Strong v. State ( 1982 )

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 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 lineup 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 im-permissibly 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 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 night. The record also shows that Miller provided a description of the assailant to the police after the incident:

“Q. Did Norma Miller give you a description of the subject she saw that night?

“A. Yes sir.

“Q. What was that description?

“A. The description was Negro male, approximately 16 to 20, 5-4, thin build, wearing blue shirt and blue jeans, armed with a 45 caliber revolver. Second subject, negro male, 5-5, thin build, wearing jeans, tee shirt and red bandana type mask around his face.

“Q. Officer, are you reading from the D.H.C. which was dictated that very evening by yourself?

“A. I am reading from the D. H. C. which was given to the uniform men at the scene. They transcribed it onto type later.

“Q. Is that the same description that you received?

“A. The description I have, is a negro male, approximately 15 to 17, thin build, wearing blue tee shirt, blue jeans and carrying black automatic pistol and second subject she never saw.

“Q. Now that description that you are reading from is from your notes of that evening, is that correct?

“A. That’s correct.”

The following day Miller selected a photograph of the defendant as being the perpetrator. The hypnotic session did not take place until some five days later. At the trial, she testified that she had seen the defendant on several occasions prior to the incident when he had requested change for the soda machine.

This record contains ample evidence of a sufficient independent factual basis for Miller’s in-court identification. Manson v. Brathwaite, (1977) 432 U.S. 98, 114-15, 97 S.Ct. 2243, 2253-54, 53 L.Ed.2d 140, 154-55; Morgan v. State, (1980) Ind., 400 N.E.2d 111, 113-14; Hart v. State, (1980) Ind.App., 412 N.E.2d 833, 836; Eckman v. State, (1979) Ind.App., 386 N.E.2d 956, 958-59. The possible discrepancies in the descriptions related above and Miller’s conduct at the line-up are matters which go to the weight to be given her testimony and not to its admissibility. Willis v. State, (1980) Ind.App., 411 N.E.2d 696, 700.

The defendant asserts another error which we think also merits reversal. Over the defendant’s objection, the trial court admitted an envelope containing ten color photographs. The photographs constitute the array which was shown to Norma Miller and from which she had chosen the defendant’s photograph. The photograph that she chose was a “mug shot” of the defendant taken pursuant to a prior unrelated charge. Each of the ten photographs is a head and shoulders frontal view and has a small white card stapled over the bottom portion, in an attempt to hide a chain and plate, which contains identifying information.

The attempt to conceal the fact that the defendant’s photograph was a “mug shot” was meager at best. The exhibit was passed among the jurors, and any juror could easily have glanced under the card, without disturbing the staples, and have thereby learned that the defendant had been arrested for armed robbery in 1975. When the defendant testified, no mention was made of any prior record.

To sustain the admission of a “mug shot” taken in connection with a charge other than the one for which an accused is on trial, the State must show that the photograph in question is not unduly prejudicial and that it has substantial evidential value, independent of other evidence. Lawrence v. State, (1980) Ind., 412 N.E.2d 236.

The State has failed the first prong of this test. The State argues that “(prejudicial material had been deleted from all the photos.” The record shows that nothing was deleted; only that the prejudicial parts of the photographs were inadequately covered. We do not understand why the photographs were not enlarged and/or cropped in such a way as would have made even the chain holding the identification plate barely noticeable. See Lawrence v. State, supra; Gray v. State, (1978) 268 Ind. 177, 180, 374 N.E.2d 518, 520. See generally Blue v. State, (1968) 250 Ind. 249, 235 N.E.2d 471 (cases cited therein).

“We think the State did (not do) everything possible to minimize the likelihood that any prejudicial inferences would be drawn by the jurors.”

Lawrence v. State, (1980) Ind., 412 N.E.2d 236, 238.

The admission of the photographs was also error, which requires a new trial.

The judgment of the trial court is reversed, and the case is remanded for a new trial.

GIVAN, C. J., and DeBRULER and HUNTER, JJ., concur. PIVARNIK, J., dissents with opinion.

1 . Some courts recognize that placing a witness under hypnosis prior to trial does not by itself render the witness’ subsequent in-court testimony tainted or inadmissible. People v. Diggs, (1980) 112 Cal.App.3d 522, 169 Cal.Rptr. 386, 391; Clark v. State, (1979) Fla.App., 379 So.2d 372, 374-75; Creamer v. State, infra; People v. Smrekar, (1979) 68 Ill.App.3d 379, 388, 24 Ill.Dec. 707, 714, 385 N.E.2d 848, 855; Harding v. State, (1968) 5 Md.App. 230, 246 A.2d 302, cert. denied, (1969) 252 Md. 731, cert. denied, (1969) 395 U.S. 949, 89 S.Ct. 2030, 23 L.Ed.2d 468 (qualified in Polk v. State, (1981) 48 Md.App. 382, 427 A.2d 1041); State v. Hurd, (1981) 86 N.J. 525, 432 A.2d 86; State v. McQueen, (1978) 295 N.C. 96, 119-20, 244 S.E.2d 414, 427-28 (explicitly expressing no opinion on admissibility of a pre-trial statement made while under hypnosis; United States v. Awkard, (9th Cir. 1979) 597 F.2d 667 (cases cited therein).