Zani v. State

• Citation: 758 S.W.2d 233
• Decision Date: 29 June 1988
• Docket Number: No. 1211-84,1211-84
• Parties: , 57 USLW 2114 Robert ZANI, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 233

758 S.W.2d 233

77 A.L.R.4th 897, 57 USLW 2114

Robert ZANI, Appellant, v. The STATE of Texas, Appellee.

No. 1211-84.

Court of Criminal Appeals of Texas,

En Banc.

June 29, 1988.

Second Motion for Rehearing Dismissed Sept. 27, 1988.

Roy E. Greenwood, court appointed on appeal, Austin, Louis Dugas, Orange, for appellant.

Ronald Earle, Dist. Atty. and Andrew Forsythe, Asst. Dist. Atty., Austin, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant was prosecuted in 1981 for the offense of murder with malice under the 1925 Penal Code. The offense was allegedly committed on July 23, 1967, in a convenience store in north Austin. A jury found appellant guilty, and assessed his punishment at 99 years confinement in the Texas Department of Corrections. The Texarkana Court of Appeals affirmed. Zani v. State, 679 S.W.2d 144 (Tex.App.--Texarkana 1984).

We granted appellant's petition for discretionary review in order to address a question expressly left open by our opinion in Vester v. State, 713 S.W.2d 920, 924 (Tex.Cr.App.1986), viz: "whether hypnotically-induced testimony is admissible in Texas." See also, id., at 929-30 (Clinton, J., concurring). ¹

The State's case in this cause rests primarily upon circumstantial evidence placing appellant in the Town & Country Store between the hours of 7:00 and 8:00 a.m., on the morning of the murder. Sometime during that hour the clerk of the store, George Vizard, was shot to death in the cold vault. The only witness purporting to see appellant in the store during this period of time was a construction worker named Jerry Magoyne, Jr. During a hypnosis session conducted in 1980, Magoyne gave a description of a man he saw behind the counter of the store shortly before 8:00 a.m. After the session he picked appellant's picture out of a photo spread. These facts were elicited at trial, as well as Magoyne's testimony he was "positive" appellant was the man he had seen, though prior to hypnosis he could remember only that he had seen a white male in the store on the morning of the killing.

Appellant brings four grounds for review pertaining to the admission of Magoyne's identification testimony at trial. First he contends that hypnotically enhanced identification testimony is inadmissible under the criterion set out in Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (D.C.Cir.1923). Second, he argues he was entitled to have counsel present during the 1980 hypnosis session, under the Sixth Amendment of the United States Constitution and Article I, § 10 of the Texas Constitution. He further contends the trial court erred in refusing to hear testimony of his hypnosis expert in the course of a pretrial hearing to determine admissibility of hypnotically enhanced testimony. Finally, appellant argues the trial court erred in failing to submit either his requested or some other cautionary instruction in the jury charge, admonishing the jury not to assign disproportionate weight to Magoyne's hypnotically refreshed testimony. We first address at some length the threshold question of admissibility. Finding that in some instances hypnotically enhanced testimony may be admissible, we will remand the cause to the court of appeals to determine admissibility of Magoyne's testimony in accordance with the standard we set out today. We then treat appellant's remaining hypnosis-related grounds seriatim.

I.

The State established that appellant had been a parttime employee at the Town & Country Store for about three weeks between mid-May and the early part of June, 1967. He knew how to operate the cash register, and, because he was sometimes responsible for opening or closing the store, he would have known the combination to the floor safe, hidden beneath a rubber mat behind the register. On the morning of July 23, a Sunday, there would have been "a fair amount of money" in the safe from the previous day. Located on the road to the lake, the store averaged about $1200 to $1500 in proceeds on Saturdays. ²

Perhaps the most damning evidence against appellant, aside from Magoyne's identification testimony, was the presence, shortly after the killing, of certain items on the checkout counter of the store bearing his fingerprints. A roll of lifesavers, a package of fudge brownies and a loaf of bread were all shown thus to have been handled by appellant. There was testimony that the bread man "would make that store every day of the week, including Sunday." While it was not shown whether the bread man had yet been to the store when the killing occurred, the State did prove that none of these items had been left on the counter the previous night.

Vizard was shot and killed with "either a .38 Special or .357 Magnum caliber copper-coated bullet, [that] was fired from the weapon which would exhibit eight lands and grooves inclining to the right"--referred to throughout trial as a "right 8." Firearms fitting this description in 1967 were shown to be somewhat rare, comprising an estimated three to five percent of the total firearms population. In 1979, Mexican police seized from appellant a .357 Ruger Blackhawk, with serial number 78283. Records from a sporting goods store in Austin revealed appellant had bought this pistol on July 22, 1966. Several of appellant's contemporaries testified that "around" the time of the murder they had seen appellant in possession of a pistol "similar" to that later taken from him in Mexico. While the condition of the bullets recovered at the scene prevented a firm identification of appellant's pistol as the murder weapon, it was found to be of the "right 8" variety.

II.

The trial court conducted a hearing immediately prior to trial in order to determine whether to admit Magoyne's testimony over appellant's objection, inter alia, that "there is no proper basis for permitting such testimony as a matter of scientific reliability." As proponent of the hypnotically enhanced testimony, the State produced three witnesses at the hearing. James Michael Boulch, a teacher of hypnosis at Texas A & M University, one-time student of Dr. Martin Reiser of the Los Angeles Police Department, ³ and trainer of various Texas law enforcement personnel in the uses of forensic hypnosis, opined that it is "possible to restore a person's memory through the use of forensic hypnosis[,]" that "[i]nformation gained under hypnosis has proven to be very reliable[,]" and that posthypnotic memory is "more reliable than [that of] someone who would not be under hypnosis[.]" He acknowledged that "a person can lie under hypnosis[,]" and that "[o]ne common denominator in hypnosis is suggestibility, and that is why much care needs to be taken in a forensic hypnosis to be sure the person isn't led or is not given suggestions that could lead them into giving information that would not be correct." Although Boulch himself did not conduct the hypnosis of Magoyne, he was present at the session. He testified that no description or picture of appellant was imparted to Magoyne prior to hypnosis, nor during the session were answers suggested to him in any fashion. Texas Ranger Carl Weathers, trained by Boulch in techniques of forensic hypnotism, actually conducted the hypnosis of Magoyne. At the time of the session he had been unaware appellant was a suspect in the case. He agreed that no suggestion or leading took place.

Magoyne himself testified during the hearing that at no time was a description suggested to him, either before or during the hypnosis. Afterward a stack of photographs was given to him. When he reached the third photo in the stack, a picture of appellant, he announced, "That's the man." Before the hypnosis session, Magoyne had never been asked to view a lineup or photo array. On crossexamination he admitted, "I did not know before hypnotism what I knew while I was hypnotized." He then identified appellant unequivocally as the man he saw behind the counter on the morning of the murder.

We have listened to the taperecording of the actual hypnosis of Mogoyne, as did the trial court prior to the hearing. A composite sketch was made during the hypnosis on the basis of questions asked both by Weathers and by the artist. From all we can gather from the tape, the questioning was not, by and large, overtly suggestive of particular answers. Magoyne's responses sound spontaneous. In fact, on those occasions where an answer was tentatively offered to him, he almost uniformly rejected it. Though both Weathers and the artist tried repeatedly to elicit information as to the color of the eyes, with Weathers attempting between efforts to place him deeper under hypnosis, Magoyne steadfastly declined to supply that information. In his testimony, Boulch alluded to this fact as indicative of an absence of "confabulation" during the hypnosis session. See Part III., post.

At the conclusion of the State's evidence on the hearing, appellant proffered Dr. Richard Garver, a clinical psychologist with a Board Specialty Certification in clinical hypnosis, and a consultant to the Federal Bureau of Investigation and other federal investigative agencies in forensic uses of hypnosis. Dr. Garver's testimony, according to appellant's bill of exceptions, would have gone to impugn the qualifications of the State's experts, to attack the procedures under which the hypnosis session was conducted and recorded, and to show "that in this case, generally and as a matter of law, this testimony was, if not absolutely, probably scientifically unreliable and should not go to the jury." However, the trial court ruled, without recourse to Dr. Garver's opinion, that Magoyne's identification testimony, though hypnotically retrieved, was sufficiently reliable to be submitted to the jury for its consideration, with the fact of hypnosis going solely to the weight the jury might choose to assign it. Thus, Dr. Garver testified only at...