Gee v. State

662 P.2d 103, 1983 Wyo. LEXIS 314

• Court: Wyoming Supreme Court
• Decided: April 28, 1983
• Docket: 5797
• Status: Published

Opinions

ROONEY, Chief Justice.

Appellant-defendant was found guilty after a jury trial of the crimes of aggravated robbery and unauthorized use of an automobile. He appeals from the resulting judgment and sentence, contending error in failure of appellee to adequately advise him of the fact that one of appellee’s witnesses had been hypnotized prior to testifying.

We affirm.

NECESSITY TO ADVISE APPELLANT OF PRETRIAL HYPNOSIS OF STATE’S WITNESS

We recently noted in Chapman v. State, Wyo., 638 P.2d 1280, 1284 (1982) that “[a]n attack on credibility is the proper method to determine the value of the testimony of a previously hypnotized witness” rather than an attack on the competency of such testimony. To make such attack on credibility, the attacking party must of necessity have knowledge of the fact of the pretrial hypnosis of the witness. We will not here repeat that said in Chapman v. State, supra, relative to the nature and conditions of hypnosis and the variations therein with respect to different hypnotists and subjects of hypnotism. Suffice it here to say that we emphasized in Chapman v. State, supra, that the credibility of a witness could be seriously impaired by hypnosis under certain circumstances inasmuch as:

“The issue relative to the admissibility of testimony of witnesses who were previously hypnotized is whether the product of the hypnosis was to refresh or develop the witness’ own recollection or to teach the witness and add additional facts to the recollection beyond that which has been mentally stored in the memory, consciously or unconsciously. The issue is properly one for the fact finder — as are all issues relative to the credibility of the witness.” 638 P.2d at 1282.

And we carefully inquired in Chapman v. State, supra, as to whether or not the defendant had adequate opportunity to determine and present to the jury the evidence relative to aspects of hypnotism and its use on the particular witness.

Implicit in the Chapman v. State, supra, holding is the requirement that the defendant be advised by the State of the fact that a witness had been previously hypnotized and that all statements and proceedings relative thereto be made available to the defendant on request. This requirement goes beyond those concerning discoverable materials for purposes of impeachment, Hubbard v. State, Wyo., 618 P.2d 553 (1980), and discoverable statements of witnesses under Rule 18(c)(1), W.R.Cr.P., and Fitzgerald v. State, Wyo., 601 P.2d 1015 (1979).

APPELLANT ADEQUATELY ADVISED OF PRETRIAL HYPNOSIS OF WITNESS IN THIS CASE

Prior to trial in this case, appellant moved for discovery of witnesses, exhibits and all exculpatory material¹ in possession of appellee. The motion was granted with minor exceptions, and the appellee complied with the order. In addition, appellee opened its files to appellant. Included in the material furnished to appellant was a supplemental report concerning the hypnosis of the witness. Appellant’s counsel apparently did not completely review the material and did not know that witness Davidson had been hypnotized until the fact was revealed during her testimony. But at the conclusion of the first day of the trial, appellant’s counsel listened to the tape recording of Davidson’s hypnotic session, and he later examined witness Davidson concerning the hypnosis and her previous testimony. The tape recording was introduced into evidence.

Appellant, thus, was advised prior to trial of the hypnosis session with Davidson. The fact that he had an abbreviated time to review the tape and present his position relative to the credibility of the evidence is attributable to the failure to carefully review that furnished to him by the appellee.

NATURE OF THE TESTIMONY OF THE PREVIOUS HYPNOTIZED WITNESS

Witness Davidson and three other employees were working in a Casper Safeway store after it closed for the day when a masked gunman appeared and ushered them into a produce cooler while he robbed the store. The gunman entered the cooler several times during the robbery to ask questions concerning the store. His mask (a bandanna) slipped from his face during one of his trips to the cooler. In their testimony, all three employees positively identified appellant as the robber. Witness Davidson also testified that she had seen appellant in the store earlier in the day without a mask. She added nothing as a result of the hypnotic session to the description of appellant which she gave prior to the session, but she said that the hypnosis made her “more confident” of her identification and that she “felt better about it.”

Appellant did not move for a continuance for the purpose of securing expert testimony relative to hypnosis. He did move for a mistrial at the close of all of the evidence on the ground that appellant’s right to effective assistance of counsel had been jeopardized by lack of notice regarding the hypnotized witness. He now contends denial of the motion to be reversible error.

CONCLUSION

The fact of hypnosis of witness Davidson was made known to appellant before trial. Pursuant to the thrust of our opinion in Chapman v. State, supra, such fact should be made known with specificity in the future. Appellant was afforded the opportunity to review the tape of the hypnotic session and examine relative to the session. The identification factors by the witness did not differ after the session from those before the session. The identification of appellant by witness Davidson was only cumulative to the identification by the other two witnesses. Under these circumstances, we do not find reversible error. See Campbell v. State, Wyo., 589 P.2d 358 (1979); Neilson v. State, Wyo., 599 P.2d 1326 (1979); Jones v. State, Wyo., 568 P.2d 837 (1977); and Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, 24 A.L.R.3d 1065, reh. denied 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967).

Affirmed.

1 . It may be said that the fact of the use of hypnosis and the results thereof were not exculpatory but were, in fact, the contrary, i.e. were evidence of guilt not innocence. But, as reflected in the previous section of this opinion, such must be disclosed, whether or not exculpatory. Exculpatory material may not be suppressed by the state after request for such by the defendant. Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Dodge v. State, Wyo., 562 P.2d 303 (1977).