People v. Williams

132 Cal. App. 3d 920, 183 Cal. Rptr. 498, 1982 Cal. App. LEXIS 1678

Opinions

Opinion

GARDNER, J.

Footnotes

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In People v. Shirley (1982) 31 Cal.3d 18 [181 Cal.Rptr. 243, 641 P.2d 775], the Supreme Court held that the testimony of a witness who has undergone hypnosis for the purpose of restoring his memory of the events in issue is inadmissible as to all matters relating to those events from the time of the hypnosis session forward. In the initial opinion that rule was held applicable to all cases not yet final as of the date of that decision. A modification of Shirley was filed (now fn. 53, 31 Cal.3d at p. 67), which contains the following statement: “The principles stated in this opinion will govern the admissibility of the testimony of any witness who submits to pretrial hypnosis after the date of this decision. We take no position at this time as to the application of those principles to witnesses hypnotized before the date of this decision.”

In this case we affirm a judgment of conviction based upon the testimony of a witness who had undergone hypnosis for the purpose of restoring her memory of the events in issue and in so doing hold that Shirley shall be given only prospective effect.

Defendant waived a jury, was found guilty by the court of rape and robbery and sentenced to prison.

One night the defendant and his codefendant Calhoun robbed a fast food restaurant at gunpoint.¹ They forcibly took with them when they departed, Cheryl, a 19-year-old employee of the restaurant. She was taken to a secluded area where the defendant forcibly raped her. The other restaurant employee never saw the defendant and so the prosecution’s case depends entirely on Cheryl. Without her testimony the defendant is home free.

On the night of the crime Cheryl accurately described her assailant.

Cheryl was then shown a photographic lineup. Defendant’s picture was not in this lineup although that of his brother, Darnell, was. Cheryl did not identify anyone in the photographic lineup.

Cheryl then attended a corporeal lineup which again did not contain the defendant who apparently was still not a suspect. Calhoun was in this lineup but Cheryl wasn’t able to identify him. She was so frightened she did not look closely at the participants in the lineup.

Then Cheryl was hypnotized by a police officer. During this session she was told to review the lineups she had previously attended including the one which contained the picture of defendant’s brother, Darnell. Cheryl did not identify Darnell as one of her assailants. This is understandable since he was not. Cheryl testified that this hypnosis session had not changed her recall of the incident.

Then after this hypnosis session Cheryl viewed a corporeal lineup which for the first time contained the defendant. The record does not indicate just when and how the defendant became a suspect. Cheryl identified him. This was the first time she had seen him or a photograph of him. She testified unequivocally that her identification was based on her recollection of the event. It was obviously not based on any hypnotic suggestion since the defendant had never been mentioned at the hypnosis session.

At the pretrial hearing on the admissibility of Cheryl’s testimony the defendant presented the testimony of a psychiatrist who testified as to the unreliability of posthypnosis testimony and specifically as to the procedure used in this case. He cast doubt on Cheryl’s testimony. However his testimony became somewhat suspect when it developed that one of the bases of his opinion was his impression that the officers had shown Cheryl pictures of the defendant prior to the hypnosis session. This of course was not true. Then the psychiatrist decided that some how the showing of the defendant’s brother’s picture resulted in some kind of an improper suggestion to Cheryl. The trial court was singularly unimpressed with this psychiatrist’s testimony and said so. After listening to all of the evidence on the subject the trial court said “The court does not believe that any observations made by [Cheryl] concerning defendant Williams’ brother was in any way related to defendant Williams. The court is satisfied, beyond a reasonable doubt, that the hypnosis session did not in any way effect [Cheryl’s] later identification of defendant Williams.”

As indicated the court found the defendant guilty as charged.

As noted the Supreme Court in Shirley made clear the “principle” that the testimony of a witness who has undergone hypnosis for the purpose of restoring his memory is inadmissible as to all matters relating to those events from the time of the hypnosis session forward. Obviously the witness in this case fits that description. However, at the time of this hypnosis session no such principle existed.

The inquiry is whether Shirley is to be given retroactive effect. The criteria which the Supreme Court has enunciated (People v. Gainer (1977) 19 Cal.3d 835, 853 [139 Cal.Rptr. 861, 566 P.2d 997, 97 A.L.R.3d 73]) in determining whether a new rule should be made retroactive are:

(1) The purpose to be served by the new standard:

Rather obviously the Supreme Court has determined that the process of refreshing recollection by means of hypnosis is suspect and that testimony resulting from this practice should be kept from the jury.

(2) The extent of reliance by law enforcement authorities on the old standard:

Unquestionably law enforcement authorities have been widely using hypnosis for the purpose of refreshing recollection.

(3) The effect on the administration of justice of a retroactive application of the new standard:

There can be no question but that the effect would be devastating in pending cases such as this, If applied to this case a defendant found guilty by the trier of fact of two serious crimes goes free. Shirley had an escape hatch. The prosecuting witness had testified at a preliminary hearing before the hypnosis session and that transcript could be used on retrial. No such escape hatch exists in this case. Cheryl’s testimony affords the only basis for the conviction of this defendant. The trier of fact has ruled, based on that testimony, that this defendant is guilty of robbery and forcible rape. If we apply Shirley retroactively this defendant escapes responsibility. Additionally, in this case an experienced and capable trial judge has ruled beyond a reasonable doubt that the hypnosis had no effect on Cheryl’s testimony. This holding becomes meaningless if we apply Shirley retroactively.

It is true that in considering the application of the rules governing retroactivity we must consider the admonition found in Gainer, supra, 19 Cal.3d at page 853, that if the principle set forth in the rule serves the integrity of the fact-finding process the argument for retroactive application is particularly strong. However this is not a blanket ukase against all retroactivity in all cases which involve the fact-finding process. Shirley is a policy decision which specifically applies to future cases in order to avoid a practice which the Supreme Court has condemned. Nevertheless the practice of admitting hypnotically induced testimony, subject to the trial court’s discretion existed for many years prior to Shirley and still exists in the majority of jurisdictions. (See State v. Hurd (1981) 86 N.J. 525 [432 A.2d 86, 96-97], Annot., Admissibility of Hypnotic Evidence at Criminal Trial (1979) 92 A.L.R.3d 442.)

Therefore we are hardly in a position to say that in every case in which hypnosis rears its ugly head, the integrity of the fact-finding process has been seriously damaged.

Obviously the determination as to retroactivity involves a balancing process. The Supreme Court has made it clear that Shirley shall have prospective application. In the balancing process as to retroactivity it appears to us that considerations of judicial policy and the effective administration of justice compel the determination that Shirley shall not be given retroactive application.

Judgment affirmed.

Kaufman, Acting P. J., and McDaniel, J., concurred.

Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.

1

The trial court found Calhoun’s guilt had been proved by a preponderance of the evidence but was unable to find that his guilt had been established beyond a reasonable doubt.