U.S. v. McCollum, 83-5106

• Decision Date: 08 May 1984
• Docket Number: No. 83-5106,83-5106
• Citation: 732 F.2d 1419
• Parties: 15 Fed. R. Evid. Serv. 1033 UNITED STATES of America, Plaintiff-Appellee, v. Larry Eugene McCOLLUM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1419

732 F.2d 1419

15 Fed. R. Evid. Serv. 1033

UNITED STATES of America, Plaintiff-Appellee, v. Larry Eugene McCOLLUM, Defendant-Appellant.

No. 83-5106.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 4, 1983.

Decided May 8, 1984.

Richard Romero, Los Angeles, Cal., for plaintiff-appellee.

John F. Walter, Walter, Firestone, Richter & Kane, Los Angeles, Cal., for defendant-appellant.

Appeal from the United States District Court for the Central District of California.

Before FARRIS and REINHARDT, Circuit Judges, and WEIGEL, ^* District Judge.

WEIGEL, Senior District Judge:

Larry Eugene McCollum was convicted of attempted bank robbery under 18 U.S.C. Sec. 2113(a) after a jury rejected his defense that he was acting under hypnosis. McCollum now appeals from the conviction. He argues that the district court erred by (1) excluding certain videotaped testimony by the defendant; (2) refusing to exclude evidence of the defendant's prior bank robbery conviction; and (3) denying defendant an opportunity to call a second expert witness on surrebuttal. Also, McCollum contends that the prosecution violated his fifth amendment rights by making improper remarks during closing argument. We affirm the conviction.

I BACKGROUND

Appellant McCollum entered the Sunset-Cahuenga branch of Crocker National Bank in Los Angeles, California, at about 1:45 p.m. on May 5, 1982. He approached Steven Durkee, a bank employee, and without comment handed him an envelope. After being questioned twice about the envelope, McCollum said to Durkee, "Open it. I was told to bring it here. I don't know what is in it." Another Crocker employee, George Koch, opened the envelope and discovered a note. The note demanded $100,000, and stated that the person who had delivered it was under a hypnotic spell. Koch asked McCollum to sit down. McCollum complied, and remained seated while the bank was evacuated and police officers entered to apprehend him. McCollum failed to respond to the officers' initial questions and commands, but accompanied them to a police car. Later, while seated in the car, McCollum shook violently for a period of ten to fifteen seconds and then asked one of the officers, "What are you doing? Why am I here?"

Afterwards, McCollum claimed to have no recollection of his visit to the Crocker Bank branch. Four sessions with Kurt J. Jorgensen, a forensic hypnotist, "enhanced" McCollum's memory, according to the defense. During one of the hypnosis sessions, McCollum recalled that one John Covall, a prior acquaintance, drugged him and took him to a room where he was met by a woman named Sara. Sara injected McCollum with an unknown substance and placed McCollum under hypnosis. Covall and Sara then drove McCollum to the bank, where Sara asked McCollum to deliver an envelope to "her previous employer" and to "wait for some papers that he would be given as a result of what was in the envelope." According to Jorgensen, McCollum was given a post-hypnotic suggestion that if he were detained or questioned extensively, his mind would go blank, he would be gripped by fear, he would experience falling, and he would forget everything that had happened to him within the past eight hours. Jorgensen's interviews with McCollum were recorded on a videotape.

McCollum was indicted for attempted bank robbery and was first tried before District Judge Terry J. Hatter. The first trial ended in mistrial on October 6, 1982, as did the second, on October 14. The case was then transferred to District Judge William P. Gray.

Prior to the third trial, the defense renewed an in limine motion, denied in the earlier trials, to prevent the Government from introducing evidence of McCollum's 1970 armed robbery conviction for impeachment purposes should McCollum testify. The court denied defendant's motion, and McCollum did not take the stand during the trial.

Before the earlier trials, Judge Hatter had ruled that the defense could introduce an edited segment of the videotape of the Jorgensen-McCollum interviews for the purpose of demonstrating the basis for Jorgensen's opinion that McCollum acted under hypnosis. Judge Gray also allowed the defense to present part of the videotape showing Jorgensen purporting to hypnotize the defendant. However, he refused to allow the part of the videotape in which McCollum recited his "enhanced memory" version of events on May 5. McCollum's statements were instead presented to the jury in the form of Jorgensen's own testimony concerning the basis for his opinion.

Jorgensen was the sole expert witness called by the defense during its case-in-chief. The prosecution, in rebuttal, called Dr. Richard Douce, who testified that in his opinion based on study of the videotapes, McCollum was not in fact under hypnosis during his sessions with Jorgensen. In addition, Dr. John Stalberg was called and testified that based on an interview he had conducted with McCollum prior to the sessions with Jorgensen, he had concluded that McCollum was not a good hypnotic subject. Following the close of rebuttal, the defense attempted to call in surrebuttal Dr. James Walker, a second expert, to support Jorgensen's view that McCollum was hypnotized during the interview sessions and that he had acted under hypnosis on May 5. The court ruled that the proffered testimony would be repetitive and therefore improper surrebuttal. The defense was not permitted to call Dr. Walker.

Another prosecution witness was Officer Terrance Johnson of the Los Angeles Police Department. Johnson stated that upon booking McCollum, he routinely checked his arms for needle marks, and did not see any. During cross-examination, Johnson inspected a large tattoo on McCollum's left arm and conceded that it should have been listed as an "observable physical oddity" on the booking form. The tattoo was not so listed. In closing argument, the prosecuting attorney attempted to explain this inconsistency by reminding the jury that no evidence had been introduced to show that McCollum's tattoo was on his arm on May 5, 1982, the day he was booked. The prosecutor also pointed to a number of inconsistencies in the defense explanation of McCollum's conduct, repeatedly referring to that explanation as a "story." The defense objected to the use of the term "story," claiming that it was an improper comment on the defendant's decision not to testify.

The jury in this third trial returned a verdict of guilty. McCollum now appeals from the conviction. He raises several challenges to the proceedings below.

II

A. Exclusion of McCollum's Videotape Testimony

The first claim on appeal is that the trial court erred by refusing to allow presentation of the videotape segments in which McCollum, purportedly under hypnosis, narrated his version of events on May 5. McCollum's recorded out-of-court statements would have been inadmissible hearsay if offered to prove the truth of the events narrated. Fed.R.Evid. 801(c); Fed.R.Evid. 802; Fed.R.Evid. 803.

McCollum contends that his taped statements should have been admitted because they showed the basis for an expert's opinion that he was under hypnosis when he entered the bank. This circuit has held that an expert witness may be permitted to state an opinion based on otherwise inadmissible hearsay when the source of information is "of a type reasonably relied upon by similar experts in arriving at sound opinions on the subject." United States v. Sims, 514 F.2d 147, 149 (9th Cir.), cert. denied, 423 U.S. 845, 96 S.Ct. 83, 46 L.Ed.2d 66 (1975); see Fed.R.Evid. 703. Where the nature of out-of-court statements made by the defendant form the basis for an expert's opinion concerning the defendant's mental state, the expert may be permitted to recite the out-of-court statements. See, e.g., United States v. Hearst, 563 F.2d 1331, 1348-49 (9th Cir.1977), cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978).

However, the trial court did not err by excluding McCollum's videotaped recitation. The defense expert witness was allowed to relate the statements made by McCollum during the hypnosis sessions. In this circumstance, the court possessed broad discretion to exclude the videotape, which was merely cumulative evidence of the basis for the expert's opinion. Id. at 1349. The attempt to introduce the tape essentially amounted to an effort to put the defendant's testimony directly before the jury without subjecting him to the cross-examination and impeachment that would have followed had he taken the witness stand. Excluding this taped testimony was well within the court's discretion.

B. Allowing Evidence of Prior Robbery Conviction

Appellant challenges the trial court's in limine ruling that evidence of McCollum's 1970 armed robbery conviction would be admitted should he testify. Under Fed.R.Evid. 609(a)(1), the conviction could be admitted to impeach McCollum's credibility as a witness only if the trial court determined that the probative value of admitting the conviction for that purpose outweighed its prejudicial effect to the defendant. ¹

Appellant contends that the trial court erred by ruling the conviction admissible under this rule without making a specific finding that the probative value of the conviction with respect to McCollum's truthfulness outweighed the prejudicial effect of admission on the defense. ² Whether express articulation of such a finding is required in this circuit is unclear. Compare United States v. Cook, 608 F.2d 1175, 1187 (9th Cir.1979) (en banc) (admission of prior conviction under Rule 609(a)(1) upheld although balancing was "inarticulate" because "appropriate reasons could have been given" for decision to admit), cert. denied, 444 U.S. 1034, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980), with United States v. Hendershot, 614 F.2d 648, 653 (9th Cir.1980) (admission held erroneous because record left open the possibility that trial court might have applied an incorrect legal standard) and United States v....