Stokes v. State

Decision Date06 July 1989
Docket NumberNo. 71485,71485
Citation548 So.2d 188,14 Fla. L. Weekly 349
Parties14 Fla. L. Weekly 349 Jerry STOKES, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Michael E. Allen, Public Defender, and William C. McLain, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Edward C. Hill, Jr., Asst. Atty. Gen., Tallahassee, for appellee.

KOGAN, Justice.

We have for review a direct appeal by Jerry Stokes from his conviction for first-degree murder and sentence of death, as well as his conviction and sentence for armed robbery. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We reverse both convictions and sentences and remand this case to the trial court for proceedings consistent with this opinion.

At 9:02 a.m. on September 22, 1986, the body of Cilla Taylor was found behind the counter of her small Madison County country store. She had been shot once in the face. There were no witnesses to the murder, and no physical evidence was recovered, except tire tracks on the dirt driveway of the store.

Investigators interviewed William Brown, who had driven by Taylor's store Brown was taken to identify fifteen to twenty automobiles by investigators but was unable to positively identify any of those cars as the one he saw at Taylor's store. On October 17, 1986, Brown was hypnotized by Florida Department of Law Enforcement Special Agent J.O. Jackson in an attempt to obtain further details about the car. During the session, which was videotaped, Brown described the car as having, in addition to the details he had previously given, vertical lines on the taillights, whitewall tires, and a Florida license plate with the number 286 followed by the letter Z followed by two indecipherable letters.

just after 8:00 a.m. that morning. He saw a blue Pontiac Grand Prix automobile with a white roof parked outside the store. Brown, who had been late for work and was travelling at least sixty miles per hour at the time he passed the store, viewed the car for approximately two seconds. As an automobile enthusiast, he was able to describe the make, model, color, and approximate age of the car, as well as some distinguishing features such as a C.B. antenna and unusual wire wheel covers missing the center emblems.

On October 24, Brown was taken to Valdosta, Georgia to identify a car that had been found by Georgia authorities using Brown's original description. This was the first car Brown was shown following the hypnosis session. He identified the car as the one he had seen outside Cilla Taylor's store on the morning of September 22, 1986. That car, which belonged to the appellant's brother, Garfield Stokes, was a faded blue Pontiac Grand Prix with a white, half-vinyl roof. The wheels had wire wheel covers with the center emblem painted over, and tires that were nearly bald. The tread marks left by the tires were similar to the tread patterns left at Taylor's store. The car had horizontal, rather than vertical lines on the taillights, 1 no whitewall tires, and the license plate was a Georgia tag with the number HZY 821.

Georgia authorities had been questioning appellant in connection with matters unrelated to the Taylor homicide. He admitted that he had a pistol and a shotgun, and police found a pistol in his Toyota automobile. The pistol was examined by a firearms expert who determined that it was the same caliber as the one used to kill Cilla Taylor. The pistol had a similar barrel configuration, although all .22 caliber pistols manufactured by the same company carried the same barrel configuration. The firearms expert also determined the gun was subject to accidental firing once the hammer was pulled back because the weapon had a dangerously light trigger pull.

Appellant was arrested and questioned about the Taylor murder. During questioning, appellant claimed that another man, Willie Thomas, had borrowed the gun and his brother's car. When questioned about sneaker tracks that had been found at the store, appellant responded, "I don't know why you want those shoes. I wasn't wearing them when...." He did not complete the statement, and the sneaker tracks were those of a police officer investigating the crime. The remaining evidence against appellant involved testimony showing that while incarcerated in Valdosta, he confided in a fellow inmate, Lowell Woodson, that there had been a robbery and a lady was shot. He asked Woodson to call his brother, Garfield Stokes, to tell him to get rid of the car or tires.

Appellant was convicted of armed robbery and first-degree murder and sentenced to death, following a jury recommendation. He raises several arguments in connection with both the conviction and sentence. The most significant issue deals with the admission of William Brown's hypnotically refreshed testimony.


Citing our decision in Bundy v. State, 471 So.2d 9 (Fla.1985), cert. denied, 479 U.S. 894, 107 S.Ct. 295, 93 L.Ed.2d 269 (1986) (Bundy II ), Stokes moved in limine to exclude Brown's posthypnotic descriptions, the identification of Garfield Stokes' While there is no consistently agreed upon definition of hypnosis, for our purposes we define hypnosis as "an altered state of awareness or perception." Sies & Wester, Judicial Approaches to the Question of Hypnotically Refreshed Testimony: A History and Analysis, 35 De Paul L. Rev. 77, 79 (1985). Compare Black's Law Dictionary 668 (5th ed. 1979); Counsel on Mental Health, Medical Use of Hypnosis, 168 J. A.M.A. 186, 187 (1958). During hypnosis, the subject is placed in an artificially induced state of sleep or trance through a series of relaxation and concentration techniques employed by the hypnotist. Hypnosis has a wide variety of forensic applications and benefits and, under clinical circumstances, can be very worthwhile. Here, we are concerned only with the use of hypnosis to refresh the recollection of a witness to an event or a crime for the purpose of testifying to his or her recollection in court.

                car, and the hypnotic session in its entirety.  The trial court excluded the session but ruled that because the posthypnotic statements were substantially similar to the prehypnotic statements, the descriptions and the identification were admissible.  In Bundy II, we held that hypnotically refreshed testimony is per se inadmissible in criminal trials, but a witness who has been hypnotized is still competent to testify to those facts demonstrably recalled prior to hypnosis.  Id. at 18.   In that case we were persuaded by opinions from other jurisdictions as well as by the voluminous expert research and writing on the subject.  These sources found that hypnotically refreshed testimony was simply too unreliable for use in criminal trials.  This case compels us to once more examine the reliability and practical application of posthypnotic testimony

In the first American case to address the issue of hypnotism in the courts, the California Supreme Court declared that "the law of the United States does not recognize hypnotism." People v. Ebanks, 117 Cal. 652, 655, 49 P. 1049, 1053 (1897) (summary approval of the trial court's decision to exclude expert testimony concerning hypnotically induced statements). Although this skeptical view was predominant well into the twentieth century, in 1968, the Maryland Court of Special Appeals allowed the use of hypnosis for evidentiary purposes. Harding v. State, 5 Md.App. 230, 246 A.2d 302 (Ct. Spec. App.1968), cert. denied, 395 U.S. 949, 89 S.Ct. 2030, 23 L.Ed.2d 468 (1969), overruled, Collins v. State, 52 Md.App. 186, 447 A.2d 1272 (Ct. Spec. App.1982). Since then, hypnosis has taken a rollercoaster ride through the courts, finding favor in some states, uncertainty in others, and complete disfavor in still others. This has been due, for the most part, to the numerous evidentiary problems associated with the use of hypnotically refreshed testimony.

In this case, we are concerned with the use of hypnotically refreshed testimony as evidence in a criminal trial. Accordingly, we must focus our attention on the reliability of this evidence rather than the many clinical and forensic benefits associated with hypnosis. The nature of hypnosis and memory reconstruction is such that several problems are raised by its use in court. These problems have been identified and summarized by Professor Bernard L. Diamond, M.D. in his article Inherent Problems in the use of Pretrial Hypnosis on a Prospective Witness, 68 Calif.L.Rev. 313 (1980) [hereinafter Diamond, Inherent Problems ]. Dr. Diamond is a professor of law, a clinical professor of psychiatry, and a noted expert in the field of hypnosis. His article delineates several evidentiary problems associated with hypnotically manipulated recall. These concerns have been unveiled through extensive, dilligent research conducted by respected members of the scientific community. First, a hypnotized person is subject to a heightened degree of suggestibility. E.g., Council on Scientific Affairs, Scientific Status of Refreshing Recollection by the Use of Hypnosis, 253 J.A.M.A. 1918, 1922 (1895) [hereinafter A.M.A. Council Report]; Diamond, Inherent Problems, supra, at 333. ("Hypnosis is, almost by definition, a state of increased suggestibility.").

This heightened suggestibility leads to other problems which tend to render hypnotically refreshed testimony less reliable than testimony of a witness whose memory has not been refreshed through the use of Another serious problem associated with the use of hypnotically refreshed testimony involves the tendency of the hypnotic subject to "confabulate," or invent details that he or she does not actually recall. Much research into the effects of hypnosis on the human memory has revealed that a hypnosis subject will invent or fabricate facts that he or she does not actually remember. Worse still, the subject is unable to distinguish between these confabulations and...

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