error: * * *
Fifth assignment of error:
"The trial court erred to the substantial prejudice of defendant-appellant by overruling defendant-appellant's motion to suppress the in-court identification testimony of those state's witnesses who had been subjected to hypnosis for the purpose of enhancing or inducing their identification of defendant-appellant." * * *
In his fifth assignment of error, defendant asserts that the trial court erred in failing to grant his motion to suppress certain in-court identification testimony of state's witnesses Thompson and Jenkins on the basis that they had been hypnotized prior to trial for the purpose of refreshing or enhancing their recollection of events taking place the night of July 5 and the morning of July 6, 1981. At trial, Thompson identified defendant as the individual who accompanied Thomas to her mother and stepfather's residence the evening of July 5, 1981, and Jenkins identified defendant as the individual who was driving a blue pick-up truck stopped for speeding along State Route 125 at approximately 3:00 a.m. on July 6, 1981.
The art of hypnosis has been recognized and practiced for centuries, enjoying periods of favor and enduring periods of disrepute. However, only in relatively recent times has hypnosis been employed as an investigative technique and become subject to judicial...
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