FRANKLIN ROARK, JR . V. COMMONWEALTH OF KENTUCKY
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RENDERED : SEPTEMBER 26, 2002
TO BE PLISHED
2000-SC-0087-MR
AND
2000-SC-0088-M
FRANKLIN ROARK, JR .
V.
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE WILLIAM J . WEHR, JUDGE
99-CR-252 AND 99-CR-253
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING
Appellant Franklin Roark, Jr., was convicted by a Campbell Circuit Court jury of
burglary in the second degree, robbery in the first degree, and sexual abuse in the first
degree . He was also found to be a persistent felony offender in the first degree and
was sentenced to two concurrent enhanced sentences of life imprisonment .' He
appeals to this Court as a matter of right . Ky. Const. § 110(2)(b) .
On November 29, 1997, the victim, N .T., was at home alone when she heard a
noise that sounded like breaking glass. She later discovered that a basement window
had been broken and that her bedroom had been ransacked . Money and numerous
' A separate sentence was not entered for the conviction of sexual abuse in the
first degree which, upon PFO 1st enhancement, required a sentence of imprisonment
for ten to twenty years . KRS 510.110(2) ; KRS 532 .080(6)(b).
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items of jewelry were missing from the bedroom, including a cross and chain that had
been a gift from her sister on the occasion of N .T.'s fiftieth birthday . Also missing were
photographs taken before and after N.T.'s recent surgery to remove her sternum,
several ribs, and a portion of her lungs. The photographs, taken by N .T.'s surgeon for
medical reasons, revealed N .T.'s unclothed chest.
On December 19, 1997, N.T . was again at home alone, clothed only in a robe
and underwear, when she was attacked from behind by a male intruder. The intruder
placed a knife against N .T.'s throat and told her to remain quiet. He then forced her to
the floor and covered her head with his overcoat . N .T. lay still for a few minutes, then
removed the overcoat from her face, intending to flee from the residence . However, the
intruder was standing only a few feet away . She was able to observe the intruder for
approximately five seconds before he exclaimed, "Now I am going to kill you," then
attacked her and pulled her robe up over her head . As the two struggled on the floor,
the intruder ordered N .T. to "[t]urn over, I want to see your operation," and forced her
onto her back. He tied her hands in front of her body, cut off her underwear with the
knife, and digitally penetrated her vagina and anus. Shortly thereafter, he left the
residence and N .T. called the police . N.T. later discovered that the intruder had stolen
money and a cameo broach from the same bedroom from which the November 29th
burglar had also stolen money and jewelry .
The first police officer to arrive at N .T.'s residence on December 19th was Tom
Lake . N .T . described the intruder to Officer Lake as a white male, 25 to 30 years old,
five feet six inches to five feet seven inches tall, weighing approximate 155 pounds, and
having light-colored hair. She did not mention whether his hair was thick or thin and
specifically could not recall whether he had any facial hair. Shortly thereafter, N.T .
described her assailant to Campbell County Police Detective Robert Thomas as a white
male, 18 to 25 years old, five feet five inches tall, weighing 150 pounds, with lightcolored hair that was shorter in the front than in the back, and with a four-to-five day
growth of facial hair. After being checked for injuries at a local hospital, N.T. was
transported to the police station where she unsuccessfully attempted to identify her
assailant from several hundred mug shots. She then assisted in the creation of two
computer-generated composite sketches . The computer program creates a composite
based on input of general descriptions . For example, the program provides age-group
choices of 15 to 25, 25 to 35, and 35 and older. N .T. chose the 15 to 25 age range for
the first drawing . She also chose the "medium" height range of five feet nine inches to
six feet tall . The second composite, created the same day, was described as very
similar to the first, except that the hair line on the second composite was higher on the
forehead than on the first. The first composite was introduced at trial and shows a full
head of hair and no facial hair. The second composite was either lost or misplaced but
the Commonwealth admits it also showed a full head of hair and no facial hair.
Several days after the December 19th incident, N .T. was shown two photo
lineups, approximately 250 photos of employees of a nearby meat packing plant, ten
high school yearbooks, and a photo lineup of known sexual offenders . She was unable
to identify her assailant from any of these photographs .
One of the investigators told N .T. that if no additional leads were found, he might
ask her to undergo hypnosis . In March 1998, N .T., on her own initiative and without
further suggestion from the police, was hypnotized by Jill Brunner, a "certified
hypnotherapist" and an acquaintance of N .T .'s husband . The hypnosis was conducted
in the presence of N.T.'s husband and was audiotaped . During the hypnosis, N .T.
described her assailant in various ways, i.e. , white male, between 25 and 30 years old,
between 22 and 24 years old, 150 to 155 pounds, about 140 pounds, between five feet
six inches and five feet eight inches tall, and similar in appearance to one of her
neighbors . She also described him for the first time as bald and having a full beard .
N .T. delivered the audio recording of the hypnotism session to the police and examined
another photo lineup but to no avail .
On October 28, 1998, Appellant's residence was searched by police in regard to
an unrelated investigation . During the search, the police found the cross and chain that
had been stolen from N .T .'s bedroom on November 29, 1997, and the cameo broach
that had been stolen from the same bedroom on December 19, 1997 . On November
10, 1998, N .T . was shown another photo lineup, including, for the first time, a
photograph of Appellant . She immediately identified Appellant as the person who had
assaulted and robbed her on December 19, 1997 . She was also presented with
audiotapes of different male voices speaking words that had been spoken to her by her
assailant. She immediately identified Appellant's voice as that of the assailant and
became so upset that the investigating officer had to stop the tape . N .T. requested a
physical lineup but it was not provided . Instead, the police conducted a "showup,"
allowing N .T . to observe Appellant in jail clothes on a television monitor as he awaited
his initial arraignment on these charges.
The trial judge overruled Appellant's pretrial motion to suppress N .T.'s
photograph and voice identifications of him as the perpetrator, finding that the photo
and audio lineups "were not unduly suggestive so as to violate the defendant's rights ."
The trial judge also found that the failure to provide a physical lineup and the fact that
N .T. was subjected to hypnosis prior to her photo and voice identifications were simply
part of the "totality of circumstances" to be considered in determining the validity of the
identification . Ultimately, the trial judge concluded that there had been no "irreparable
misidentification" and that any discrepancies in N .T.'s various identifications should go
to the weight to be given to them by the jury.
At trial, N .T. described the person who attacked her on December 19, 1997, as a
white male, between 25 and 30 years old, weighing approximately 155 pounds, and
being five feet six inches to five feet seven inches tall . She also made an in-court
identification of Appellant as being that person. Appellant is a white male, 43 years old,
five feet five inches tall, weighing 160 pounds, with light hair, and balding . An
acquaintance of Appellant testified that Appellant had a full beard during November and
December 1997.
I. JOINDER.
The grand jury rendered separate indictments for the November 29, 1997, and
December 19, 1997, incidents . Appellant asserts error in the subsequent consolidation
of those indictments for the purpose of trial. RCr 9.12 . Whether to grant joinder is
within the sound discretion of the trial judge and is reviewed for abuse of discretion .
Jackson v . Commonwealth , Ky., 20 S .W.3d 906, 908 (2000) . The issue is whether
Appellant was unduly prejudiced by the joinder, i.e. , whether the prejudice was
unnecessary and unreasonable . RCr 9.16 ; Price v. Commonwealth , Ky., 31 S .W.3d
885, 888 (2000) (citing Romans v. Commonwealth , Ky., 547 S .W.2d 128,131 (1977)) .
The primary test for determining whether joinder constitutes undue prejudice is whether
evidence necessary to prove each offense would have been admissible in a separate
trial of the other. Price , at 889 ; Rearick v . Commonwealth , Ky ., 858 S .W.2d 185, 187
(1993). Here, evidence necessary to prove each offense was admissible to prove the
identity of Appellant as the perpetrator of the other. KRE 404(b)(1) . The perpetrator of
the November 29th offense stole photographs showing a surgical scar on N.T.'s chest,
and the perpetrator of the December 29th offenses indicated prior knowledge of the
scar when he ordered N .T. to turn over on her back so he could see her "operation."
Each incident involved the theft of money and jewelry from N .T.'s bedroom . And, of
course, Appellant was found in possession of items stolen during the course of both
incidents . Thus, Appellant was not unduly prejudiced by the joinder of the indictments
for purpose of trial.
II. EYEWITNESS IDENTIFICATION .
Disregarding momentarily the fact of N .T.'s intervening hypnosis, we find no Due
Process violation in the admission of N .T.'s identification of Appellant as the person
who robbed and sexually abused her on December 19, 1997. Our opinions on this
subject have consistently followed the United States Supreme Court's decision in Neil v.
Bi
ers, 409 U .S. 188, 93 S.Ct . 375, 34 L.Ed .2d 401 (1972) . See Savage v.
Commonwealth, Ky., 920 S .W.2d 512, 513 (1996) ; Edmonds v . Commonwealth , Ky.,
906 S.W.2d 343, 345 (1995) ; Sanders v. Commonwealth , Ky., 844 S.W.2d 391, 393
(1993); Riley v. Commonwealth , Ky., 620 S .W.2d 316, 318 (1981); Moore v.
Commonwealth , Ky., 569 S.W.2d 150,153 (1978) .
In Neil v. Bigggers, the victim was attacked from behind by an intruder in her
home who told her to "shut up or I'll kill you ." The victim was then taken at knifepoint to
a nearby wooded area and raped . The victim later described her assailant as "fat and
flabby with smooth skin, bushy hair and a youthful voice," and "between 16 and 18
years old and between five feet ten inches and six feet tall, as weighing between 180
and 200 pounds, and as having a dark brown complexion ." Neil , 409 U .S. at 194, 93
S .Ct. at 380 . Over the next few months, the victim attempted without success to
identify her assailant from various photographs, physical lineups, and showups . Seven
months after the incident, she identified the defendant as her assailant after a showup
in which two detectives walked him past the victim and directed him to speak the words
"shut up or I'll kill you ." Id. at 195, 93 S .Ct. at 380 . The issue then became whether the
showup and voice identification procedure was so suggestive that the victim's
identification violated the defendant's Due Process right.
Noting that "the primary evil to be avoided is 'a very substantial likelihood of
irreparable misidentification,"' Neil held that unnecessary suggestiveness alone does
not require exclusion of the identification . Id . at 198-99, 93 S.Ct. at 381-82 . Instead,
the inquiry is "whether, under the 'totality of the circumstances,' the identification was
reliable even though the confrontation procedure was suggestive ." Id . at 199, 93 S.Ct.
at 382. The Court listed five factors to be considered in evaluating the likelihood of
misidentification : (1) the opportunity of the witness to view the criminal at the time of
the crime ; (2) the witness' degree of attention ; (3) the accuracy of the witness' prior
description of the criminal; (4) the level of certainty demonstrated by the witness at the
confrontation ; and (5) the length of time between the crime and the confrontation . Id . at
199-200. Weighing those factors, the Court found that "no substantial likelihood of
misidentification" had occurred in that case. Id . at 201, 93 S .Ct. at 383 .
N .T .'s identification of Appellant was made under substantially less suggestive
circumstances than the identification of the defendant in Neil. Although N .T. also
observed Appellant by way of a suggestive showup instead of a lineup, she had
previously identified him by both appearance and voice during photo and audio lineups .
N .T. had an opportunity, albeit brief, to view Appellant at the time of the crime and
obviously did so with a substantial degree of attention . And although her earlier
descriptions of her assailant varied in some respects and were inaccurate or incomplete
in others, she demonstrated a high degree of certainty in identifying Appellant during
the photo and audio lineups . In view of N.T.'s ongoing efforts to identify her assailant,
we do not regard the passage of time between the incident and the identification as
particularly significant . And an additional factor present here that was not present in
Neil is that N.T.'s identification was corroborated by the fact that Appellant was found to
be in possession of items stolen from N .T.'s bedroom on both November 29, 1997, and
December 19, 1997. As did the Court in Neil , we conclude that, excluding
consideration of the hypnotism issue, the totality of the circumstances indicates no
substantial likelihood that N .T. misidentified Appellant as her assailant.
III. HYPNOSIS.
Perhaps no issue in the law of evidence has been more hotly debated over the
past twenty-five years than the admissibility of testimony by a witness who has been
previously subjected to hypnotism. Surprisingly, this case represents our first major
encounter with the issue . Our only previous decision on the subject, Rowland v.
Commonwealth, Ky., 901 S .W.2d 871 (1995), turned not on the reliability of hypnotically
induced, refreshed or enhanced recollection but on the fact that the witness's
recollection of the crucial events in that case was essentially the same after her
hypnosis as before . Id. at 873 . Here, however, N.T.'s posthypnotic recollection of her
assailant's appearance differed substantially from her prehypnotic recollection in that
none of her previous descriptions included the facts that he was bald and had a full
beard .
The "discovery" of hypnotism is generally credited to Franz Mesmer, an
eighteenth century Austrian physicist, hence the term "mesmerize ." 9 Encyclopedia
Britannica 134 (5th ed . 1976) . The American Medical Association has defined hypnosis
as follows :
[A] temporary condition of altered attention in the subject which
may be induced by another person and in which a variety of phenomena
may appear spontaneously or in response to [verbal] or other stimuli .
These phenomena include alterations in consciousness and memory,
increased susceptibility to suggestion, and the production in the subject of
responses and ideas unfamiliar to him in his usual state of mind.
Council on Mental Health, Medical Use of Hypnosis , 168 J.A.M .A. 186, 187 (1958) .
There is no scientific consensus as to how hypnotism works, probably because
there is a sparsity of evidence and substantial disagreement as to how memory, itself,
works . Those who believe that lost memory can be hypnotically recalled "conceptualize
a process whereby the brain records and stores sensory input accurately, much like a
videotape . . . and loss of memory is the inability to retrieve that information . Hypnosis
simply enhances the retrieval process ." Borawick v. Shav, 68 F .3d 597, 602 (2d Cir.
1995) (citing, inter alia , Council on Scientific Affairs, Scientific Status of Refreshing
Recollection by the Use of Hypnosis , 253 J .A.M.A. 1918, 1920 (1985)) . Other scientists
are highly skeptical that hypnosis can effectively and accurately enhance memory
because they believe that "a memory is formed and influenced by numerous factors
when the mind creates and integrates the information from an event'into the memory
representation of that event .' The composite created by this process is malleable and
evolves over time as additional input is received ." Borawick , 68 F .3d at 602-03
(citations omitted) .
Three aspects of hypnosis have raised substantial doubts concerning the
reliability of posthypnotic testimony : (1) During hypnosis, the subject is highly
susceptible to suggestions made by the hypnotist and, in fact, one of the primary
medical usages of hypnotism is to alleviate pain by the power of hypnotic suggestion.
(2) During hypnosis, the subject rarely admits an inability to recall and will confabulate
to fill in missing details in an effort to please the hypnotist. Typically, as with
recollection implanted by suggestion, neither the subject nor the hypnotist is able to
later distinguish between confabulation and true recollection . (3) After hypnosis, the
subject becomes "memory hardened," i .e . , convinced that his/her "recollections" are
accurate, an overconfidence that substantially impairs any possibility of effective crossexamination, Charles A. Wright and Victor J . Gold, 27 Fed. Prac. & Proc . Evid . § 6011,
at notes 33-36, 60 (West 1990), Bernard Diamond, Inherent Problems in the Use of
Pretrial Hvpnosis on a Prospective Witness, 68 Calif.L .Rev. 313, 333-40 (1980), thus
implicating a criminal defendant's constitutional right of confrontation . Contreras v .
State , 718 P.2d 129, 138-39 (Alaska 1986), overruled on other grounds , State v . Coon ,
974 P .2d 386 (Alaska 1999) .
Two scientific studies reported in the journal Science in 1983 heightened these
concerns. The first, an hypnotic hypermnesia experiment, tested the number of
additional items of information recalled after hypnosis and the accuracy of those
recollections . The scientists who conducted the study reported that, while hypnotized
2 Then clinical professor of psychiatry at the University of California, San
Francisco, and professor of law at the University of California, Berkeley .
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subjects recalled twice as many items as unhypnotized subjects, the hypnotized
subjects made three times as many errors . Dywn & Bowers, The Use of Hypnosis to
Enhance Recall , 222 Science 184, 184-85 (1983). Based on these results, the authors
urged that the use of hypnosis be discouraged when the truth of information is the
primary concern. Id . at 185 . The second study tested whether a pseudomemory could
be successfully implanted through hypnosis . Laurence & Perry, Hypnotically Created
Memory Among Highly Hypnotizable Subjects , 222 Science 583 (1983) . That study
revealed that thirteen of twenty-seven subjects retained a belief suggested during
hypnosis even after being informed after hypnosis that the information had been
implanted by hypnotic suggestion . Id. at 524.
These and other concerns led the American Medical Association Council on
Scientific Affairs committee, chaired by Dr. Martin Orne, 3 perhaps the foremost authority
on the use of hypnosis in legal proceedings, to declare in December 1984 that
"recollections under hypnosis are too shaky for the witness stand ." Michael Beaudine,
Growing Disenchantment with Hypnotic Means of Refreshing Witness Recall , 41
Vand . L. Rev. 379, 404 n .220 (1988), ( u~ oting Ritter, Hypnotized Witnesses Spark Legal
Dilemmas, L .A. Times, February 10, 1985, § I, at 2, col . 6 (quoting the AMA
committee)) . "The committee found 'no evidence to indicate that there is an increase of
only accurate memory during hypnosis [and that] there is no way for either subject or
hypnotist to distinguish between those recollections which may be accurate and those
3 Then director of the Unit for Experimental Psychiatry at the Institute of
Pennsylvania Hospital and professor of psychiatry ; president of the International
Society of Hypnosis ; editor of the International Journal of Clinical and Experimental
Hypnosis ; and senior author of the hypnosis article at 9 Encyclopedia Britannica 133-40
(5th ed . 1976) .
which may be pseudomemories"' Id "The same committee, in April 1985, similarly
.
concluded that 'recall of past events, even ones that are traumatic, does not improve
with hypnosis ."' Id . (citing Use of Hypnosis to Aid Memory Faulted by AMA, Wash.
Post, April 5, 1985, at A5, col . 1). Compounding this evidence of scientific unreliability
is the fact that jurors are apt to give more credence to hypnotically induced, refreshed
or enhanced evidence because it is cloaked with the aura of scientific reliability and
because of the "commonly held but erroneous belief"that an individual cannot lie under
hypnosis . Wright and Gold, supra , § 6011, at note 62 .
1 . Per Se Admissible .
Early judicial decisions refused to admit any evidence purportedly induced,
refreshed or enhanced by hypnosis . Esc . , People v. Ebanks , 49 P . 1049, 1053 (Cal.
1897) ("The law of the United States does not recognize hypnotism ."), overruled on
other grounds , People v. Flannell , 60 P. 670 (Cal. 1900) . The first reported case
approving the admission of such evidence at trial was Harding v. State , 246 A.2d 302
(Md . 1968) . There, the recollection of a victim of a sexual assault was "refreshed"
during hypnosis induced by a police-employed hypnotist. The defendant was already
under arrest and the victim knew that the primary purpose of her hypnosis was to
provide evidence against him . The victim subsequently insisted that she was testifying
from her own independent recollection and the hypnotist denied that the victim's
recollection had been tainted by any suggestions made by him during the hypnosis .
The evidence was held per se admissible, i .e. , subject only to whatever weight and
credibility a jury chose to give to it . Id. at 306. (One commentator subsequently posited
that because the witness appeared so convincing and convinced of the accuracy of her
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testimony, the court was also convinced. Dilloff, The Admissibility of
Hypnotically
Influenced Testimony , 4 Ohio N.U .L.Rev. 1, 19, 20 (1977)) . Most pre-1980 judicial
decisions followed the Harding rule of per se admissibility .4 However, in the face of
growing scientific skepticism about the accuracy of hypnotically induced, refreshed or
enhanced recollections, Harding , itself, was overruled by the same court that had
produced it. State v. Collins , 464 A .2d 1028 (Md . 1983) . Only four state court
jurisdictions presently follow the rule of per se admissibility.'
2 . Per Se Inadmissible .
Most state jurisdictions currently adhere to a modified form of the per se
inadmissible rule first adopted in State v. Mack, 292 N .W.2d 764 (Minn . 1980) . After
examining the then-current scientific literature on the subject, Mack held that because
hypnotically induced, refreshed or enhanced recollection was regarded as unreliable in
the relevant scientific community, i .e. , psychology and psychiatry, it was inadmissible as
evidence under the "scientific acceptance" test enunciated in Frve v. United States , 293
F . 1013 (D .C . Cir. 1923) . "[T]estimony of this previously hypnotized witness concerning
the subject matter adduced at the pretrial hypnotic interview may not be admitted in a
E.g.:, United States v. Awkard, 597 F .2d 667 (9th Cir. 1979) ; United States v.
Narciso, 446 F .Supp. 252 (D.C. Mich . 1977) ; Clark v. State, 379 So.2d 372 (Fla. Dist.
Ct. App . 1979) ; Creamer v. State , 205 S.E .2d 240 (Ga . 1974) ; People v. Smrekar , 385
N .E .2d 848 (III . Ct . App . 1979), overruled , People v. Zayas , 546 N .E .2d 513 (III. 1989) ;
State v. McQueen , 244 S.E .2d 414 (N .C. 1978), overruled , State v. Peoples, 319
S .E.2d 177 (N .C . 1984) .
4
' North Dakota : State v. Brown , 337 N .W.2d 138 (N .D . 1983) .
Oregon : State v . Jorgenson , 492 P.2d 312 (Ore . App . 1971), ap rtially
abrogated, Or. Rev . Stat. § 136 .675 (the entire hypnosis procedure must be recorded
and a copy of the recording furnished to the adverse party) .
Tennessee : State v. Glebock, 616 S.W.2d 897 (Tenn. Crim . App. 1981) .
Wyoming : Haselhuhn v. State , 727 P .2d 280 (Wyo. 1986) .
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criminal proceeding ." Mack, 292 N .W.2d at 772 (emphasis added) . Thus, Mack would
permit the witness to testify to other matters, but not to the subject matter discussed
during the hypnotism, including, presumably, prehypnotic recollections regarding the
same subject matter. Even our decision in Rowland v . Commonwealth , supra, would
not withstand the Mack analysis . In fact, we declined in Rowland to adopt a strict rule
of inadmissibility. 901 S .W.2d at 873 . Most states that follow Mack exclude evidence
of facts only remembered after hypnosis but admit evidence of facts remembered and
related before hypnosis . The burden is on the proponent of the evidence to prove that
the recollection predated the hypnosis . See ,
.g ., State v. Peoples, supra note 4, at
188 ; Contreras v . State, supra , 718 P.2d at 139 . At present, twenty-six states adhere to
some form of the per se inadmissible rule.'
' Alaska: Contreras v. State, supra .
Arizona : State ex. rel . Collins v. Superior Court of County of Maricopa , 644
P .2d 1266 (Ariz. 1982) .
California : People v. Shirley, 723 P.2d 1354 (Cal. 1982) (witness disqualified
from testifying), partially abrogated by, Cal . Ev. Code § 795 (evidence of events
recalled and related prior to hypnosis admissible subject to "procedural safeguards"
discussed infra in text).
Connecticut : Cf. State v. Atwood , 479 A.2d 258 (Conn. 1984) (applying rule to
defendant's own testimony, thus, overruled to that extent by Rock v. Arkansas ,
discussed infra in the text) .
Delaware: State v . Davis , 490 A .2d 601 (Del . Super. 1985) .
Florida : Stokes v. State , 548 So.2d 188 (Fla . 1989) .
Georgia : Cf. Walraven v. State, 336 S .E.2d 798 (Ga . 1985) (employing
harmless error analysis) .
Hawaii : State v. Moreno , 709 P .2d 103 (Haw . 1985) .
Illinois : People v. Zayas, 546 N .E .2d 513 (III . 1989) (witness, except
defendant, disqualified from testifying) .
Indiana : Peterson v . State, 448 N .E.2d 673 (Ind . 1983) .
Iowa : Cf. Odem v. State, 483 N .W .2d 17 (Iowa Ct . App . 1992) (posthypnosis
testimony admissible because substantially similar to prehypnosis recollection) .
Kansas : State v. Haislip , 701 P.2d 909 (Kan . 1985) .
Maryland : State v. Collins , supra .
Massachusetts : Commonwealth v . Kater, 567 N .E.2d 885 (Mass . 1991) .
Michigan : People v. Lee , 450 N .W.2d 883 (Mich . 1990) .
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This apparent trend, however, must be viewed in light of two major post-Mack
decisions by the United States Supreme Court . In Rock v. Arkansas , 483 U .S . 44, 107
S.Ct. 2704, 97 L.Ed .2d 37 (1987), that Court held that the right of a defendant to testify
in his/her own defense cannot be precluded even if the testimony has been induced,
refreshed or enhanced by hypnosis -- and suggested that the same might be true with
respect to an "arbitrary" rule that precludes a criminal defendant from presenting the
testimony of other witnesses in support of his/her defense . Id . at 55, 107 S .Ct. at 2711
(citing Chambers v. Mississippi , 410 U .S . 284, 93 S .Ct. 1038, 35 L .Ed .2d 297 (1973)) .
"This rule operates to the detriment of any defendant who undergoes hypnosis, without
regard to the reasons for it, the circumstances under which it took place, or any
independent verification [corroboration] of the information it produced ." 483 U .S . at 56,
107 S.Ct. at 2711-12 . Although the Court ultimately opted for no position with respect
to the admissibility of testimony of a previously hypnotized witness other than the
defendant, id . at 58 n .15, 107 S .Ct. at 2712 n .15, the same logic would seem to apply
as well to the per se exclusion of the testimony of any witness, including the victim of
the crime, e .g ., N .T .
Minnesota : State v. Mack, supra .
Missouri : State v. Blackman , 826 S .W.2d 76 (Mo. Ct. App . 1994) (witness
disqualified from testifying) .
Nebraska : State v . Palmer , 313 N.W.2d 648 (Neb . 1981) .
New York : People v. Hughes, 453 N .E .2d 484 (N .Y. 1983) .
North Carolina : State v. Peoples, supra .
Oklahoma : Harmon v. State , 700 P .2d 212 (Okla. Crim . 1985) .
Pennsylvania : Commonwealth v . Nazarovitch , 436 A .2d 170 (Pa . 1981)
(witness had no prehypnosis recollection) ; Commonwealth v . Taylor , 439 A.2d 805 (Pa.
Super . 1982) (prehypnosis recollection not excluded) .
Utah: State v. Tuttle , 780 P .2d 1203 (Utah 1989) .
Virginia : Hall v. Commonwealth , 403 S .E .2d 362 (Va . Ct. App. 1991) .
Washington: State v. Martin , 684 P .2d 651 (Wash . 1984) .
West Virginia : Cf. State v . Beard , 461 S .E.2d 486 (W.Va . 1995) .
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Virtually every jurisdiction that has adopted the per se inadmissible rule has, like
Mack , arrived at its ultimate conclusion by application of the Fare test . That test,
however, was abrogated for Federal Courts under Federal Rule of Evidence (FRE) 702
and replaced by the more liberal Daubert test, Daubert v. Merrell Dow Pharmaceuticals .
Inc. , 509 U.S . 579, 586, 113 S .Ct. 2786, 2793, 125 L.Ed.2d 469 (1993), under which
acceptance within the relevant scientific community is only one factor to be considered
in determining the reliability of scientific evidence. Presumably, that same abrogation
will be followed in those jurisdictions that have adopted an equivalent of FRE 702 . Esc . ,
Mitchell v. Commonwealth, Ky., 908 S.W.2d 100 (1995), overruled on other grounds ,
Fu-gate v . Commonwealth , Ky., 993 S .W.2d 931 (1999). Of course, that does not mean
that a different result will be obtained but only that a different test will be applied . Note
that both the Frye and Daubert tests are primarily tests of admissibility, i .e. ,
posthypnosis evidence is admissible if posthypnotic recollection is determined to be
scientifically reliable . Another view, however, is that the issue is not so much one of
scientific reliability as one of the competency of the witness to give accurate testimony.
KRE 601(b)(2) and (4). Professors Wright and Gold espouse this view, see -generally
Wright and Gold, supra , § 6011, and three state courts, California,' Illinois' and
Missouri' have held that the memory of a person subjected to hypnosis is so tainted
thereby that he/she is incompetent to testify.
' People v. Shirley , supra , note 6, but see Cal. Ev. Code § 795, supra , note 6 .
' People v. Zayas , supra note 6.
9 State v . Blackman , supra , note 6 .
- 1 6-
3 . Procedural Safeguards .
A third approach with respect to the use of hypnotically induced, refreshed or
enhanced recollection is that such evidence is admissible if certain safeguards were
applied to the conduct of the hypnotism session. In State v. Hurd , 432 A.2d 86 (N .J .
1981), it was held that posthypnosis evidence is admissible if the following procedural
safeguards were followed :
(1)
(2)
(3)
(4)
(5)
(6)
The person conducting the hypnosis was a trained psychologist or
psychiatrist ;
The professional conducting the session was independent of the parties ;
Information given to the hypnotist prior to the session was
recorded ;
Before the hypnosis was induced, the hypnotist obtained a detailed
description of the event from the subject ;
All contacts between the hypnotist and the subject were recorded ;
No one except the hypnotist and the subject were present during
the hypnotism .
Id . at 95-97.
Six states currently follow the "procedural safeguards" rule of admissibility, five
by judicial decision'° and one by statute." However, the validity of this rule was
substantially undermined when Dr . Martin Orne,' 2 the purported source of the
"procedural safeguards" theory, '3 subsequently criticized Hurd , asserting that "while
'° Louisiana : Cf. State v . Holden , 554 So .2d 121 (La . App. 1989) (applying the
rule to a defendant's testimony, but see Rock v. Arkansas, supra .)
Mississippi : House v. State , 445 So.2d 815 (Miss . 1984) .
New Jersey : State v. Hurd , supra .
New Mexico : State v . Beachum , 643 P.2d 246 (N .Mex. Ct. App. 1981) .
South Dakota : State v. Adams , 418 N .W.2d 618 (S .D . 1988), abrogated on
other grounds , State v. Hofer , 512 N .W.2d 482 (S .D . 1994) .
Nev. Rev. Stat. 48.039 .
12
See note 3, supra .
'3
State v . Hurd, 432 A .2d at 96, citing Orne, The Use and Misuse of Hypnosis in
Court , 27 Int. J. Clinical & Experimental Hypnosis 311 (1979).
- 1 7-
proposed safeguards can assist in determining what was done during the hypnotic
session, they do not prevent witnesses from confusing distorted hypnotic memories with
prior and subsequent nonhypnotic impressions or from placing undue confidence in
distorted post-hypnotic recollections ." Beaudine, supra , at 402-03, (citing Orne, Soskis,
Dinges & Orne, Hypnotically Induced Testimony, in Eyewitness Testimony :
Psychological Perspectives 171, 210 (G . Wells & E. Loftus eds. 1984)) .
4. Totality of Circumstances .
A fourth theory that currently has support in nine state courts 14 and a growing
number of federal courts" is a hybrid that neither automatically admits nor excludes
posthypnosis evidence but determines admissibility on a case-by-case basis from the
"totality of the circumstances ." An illustrative list of those circumstances could include:
(1) whether the purpose of the hypnosis was therapeutic or investigative, the latter
tending to indicate pressure on the subject to remember; (2) whether procedural
safeguards were employed with respect to the hypnotic session ; (3) whether
independent corroborating evidence exists to substantiate the witness's refreshed
Alabama: Chamblee v. State , 527 So.2d 173 (Ala . Ct. Crim . App . 1988) .
Colorado: People v . Romero , 745 P.2d 1003 (Col. 1987) .
Idaho : State v . Iwakiri, 682 P.2d 571 (Ida . 1984) .
Maine: State v. Commeau , 438 A.2d 454 (Me . 1981) .
New Hampshire : State v. Hungerford , 697 A .2d 916 (N.H . 1997) .
Ohio : State v . Johnston , 529 N .E .2d 898 (Ohio Ct. App. 1988) .
South Carolina : State v . Cheeseboro , 552 S .E .2d 300 (S.C. 2001), cert.
denied,
U .S .
, 122 S .Ct. 1310, 152 L.Ed .2d 219 (2002) .
Texas : Zani v. State , 758 S .W.2d 233 (Tex . Ct. Crim. App . 1988), partially
abrogated by Tex. Rules of Crim. Ev . 702.
Wisconsin : State v. Armstrong , 329 N .W.2d 386 (1983) .
'4
" Mersch v. City of Dallas , 207 F.3d 732 (5th Cir. 2000) ; Borawick v.
Shay, 68
F .3d 597 (2d Cir. 1995) ; Bundy Dua4er, 850 F .2d 1402 (11th Cir. 1988) ; Harker v.
v.
Ma ,land , 800 F.2d 437 (4th Cir. 1986) ; United States v. Kimberlin , 805 F.2d 210 (7th
Cir. 1986) ; Sprynczynatvk v . General Motors Corp ., 771 F .2d 1112 (8th Cir. 1985) .
- 1 8-
recollection ; (4) whether, as in Rowland v . Commonwealth , supra , the witness's
posthypnotic recollection was substantially the same as the witness's prehypnotic
recollection as actually related ; (5) the likelihood that the witness's memory has been
tainted by outside influences (as in State v. Harding , supra , where the sexual assault
victim identified after hypnosis the person who was already accused of assaulting her),
or not (as in United States v. Kimberlin , supra, note 15, and Beck v. Norris , 801 F .2d
242 (6th Cir. 1986), where the subject described matters unknown to the hypnotist) ; and
(6) whether, under Evidence Rule 403, the probative value of the evidence is
substantially outweighed by its prejudicial effect. Ordinarily, admissibility will be
determined at an in limine hearing at which the proponent of the evidence must prove
its reliability by a preponderance of the evidence . KRE 104(a) . See generally Borawick
v . Shax , supra note 15, at 608-09 ; People v. Romero , supra note 14, at 1016; cf. State
v. Hurd , supra, at 97 (the same burden of proof applies to the "procedural safeguards"
approach) .
Professors Wright and Gold identify several problems with the "totality of
circumstances" or, as they term it, "balancing" approach. For example, Rule 403 was
designed to balance the relevancy of evidence against its prejudicial effect, not to
balance various factors bearing on scientific reliability under Rule 702 or witness
competency under Rule 601 . Wright and Gold, supra , § 6011, at note 224. However,
the Federal Rules of Evidence were drafted during the early period of the hypnosis
debate and there is no indication that the drafters even considered the issue. Id. at
notes 9, 224 . The balancing approach is further hindered by the virtual impossibility of
detection of suggestion or confabulation with any degree of certainty . Id . at note 226,
citing Diamond, supra, at 337. Nevertheless, Wright and Gold note that "comparable
- 1 9-
risks and costs are associated with all testimony since suggestion and confabulation
may be produced by the witness simply by discussing the case with her lawyer." Id . at
note 228 .
[W]henever a court seeks to balance under Rule 403, the potential for
unfair prejudice against probative value, it must estimate the reliability of
the evidence and its likely effect on the jury's thinking . Such estimates are
bound to be inexact. But Rule 403 implicitly assumes that the risk of
uncertainty does not justify abandoning the effort to make such estimates .
The same approach should be taken toward hypnotically refreshed
testimony . In many cases, the indications concerning the reliability of
such testimony or lack thereof will be clear. With respect to the hard
cases, the issue becomes whether the effort to examine the
circumstances and roughly estimate reliability is worth the necessary
expenditure of resources. The tenor of the Federal Rules of Evidence,
particularly Rule 601, indicates that it is.
Id . at notes 229, 230.
Nevertheless, Professors Wright and Gold also discern fewer flaws with this
approach than with the other three approaches .
While each of the three other approaches focus on important issues, they
do so to the exclusion of other important considerations . For example, the
per se competent approach is most concerned with the potential loss of
valuable evidence and the effect a rule of incompetence might have on
the investigatory use of hypnosis . But that approach could in some
circumstances permit the admission of clearly unreliable testimony . On
the other hand, the per se incompetent approach is preoccupied with the
dangers of hypnosis . As a result, application of that approach could
exclude valuable testimony which may be just as reliable as testimony
from witnesses who have not undergone hypnosis . Finally, the Hurd
approach unduly focuses on a limited number of procedural safeguards .
Thus, testimony may be disallowed even where other circumstances
suggest it is reliable and testimony may be permitted even where other
circumstances suggest it is unreliable.
Id ., following note 223 .
We agree and conclude that the "totality of circumstances" approach is the
soundest approach thus far developed for evaluating the admissibility of evidence that
is the product of an hypnotically induced, refreshed or enhanced recollection . Applying
-20-
that test to the facts of this case, at least three circumstances militate against the
admission of N.T .'s posthypnotic identification and testimony. (1) The purpose of the
hypnosis was investigative, not therapeutic, and N .T. was under substantial pressure,
albeit primarily self-imposed, to identify her assailant. (2) N.T .'s posthypnotic
recollection of her assailant's appearance was not substantially the same as her
prehypnotic recollection . (3) No procedural safeguards were employed with respect to
the conduct of the hypnotism, specifically, (a) the hypnotist was neither a psychologist
nor a psychiatrist, but a "certified hypnotherapist" who admittedly was not qualified to
perform a forensic hypnotism suitable for a criminal investigation ; (b) the hypnotist was
not independent, but was an acquaintance of N.T .'s family ; (c) no information given to
the hypnotist prior to the hypnotism was recorded ; (d) the hypnotist did not obtain a
detailed description of the event from N.T . before conducting the hypnotism ; (e) all
contacts between the hypnotist and N .T. were not recorded ; and (f) another person,
N .T.'s husband, was present during the entire hypnotism .
At least two circumstances militate in favor of admission of N .T .'s posthypnotic
identification and testimony . ' (1) There is little likelihood that N.T .'s memory was tainted
by suggestion or confabulation . Appellant had not been identified as a suspect at the
time the hypnotism took place; thus, the fact that he was bald and had a full beard was
unknown to the hypnotist. (2) N .T.'s subsequent identification of Appellant as the
perpetrator was corroborated by independent evidence that Appellant was in
possession of property stolen from N .T.'s residence on the occasion of the assault.
The first of these two circumstances diminishes the significance of the first and third
circumstances militating against admission, i.e. , investigative purpose and no
procedural safeguards ; and the second of these two circumstances diminishes the
-2 1-
significance of the second circumstance militating against admission, i.e. , differences
between prehypnotic and posthypnotic recollections .
Thus, we conclude that the trial judge's admission of N .T.'s posthypnotic
identification and testimony in this case was neither clearly erroneous, KRE 104(a), nor
an abuse of discretion . KRE 403 ; Commonwealth v. English , Ky., 993 S .W.2d 941, 945
(1999).
IV. ADMISSION OF AUDIOTAPE .
The audiotape of the hypnotism session was admitted into evidence during the
testimony of Jill Brunner, the hypnotist . Appellant's complaint with respect to the
admission of this evidence is not that the audiotape is inaccurate or inaudible or
hearsay but that it was not properly authenticated by Brunner who admitted that she did
not have time to review it in its entirety prior to trial . KRE 901(a). However, defense
counsel's only objection at trial was that a transcript of the audiotape prepared by the
Commonwealth contained numerous discrepancies (indicating that defense counsel
had reviewed the audiotape in its entirety) . It was agreed that the tape, itself, would be
played and introduced into evidence in lieu of the flawed transcript . Having agreed to
the admission of the audiotape, Appellant cannot now complain about its authenticity .
V. INSTRUCTION ISSUES .
1 . Missing evidence.
The police lost the second computer-generated composite sketch which, like the
first, portrayed a man with a full head of hair and no beard . Further, the police did not
retain the photo lineups shown to N .T. that did not include a photograph of Appellant .
Instead, the photographs were reused in photo lineups in other investigations .
-22-
Appellant asserts that the trial judge should have instructed the jury that it could infer
from the fact that these items were now missing that they contained information
favorable to the defense. Sanborn v. Commonwealth , Ky., 754 S .W.2d 534, 539-40
(1988) . As we explained in Estep v. Commonwealth , Ky., 64 S.W.3d 805 (2002)
First, the purpose of a "missing evidence" instruction is to cure any Due
Process violation attributable to the loss or destruction of exculpatory
evidence by a less onerous remedy than dismissal or the suppression of
relevant evidence . . . . Second, the Due Process Clause is implicated
only when the failure to preserve or collect the missing evidence was
intentional and the potentially exculpatory nature of the evidence was
apparent at the time it was lost or destroyed. None of the above
precludes a defendant from exploring, commenting on, or arguing
inferences from the Commonwealth's failure to collect or preserve any
evidence. It just means that absent some degree of "bad faith," the
defendant is not entitled to an instruction that the jury may draw an
adverse inference from that failure .
Id . at 810 .
Appellant does not suggest any bad faith in the loss of the composite or the
failure to retain the lineup photographs. More importantly, he does not suggest how this
evidence could have substantially affected the outcome of this case. The
Commonwealth admitted that the second composite did not resemble Appellant and
introduced the first composite which also did not resemble him . As for the photo
lineups, if N .T. had identified a photograph of someone other than Appellant as that of
her assailant, or if she had failed to identify Appellant's photograph as that of her
assailant, either fact would have been exculpatory . However, N.T.'s failure to identify
someone else as her assailant was not exculpatory . The trial court properly declined to
include a "missing evidence" instruction in the jury instructions in this case.
2 . Lesser Included Offense .
Appellant asserts that the trial judge should have instructed the jury on receiving
stolen property as a lesser included offense of robbery in the first degree . A lesser
included offense is one that is established by proof of the same or less than all of the
facts required to prove the primary offense . KRS 505.020(2)(a) ; Commonwealth v.
Day, Ky., 983 S .W.2d 505, 509 (1999). Robbery is the use or threat of immediate use
of physical force upon another in the course of committing a theft with the intent to
accomplish the theft. KRS 515 .030(1) . If the act is accompanied by an aggravating
circumstance, KRS 515 .020(1), the offense is robbery in the first degree . Thus, robbery
combines the offenses of theft or attempted theft and assault. Morgan v.
Commonwealth , Ky., 730 S .W.2d 935, 937 (1987) . Receiving stolen property is not
theft, i.e. , the act of stealing, but the act of receiving, retaining or disposing of property
with knowledge that it has been stolen. KRS 514.110(1) . Thus, while theft and
attempted theft are lesser included offenses of robbery, receiving stolen property is not .
Jones v. Commonwealth, Ky., 756 S .W.2d 462 (1988), which had seemingly held
otherwise in the context of a claim of double jeopardy, was overruled specifically on that
point in Commonwealth v . Burge, Ky., 947 S .W.2d 805, 811 (1996) .
VI . SUFFICIENCY OF THE EVIDENCE.
Appellant asserts that he was entitled to a directed verdict of acquittal because
N .T.'s varying descriptions of his appearance rendered her testimony contradictory,
incredible and inherently unreliable . This is but a rerun of Appellant's earlier argument
that the evidence of N .T.'s identification of him as her assailant should have been
suppressed . It is elementary that even when the evidence is contradictory, the
-24-
credibility of witnesses and the weight to be given to sworn testimony are for the jury to
decide . Young v. Commonwealth , Ky., 50 S .W .3d 148, 165 (2001) . Appellant's
argument also conveniently ignores the fact that he was found to be in possession of
the cross and chain stolen from N .T .'s residence on November 29, 1997, and the
cameo broach stolen from her residence on December 19, 1997 . The evidence was
sufficient for reasonable jurors to fairly find beyond a reasonable doubt that Appellant
committed each of the offenses of which he was convicted . Commonwealth v.
Benham , Ky ., 816 S.W.2d 186 (1991) .
Accordingly, the judgment of conviction and sentences imposed by the Campbell
Circuit Court are affirmed .
All concur.
COUNSEL FOR APPELLANT :
David T. Eucker
Department of Public Advocacy
Suite 302
100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
A. B . Chandler, III
Attorney General
State Capitol
Frankfort, KY 40601
William L. Daniel, II
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
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