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People v. Gibson

OPINION FILED AUGUST 22, 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

SHERMAN GIBSON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Sangamon County; the Hon. Richard E. Mann, Judge, presiding.

JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Defendant Sherman Gibson was convicted of the crimes of home invasion, rape, deviate sexual assault, burglary, and felony theft. (Ill. Rev. Stat. 1981, ch. 38, pars. 12-11(a)(1), 11-1, 11-3, 19-1, 16-1(a)(1).) He was sentenced to concurrent terms of 45 years for home invasion, rape, and deviate sexual assault and seven years for burglary. On appeal he raises numerous issues, including: (1) The trial court improperly admitted testimony of a witness whose memory was refreshed by hypnosis; (2) his right to the assistance of counsel guaranteed by the sixth and fourteenth amendments was violated; (3) the trial court improperly excluded an expert opinion; (4) the trial court improperly restricted cross-examination of the State's chief witness; and (5) the trial court erred in overruling his objection to testimony from the State's expert serologist. We affirm.

Since defendant has not challenged the sufficiency of the evidence to support his conviction, only a brief discussion of the facts is necessary.

In the early morning hours of June 13, 1981, the home of Stephanie and Steven White was broken into by Allen and Glenda Medley and defendant. At home were the Whites and their nine-year-old niece. The three ransacked the house looking for property while Allen Medley and defendant took turns raping and performing acts of deviate sexual conduct on Mrs. White. During this ordeal, Mrs. White was forced to remain in the bedroom, Mr. White in the bathroom, and their niece in the living room. The only light which was on during the crimes was a fluorescent "grow light" in the living room of the small, two-bedroom dwelling. After about an hour, the trio left in the Whites' automobile, dropped off some property, and went to the home of a friend, Carolyn Madison. Madison testified that she saw the Medleys and defendant in her home the following morning in possession of certain items of property which were taken from the Whites' home.

The linchpin of the State's case was Glenda Sue Medley, who related the above events in substantial detail. She also was instrumental in leading the police to the defendant. Four days after the offense, she informed a Detective Murphy, of the Springfield police department, that she was present at the Whites' home on the morning in question and had aided her cousin Allen and defendant steal the property.

Debra Fesser, the State's expert serologist testified that she performed tests upon samples of clothing and body fluids taken from the victim and discovered the presence of seminal material which she concluded were consistent with the blood types of defendant and Allen Medley.

Both victims testified at trial, but only Mrs. White was able to make an in-court identification of the defendant. She also related, without objection, her tentative identification of the defendant at a pretrial lineup and her positive identification of defendant which she made from a photograph of the same lineup. The latter occurred following a hypnotic session which was conducted by a Detective Sample to help the witness refresh her recollection. Mrs. White testified that, while she was previously unable to clearly see her assailants, "[u]nder hypnosis I was able to recall walking out of the bedroom, confronting the men. At that point I got a very good image of what he looked like."

• 1 Defendant's first series of contentions relate to the admission of the testimony of Stephanie White, who was hypnotized prior to trial in an attempt to refresh her recollection. Defendant argues that: (1) The prior hypnosis of the victim rendered her incompetent to testify to subjects inquired into under hypnosis (see People v. Tait (1980), 99 Mich. App. 19, 297 N.W.2d 853; Commonwealth v. Nazarovitch (1981), 496 Pa. 97, 436 A.2d 170; People v. Shirley (1982), 31 Cal.3d 18, 641 P.2d 775, 181 Cal.Rptr. 243; State ex rel. Collins v. Superior Court (1982), 132 Ariz. 180, 644 P.2d 1266; Collins v. State (1982), 52 Md. App. 186, 447 A.2d 1272); and (2) the witness' testimony should have been excluded because the hypnosis did not satisfy the safeguards for the admission of hypnotically enhanced testimony set out in State v. Hurd (1981), 86 N.J. 525, 432 A.2d 86.

In People v. Smrekar (1979), 68 Ill. App.3d 379, 385 N.E.2d 848, we first addressed the problems associated with the use of hypnosis as an aid in refreshing a witness' recollection. In that case, a witness to an arson murder was hypnotized by a physician to help her refresh her recollections of the occurrence in an attempt to identify the arsonist. Prior to hypnosis, the witness described the probability of identifying the assailant as fifty-fifty, but after being hypnotized the witness was able to make a positive identification. On appeal, we held, over dissent, that the fact that a witness had been hypnotized prior to trial affected only the weight of the evidence and not its admissibility. We found the admission of the witness' testimony to be proper since the record as a whole demonstrated (1) that the hypnotist was competent, having used hypnosis in his medical practice for 10 years; (2) that the procedure was not fraught with suggestive influences; (3) that the witness' identification was corroborated by other substantial evidence unknown to the witness when she made the identification; and (4) the evidence showed that at the time of the occurrence, the witness had an ample opportunity to observe the assailant. Defendant urges us to abandon this position and follow either the approach of those courts> which exclude hypnotically refreshed testimony altogether or impose procedural safeguards to minimize the inherent dangers in its use. The defendant relies on a number of out-of-State authorities, listed above, which were decided following our decision in Smrekar. For reasons which follow, we adhere to Smrekar because we believe that it strikes the proper balance between the possible benefit in the use of hypnosis as an aid in refreshing recollection and the disadvantages and problems associated with its use.

A review of the decisions cited by defendant which consider the admissibility of the testimony of a witness who has undergone hypnosis reveals that the courts> have reached no unanimity on the question. Some courts> hold that the previous hypnotism of a witness is a matter affecting only the credibility of the witness' testimony and not its admissibility. (See United States v. Adams (9th Cir. 1978), 581 F.2d 193, cert. denied (1978), 439 U.S. 1006, 58 L.Ed.2d 683, 99 S.Ct. 621; Clark v. State (Fla. App. 1979), 379 So.2d 372; State v. McQueen (1978), 295 N.C. 96, 244 S.E.2d 414.) A second approach, most notably State v. Hurd (1981), 86 N.J. 525, 432 A.2d 86, allows the introduction of testimony refreshed through hypnosis upon a preliminary showing that the use of hypnotism is likely to restore memory comparable in accuracy to normal recall and that a six-part standard has been followed. Finally, other courts> have concluded that a witness who has been hypnotized prior to trial is incompetent to testify to events occurring during hypnosis or the fruits of the hypnotic procedure. An exhaustive opinion indicative of this approach is People v. Shirley (1982), 31 Cal.3d 18, 641 P.2d 775, 181 Cal.Rptr. 243. See also State v. Mack (Minn. 1980), 292 N.W.2d 764; Collins; Nazarovitch.

This latter group of cases, excluding the testimony of a witness who has been hypnotized, frequently employ the rationale that hypnotism presents the same issues of admissibility as are presented when the results of a lie detector test or other scientific test are sought to be admitted. In order for the results of a scientific procedure to be admitted, there must be a showing that the technique has been generally accepted as reliable in the scientific community in which it developed. (Frye v. United States (D.C. Cir. 1923), 293 F. 1013; see People v. Baynes (1981), 88 Ill.2d 225, 430 N.E.2d 1070.) Since the consensus of opinion among the experts is that hypnosis is not a reliable method of producing historically accurate recall (State v. Hurd (1981), 86 N.J. 525, 538, 432 A.2d 86, 92, and authorities cited therein), once the Frye rule is adopted as the standard of admission, it becomes a necessary conclusion that testimony enhanced through hypnosis is inadmissible. Courts> applying the community acceptance standard and excluding testimony from a witness who has been hypnotized include Mack, Shirley, Nazarovitch, Collins, State v. Mena (1981), 128 Ariz. 226, 624 P.2d 1274, and State v. Palmer (1981), 210 Neb. 206, 313 N.W.2d 648. An example of this reasoning is found in Mena:

"While the medical use of hypnosis for certain therapeutic purposes has been approved by the American Medical Association, 168 J.A.M.A. 186-87 (Sept. 13, 1958), the use of hypnosis to aid in accurate memory recall is not yet generally accepted. `It remains controversial whether hypnotic suggestions can improve memory effectively.' 9 Encyclopedia Britannica, 133, 137 (1979).

The determination of the guilt or innocence of an accused should not depend on the unknown consequences of a procedure concededly used for the purpose of changing in some way a witness' memory. Therefore, until hypnosis gains general acceptance in the fields of medicine and psychiatry as a method by which memories are accurately improved without undue danger of distortion, delusion or fantasy, we feel that testimony of witnesses which has been tainted by hypnosis should be excluded in criminal cases." 128 Ariz. 226, 231, 624 P.2d 1274, 1279.

This is the position taken by defendant, who asserts in his brief that "[i]n sum, there is no procedure which can be utilized in hypnosis which can be said with surety to yield accurate results." This was also the position taken ...


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