Appeal from the Circuit Court of Cook County; the Hon. Philip
J. Carey, Judge, presiding.
JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
The defendant, Darryl Jordan, was charged by information with the offenses of rape, deviate sexual assault, armed robbery, aggravated kidnaping, unlawful restraint and armed violence. (Ill. Rev. Stat. 1981, ch. 38, pars. 11-1, 11-3, 18-2, 10-2(a)(3), 10-3(a), and 33A-2.) Prior to trial, defendant filed a motion to suppress identification. After a hearing during which the facts were stipulated to by the parties, the trial court granted that motion. The State appeals, contending that it was manifest error for the trial court to sustain the motion to suppress identification since that ruling directly conflicts with controlling Illinois law and since the identification was shown to be reliable. 87 Ill.2d R. 604(a)(1).
The following facts were stipulated to at the hearing on defendant's motion to suppress identification: On May 9, 1980, at approximately 5:30 p.m., the victim was about to get into her car, which was parked in the Evergreen Plaza parking lot. At that time a black male came up to her and forced her into the vehicle. The assailant then drove her around various streets and localities. During this time, he raped her and forced her to perform oral copulation on him. The entire incident lasted for approximately one hour, during 30 minutes of which the victim was able to clearly observe her assailant.
Shortly after the offenses had taken place, the victim went to a hospital in Oak Lawn where she was interviewed by Evergreen Park police officers. The victim informed the officers about the events, and she also gave them a physical description and a clothing description of the assailant. She described her assailant as a 25-year-old black male who was approximately 5 feet 7 inches in height and weighed about 140 pounds. She said that her assailant was clean-shaven, had black hair that was cut short in an Afro style and had sideburns. The victim also told the officers that the offender wore a waist-length, forest-green, winter-type jacket, dark pants and black shoes with white mesh on top. The victim further related that the assailant wore a watch on his left arm and had a high school ring on his hand. However, the victim could not describe the offender's facial features with specificity.
On May 12, 1980, police officers went to the victim's home and again interviewed her. The next day, the victim retraced the route of the incident as best as she could for the police. At that time, the victim was also shown a photograph display, but she could not identify anyone in that display as her assailant. At the suppression hearing, defense counsel stated that if called to testify, Officer Watson would state that a police report indicated that defendant's picture was in the aforesaid photographic display. The assistant State's Attorney, however, said that if Officer Viggiani were called to testify, he would state that the police report indicated that the victim viewed consecutive mug shots, numbered 77-99 through 80-557. However, defendant's mug shot, numbered 80-552, was not contained in that display. Therefore, the police report was mistaken in that regard.
Because the victim felt that the trauma of the incident caused a mental block in her recall of the assailant's exact facial features, she believed she could remember them best if she was hypnotized. On May 19, 1980, Stan Mitchell, a hypnotist with over 30 years experience, placed the victim under hypnosis during which he asked the victim general questions about the incident and her assailant's features. It was stipulated that Mitchell in no way suggested anything to the victim, and that the facial features of the victim's assailant were not given to an artist but were merely recalled by the victim. Two days later, the victim went to the Evergreen Park police station and helped a police artist draw a composite picture of her assailant.
On May 29, 1980, John Stevens, a member of the Illinois Department of Law Enforcement, placed the victim under hypnosis. It was stipulated once again that the victim was asked only general questions about the incident and her assailant's facial features and nothing was suggested to her. A composite drawing was then made while the victim was under hypnosis.
On June 19, 1980, the victim called the police and informed them that she had seen her assailant riding in a car on 95th Street in Chicago. She was able to give a partial description of the license plate and also a description of the vehicle in which the assailant was riding. Although the police followed up on this information, they were unable to obtain any new leads. On July 17, 1980, the victim was again placed under hypnosis in an attempt to get a better description of the license plate she had seen on June 19. Although a full license plate number was elicited under hypnosis, no arrest resulted from that information.
On September 22, 1980, the police called the victim and at that time she informed them that she had seen her assailant on September 20 at a hot dog stand located near the intersection of 99th Street and Western Avenue. This time the victim copied down the license plate number of the car in which her assailant was sitting, and she gave that number to the police. The police checked the number, and it was registered to defendant. The police then compiled a photographic array consisting of 10 photographs of black males, including defendant's photograph. After having viewed this array, the victim selected the picture of defendant as her assailant. Defendant was then arrested and brought to the police station. On the same date, the victim viewed a five-man lineup and selected defendant as the man who had raped her.
After hearing the arguments of counsel, the trial court held that the victim's identification was tainted by the hypnosis that she had undergone five months prior to her identification. The trial court concluded that her identification was per se inadmissible, and therefore, sustained defendant's motion. Thereafter, the case was stricken with leave to reinstate.
In the present matter, the trial court specifically rejected the holding of the Fourth District Appellate Court in People v. Smrekar (1979), 68 Ill. App.3d 379, 385 N.E.2d 848, and ruled that the identification testimony of the witness, which was obtained subsequent to her being hypnotized, was per se inadmissible since she was incompetent to testify as to subjects inquired into under hypnosis. (See People v. Shirley (1982), 31 Cal.3d 18, 641 P.2d 775, 181 Cal.Rptr. 243.) On appeal, the State contends that People v. Smrekar is the law in Illinois since it has never been overruled or modified. Therefore, the State concludes that the trial court erred in refusing to follow controlling Illinois law.
Defendant contends that the trial court acted properly since the most recent cases on this issue indicate that such testimony is per se inadmissible. Defendant further argues that the victim's testimony should also 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.
An extensive review of the case law authority, regarding the admissibility of testimony by a witness who has undergone hypnosis, indicates that no unanimity has been reached on the issue. Some jurisdictions hold that previous hypnotism of a witness is a matter which affects only the credibility of that witness' testimony and does not bear upon the admissibility of that testimony. (See United States v. Adams (9th Cir. 1978), 581 F.2d 193.) Another approach permits 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 certain standard has been followed in eliciting such recall. (See State v. Hurd; People v. Smrekar.) Other jurisdictions have determined that a witness who has been hypnotized prior to trial is incompetent to testify to events occurring during hypnosis or to the results of the hypnotic procedure. See People v. Shirley; see also State v. Mack (Minn. 1980), 292 N.W.2d 764.
This latter approach, frequently uses the rationale that hypnotism presents the same issues of admissibility as are created when the results of a lie detector test or other scientific tests are sought to be admitted. In order for the result of a scientific procedure to be admitted into evidence, there must be a demonstration that the procedure has been generally accepted as reliable in the scientific community in which it was developed. Since the consensus of opinion among that community is that hypnosis is not a reliable technique for ...