Dolliver, J.
Kevin Coe appeals his conviction of three counts of first degree rape. The primary issues on appeal are whether the admission of testimony by previously hypnotized witnesses was proper and whether the State proved the use or threatened use of a deadly weapon — one of the elements of first degree rape. We reverse the two counts in which witnesses were hypnotized, and affirm the third count which involved no hypnosis. We conclude the elements of first degree rape were met, and accordingly we affirm the conviction of one count of first degree rape.
Frederick H. "Kevin" Coe was originally charged in 1981 with six counts of rape in Spokane. He was convicted of four counts of first degree rape. The convictions were [835]*835reversed by this court in State v. Coe, 101 Wn.2d 772, 684 P.2d 668 (1984). The primary basis for reversal was the admission of posthypnotic testimony of witnesses who had been hypnotized prior to Coe's arrest. The court held:
Upon remand, the admissibility of the testimony of the previously hypnotized witnesses should be determined in accordance with our holding in State v. Martin [101 Wn.2d 713, 684 P.2d 651 (1984)]. Thus, testimony as to facts recalled during hypnosis would be inadmissible. . . . The testimony of the previously hypnotized witnesses would be admissible [, however,] if the State can show that the testimony consists solely of prehypnotic memory. . .
State v. Coe, at 786.
A new trial began in King County, after a change of venue at the defendant's request, in January 1985. Before trial began, the court held a lengthy pretrial hearing on hypnotism. The trial court ultimately interpreted the phrase "prehypnotic memory" to include both (a) information given by the witnesses before being hypnotized, and (b) any evidence provided after hypnosis which the State could prove to be based on prehypnotic memories and untainted by the hypnosis. On the basis of this holding, the court ruled the victims could testify to their identifications of the defendant, made some time after they had been hypnotized.
The jury found the defendant guilty of three of four rapes charged. The court dismissed count 2, involving Sherrill South, after the jury stated it was unable to reach a verdict. The counts at the second trial retained the numbering from the 6-count information in the first trial.
Count 3 — Julie Harmia. In the evening on October 23, 1980, Julie Harmia was raped and beaten in Spokane by an attacker who told her he had a knife. Before he left, he also told her he might come after her later and use the knife. She gave a detailed description of her attacker to the police. Samples of semen were collected for testing. On March 10, 1981, Harmia identified the defendant in a lineup as the person who raped her. She was never hypno[836]*836tized.
Count 5 — Mary Patricia Strange. On the morning of February 5, 1981, Mary Patricia Strange was raped on a playing field in Spokane where she had been jogging. After initial resistance by her, the attacker told her he had a knife. He inserted his fingers in her vagina, but no penile penetration occurred, so no semen sample was collected. She gave a detailed description of her attacker to police. A few days later, she was hypnotized by the police, but provided no different or additional evidence. Strange identified the defendant's picture out of a photo montage 2 or 3 weeks later. On March 10, 1981, she identified the defendant at a lineup.
Charles Williams, the custodian at a school next to the field where Strange was attacked, noticed a car parked near the field on the same morning of the Strange attack. He observed the features of the car, and after the rape was reported in the paper the next day, he gave a description of the car to the police. The police later hypnotized Williams in an attempt to obtain the license plate number of the car, but without success.
Count 6 — Diane Fitzpatrick. On the morning of February 9, 1981, Diane Fitzpatrick was raped in Spokane. The attacker told her he had a knife. She gave the police a description of her attacker. Semen samples were collected. Approximately 2 weeks after the attack, Fitzpatrick was hypnotized, but no different or additional evidence was obtained. On March 10, 1981, she identified the defendant at a lineup as the attacker.
The defendant was convicted on these three counts of first degree rape and given sentences of 25 years for count 3, 30 years for count 5, and life for count 6, to run consecutively, for a total sentence of life, plus 55 years. The case is before this court on direct review.
I
The defendant first challenges the admission of the identification testimony of the previously hypnotized victims as [837]*837directly contrary to the holdings of this court in the prior Coe decision and two other cases.
We have announced our rules regarding the admissibility of testimony by previously hypnotized witnesses in three companion cases, State v. Martin, 101 Wn.2d 713, 684 P.2d 651 (1984); State v. Laureano, 101 Wn.2d 745, 682 P.2d 889 (1984); and State v. Coe, supra. The Martin court stated:
[A] person, once hypnotized, should be barred from testifying concerning information recalled while under hypnosis.
Martin, at 722. The court also prohibited the admission of "testimony by a witness as to a fact which became available following hypnosis ..." Martin, at 714. The court established a separate rule regarding the admissibility of testimony as to facts recalled prior to hypnosis. A party seeking to admit such testimony has "the burden of establishing what the witness remembered prior to the hypnosis." Martin, at 722. The proponent should have some independent verification of the witness' prehypnotic memory, such as a record preserved prior to hypnosis. State v. Martin, at 722-23.
In the second case, State v. Laureano, we specifically excluded a lineup identification made after hypnosis, even though the witness had given a description to the police prior to the hypnosis.
[W]e hold that all posthypnotic testimony should be rejected, and only the prior recall of the witness, properly preserved and documented (as set forth in State v. Martin), should be allowed in evidence.
State v. Laureano, at 753. The court held the process of hypnosis itself necessarily affects everything the witness recalls about the incident thereafter and stated, "[t]he plain fact is that such testimony is not and cannot be reliable." State v. Laureano, at 752 (quoting Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Calif. L. Rev. 313, 348-49 (1980)).
In the third opinion, the prior Coe decision, the court stated:
[838]*838The unreliability of hypnosis as a means of restoring memory makes the use of hypnotically aided testimony unacceptable in the context of a criminal trial. . . . . . . Thus, testimony as to facts recalled during hypnosis would be inadmissible.
Coe, at 786.
In the trial court below, the State successfully argued this specific language did not prohibit the admission of the identification testimony since the descriptions by the victims did not change during hypnosis, so the prehypnotic descriptions and later identifications were not "hypnotically aided", nor did they constitute "facts recalled during hypnosis".
This, however, contradicts the mandate of Laureano, which rendered all posthypnotic testimony inadmissible, treating the hypnosis as a time barrier after which no admissible identifications could be made. The trial court below did not address the Laureano decision in its ruling on hypnosis.
It is impossible to distinguish the counts involving hypnotism in the present case from Laureano. In both cases witnesses gave detailed descriptions of their attackers prior to hypnosis, but made no identification until after hypnotism. Laureano held under these circumstances the posthypnotic testimony was inadmissible, and we must reach the same result here.
We note the recent opinion of the United States Supreme Court in Rock v. Arkansas, _ U.S. _, _ L. Ed. 2d_, 107 S. Ct. 2704 (1987), which found the prohibition of certain posthypnotic testimony to violate the constitutional right of criminal defendants to testify on their own behalf. Since the decision is expressly limited to the testimony of criminal defendants, it has no effect upon our decision here regarding the posthypnotic testimony of other witnesses.
The trial court's ruling did not comply with the explicit rule set forth in Laureano. The admission of the posthypnotic identifications mandates reversal of counts 5 and 6. [839]*839The conviction of the defendant for count 3 is not affected, however, since no hypnotic testimony was presented regarding that count.
II
The defendant next challenges the loss of the vaginal swab samples from counts 2 (South) and 3 (Harmia), which had been used to perform semen identification tests. We conclude the defendant failed to prove a reasonable possibility that further testing would have been possible or would have refuted the State's tests.
The prosecution has a duty to preserve all potentially material evidence. State v. Wright, 87 Wn.2d 783, 793, 557 P.2d 1 (1976). The duty to preserve evidence does not, however, require the State to preserve evidence longer than reasonably necessary to provide the defendant a reasonable opportunity to obtain access to the evidence. The only Washington case which has reversed a conviction for destruction of evidence involved destruction before the defendant had any opportunity to view the evidence and before any testing by either party. State v. Wright, supra. See also Hilliard v. Spalding, 719 F.2d 1443 (9th Cir. 1983) (no matching tests conducted before destruction of semen samples).
In the present case, three separate samples were collected for count 2 (South), count 3 (Harmia), and count 6 (Fitzpatrick). The charge on count 2 was dismissed below and is not at issue in this appeal nor any evidence from it. The sample in count 3 (Harmia) was discarded some time after the first trial and conviction, and there is no showing it was due to any other cause than inadvertence or good faith. The sample from count 6 (Fitzpatrick) was never discarded. The defense received the count 6 sample but never retested it.
The defendant has failed to prove the missing evidence would, with reasonable possibility, have helped to exculpate him. In State v. Vaster, 99 Wn.2d 44, 659 P.2d 528 (1983), we held the inadvertent or good faith failure to preserve evidence does not abridge a defendant's right to a fair trial [840]*840unless there existed a reasonable possibility the particular evidence was material and favorable to the defense:
Lost or destroyed evidence which does not rise to the level of establishing a "reasonable possibility" that it will exculpate a defendant will be deemed insufficiently material to constitute a due process violation.
State v. Vaster, at 52.
The results of the State's tests only served to indicate Coe and the attacker were within the same approximately 38 percent of the population. The defense has not shown that the samples could have been effectively tested several years later, nor did it indicate the State's tests were improperly performed. The defense expert conceded he believed the State's tests were properly performed. The defense also failed to test the one sample that did remain. The defendant's arguments on this issue do not present a basis for reversal.
Ill
Prior to trial, the defendant moved to exclude reference to the conviction of Ruth Coe, Kevin Coe's mother, for solicitation to commit the murders of the Spokane County judge and prosecutor following Kevin Coe's first trial. The trial court ruled the prosecutor could use the evidence of the conviction to impeach Ruth Coe if she testified. Following this ruling, the defense decided not to call Ruth Coe as a witness. The defendant contends the trial court erred in ruling the evidence could be admitted, depriving the defendant of an important witness. We conclude the evidence of the conviction was relevant, probative, and not unduly prejudicial to defendant.
ER 609 provides:
For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted . . . during cross examination but only if the crime (1) was punishable by death or imprisonment in excess of 1 year under the law under which he was convicted, and the court determines that the probative value [841]*841of admitting this evidence outweighs its prejudicial effect to the defendant. . .
The central issue under this rule is the balancing of probative value and prejudicial effect. The defense apparently concedes the evidence had probative value and does not dispute it would show interest or bias of a witness. Nonetheless, the defense contends the prejudicial effect was to deprive the defendant of her testimony, given at the first trial, regarding his habitual schedule, his wardrobe and appearance during the relevant time period, and his relationship to his former girl friend. However, both the defendant himself and his father, Gordon Coe, remained available to testify to these matters. It does not appear the deprivation of Ruth Coe's testimony produced any unfair prejudice to the presentation of Coe's defense.
IV
The defendant contends the trial court erred in denying challenges for cause to jurors who were aware of the outcome of the first trial or Ruth Coe's conviction. We find no error, since the trial court relied on the jurors' assurances of impartiality.
The Supreme Court has stated a prospective juror who has prior knowledge of the defendant's prior conviction and reversal need not be automatically disqualified. Patton v. Yount, 467 U.S. 1025, 81 L. Ed. 2d 847, 104 S. Ct. 2885 (1984). A trial court may decide, as a question of fact, whether a juror's "protestation of impartiality" should be believed, and the appellate court must then give great deference to that finding. Patton, at 1036.
The defense primarily relies on United States v. Williams, 568 F.2d 464, 471 (5th Cir. 1978). Williams, however, was relied upon by the Third Circuit in Yount v. Patton, 710 F.2d 956, 969 (3d Cir. 1983), which the Supreme Court later reversed in Patton v. Yount, supra.
Further, as the trial court below observed, the jury inevitably would learn of the prior trial during the course of the retrial. In State v. Latham, 100 Wn.2d 59, 64, 667 P.2d 56 (1983), the court noted:
[842]*842Petitioner's argument assumes he was entitled to a jury which was totally ignorant of the subject matter of the case and the witnesses. This standard was rejected in Irvin v. Dowd, [366 U.S. 717, 6 L. Ed. 2d 751, 81 S. Ct. 1639 (1961)]. There the Court noted:
It is not required, however, that the jurors be totally ignorant of the facts and issues involved. ... It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.
Irvin, at 722-23.
The refusal to excuse these jurors for cause was not error by the trial court.
The defense also raises an issue regarding the seating of an alternate juror on the jury. Three alternate jurors had been selected before trial began. One of the original jurors had to be excused and was replaced with alternate juror number 1. A second juror was excused during the course of the trial and replaced with alternate juror number 2. Defense apparently argues the selection among the alternate jurors should have been random rather than sequential. CrR 6.5 provides:
If at any time before submission of the case to the jury a juror is found unable to perform his duties the court shall order him discharged, and the clerk shall draw the name of an alternate who shall take his place on the jury.
We conclude the constitutional requirement of a randomly selected jury was satisfied by the initial random selection of jurors and alternate jurors from the jury pool. See State ex rel. Murphy v. Superior Court, 82 Wash. 284, 144 P. 32 (1914); State v. Killen, 39 Wn. App. 416, 693 P.2d 731 (1985). Further, the defendant did not challenge the trial court's compliance with CrR 6.5 at any time before appeal. Since the issue is compliance with a procedural rule rather than a constitutional issue, it may not be raised for the first time on appeal. See Wilson v. Steinbach, 98 Wn.2d 434, 440, 656 P.2d 1030 (1982); State v. Portnoy, 43 Wn. App. 455, 465, 718 P.2d 805 (1986).
V
The defendant contests the admission of testimony by [843]*843Dr. Robert Wetzler, regarding an interview and evaluation he conducted of the defendant after the conviction in the first trial and before sentencing. During the interview, the defendant admitted he "did" the Fitzpatrick rape, count 6. The admission was apparently made as part of an unsuccessful strategy of the defendant to be sent to Western State Hospital instead of being sentenced. The defendant claims the interview was privileged.
In order for a privilege to apply, the communication must originate in confidence that it will not be disclosed. State v. Wilder, 12 Wn. App. 296, 299, 529 P.2d 1109 (1974); 8 J. Wigmore, Evidence § 2285 (1961). This court has stated a forensic examination, made not for purposes of treatment but for the publication of results, is not privileged. State v. Sullivan, 60 Wn.2d 214, 223-24, 373 P.2d 474 (1962).
In the present case, both parties anticipated the communications would be revealed in court. Wetzler was employed specifically to testify. Wetzler testified he informed Coe three times the conversation was not privileged. We find the communication was not privileged, and the trial court did not err in admitting the testimony.
VI
The defendant contends the trial court abused its discretion in ruling inadmissible the expert testimony of Dr. Elizabeth Loftus regarding the fallibility of eyewitness identification testimony.
The specific issue of the admissibility of Dr. Loftus' testimony has arisen numerous times in the appellate courts of this state. The decisions have consistently found the refusal to admit the testimony to be within the discretion of the trial court. State v. Guloy, 104 Wn.2d 412, 430, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986); State v. Jordan, 39 Wn. App. 530, 542, 694 P.2d 47 (1985); State v. Barry, 25 Wn. App. 751, 760-61, 611 P.2d 1262 (1980); State v. Brown, 17 Wn. App. 587, 596-97, 564 P.2d 342 (1977).
[844]*844The defendant cites, however, a recent Court of Appeals decision, State v. Moon, 45 Wn. App. 692, 726 P.2d 1263 (1986), in which the court defined limited circumstances where the exclusion of Dr. Loftus' testimony would constitute an abuse of discretion: (1) an eyewitness identification is the principal issue at trial; (2) the defendant presents an alibi defense; and (3) there is little or no other evidence linking the defendant to the crime. Moon, at 697.
Even if such a test were accepted by this court, the test has not been met here. Other evidence was presented linking the defendant to the crimes, including an admission by him to one of the rapes. We find the exclusion of Dr. Lof-tus' testimony was not an abuse of discretion.
VII
The defendant contends the trial court erred in allowing the crimes to be charged as first degree rape since the State presented no evidence of the actual presence of a deadly weapon. We conclude the element of first degree rape requiring use or threat of use of a deadly weapon is satisfied by the threat itself, without evidence of the actual existence of a deadly weapon.
At the time of the crimes involved here, RCW 9A.44.040 defined rape in the first degree to occur when the attacker "[u]ses or threatens to use a deadly weapon". The issue of whether an actual deadly weapon must be present was raised but not decided by this court in State v. Hentz, 99 Wn.2d 538, 663 P.2d 476 (1983). In Hentz, the 4-judge lead opinion concluded the defendant need not possess an actual weapon to satisfy the elements of first degree rape. The defendant had apparently possessed a toy gun which he represented to the victim as real. The four Justices agreed with State v. Ingham, 26 Wn. App. 45, 612 P.2d 801, review denied, 94 Wn.2d 1008 (1980), which upheld a first degree rape conviction where the defendant threatened the use of a knife, although no knife was seen or found upon the defendant. Hentz, at 542.
The fifth Justice necessary to create a majority concurred [845]*845only on the basis there was evidence the defendant had a real gun. Hentz, at 546 (Dore, J., concurring). The opinion thus did not fully resolve the issue where no evidence is presented of an actual deadly weapon.
Our conclusion the statute does not require evidence of an actual deadly weapon is supported by several considerations. First, as the lead opinion in State v. Hentz, supra, noted, the effect upon the victim is the same whether the deadly weapon is actually seen or merely described, by removing the possibility of self-defense:
The concern regarding a perpetrator of a rape threatening to use a deadly weapon is a legitimate one. The believable or credible threat to use a deadly weapon will likely instill a greater fear in the victim than any other type of threat. If the defendant threatens to strangle his victim, she has at least an opportunity to defend herself; but the same does not apply to the threat to use a gun, knife or other deadly weapon.
Hentz, at 544. The opinion stated the difference between the first and second degree rape statutes reflected
the more serious nature of a credible threat to use a deadly weapon. This type of threat is equally terrifying and effective whether or not the perpetrator actually possesses a deadly weapon, in light of the personal nature of the crime and the inability of a victim to defend against a bullet or other deadly force.
Hentz, at 544.
Further, the first degree rape statute is unique among serious felony statutes in including threatened use of a deadly weapon within the definition of the offense. Definitions of other first degree felony offenses involving weapons do not include threatened use within the definition. See, e.g., RCW 9A.32.030 (first degree murder); RCW 9A.36.010 (first degree assault); RCW 9A.56.200 (first degree robbery). See Hentz, at 545.
The history of the legislative response to Ingham and Hentz also supports our interpretation of the statutory language. After Ingham was decided, the Legislature met several times and did not change the language addressed in [846]*846Ingham. In fact, it specifically considered and reenacted the same language in the first degree rape statute several times. Laws of 1982, ch. 192, § 11, p. 804; Laws of 1982, ch. 10, § 3, p. 87; Laws of 1981, ch. 137, § 36, p. 533; Laws of 1981, ch. 136, § 57, p. 495. The Legislature is deemed to acquiesce in the interpretation of the court if no change is made for a substantial time after the decision. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 789, 719 P.2d 531 (1986); Nyland v. Department of Labor & Indus., 41 Wn.2d 511, 513, 250 P.2d 551 (1952). We therefore can conclude the legislative silence after Ingham was an indication of legislative approval of the Ingham interpretation of the statute.
The defendant claims a later addition to the statute supports his position. The Legislature in 1983 amended the language to include use or threat of use of a deadly weapon "or what appears to be a deadly weapon", Laws of 1983, ch. 73, § 1, p. 433. The Legislature made this amendment after the Court of Appeals published its Hentz decision which had held evidence of a toy gun would not support a conviction for first degree rape. State v. Hentz, 32 Wn. App. 186, 647 P.2d 39 (1982), rev'd, 99 Wn.2d 538, 663 P.2d 476 (1983). We do not believe the purpose of the amendment, as the defendant asserts, was an indication the threat alone was not sufficient. Rather, the language was added by the Legislature in light of the conflicting results of Ingham and the Court of Appeals decision in Hentz to avoid disparity of treatment between a defendant who threatens with a displayed but ineffective deadly weapon and a defendant, as here and in Ingham, who threatens the use of, but never displays, a deadly weapon.
Other jurisdictions have interpreted similar statutory language and also found no evidence of an actual weapon is necessary. In People v. Dodt, 61 N.Y.2d 408, 462 N.E.2d 1159, 474 N.Y.S.2d 441 (1984), the court interpreted a criminal statute with the language "using or threatening to use deadly force", and concluded:
[847]*847Proof . . . that defendant threatened the use of a gun is sufficient to establish . . . threatened use of deadly physical force, even though there is no evidence that in fact he possessed an operable firearm. . . .
. . . Defendant argues . . . that the proof was insufficient because it must be shown that the threat made was capable of present realization and there was no evidence at trial that he actually possessed a gun . . .
The plain language of the statute requires rejection of defendant's argument.
Dodt, at 411, 414. See also People v. Gallegos, 193 Colo. 108, 109, 563 P.2d 937 (1977) (threat of criminal violence satisfies statutory requirement of "felony involving the use of force or violence or the use of a deadly weapon").
The Hentz lead opinion concluded:
[I] t is clear from the terms of RCW 9A.44.040(l)(a) that the threat which he made in perpetrating the rape, coupled with the circumstances surrounding that threat which lent it credibility, is the crux of his conviction for first degree rape.
Hentz, at 545. In the present case, the circumstances surrounding the attacks also lent credibility to the threats made. The counts in the present case were properly charged against the defendant as first degree rape.
VIII
After Wetzler testified in the State's case in chief, the trial court permitted the State to recall him to rebut statements made by Coe. The defendant contends this was an improper use of rebuttal, allowing Wetzler to reiterate his testimony. We find the rebuttal testimony properly responded to new issues raised by the defense and was not repetitive.
The general standard for rebuttal testimony is stated in State v. White, 74 Wn.2d 386, 394-95, 444 P.2d 661 (1968):
Rebuttal evidence is admitted to enable the plaintiff to answer new matter presented by the defense. Genuine rebuttal evidence is not simply a reiteration of evidence [848]*848in chief but consists of evidence offered in reply to new matters. The plaintiff, therefore, is not allowed to withhold substantial evidence supporting any of the issues which it has the burden of proving in its case in chief merely in order to present this evidence cumulatively at the end of defendant's case. Ascertaining whether the rebuttal evidence is in reply to new matters established by the defense, however, is a difficult matter at times. Frequently true rebuttal evidence will, in some degree, overlap or coalesce with the evidence in chief. Therefore, the question of admissibility of evidence on rebuttal rests largely on the trial court's discretion, and error in denying or allowing it can be predicated only upon a manifest abuse of that discretion.
(Citations omitted.)
The State has thoroughly demonstrated that each item of Dr. Wetzler's rebuttal testimony was presented in direct response to assertions made by Coe on the stand and was not repetitive of Dr. Wetzler's prior testimony. The trial court's ruling fails to demonstrate manifest abuse of discretion in admitting the rebuttal testimony.
IX
One of the reasons the court allowed Dr. Wetzler to be recalled was to confirm or deny Coe's assertion he had told Dr. Wetzler that Diane Fitzpatrick had lied about the knife. The court referred to this issue during the rebuttal testimony but outside the presence of the jury. The defense contends the court's comments improperly suggested a question to the prosecution. We conclude the court's conduct did not present undue bias.
The verbatim report of proceedings indicates the court had initially expressed its concern regarding the complexities of rebuttal testimony and had allowed the State to ask leading questions in order to carefully define the scope of the testimony:
The Court: I was doing that because I have a concern about a mistrial. I think we are all aware in this particular area if you don't walk very carefully, there are some real dangers of a mistrial in this area because of ques[849]*849tions being asked, and that's why with this particular witness I'm exceedingly careful about what questions are going to be asked and what the answers are going to be, because if you get certain answers, as you have indicated to me and I have indicated to you, there is a grave danger of a mistrial. I think that's something we all want to stay away from.
The court's subsequent comments can be understood as its attempt to enforce the scope of the rebuttal testimony. The first comment by the court regarding the knife was part of its ruling allowing Dr. Wetzler to be recalled to testify on that subject. The second comment by the court referring to the questioning regarding the knife can also be explained by the trial court's intent to control the use of the rebuttal:
The Court: It should be noted that this is entirely outside the presence of the jury . . .; that the jury is not present; that we had this discussion about 15 minutes ago when the State indicated that they were going to bring up the subject of a knife. Thereafter, they did not bring up the subject of a knife, and it seemed to me that I cannot let this matter just vanish in sort of thin air.
It is not my intention to give the State hints in that regard, but I think that just before about 15 minutes ago, they did mention the fact that they were going to bring it in. The question that I would have is then what happened to this evidence, and the inference could be drawn that there was some bad faith on the State's part, so I think it should be made a matter of record as to whether this is good or bad faith.
... It is not my intention to hint to the State, but to find out what had happened in the meantime.
Although the court may have been unartful in its use of language, its focus was the prevention of a mistrial resulting from its rulings. The question discussed regarding the knife statement had already been raised by the prosecution more than once as a matter that it would raise during rebuttal. The court's statements were made outside the presence of the jury, so no bias or appearance of unfairness was presented to the trier of fact. It does not appear the statements made by the court were suggestive to the prosecution or presented an appearance of unfairness to the jury.
[850]*850The conviction and sentence for first degree rape in count 3 is affirmed, and the convictions for counts 5 and 6 are reversed due to the admission of posthypnotic identification testimony.
Utter and Goodloe, JJ., and Cunningham, J. Pro Tern., concur.
Pearson, C.J., dissents from the affirmance of count 3.