Appeal from the Circuit Court of Williamson County; the Hon.
William A. Lewis, Judge, presiding.
JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:
Defendant Floyd Cohoon was convicted in the circuit court of Williamson County of rape and sentenced to 60 years' imprisonment to be served consecutively with the term imposed for parole violation on an earlier rape conviction. On appeal the defendant raises five issues. He asserts that: (1) the trial court improperly allowed identification evidence obtained with the assistance of hypnosis; (2) the trial court erred in not allowing the police officer who hypnotized the victim to testify; (3) the victim's in-court identification resulted from an improperly suggestive photo array; (4) the trial court erred when it ruled he could be impeached with his former rape conviction, and (5) the sentence imposed was excessive.
On January 2, 1981, the 27-year-old victim was carrying groceries into her home in a rural area of Williamson County when a man stepped out from behind the door and closed it. A struggle ensued, she dropped the groceries, he pushed her against the wall and told her he would not hurt her if she did as he said. She testified at trial that she thought he held a knife against her neck as he spoke to her. He then tied her hands with wire and led her out the front door to turn off the headlights of her truck. After returning to the house he led her into the bedroom, pulled her pants down and put his penis into her vagina. After he completed sexual intercourse, he tied her legs together, threw a sleeping bag over her and left. She waited about five minutes, freed herself, went to the phone and asked the operator to call her husband at work and ask him to come home immediately. The victim's husband arrived home, phoned the police and then took his wife to the hospital.
On February 24, 1981, the victim picked the defendant's photograph out of six she was shown in a photo array. She later made an in-court identification of the defendant. The victim testified that on the night of the crime she realized that she had seen the rapist previously. She stated she subsequently realized that he was one of the men who installed insulation in her house December 15-17, 1980. On cross-examination, the victim testified that she was interviewed by police three times during the week following the crime, but did not identify the defendant until seven weeks after the offense. She also testified on cross-examination that just prior to being shown the photo array, she was placed under hypnosis in order to refresh her memory. On re-cross-examination it was established that the only significant difference between the victim's original description of her attacker and the description given under hypnosis was that under hypnosis she added the fact the rapist had very large ears.
Agent Connell F. Smith of the Illinois Division of Criminal Investigation testified that he hypnotized the victim. He stated he had conducted hypnosis interviews since September 1978 and had attended a 30-hour seminar in hypnosis. After listening to an offer of proof, the trial court ruled that Smith was not qualified to testify before the jury as an expert on how hypnosis affects the human mind.
Evidence found by police at the scene of the crime included the defendant's fingerprint on the rear door of the victim's residence. A volunteer weather observer for the National Weather Service, who maintained records of weather conditions in the area of the crime, testified that at no time between December 15 and January 2 was there ever more than a trace of rain or snow in the area. However, Robert C. Bartley, a latent fingerprint specialist with the Federal Bureau of Investigation, testified that it was "unlikely" that a latent fingerprint could last 16 days outdoors.
Also found at the scene was an empty beer can of the brand the defendant was known to drink and a piece of paper, undamaged by moisture, which contained instructions for sharpening drill bits of the type the defendant used regularly. Detective Roger Odum testified the defendant came to the police station to talk with him at his request. Detective Odum said the defendant told him he worked at his brother's garage until 5 p.m. on the day of the crime and then went home and ate dinner with his family until 6 p.m. The defendant consented to a search of his automobile and home and also provided the hair samples requested by police. Detective Odum testified that F.B.I. tests showed that none of the hair samples found on the bed where the rape took place were the defendant's.
Harold Cannup, Jr., who worked with the defendant, testified that he had once asked the defendant about an "unusual" odor, which the defendant attributed to the aftershave he wore. The victim had testified that her attacker wore a "very strong" aftershave.
After hearing the evidence and closing arguments of counsel, the jury was instructed on the law and retired to deliberate. The jury found the defendant guilty of rape and he was subsequently sentenced by the court to 60 years' imprisonment to be served consecutively with the term imposed for parole violation on an earlier rape conviction.
The defendant's primary argument on appeal is that the general scientific reliability of hypnosis, an underlying factor in producing the identification of the defendant, has not been demonstrated. Therefore, the defendant argues that evidence obtained with the aid of hypnosis cannot be presented at trial. A similar issue was presented in People v. Smrekar (1979), 68 Ill. App.3d 379, 385 N.E.2d 848. In that case, identification testimony of a prosecution witness was not rendered inadmissible by her prior hypnosis by a physician. The evidence was held admissible since the prosecution established that the hypnotist was competent, evidence indicated that suggestion had not been used in the hypnosis, the identification was corroborated by other substantial evidence unknown to the witness and the witness had ample opportunity to view the perpetrator at the time of the crime.
Recently, the Smrekar test was utilized in People v. Gibson (1983), 117 Ill. App.3d 270, 452 N.E.2d 1368. In Gibson, the defendant was convicted of home invasion, rape, deviate sexual assault, burglary and felony theft. One of the victims was able to make an identification of the assailant following a hypnotic session conducted by a police officer to refresh her recollection. The reviewing court, adhering to Smrekar, stated that the hypnotism of a witness goes only to the weight accorded the evidence and not to its admissibility. (See also People v. Byas (1983), 117 Ill. App.3d 979, 453 N.E.2d 1141.) The Gibson court stressed that allowing the defense to present expert testimony to the jury to show that hypnotism may influence a witness' recollection will adequately allow the trier of fact to assess the value of the hypnosis testimony.
In Gibson, however, the court elaborated on the requirement that the hypnotist be competent to perform the interview. The court rejected the hypnosis-aided identification because the police officer who conducted the session had only one week of hypnosis training at police school and no foundation of competence or qualification had been shown. In addition, the court noted that as a police officer, the hypnotist was not disinterested in the success of the identification process. Accordingly, admission of the victim's identification testimony in Gibson was held error, but the error was ruled harmless beyond a reasonable doubt because of accomplice testimony, testimony by a friend of the defendant and scientific evidence introduced by the State's expert serologist.
The defendant in the case at bar argues that hypnotically enhanced testimony should be inadmissible because it fails to satisfy the test of Frye v. United States (D.C. Cir. 1923), 293 F. 1013, concerning the admissibility of scientific evidence. For the results of a scientific procedure to be admitted under the Frye test, there must be a showing that the technique has been generally accepted as reliable in the scientific community in which it developed. The Gibson court noted that since the consensus of opinion among experts is that hypnosis is not a reliable method of producing accurate recollection of events, adoption of the Frye rule would require that testimony enhanced through hypnosis be inadmissible. Smrekar and Gibson both rejected this analysis. As was pointed out in Gibson, the Frye test is inapplicable primarily because that standard concerns admission of expert opinion deduced from a scientific technique, not eyewitness testimony. In addition, the reliability of the procedure in a given situation is far more important than its theoretical general reliability. Therefore, the Gibson court stated, "Notwithstanding the substantial authority excluding the testimony of a witness who has undergone hypnosis, we believe that requiring the State to choose between the use of hypnosis on a witness to aid in the resolution of a difficult case and the use of that witness at trial exacts too high a price." (People v. Gibson (1983), 117 Ill. App.3d 270, 276, 452 N.E.2d 1368, 1373.) We agree.
• 1 Although we accept the Gibson court's conclusion that the Frye rule is inapplicable in cases involving hypnotically enhanced testimony, we do not accept the Gibson court's application of the Smrekar standards. We do not feel that a person with training in hypnosis is incompetent solely because he is a police officer. Although the officer in the case at bar did not have extended or elaborate training in hypnosis, the transcript of the hypnotic session shows that his 30 hours of training were sufficient to prevent him from attempting to influence the witness. Moreover, as the victim testified at trial, her hypnotic session brought out only one descriptive detail not previously offered, that the rapist had big ears. Given that the hypnotist in the case at bar had formal training in hypnosis, we hold he was sufficiently competent to satisfy the requirements of People v. Smrekar. In addition to showing the hypnotist to be competent, there is no indication from the record that the procedure was fraught with suggestive influences since the victim altered the description under hypnosis in only one minor way. Other corroborative evidence did exist ...