Peterson v. State

448 N.E.2d 673, 1983 Ind. LEXIS 834
CourtIndiana Supreme Court
DecidedMay 11, 1983
Docket780S200
StatusPublished
Cited by31 cases

This text of 448 N.E.2d 673 (Peterson v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Peterson v. State, 448 N.E.2d 673, 1983 Ind. LEXIS 834 (Ind. 1983).

Opinions

PIVARNIK, Justice.

On July 12, 1979, Defendant-Appellant Anthony E. Peterson was found guilty of murder by a jury in the Hamilton Circuit Court. After further deliberation, however, the jury did not recommend the death penalty. The trial judge subsequently sentenced Peterson to fifty years imprisonment. Although several meritorious issues are presented to us in this direct appeal, we consider only one issue pertinent as we find that Appellant's conviction must be reversed. The issue upon which we reverse concerns the identification testimony of State's witness Gary Szeszycki, who was able to identify Appellant Peterson only after having been hypnotized.

On October 25, 1978, Marjorie Carter worked as a cashier at Brock's Pharmacy in the 3800 block of 38th Street in Indianapolis. Specifically, she testified that she worked with Karen Jeter behind the cashier counter at the front of the store. At approximately 5:15 p.m., Carter observed a young man walk into the store and proceed to the rear where he disappeared from her view. At about 5:87 p.m., Carter was approached at the cashier counter by two other young men, one of whom pulled a shotgun on her. The two men placed Carter, Jeter and the store's customers on the floor [674]*674and took various objects from them as well as money from the cash register. Shortly thereafter, Carter heard a gunshot from the back of the store. Carter then saw the man whom she observed walking into the store at 5:15 come from the back of the store wearing a mask over his face and carrying a shotgun. He had Gary Szeszyceki, the store's stockboy, in tow. The three men walked out the store's front door with Szeszycki. Szeszycki returned a few minutes later and the police alarm was sounded. Carter initially could not identify Peterson as the man who came into the store at 5:15 and walked to the rear, later emerging with a mask over his face. She did, however, subsequently determine that Peterson was that man and, over objection, identified Peterson at trial.

Gary Szeszycki testified that he was near the prescription department in the rear of the store when a young man came to the rear of the store at approximately 5:15. Szeszycki said that the man asked him where he could find some asthma medicine. After assisting the man, Szeszycki resumed his stock duties but soon noticed that the same young man was behind the prescription counter with Pharmacist John Stock-dale. Knowing that customers ordinarily were not allowed behind the counter, Szesz-yeki approached the counter only to discover that the man had a gun pointed at Stockdale. The man ordered Szeszycki and Stockdale, at gunpoint, to a different location in the store. Stockdale told Szeszycki to remain calm and to do what the gunman directed as the gunman followed Stockdale, who followed Szeszycki. The man ordered Szeszycki and Stockdale to return to the pharmacy department. When they were again near the prescription counter, Szesz-yceki heard a shot and felt a blow to his head. He did not become unconscious. Szeszyeki. heard a man come from the front of the store and ask: "What's taking so long?" This man and the gunman grabbed Szeszycki by the arms, pulled him to his feet and took him into the pharmacy area. Szeszycki there noticed John Stockdale lying on the floor in a pool of blood. The two men demanded to know where certain drugs were kept and ordered Szeszycki to aid them in collecting the drugs. After the two seemed satisfied with what they had collected, they took Szeszycki to the front of the store. The three men then left the store taking Szeszycki out into the parking lot where they released him. The man who came into the store at 5:15 and who apparently shot Stockdale said to Szeszyeki: "If you identify me, I will kill you."

When the police came to investigate, Szeszycki could recount the details of these crimes but could not identify any of the perpetrators. After three men were subsequently arrested in Muncie on a tip from a police informant, Szeszycki was unable to identify the man who shot Stockdale from a photographic array which included Peterson's picture. Szeszycki also attended a lineup including Peterson but again was unable to identify Peterson or anyone else as the person who shot Stockdale. Szesz-yeki subsequently agreed to be hypnotized in an attempt to aid his memory recall. On January 29, 1979, Detective Sergeant Virgil Vandagriff of the Marion County Sheriff's Department hypnotized Szeszycki at the Indianapolis Police Department's Headquarters. After this one session, Szeszycki identified a photograph of Peterson as the gunman behind the prescription counter. He also selected a photograph of a man he called "the second guy."

Peterson consistently objected to Szesz-yeki's testimony because of the use of hypnosis on Szeszycki. Peterson initially filed with the trial court a Motion to Suppress. After a hearing, this Motion was overruled. Peterson later filed a Motion in Limine, which also was overruled. Finally, Peterson objected to Szeszycki's testimony at trial. The trial judge overruled Peterson's objection but indicated that the record would reflect Peterson's continuing objection to Szeszycki's testimony. Peterson's objection to Szeszycki's identification testimony following hypnosis is based upon the following three grounds:

1. hypnosis has not gained such general acceptance in the scientific community so as to constitute a reliable and legally valid procedure for enhancing memory;

[675]*6752. permitting Szeszycki to testify and to identify Peterson after having been hypnotized denied Peterson his right to properly confront and cross-examine Szeszycki; and

8. by subjecting Szeszycki to hypnosis, the State may have destroyed material evidence by tampering with his original memory of the events in question.

Although this Court has considered hypnosis before, the specific issue now before us is new to Indiana. In Strong v. State, (1982) Ind., 435 N.E.2d 969, reh. denied, Witness Miller observed Defendant Strong murder her husband while standing three to four feet away from her. Prior to being hypnotized, Miller provided the police with Strong's description and selected his photograph from an array of photographs. Sergeant Vandagriff, the hypnotist in the instant case, hypnotized Miller to obtain a drawing of the perpetrator. 'The composite picture drawn from the description Miller proffered while in a hypnotic trance was admitted into evidence over Strong's pretrial suppression motion and objection at trial - Justice Prentice authored this Court's opinion which held that evidence derived from a witness while in a hypnotic trance is inherently unreliable and should be excluded as having no probative value. We held specifically:

"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."

Strong, 435 N.E.2d at 970. We further addressed Miller's in-court identification of Defendant Strong as follows:

"Assuming, arguendo, that the hypnotic session was impermissibly 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

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Bluebook (online)
448 N.E.2d 673, 1983 Ind. LEXIS 834, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peterson-v-state-ind-1983.