Strong v. State, No. 1179S312

Docket NºNo. 1179S312
Citation435 N.E.2d 969
Case DateJune 03, 1982
CourtSupreme Court of Indiana

Page 969

435 N.E.2d 969
David J. STRONG, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 1179S312.
Supreme Court of Indiana.
June 3, 1982.

Arnold Paul Baratz, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Cindy A. Ellis, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted after trial by jury of murder, Ind.Code § 35-42-1-1 (Burns 1979), and attempted robbery, Ind.Code § 35-41-5-1, § 35-42-5-1 (Burns 1979). The trial court sentenced him to consecutive terms of forty (40) years imprisonment on the murder charge and thirty (30) years imprisonment on the attempted robbery charge. For the reasons stated below, we reverse the conviction.

At approximately 11:30 p. m. on September 1, 1978, two men entered an automobile service station in Marion County and announced a "stick-up." The attendant was placing money from his last sale into the cash register. He responded "No," and one of the intruders shot him. He died shortly thereafter. Assisting the attendant that night was his commonlaw wife, Norma Miller. She was three (3) to four (4) feet from the defendant when the incident occurred, and she gave a general description of the robbers to the police.

The following day Miller examined two books of police identification photographs, generally called "mug books." She selected the defendant's photograph from one such book, as a picture of the person who had shot her husband.

On September 8, 1978 Miller was hypnotized by Sergeant Vandergriff of the police department. At trial, Vandergriff related

Page 970

his experience and training in the area of hypnosis. During the hypnotic session the detective who was investigating the homicide was also present.

The purpose of the hypnosis was to enable Miller to review the incident in her mind and to assist an artist to compose a drawing of the robbers. The session was tape recorded and transcribed. A composite was drawn from Miller's description of the defendant given while in a hypnotic trance and was admitted into evidence, over the defendant's objection and pre-trial suppression motion. Miller was also allowed to identify the defendant in court, over the defendant's objection and pre-trial suppression motion.

On September 9, 1978 Miller was shown an array of ten "mug shots." She chose a photograph of the defendant as depicting the murderer. The array was entered into evidence over the defendant's objection.

On October 3, 1978 Miller viewed a line-up in which the defendant participated. On that occasion she selected a participant other than the defendant. At trial, she testified that on that occasion she deliberately chose the wrong person, because she was afraid that the defendant could see her.

The defendant contends that neither Miller's in-court identification testimony nor the composite drawing should have been admitted into evidence, because they were the products of an impermissibly suggestive hypnotic session.

We turn first to the composite drawing. Although some jurisdictions have held to the contrary, 1 the better reasoned cases hold that evidence derived from a witness while he is in a hypnotic trance is inherently unreliable and should, therefore be excluded as having no probative value. State v. Mena, (1981) 128 Ariz. 226, 231-32, 624 P.2d 1274, 1279-80; State v. LaMountain, (1980) 125 Ariz. 547, 551, 611 P.2d 551, 555; People v. Blair, (1979) 25 Cal.3d 640, 665, 602 P.2d 738, 754, 159 Cal.Rptr. 818, 834; Shockey v. State, (1976) Fla.App., 338 So.2d 33, 37, cert. denied, (1977) Fla., 345 So.2d 427; Rodriguez v. State, (1976) Fla.App., 327 So.2d 903, cert. denied, (1976) Fla., 336 So.2d 1184; Collier v. State, (1979) 244 Ga. 553, 558, 261 S.E.2d 364, 370, cert. denied, (1980) 445 U.S. 946, 100 S.Ct. 1346, 63 L.Ed.2d 781; Creamer v. State, (1974) 232 Ga. 136, 138, 205 S.E.2d 240, 241; People v. Kester, (1979) 78 Ill.App.3d 902, 910, 34 Ill.Dec. 216, 222, 397 N.E.2d 888, 894; Commonwealth v. a Juvenile, (1980) 381 Mass. 727, 412 N.E.2d 339, 341; People v. Gonzales, (1981) 108 Mich.App. 145, 310 N.W.2d 306; People v. Tait, (1980) 99 Mich.App. 19, 297 N.W.2d 853, 857; State v. Koehler, (1981) Minn., 312 N.W.2d 108, 110; State v. Mack, (1980) Minn., 292 N.W.2d 764, 772; State v. Pierce, (1974) 263 S.C. 23, 30, 207 S.E.2d 414, 418; Greenfield v. Commonwealth, (1974) 214 Va. 710, 715-16, 204 S.E.2d 414, 418-19.

Assuming, arguendo, that hypnosis can effect recall not otherwise attainable, the product is not susceptible of cross examination and should be excluded for this reason alone. The record shows that the composite drawing was such a product. It was, therefore, error to admit it into evidence.

Miller's in-court identification presents a different problem. Assuming, arguendo, that the hypnotic session was impermissibly suggestive, we must, nevertheless, determine whether or not the State demonstrated, through clear and convincing evidence, that the in-court identification of the defendant has a factual basis independent

Page 971

of the hypnotic session. Merrifield v. State, (1980) Ind., 400 N.E.2d 146, 149; Williams v. State, (1976) 265 Ind. 190, 197, 352 N.E.2d 733, 740. The factors that we consider in determining whether or not a potentially tainted identification has a sufficient independent factual basis are reviewed in Morgan v. State, (1980) Ind., 400 N.E.2d 111, 113, and are in substantial compliance with the due process requirements of Manson v. Brathwaite, (1977) 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154.

The record shows that Miller was an eyewitness to the murder. While the criminal incident transpired within a very brief period of time, during such time, she was only three (3) to four (4) feet from the defendant, and photographs introduced into evidence show that the service station is well lighted at...

To continue reading

Request your trial
44 practice notes
  • People v. Guerra, Cr. 22327
    • United States
    • United States State Supreme Court (California)
    • 21 Noviembre 1984
    ...v. Collins (1983) 296 Md. 670, 464 A.2d 1028, 1044; State v. Blanchard (Minn.1982) 315 N.W.2d 427, 430-431; Strong v. State (Ind.1982) 435 N.E.2d 969, 970-971; Robison v. State (Okla.Crim.App.1984) 677 P.2d 1080, 1085; State v. Peoples (1984) 311 N.C. 515, 319 S.E.2d 177, 188; Com. v. Taylo......
  • People v. Hayes
    • United States
    • United States State Supreme Court (California)
    • 28 Diciembre 1989
    ...(1983) 296 Md. 670 [464 A.2d 1028, 1044]; State v. Blanchard (Minn.1982) 315 N.W.2d 427, 430-431; Strong v. State (1982) --- Ind. ---- [435 N.E.2d 969, 970-971]; Robison v. State (Okla.Crim.App.1984) 677 P.2d 1080, 1085; State v. Peoples (1984) 311 N.C. 515 [319 S.E.2d 177, 188]; Com. v. Ta......
  • Johnson v. State, No. 1282S500
    • United States
    • Indiana Supreme Court of Indiana
    • 11 Enero 1985
    ...a hypnotic trance is considered inherently unreliable and, therefore, is not to be admitted into evidence. Strong v. State, (1982) Ind., 435 N.E.2d 969, reh. denied. The evidence shows there was an attempt to hypnotize the victim but such attempts were unsuccessful. The examiner was never a......
  • State v. Tuttle, No. 20068
    • United States
    • Supreme Court of Utah
    • 12 Abril 1989
    ...336 S.E.2d 798 (1985); Bobo v. State, 254 Ga. 146, 327 S.E.2d 208 (1985); Peterson v. State, 448 N.E.2d 673 (Ind.1983); Strong v. State, 435 N.E.2d 969 (Ind.1982); State v. Seager, 341 N.W.2d 420 (Iowa 1983); State v. Haislip, 237 Kan. 461, 701 P.2d 909 (1985); State v. Collins, 296 Md. 670......
  • Request a trial to view additional results
44 cases
  • People v. Guerra, Cr. 22327
    • United States
    • United States State Supreme Court (California)
    • 21 Noviembre 1984
    ...v. Collins (1983) 296 Md. 670, 464 A.2d 1028, 1044; State v. Blanchard (Minn.1982) 315 N.W.2d 427, 430-431; Strong v. State (Ind.1982) 435 N.E.2d 969, 970-971; Robison v. State (Okla.Crim.App.1984) 677 P.2d 1080, 1085; State v. Peoples (1984) 311 N.C. 515, 319 S.E.2d 177, 188; Com. v. Taylo......
  • People v. Hayes
    • United States
    • United States State Supreme Court (California)
    • 28 Diciembre 1989
    ...(1983) 296 Md. 670 [464 A.2d 1028, 1044]; State v. Blanchard (Minn.1982) 315 N.W.2d 427, 430-431; Strong v. State (1982) --- Ind. ---- [435 N.E.2d 969, 970-971]; Robison v. State (Okla.Crim.App.1984) 677 P.2d 1080, 1085; State v. Peoples (1984) 311 N.C. 515 [319 S.E.2d 177, 188]; Com. v. Ta......
  • Johnson v. State, No. 1282S500
    • United States
    • Indiana Supreme Court of Indiana
    • 11 Enero 1985
    ...a hypnotic trance is considered inherently unreliable and, therefore, is not to be admitted into evidence. Strong v. State, (1982) Ind., 435 N.E.2d 969, reh. denied. The evidence shows there was an attempt to hypnotize the victim but such attempts were unsuccessful. The examiner was never a......
  • State v. Tuttle, No. 20068
    • United States
    • Supreme Court of Utah
    • 12 Abril 1989
    ...336 S.E.2d 798 (1985); Bobo v. State, 254 Ga. 146, 327 S.E.2d 208 (1985); Peterson v. State, 448 N.E.2d 673 (Ind.1983); Strong v. State, 435 N.E.2d 969 (Ind.1982); State v. Seager, 341 N.W.2d 420 (Iowa 1983); State v. Haislip, 237 Kan. 461, 701 P.2d 909 (1985); State v. Collins, 296 Md. 670......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT