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People v. Smrekar





APPEAL from the Circuit Court of Logan County; the Hon. JOHN T. McCULLOUGH, Judge, presiding.


Rehearing denied March 5, 1979.

Defendant, Russel Smrekar, appeals judgments, entered after a jury trial, convicting him of having murdered Alvin J. and Robin Fry, husband and wife, at Lincoln on October 9, 1976, and sentencing him to consecutive sentences of 100 to 300 years' imprisonment. The charges were filed in the circuit court of Logan County but the case was transferred for trial to Moultrie County pursuant to defendant's motion for a change of venue.

In his brief filed by counsel, defendant contends that (1) his rights to due process and counsel were violated by the identification testimony of a witness, Ann Mardis, who had made a prior identification of him at a time when he was not represented by counsel and she had recently undergone hypnosis; (2) his due process rights were further violated because the State failed to disclose to him before trial correspondence between the State's Attorney and a prosecution witness; (3) the trial court further denied his right to counsel by (a) soliciting an inmate, jailed with him, to obtain incriminating statements from him and (b) refusing him a continuance on the day of trial so that he could obtain private counsel; and (4) the court erred in permitting the State to call a court's witness and then impeach that witness by use of a prior inconsistent statement. We have granted defendant leave to file a pro se brief in which he cites the court's permitting the State to produce evidence of his commission of a separate crime as additional error.

We begin with a brief outline of the evidence.

Ann Mardis testified that she was a sister of Alvin Fry and lived next door to him. At about 1 a.m., on October 9, 1976, she had a brief conversation with the Frys as they returned to their home and then went into her house. In a few minutes she heard a "roaring noise" from the direction of her brother's residence. She looked out the window again and saw a man standing between the two houses. She observed him for 30 or 40 seconds during which time he walked slowly away from the Fry house, then turned around and went inside. She called her brother's number on the phone and upon getting no answer became very concerned, awoke her husband and, with her husband, went to the brother's house. There they found the shotgunned bodies of her brother and sister-in-law. At trial, Ms. Mardis identified defendant as the person seen outside the Fry's house.

At about 3:30 a.m. on that date, defendant, who lived in Joliet, was arrested on U.S. Route 66 near Odell, Illinois, by an officer who testified that defendant was driving at a speed of 96 miles per hour in a northeasterly direction.

Defendant had previously been charged with misdemeanor theft in Logan County and his case was set for trial on October 19, 1976. Alvin Fry was a prosecution witness against him. Ruth Martin was also a prosecution witness in that case. In June of 1976, she disappeared and had not been found. Evidence was introduced that her blood-stained car had been found.

Defendant was held in the Macon County jail pending trial on the murder charge. While Deputy Sheriff McCammon was admitting defendant to the jail he remarked to the defendant that the charges were serious. According to McCammon's testimony, defendant then stated that he had committed the offense but the State would have to prove it. Defendant testified that he had responded that the charges were serious but would never be proved because he "had not done it."

Two men who were jailmates of defendant's in the Macon County jail testified to confessions and admissions defendant made to them. On behalf of those witnesses, the State has presented a motion requesting that, for the protection of these witnesses, their names not appear in the opinion. We have allowed that motion and will refer to them as Witnesses I and II. Witness I stated that defendant said he killed the Frys with a shotgun in order to prevent them from testifying against him and also killed Ruth Martin for the same reason. Witness I also stated that defendant indicated that he had an alibi set up with his girlfriend. He also stated that the police made him no promises in exchange for his testimony but that the Logan prosecutor told him that his cooperation would be made known. Witness II testified to similar admissions and confessions by defendant as to killing the Frys and Ruth Martin and also testified that defendant offered him $5,000 to kill Ann Mardis. His testimony concerns points of error raised by defendant and will be discussed in more detail in connection with those issues.

Defendant's defense was alibi and was based upon his testimony and that of his friends and relatives. He denied making the admissions and confessions attributed to him and denied that he was in Lincoln at the times in question. His testimony was that he was in his home town of Joliet early that evening, had supper there at 5 p.m., drove around town for about 4 1/2 hours, visited a cousin for 2 1/2 hours, then rode around town for awhile and thereafter, in order to go to Kankakee to see about a campsite, drove west on Interstate 80 to the intersection of Interstate 55 which he then took in a southwesterly direction. He stated that he thought there was a Kankakee turnoff somewhere north of Odell and when he got to Odell he decided that he had missed the turnoff, made a U turn, headed north and was arrested for speeding. Defendant maintained that after being released by the arresting officer, he went on to Kankakee, looked at a campsite and then drove home.

To support his alibi testimony, defendant also called his mother, father, cousin, and girlfriend as witnesses. Although they corroborated some of his testimony, they were inconsistent at times and were also impeached by their bias in his favor and prior inconsistent statements. The strength of defendant's alibi was also weakened by (1) the testimony of the officer who arrested him at Odell, disputing various aspects of the conversation between them at the time the speeding arrest was made and (2) testimony that the route selected by defendant to go from Joliet to Kankakee was very circuitous. The jury could have concluded that the alibi evidence was very weak.

Two unusual evidentiary problems arise from Ann Mardis' testimony, given early in her direct examination, that defendant was the person she saw in the Fry yard after she heard the loud noise. She further testified on direct examination that on October 10, the day after the day of the early morning murder, she went to the Lincoln police station and upon being shown about a dozen photographs (later testimony indicates there were six) identified two as resembling the person in question. One of these photos was of the defendant. She next testified that on October 18, she accompanied police officers to the Logan County Court House. After staying a few minutes on the first floor, they went to the third floor. Some 40 people were present in the rotunda of that floor. When defendant walked by, Ms. Mardis pointed him out as the person she had seen in the yard. Defendant was present as a defendant in a misdemeanor theft case but no evidence introduced presented any evidence that would have suggested to her that he was there for that reason. He had counsel in that case but had not yet been charged in the instant case.

On cross-examination, Ms. Mardis stated that on three occasions between October 10 and 18 of that month in 1976, she had consulted with a physician about her memory of the events which took place immediately after the murders. On the last two visits, the doctor had hypnotized her, with the last hypnosis taking place three or four days before she made her October 18 identification of defendant at the Logan County Court House. She admitted that prior to being hypnotized, she had described her chances of being able to identify the person she saw in the Fry yard as being "50-50."

• 1 On appeal, defendant, for the first time, raises the issues that (1) the prior hypnosis suggested his identification to Ms. Mardis and deprived him of the right to cross-examine her and (2) the procedures for identification used at the court house constituted the holding of a lineup without his having the benefit of counsel. Although no objection was made to this procedure at trial nor in defendant's post-trial motion, we choose to address these issues and rule that no waiver occurred.

In People v. Harper (1969), 111 Ill. App.2d 204, 250 N.E.2d 5, a complainant in a rape case had been unable to identify her assailant prior to undergoing hypnosis and receiving injections of a serum purporting to cause persons to speak the truth while under its influence. The trial court entered an order suppressing "evidence of any facts or supposed facts which" the victim "may have learned solely as a result of hypnosis" or the use of the drug. This court affirmed, discussing mostly the indications in various cases that the results of examinations of persons who had taken various so-called "truth drugs" were not considered reliable enough to be admitted into evidence. The opinion referred to the aspects of the case concerning hypnosis only to state, "We see no reason to equate examination under hypnosis and examination while under the influence of a drug having the effect of a so-called `truth serum' except to note that the scientific reliability of neither is sufficient to justify the test results of either in the serious business of criminal prosecution." 111 Ill. App.2d 204, 209, 250 N.E.2d 5, 7.

As stated in Harper, when the test results of hypnosis of a witness have been offered in evidence through the testimony of the examining expert as to what the witness told the expert while under hypnosis, the courts> have, apparently uniformly, ruled this testimony to be inadmissible. Greenfield v. Commonwealth (1974), 214 Va. 710, 204 S.E.2d 414; Rodriguez v. State (Fla. App. 1976), 327 So.2d 903; Jones v. State (Okla. Crim. App. 1975), 542 P.2d 1316; State v. Pierce (1974), 263 S.C. 23, 207 S.E.2d 414; and State v. Pusch (1950), 77 N.D. 860, 46 N.W.2d 508.

Here, the State did not offer in evidence any testimony of what, if anything, the witness told the hypnotist about the event. The issue was not whether the results of the test under hypnosis were admissible in evidence but rather whether the hypnosis tainted the identification made by the witness at the court house and, therefore, her subsequent in-court identification testimony so as to make that testimony inadmissible. No case has been called to our attention so holding, and in Harding v. State (1968), 5 Md. App. 230, 246 A.2d 302; State v. Jorgensen (1971), 8 Ore. App. 1, 492 P.2d 312; United States v. Narciso (E.D. Mich. 1977), 446 F. Supp. 252; State v. McQueen (1978), ___ N.C. ___, 249 S.E.2d 464, and such civil cases as Connolly v. Farmer (5th Cir. 1973), 484 F.2d 456, and Wyller v. Fairchild Hiller Corp. (9th Cir. 1974), 503 F.2d 506, the testimony of the previously hypnotized witness has been ruled to be admissible. In each of those cases, as here, the witness testified to an improved recollection after the hypnosis.

Medical authorities indicate that hypnosis has become established as a valuable tool in the hands of the skilled practitioner and can be used to restore the memory of experiences which have been repressed due to their unpleasant or painful nature. Noyes & Klob, Modern Clinical Psychiatry 603 (1973); American Handbook of Psychiatry, ch. 12, Hypnotherapy, by Lewis R. Wolberg (Artieti ed. 1974) (hereinafter cited as Wolberg); Comprehensive Textbook of ...

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