Haselhuhn v. State

727 P.2d 280, 1986 Wyo. LEXIS 633

• Court: Wyoming Supreme Court
• Decided: October 31, 1986
• Docket: 85-268
• Status: Published

Opinions

THOMAS, Chief Justice.

In this appeal, which is taken from a conviction of aggravated robbery, in violation of § 6-2-401 (c)(ii), W.S.1977 (June 1983 Replacement), Darwin Haselhuhn asserts a series of errors relating to his trial. The issues to be addressed include a claim that a witness should not have been permitted to testify because he had been hypnotized; error for failing to grant a continuance in order to obtain expert testimony relating to hypnosis; the failure of the prosecution to make available evidence perceived to be of assistance to the defendant; error in introducing the results of a polygraph examination relating to a third person; improper argument in the form of testimony by the prosecutor; and a claim of a denial of the right of confrontation because a codefend-ant, at the time the oath was administered to witnesses, asserted that he would rely upon his Fifth Amendment right and refuse to testify. It is our conclusion that no reversible error is found in any of the matters asserted by Haselhuhn, and the judgment and sentence entered in the district court is affirmed.

On April 21, 1984, the Safeway Store in Green River, Wyoming was robbed by two male individuals, one armed with what appeared to be a sawed-off shotgun and the other armed with a knife. Thereafter a criminal complaint was filed in the county court charging the appellant with armed robbery. After a preliminary hearing, the appellant was bound over to the district court for further proceedings. An information charging the identical offense as that charged in the complaint subsequently was filed in the district court, and appellant pleaded not guilty when arraigned upon that information. The case was tried to a jury, and it returned a verdict finding Ha-selhuhn guilty of aggravated robbery. Ha-selhuhn was sentenced to a term of not less than eight years nor more than twelve years in the Wyoming State Penitentiary. It is from this judgment and sentence that Haselhuhn appeals.

In his brief in this court Haselhuhn presents a statement of the issues by listing six arguments as follows:

“I. Whether Appellant was denied his due process rights to notice and the opportunity to be heard because the trial court denied his motion for a continuance.

“II. Whether hypnotically enhanced recollections should be admissible and whether it is the State’s burden to establish at a hearing out of the jury’s presence that any hypnosis done by the State did not alter the witness’ recall in any fashion.

“HI. Whether the prosecution failed to abide by its constitutional obligation ‘to assist the defense in making its case’ and whether a reversal is mandated because the evidence the prosecution did not disclose was material to a just resolution of the facts.

“IV. Whether the prosecutor improperly used closing argument to testify to the jury that neither he nor Officer Jaramillo had hidden anything from the defense. “V. Whether it was plain error for the prosecution to introduce the results of a polygraph exam.

“VI. Whether Appellant was denied his right to due process by the presentation to the jury of his co-defendant’s invocation of the Fifth Amendment.”

The statement of the issues by the State of Wyoming is:

“I. The denial of Appellant’s motion for a continuance was proper and did not result in abridgement of his due process rights.

“II. The State did not offer hypnotically-enhanced testimony. Appellant had adequate notice and opportunity to impeach the testimony of the witnesses who were hypnotized.

“III. The Prosecution did not withhold from Appellant any material that can be considered Brady material.

“IV. The Prosecutor’s rebuttal argument was a fair response to the Appellant’s assertions that he was denied access to exculpatory information, and was in any event harmless.

“V. No reversible error resulted from the mention of a polygraph exam.

“VI. There was no reversible error committed when the Appellant’s accomplice said he would take the Fifth Amendment if called to testify.”

While some additional detail will be alluded to in connection with the disposition of the several issues in this case, the significant facts begin in the evening hours of April 21, 1984. Prior to closing time for the Safeway Store, three employees saw Haselhuhn enter the store. He was known to the store employees because he was a member of the crew employed by the contractor who maintained the floors in the store. None of the employees saw Hasel-huhn leave. Haselhuhn admitted that he was present in the store the night of the robbery but asserted that he was there in connection with his work on the maintenance crew. Haselhuhn’s co-defendant also was observed in the store prior to closing time, and, as with Haselhuhn, no one saw him leave. Haselhuhn admitted that he spent the evening with his co-defendant, but, of course, denied participation in the robbery. Not long after the store was closed at 10:00 P.M., the assistant store manager and a store clerk were balancing the books and working on the cash accounting in a cage which was locked most of the time. They observed two men, one wearing a ski mask and the other a Halloween mask, approaching the cage from the rear of the store. One of the men was armed with what appeared to be a sawed-off shotgun and the other with a knife. When the men reached the cage, they demanded the store money from the assistant store manager and the clerk.

Then they took the two victims to the rear of the store, bound them with duct tape, and left through a delivery door which could be opened only from the inside. It was necessary for them to take a key from the clerk in order to open the delivery door. Soon after the robbers left, the store employees managed to free themselves and summoned the police. When the police arrived, the assistant store manager and the clerk gave statements as to what had occurred. The assistant store manager advised the police officers that he was able to peek under the duct tape which the robbers had placed over his eyes and see one of them who had removed his ski mask. The store manager was able to furnish a physical description of the robber, describe the robber’s clothing, and advise the officers that he recognized the robber as one of the cleaning men but that he could not remember the man’s name. Later when the assistant store manager was shown a xeroxed array of photographs, he indicated that the photograph of the appellant might be the robber but pointed out that the hair was styled differently. The store clerk who had been a victim identified the photograph in the array as that of Haselhuhn, but she had not seen the robber without his mask. The store clerk, however, did furnish a description of the clothes, masks and weapons. Both the assistant manager and the clerk identified the voice of the co-defendant from a taped voice array.

Some time later, both the assistant manager and the clerk were interviewed under hypnosis by a non-professional with meager training in hypnotic techniques. This interview occurred prior to the preliminary hearing. At the preliminary hearing, the assistant store manager positively identified Haselhuhn as the robber he had seen. He even explained that he had removed his glasses to make the circumstances as similar as possible to the situation in the store at the time of the robbery, and he testified that he knew for sure that Haselhuhn was the robber. In his testimony at the trial the assistant manager again identified Ha-selhuhn as the robber.

Other testimony at the trial was introduced from three witnesses who testified that Haselhuhn had made statements to them which connected him with the robbery. A different witness testified that Haselhuhn and the co-defendant had visited him at his home on the night of the robbery. He stated that he did not know precisely what time they were at his home and conceded that they may have been there during the time that the robbery occurred or they may not have been there at that time.

As part of his trial strategy, Haselhuhn endeavored to focus suspicion upon a third party who was connected to a sawed-off shotgun that had been retrieved from the Black’s Pork River. In the course of examination concerning this shotgun, counsel for Haselhuhn asked one of the police officers what follow up had been accomplished with respect to the ownership of that shotgun and the reason for its presence in the river. The police officer testified that another detective had interviewed the third person and secured a polygraph examination of the third person. Thereafter the prosecution pinpointed the result of the polygraph examination which was exculpatory with respect to the robbery so far as the third person was concerned.

In his rebuttal argument the prosecuting attorney felt compelled to deny closing argument by counsel for Haselhuhn that evidence had not been made available to Ha-selhuhn. When objection was made the district judge permitted the prosecutor to. proceed with his argument.

The co-defendant was subpoenaed as a witness at Haselhuhn’s trial although he never was called to testify. In accordance with the practice of the court, all witnesses were sworn at once prior to the trial. At that time, it was observed that the co-defendant had not been sworn, and the district judge directed that the oath be administered to him. The co-defendant, however, then advised the court that he would rely upon his right not to testify against himself and that he would refuse to testify at the trial. In response to this occurrence, Ha-selhuhn requested a mistrial, but he made no request for any cautionary instruction.

We shall address first the issues relating to the admissibility of the testimony of identification by the store manager and the refusal of the trial court to grant a continuance. We have adopted the rule that hypnosis raises an issue of credibility with respect to the testimony of a witness, but the fact that the witness has been hypnotized does not render the witness incompetent to testify. Chapman v. State, Wyo., 638 P.2d 1280 (1982). While this court has been divided on the question, that rule was followed in Gee v. State, Wyo., 662 P.2d 103 (1983), and Pote v. State, Wyo., 695 P.2d 617 (1985). Haselhuhn argues that the court now should adopt a rule of incompetency of the witness rather than the rule of credibility. Haselhuhn argues that because the assistant manager could not remember the name of the cleaning crew member he thought to be the robber and because he could not identify a xeroxed photo of Haselhuhn with a different hair style as either the robber or a member of the cleanup crew, we must conclude that his testimony was enhanced by the hypnosis. The assistant store manager, as we have noted, was able to make a positive identification of Haselhuhn when he saw him in person at the preliminary hearing.

This case is like Pote v. State, supra, with respect to the fact that the testimony of the assistant store manager was rnot enhanced by virtue of the hypnotic interview. At the trial the assistant manager denied that his testimony was enhanced by the hypnotic session. The hypnotist also testified that the interview did not elicit any additional information from the assistant store manager beyond that which he had previously furnished. The testimony of the assistant store manager at the preliminary examination and at the trial was consistent with the statement first given to the police on the night of the robbery. The only difference was that the assistant store manager was able to identify Haselhuhn as the robber when he saw him in person. His explanation of his ability to identify Haselhuhn at that time rules out any impact of the interview under hypnosis. This case is similar to Chapman v. State, supra, in which defense counsel did not elicit any indication that the testimony of the witness was enhanced by hypnosis. It also is similar to Gee v. State, supra, in that the identification factors remained the same following hypnosis, and further, the identification by the assistant store manager was cumulative to other strong evidence of Haselhuhn’s guilt. We hold that the store manager did not offer testimony that had been enhanced by hypnosis, and no error occurred in permitting him to testify for that reason. In light of these factors we will not reconsider the rule of competency in this case.

Haselhuhn also complains of the failure of the prosecutor to advise him of the hypnosis of the assistant store manager which this court has said the prosecutor is required to do. Gee v. State, supra. We do not recede from our position that the state must advise the defendant of the fact that a witness has been previously hypnotized and make available to the defendant on request all statements and proceedings relating to the hypnosis. However, we do not discern a failure by the prosecution to comply with those requirements in this instance. The record demonstrates that the state complied with a discovery order entered by the district court. When examining the exhibits maintained by the Green River police department on the day prior to trial, defense counsel discovered a tape of the hypnotic interviews of the store manager and the store clerk. He had been offered access to this information well in advance of trial, but he did not discover the tapes until that moment. There is no reason to believe that the prosecutor was aware of the hypnotic interviews prior to that time. The prosecutor advised the court that he had not been aware of the fact that the witnesses had been hypnotically interviewed until the day prior to trial, and there is no reason to doubt him. Moreover, defense counsel from the time that he knew about the tapes of the hypnotic sessions had the opportunity to listen to them. We said in Gee v. State, supra, 662 P.2d at 104:

“To make such an attack on credibility, the attacking party must of necessity have knowledge of the fact of the pre-trial hypnosis of the witness.”

In this case defense counsel had that knowledge. His examinations of the assistant store manager and the hypnotist were accomplished with a good deal of skill based upon that information. He asked the assistant store manager about the hypnotic interview and what occurred. He also thoroughly addressed that subject with the person who had conducted the interview and raised numerous questions concerning the skills and abilities of the hypnotic interviewer. Under these circumstances the prosecution’s failure to specifically advise defense counsel of the hypnotic sessions did not violate Haselhuhn’s constitutional rights.

Haselhuhn insists, however, that under the same circumstances the trial court was guilty of an abuse of discretion in denying his motion for continuance which he asserted was necessary for him to obtain an expert witness on hypnosis. He contends that without an expert available to attack the testimony of the hypnotized witness he was denied due process of law. While we are cognizant of the right of a defendant in a criminal case to adequate representation, we are reluctant to structure a rule which would justify a continuance in every instance in which the defendant first becomes aware of information on the eve of trial which he could have learned about in ample time to prepare an adequate defense. The rule is firm that a motion for continuance is addressed to the sound discretion of the trial court. Wilde v. State, Wyo., 706 P.2d 251 (1985), and cases cited therein. No manifest injustice is demonstrated. The denial of a continuance does not appear from the record to have inhibited Haselhuhn’s attack upon the previously hypnotized witness. The absence of the proffered testimony of an expert witness who could have explained the impact upon the self-confidence of the hypnotized witness does not constitute a deprivation of Haselhuhn’s right to a fair trial required by due process of law. We hold that the district court did not abuse its discretion in denying the continuance in this case.

Haselhuhn’s next argument is that the prosecution failed to preserve and present to his counsel a statement of the witness who testified that Haselhuhn and his co-defendant visited the home of the witness on the night of the robbery, perhaps during the robbery. Haselhuhn asserts that this failure violated his right to be informed of exculpatory information under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). It seems almost trite to remind Haselhuhn that substantive and procedural legal rules are not an end in themselves. They are the means to an end. That end is to secure to a party a right to a fair trial. If any perceived failure to comply with those rules does not adversely impact the right to a fair trial, then this court is not disposed to reverse on the basis of purely technical error. If the witness testified truthfully, then Hasel-huhn also must have known that he was present at the home of the witness on the night of the robbery. With this information already in Haselhuhn’s possession, any failure of the law enforcement officers to record the statement of the witness and then make that information available to Haselhuhn could not have had any material impact upon the presentation of his defense. We note also that the prosecution is under no duty to create evidence; the duty is only that of preserving evidence which may be helpful to the defense. Chapman v. State, supra.

Furthermore, it is questionable whether this statement is exculpatory. Brady v. Maryland, supra, established the proposition that the prosecution must provide evidence which is material to the defense. In United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2398, 49 L.Ed.2d 342 (1976), the Supreme Court of the United States explained that material evidence is that which “might have affected the outcome of the trial.” The Brady-Agurs test is a demanding one. Buzbee v. Donnelly, 96 N.M. 692, 634 P.2d 1244 (1981). In light of the fact that Haselhuhn had equal knowledge of this information, we do not perceive how the failure of the police to disclose that evidence could have had any effect upon the outcome of the trial. The information was presented to the jury, and apparently the jury found that it did not establish an alibi in view of the other evidence which placed Haselhuhn at the scene of the accident. We hold that there was no error in this regard.

Haselhuhn also argues that reversible error occurred when the prosecutor introduced the subject of the polygraph examination which was made of a third party who was a suspect in the robbery and that this violated the rule adopted by this court in Schmunk v. State, Wyo., 714 P.2d 724 (1986). A police officer who was called by Haselhuhn testified on direct examination by Haselhuhn’s counsel as followed:

“Q. Now, we’ve already gone over yesterday the fact of how this particular shotgun was traced to an owner, a man named John Hamilton?

“A. That’s correct.

“Q. And that was done through tracing a serial number on it?

“A. Yes, sir.

“Q. All right. And your office contacted this fellow?

“A. Yes, sir.

“Q. And received his explanation for how this gun got in the river?

“A. Yes, sir.

“Q. What I’d like to know is what investigative steps you took after that point.

“A. I turned that part of the investigation over to Detective Thompson.”

Defense counsel chose to follow up the preceding examination in this way:

“Q. Okay. What did he end up doing?

“A. He went up and interviewed Mr. Hamilton. Like I says, he traced the steps of where the shotgun had gone, from what point to what point. He then ran the gentleman on a polygraph test. And his conclusion was that the gentleman was telling the truth on the shotgun.”

The prosecutor asked when he examined the police officer the following questions to which the indicated answers were given:

“Q. Now, according to your testimony today, that gun originally belonged to a John Hamilton?

“A. Yes, sir.

“Q. And you ran a polygraph, or someone ran a polygraph, about how it got into the river and why?

“A. That’s correct.

“Q. And he passed?

“A. That’s my understanding.

“Q. Didn’t show any deception? The polygraph didn’t indicate that he was lying?

“A. No, sir.”

No objection was made to this testimony at trial, and Haselhuhn now argues that this constitutes plain error. We are not satisfied that the criteria for plain error articulated in Hampton v. State, Wyo., 558 P.2d 504 (1977), and subsequently followed in this court are satisfied by these circumstances. Rather, we are persuaded that if there was any error it was invited by Haselhuhn who opened the door. Schmunk v. State, supra; Sanville v. State, Wyo., 593 P.2d 1340 (1979); Palato v. State, Wyo., 591 P.2d 891 (1979); Burns v. State, Wyo., 574 P.2d 422 (1978); Pack v. State, Wyo., 571 P.2d 241 (1977); Daellenbach v. State, Wyo., 562 P.2d 679 (1977).

With respect to Haselhuhn’s claim that he was denied his constitutional right to cross-examine witnesses against him, we understand his argument to be that when his co-defendant, upon the occasion of being administered the oath of á witness in this case, volunteered the information that he would exercise his constitutional right and would refuse to testify. This, in effect, was testimonial conduct by the co-defendant, and Haselhuhn was deprived of an opportunity to cross-examine the co-defendant about that testimonial conduct. As we have indicated, the co-defendant was not called as a witness, and he did not testify. The right of confrontation which is inherent to any fair trial involves cross-examination with respect to testimony that a witness has given. It does not, however, extend to a right to cross-examine a witness who is not called to testify with respect to conduct such as that which occurred in this case. Nothing material to the issues would have been elicited by such cross-examination and the possibility of harm to Hasel-huhn would be great indeed. The probability that Haselhuhn wanted the co-defendant to testify truthfully in this case is quite limited. It would appear instead that Ha-selhuhn prefers to have the claimed error to rely upon in his appeal. We note that Haselhuhn did request a mistrial, but did not ask for any cautionary instruction to the jury. While such incidents should be avoided in the trial of a case, this occurrence is not a ground for reversal. See Hopkinson v. State, Wyo., 632 P.2d 79 (1981), cert. denied, 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982).

The final contention of Haselhuhn relates to his argument that the prosecutor testified in rebuttal argument and this was reversible error. Haselhuhn’s counsel in closing argument said:

“Why are they so interested in distorting the evidence that way? * * * And we never had the chance to nail that [Hunter’s statement as to time] down at that time, because it wasn’t reported.

♦ * * * * *c

“They’ll write down things like that and they’ll make notes, but they won’t write down anything about a man who says, ‘Darwin couldn’t have been in the store between ten and ten-thirty.’ * * * ”

When the prosecutor made his rebuttal argument, he made these comments and counsel for Haselhuhn objected:

“The other thing that really angered me while Mr. Flynn was speaking, is * * * he stands up here and tries to put Joe Jaramillo on trial again, tries to put me on trial again. And you know, he suggested that we hid things from him. I want to tell you right now, ladies and gentlemen, there’s a discovery order on file in this case. The Judge has ordered the State to give all of our evidence to the Defendant. We had to do that prior to this trial, prior to you coming in here for voir dire and being questioned. This man had every police report that we had and had offered to have him examine every piece of evidence—

“MR. FLYNN: Excuse me, Your Honor. I wish to object at this point. I don’t want to state reasons in front of the jury because I think that would be improper, but the Court, I’m sure, is very much aware of the conference that we had in chambers regarding the hypnosis tape immediately prior to the trial. Because of that basis alone, I think it’s improper for this line of argument to continue.

“THE COURT: You may continue. You were given the opportunity to examine everything they had.

“MR. MONEYHUN: So then he suggests to you, after having all our evidence, that we’re trying to hide something from him. He knows what our evidence was. He knows what we had. If he could prove to you that we tried— that we did hide something from you, why didn’t he?”

In Browder v. State, Wyo., 639 P.2d 889 (1982), we held that the prosecutor is not permitted to testify in his closing argument. We also have held in a number of cases that when a defendant opens the door to response such as this, he will not be heard to complain on appeal. If it is a fair response, which we find this to be, to the defendant’s argument then entertaining a claim such as this on appeal simply permits a defendant to structure his own reversible error. In accordance with our earlier cases we will not treat this as reversible error. Sanchez v. State, Wyo., 694 P.2d 726 (1985); Bishop v. State, Wyo., 687 P.2d 242 (1984), cert. denied, 469 U.S. 1219, 105 S.Ct. 1203, 84 L.Ed.2d 345 (1985); Freeze v. State, Wyo., 662 P.2d 415 (1983). As we said in Freeze v. State, supra, 662 P.2d at 418, “[t]he appellant opened the door and the prosecutor merely closed it.”

We can discern no reversible error in the record in this case. The judgment and sentence is affirmed.