Haselhuhn v. State

It is judgment from this THOMAS, C.J., and sentence that Before BROWN, CARDINE, appeals. MACY, URBIGKIT and JJ. In his brief in this court Haselhuhn THOMAS, Chief Justice. presents a statement of the issues list- In this appeal, which is taken from a ing arguments six as follows: of aggravated robbery, conviction in viola “I. Appellant Whether was denied his (c)(ii), (June tion of 6 - 2-401 W.S.1977 § process rights due op- to notice and the Replacement), Darwin Haselhuhn asserts a portunity be heard because series relating of errors to his trial. The court denied his motion for a continu- issues to be addressed include claim that ance. permitted witness should not have been hypnotically “II. Whether rec- enhanced testify hypnotized; because he had been ollections should admissible

error failing grant a continuance in whether it is the State’s burden to estab- order to expert relating obtain hearing lish hypnosis; jury’s pres- out of the prosecution failure of the any hypnosis make ence that available done perceived evidence be of defendant; assistance to the did error in intro not alter the witness’ recall ducing the results of a polygraph examina- fashion. crew employed failed to member of the the con-

“HI. Whether the obligation ‘to the floors in the by its constitutional tractor maintained abide making its case’ employees the defense in None of the saw Hasel- assist store. is mandated because a reversal whether leave. Haselhuhn admitted that huhn prosecution did not dis- the evidence night present the store the of just resolution material to a close was robbery asserted that he was there but the facts. his on the mainte- connection with work improper- Whether the “IV. co-defendant nance crew. Haselhuhn’s closing testify to the argument to ly used prior store also was observed neither nor Officer Jaramillo jury that he Haselhuhn, time, and, as no closing with anything from the defense. hidden had him leave. admitted one saw it error for the plain “V. Whether was evening his co-de- spent with results of a to introduce the course, fendant, but, participation of denied exam. polygraph long Not after the store in the his Appellant Whether was denied “VI. P.M., 10:00 the assistant closed at was presentation process due a manager and store clerk were bal- store his invoca- jury of co-defendant’s to the ancing working the books and on the cash of the Fifth Amendment.” tion cage accounting in a was locked which men, by the of They of the issues the time. observed two The statement most of Wyoming is: a wearing a ski mask and the other one mask, cage approaching the of motion for Halloween Appellant’s The denial

“I. men proper and did rear of the One of the a continuance was from the store. abridgement of his due a appeared result with what to be was armed rights. a and the other with sawed-off cage, hypnotical- offer knife. When the men reached the “II. The State did not had testimony. Appellant ly-enhanced money the store from the they demanded opportunity to im- adequate notice and clerk. manager store assistant peach of the witnesses they took the victims to the Then two hypnotized. who were store, them with duct rear of the bound The did not withhold “III. Prosecution through delivery left door tape, and Appellant can be any from material that opened inside. only from the which could be Brady considered material. key necessary for take a It was them to argu- rebuttal “IV. Prosecutor’s delivery open clerk in order to from the Appel- response a fair to the ment was left, the store door. Soon after robbers ac- assertions that he was denied lant’s managed to employees free themselves information, exculpatory and was cess to police police. ar- summoned the When event harmless. rived, manager and the the assistant store error resulted “V. No reversible gave statements as to what had oc- clerk a polygraph the mention of exam. manager The assistant store curred. ad- com- There was reversible error “VI. no he was able to officers that vised accomplice the Appellant’s mitted when tape duct the robbers peek under the which Amendment he would take the Fifth said one of placed eyes over and see had testify.” if called had his ski mask. who removed them physi- manager was to furnish store able be allud- some additional detail will While robber, description of the describe cal disposition of ed to connection with clothing, and the officers advise case, robber’s signifi- the several issues in this recognized the as one that he robber begin evening hours cant facts not remem- cleaning men but he could closing time April 1984. Prior to the as- name. Later when Store, the man’s employees saw ber Safeway three manager a xe- shown known sistant store He was Haselhuhn enter store. photographs, he indicated array employees he was roxed the store because might appellant photograph other detective had interviewed the third person pointed but out that the hair a polygraph be the robber secured examina- differently. The clerk styled person. store the third Thereafter the photo- prosecution pinpointed had been a victim identified the the result of the Haselhuhn, array as that graph polygraph examination which was exculpa- tory but she had not seen the robber without his respect robbery so far as clerk, however, person mask. store did fur- the third was concerned. clothes, a description nish masks and argument In his rebuttal the prosecuting weapons. manager Both the assistant attorney compelled deny felt closing ar- the clerk identified the voice of the co-de- gument by counsel for Haselhuhn that evi- taped array. fendant from voice dence had not been made available to Ha- later, Some time both the man- objection assistant selhuhn. When was made the ager permitted and the clerk were under judge interviewed district the to. hypnosis by non-professional proceed a with mea- argument. with his ger training hypnotic techniques. This The co-defendant subpoenaed was as a prior preliminary interview occurred to the witness at Haselhuhn’s although trial he hearing. At preliminary hearing, the testify. never called was In accordance manager assistant store positively identi- court, with the practice of the all witnesses fied Haselhuhn as the robber he had seen. prior were sworn at once to the trial. At explained He even that he had removed his time, that it was observed that the co-de- glasses to make the as circumstances sim- sworn, fendant had not been and the dis- possible ilar as to the situation the store judge trict directed that the oath be admin- robbery, at the time of the and he testified co-defendant, however, istered to him. The that he knew for sure that Haselhuhn was rely advised the court that he would the robber. In testimony his at the trial upon testify against his not to himself manager again assistant Ha- identified he testify that would refuse to at the selhuhn as the robber. occurrence, response trial. In to this Ha- mistrial, testimony requested

Other at the trial was intro- selhuhn a but he made request no any cautionary duced from three witnesses testified instruction. that Haselhuhn had made statements to We shall address first the issues them which connected him with the rob- relating admissibility to the of the testimo bery. A different witness testified that ny by manager of identification the store Haselhuhn and the co-defendant had visited grant and the refusal of the trial court to a night him at his home on the of the rob- adopted continuance. We have the rule bery. He stated that he did know not hypnosis credibility that raises an issue of precisely they what time were at his home witness, respect with a they may and conceded that have been but fact that the witness has been during robbery there the time oc- that the hypnotized does not render the witness in they curred or may not have been there State, competent testify. Chapman that time. Wyo., 638 P.2d 1280 this While part

As of his strategy, question, Haselhuhn on the court has been divided that suspicion upon endeavored to focus Wyo., a third rule was followed Gee party who was a connected to sawed-off and Pote v. that had been retrieved from the Haselhuhn ar Black’s gues adopt Pork River. the course of exam- that the court now should concerning ination shotgun, incompetency counsel rule of of the rather witness for Haselhuhn police credibility. asked one of the offi- than the rule up accomplished argues manager cers what follow had been that because assistant respect ownership with to the shot- of the could not remember the name clean gun presence ing thought for its reason crew member he identify river. The officer testified he not that an- robber and because could position our do not recede from differ- photo of Haselhuhn xeroxed the defendant of fact robber or a state must advise style as either the ent hair crew, cleanup hypno- we must con- previously a witness has been member of the by testimony was enhanced clude and make available defendant tized manag- store The assistant hypnosis. proceedings request on all statements noted, er, was able to make a However, hypnosis. we do relating to the we of Haselhuhn when positive identification by discern failure not preliminary person at the he him saw requirements in this in- comply with those hearing. demonstrates that the stance. record discovery en- complied with a order state State, su case is like Pote v. This by tered the district court. When exam- that the testi respect to the fact pra, with ining maintained the Green exhibits manager store mony of the assistant day police department prior on the River hypnotic enhanced virtue rnot trial, tape of defense counsel discovered a man At the assistant interview. the trial manag- hypnotic interviews store testimony was en ager that his denied had er and the store clerk. He been of- The hyp hypnotic hanced session. fered access to this information well the interview did notist also testified that trial, not but did discover advance additional information elicit tapes There rea- until that moment. is no manager beyond that the assistant store son to believe that previously had furnished. The which he to hypnotic prior aware of the interviews manager the store testimony of assistant prosecutor time. The advised the that and at the preliminary at the examination not court that he had been aware of the with the statement trial was consistent hypnoti- been fact that the witnesses had given night of first on the the prior cally day until the to tri- interviewed was that the robbery. only difference al, him. and there is no reason doubt manager store was able iden assistant Moreover, time defense counsel the he tify Haselhuhn as the robber when saw tapes hyp- knew of the that he about explanation in of his person. him His abili opportunity sessions had the to listen notic ty identify at that time rules Haselhuhn State, supra, in to them. We said Gee v. any impact hyp out of the interview under 104: Chapman nosis. case similar v. This is supra, which defense counsel did credibility, make an attack on “To such any testimony not elicit indication that attacking party necessity must by hypnosis. of the enhanced witness was knowledge pre-tri- of the fact of the State, supra, It also is similar to Gee hypnosis of the witness.” al factors remained the that identification In that this case defense counsel had further, following hypnosis, same knowledge. examinations of the as- His manag identification the assistant store manager hypnotist store sistant strong to other evidence er cumulative accomplished good skill were with a deal of guilt. of Haselhuhn’s We hold that upon He asked based that information. testimony manager offer store did not hyp- manager about the the assistant store by hypnosis, no had been enhanced He and what occurred. notic interview testify him to permitting error occurred subject thoroughly addressed also light reason. In of these factors person who had conducted compe we will not the rule of reconsider questions interview and raised numerous tency in this case. concerning the skills and abilities of these circum- complains hypnotic of the interviewer. Under

Haselhuhn also prosecution’s specifi- failure to of the advise him of stances failure hypnotic counsel of the hypnosis manag cally advise defense the assistant store Haselhuhn’s consti- sessions did not violate er which this court has said the rights. required State, supra. is to do. We tutional Gee insists, however, then this court disposed is not to reverse on under the same circumstances the trial purely basis of technical error. If the guilty court was of an abuse of discretion witness truthfully, testified then Hasel- denying motion continuance huhn also must have known that he was which he necessary asserted was for him to present at the home the witness on the expert an hypnosis. obtain witness on He night of With this informa- contends expert that without an available already possession, Haselhuhn’s any hypnotized attack the failure the law enforcement officers to witness was denied due of law. record the statement the witness and cognizant we While are of a then make that information available to adequate defendant in a criminal case to Haselhuhn could not have had material representation, we are reluctant to struc impact upon presentation of his de- ture a rule which justify would a continu fense. We note also prosecution that the is every ance in instance which the defend duty under no evidence; to create the duty ant first becomes aware of information on only is that of preserving evidence which the eve of trial which he could have learned may be helpful to the defense. Chapman about in ample prepare time to adequate an State, supra. defense. The rule is firm that a motion for is continuance addressed to the sound dis Furthermore, questionable it is whether cretion of the trial court. Wilde v. exculpatory. statement Brady v. and cases cited Maryland, supra, proposi established the injustice therein. No manifest is demon tion that the provide must evi strated. The denial of a continuance does dence which material to the defense. appear from the record to have inhib Agurs, United States ited upon previous Haselhuhn’s attack 2392, 2398, ly hypnotized witness. The absence of the Supreme Court of the United States proffered testimony expert of an witness explained that material evidence is that explained who could have impact upon “might which have affected the outcome of hypnotized self-confidence of the wit the trial.” Brady-Agurs test is a de ness not does deprivation constitute a manding one. Buzbee Donnelly, v. right Haselhuhn’s to a required fair trial (1981). N.M. 634 P.2d 1244 In light of by due of law. We hold that the the fact that Haselhuhn equal had knowl district court did not its abuse in discretion edge information, of this we per do not denying the in continuance this case. ceive how the police failure to dis argument Haselhuhn’s next is that close that evidence could any have had preserve failed to and upon effect the outcome of the trial. The present to his counsel a statement of the presented information was jury, and witness who testified that Haselhuhn and apparently jury found that it did not his co-defendant visited the home of the an establish alibi in view of the other evi night witness on the robbery, per placed dence which Haselhuhn at the scene haps during Haselhuhn as of the accident. We hold that there was no serts that this failure right violated his error regard. in this be informed of exculpatory un information der Brady Maryland, v. argues also that reversi (1963). S.Ct. It seems ble error occurred when the in almost trite to remind Haselhuhn that sub subject troduced the polygraph ex procedural stantive and legal rules are not amination which party was made of a third an end in They themselves. are the means suspect who to an was robbery end. That end is to that party secure to a right this perceived adopted by a fair If violated rule any trial. this court failure comply State, with Wyo., those rules does Schmunk v. adversely impact right trial, to a fair A police by officer who was called plain We error. are not satis examination constitutes on direct

Haselhuhn testified plain articu counsel followed: fied that criteria error by Haselhuhn’s State, Hampton Wyo., v. 558 P.2d lated already yes- Now, gone over “Q. we’ve subsequently followed particular of how terday fact this owner, a man court satisfied these circum shotgun traced to an this are was Rather, persuaded that if named John Hamilton? we are stances. any it was Ha there error invited correct. “A. That’s opened the door. selhuhn Schmunk tracing through “Q. done And that was State, State, Wyo., supra; Sanville on it? a serial number State, (1979); Palato v. Yes, “A. sir. State, (1979); Wyo., Burns your “Q. right. And office contact- All (1978); Wyo., 574 P.2d 422 Pack v. ed this fellow? Wyo., 571 P.2d Daellenbach Yes, “A. sir. explanation his “Q. And received got in the gun how this river? respect With to Haselhuhn’s claim Yes, right “A. sir. he was denied his constitutional him, against we inves- to cross-examine witnesses “Q. I’d like to know is what What point. argument took his to be that when tigative steps you after that understand co-defendant, upon the occasion be part investiga- “A. turned ing administered the oath of á witness Thompson.” Detective tion over to case, volunteered the information that up the chose to follow Defense counsel right he would exercise his constitutional way: in this preceding examination This, testify. ef would refuse to up doing? “Q. Okay. What did he end fect, conduct the co-de was testimonial Mr. up He and interviewed “A. went fendant, of an deprived and Haselhuhn says, Like I he traced Hamilton. opportunity to cross-examine the co-defend gone, steps had of where As we ant about testimonial conduct. He then point point. to what what indicated, the co-defendant was not test. gentleman polygraph ran the on witness, testify. called as a did not gentle- And his conclusion was that the right of which is inher confrontation telling on the shot- man was the truth fair trial involves cross-examina ent gun.” respect a wit he examined asked when not, however, given. ex ness has It does questions to following officer to a to cross-examine a witness tend given: answers were which indicated testify respect to is not called to testimony “Q. Now, according your to in this conduct such as that which occurred belonged to a today, gun originally that Nothing to the would case. material issues John Hamilton? by such cross-examina have been elicited Yes, “A. sir. possibility of harm to Hasel- “Q. you polygraph, ran a or some- And great probabil indeed. The huhn would be got polygraph, ran about how it one ity that Haselhuhn wanted the co-defend why? into river and quite testify truthfully to in this ant case “A. That’s correct. Ha- appear It that limited. would instead “Q. passed? And he error prefers to have claimed selhuhn my understanding. “A. That’s that rely upon appeal. in note to We “Q. any deception? show Didn’t mistrial, did request did but ly- indicate he was polygraph didn’t that cautionary to instruction not ask ing? should be jury. While such incidents No, “A. sir.” case, occur of a avoided ground for See is not a reversal. to this rence objection No was made State, Wyo., trial, argues Hopkinson now that this and Haselhuhn (1981), denied, 455 cert. U.S. S.Ct. “MR. sug- MONEYHUN: So then he gests you, having L.Ed.2d to after all our evi- When the gument, he made these comments and we will not treat counsel for Haselhuhn reversible relates to his testified closing Jaramillo the State gentlemen, want to tell gested file the Defendant. We had to do that on trial while Mr. he they’ll between “The other time, never had the chance to nail that [Hunt- down er’s statement as ‘Darwin couldn’t have “Why “They’ll write down stands ¤ evidence that The final contention of Haselhuhn argument because wasn’t anything this case. The are make again. ten and error. Haselhuhn’s counsel in rebuttal on trial they ^[*] Flynn up argument thing there’s a we notes, give you right now, here and tries to it so said: about a man who hid And ^[*] ten-thirty.’ argument interested again, all way? made his rebuttal ar- but things things objected: time] you discovery of our evidence to Judge speaking, really angered been ^[*] reported. they tries to know, * * * from him. down at that like that and and this has ordered won’t write ^[*] * ladies and prosecutor distorting order on We can discern no reversible ”* * And we put put * * * prior store says, *c sug- Joe me State, Wyo., me I record in this Sanchez v. said sentence is affirmed. claim response, (1985); Bishop error. a defendant to structure his own reversible defendant’s door ment. We also have held in a number of heard to permitted cases that when a In why didn’t he?” If thing from him. He knows what our dence, evidence was. He knows what we had. Browder v. prosecutor merely he could “[t]he such as this on cert. Freeze v. we held that the we response complain that we’re accordance with our earlier cases which to appellant opened the door and did hide denied, argument State, Wyo., prove testify case. The we such as State, Wyo., on appeal. If this as reversible error. to find appeal something defendant trying in his closed it.” then entertaining a you supra, this, this to that we tried— judgment simply 1219, 105 to hide some- closing argu he will 639 P.2d 889 error 662 P.2d at opens isit Freeze v. be, permits As we is not a fair S.Ct. you, trial, prior you coming to this in here BROWN, Justice, dissenting, in which questioned. being for voir dire and This URBIGKIT, Justice, joins. every police report man had that we had had offered have him examine Once member of this court takes every piece of evidence— position, nothing short of from on direction me, “MR. FLYNN: Excuse Your Honor. high, accompanied light a flash of and a object point. wish at this I don’t clap of thunder him would cause to recon- jury want to state reasons in front of the sayI majority sider. this because the reso- I improper, because think that would be lutely holds on to a discredited of rule law Court, sure, but the I’m very is much State, Chapman which it in announced v. aware of the we had in conference that Wyo., (1982), weak, despite 638 P.2d 1280 if regarding chambers hypnosis tape any, According support position. that immediately prior to the trial. Because here, majority adopted this court alone, of that I improper basis think it’s Chapman “hypnosis rule that raises an argument for this of line continue. credibility respect issue of the testi- witness, may mony “THE COURT: You continue. You of a but the fact that given opportunity hypnotized were to examine witness has been does not ren- everything they incompetent testify.” had. der the witness 288 ida, Georgia North Carolina as rob- authori- eyewitnesses to the

In this case two upon ty. The relied from these in order to enhance cases hypnotized bery were hypnotist a main- have overruled. Bundy states also been v. their memories. Fla., (1985); Light State, Power and 9 at Pacific 471 So.2d Walraven tenance man State, 276, 798, Barney admitted he 336 S.E.2d v. 255 Ga. Company. Witness identify 515, positively (1985); initially Peoples, unable 311 N.C. 319 State v. It was appellant (1984). one of robbers. 177 as S.E.2d having hypnotized that he only been after upon authority When the which rule of identify appellant positively was able to eroded, seriously law based becomes one of the robbers. repudiated rule adopting court should hypnoti- addressed the position. that have reexamine Not so Courts its testimony problem concurring opinion have em- cally specially enhanced In my court. approaches. State, (1985), One ployed Wyo., three different v. Pote testimony by cases, group posthypnotic citing Chapman repre- all that admits I noted hypnosis only view; holding pretrial shrinking minority affects a rapidly sents it credibility of a witness rather than continues to shrink. See Contreras v. testify. (1986); competency State, Alaska, The second or her P.2d 129 718 State v. .hypnotically Moreno, (1985); tes- approach Hawaii, admits enhanced safeguards timony procedural Haislip, if are fol- P.2d v. Kan. 701 909 237 category adopts (1985); Nixon, a rule of lowed. The third 421 Mich. 364 People v. inadmissibility, allowing Furthermore, witness per (1985). se 593 I N.W.2d have testify only adopts to matters recalled before not found recent case which hypnosis. rule, majority Chapman nor does the cite therefore, conclude, any. that there are group, into the first Wyoming falls none. is, credibility hypnosis affects but not ad- State, noted, missibility. Chapman supra. It previously upon As the cases the rule majority not clear whether followed the Chapman which based its de Wyoming majority rule. It is was ever generally have overruled. This cision been however, clear, majority it is not citing Chapman court was left with today. rule support of its decision Gee (1983), citing Chap 662 103 jurisdictions in eleven follow the Courts support of its man Gee in decision pretrial hypnosis only rule affects basing This here. court is now decisions testimony credibility of such rather than its previous because that is about on errors all Twenty-eight admissibility. jurisdictions there is left. rejected admissibility hypnoti of cally enhanced or have restricted treatises, Legal generally, condemn the admissibility through its application credibility “hypnosis rule that affects but procedural safeguards balancing or tests. suggest admissibility.” Some treatises Admissibility Trance: The Trial Casenote, safeguards. My Look into Hypnotically Testimony, Enhanced 20 Admissibility Eyes: Hypnotically- 237 Colum.J.L. & Soc.Probs. Creighton Testimony, 19 L.Rev. Enhanced (1985-1986); 995 Trance: The Ad Trial developing Chapman rule this missibility Hypnotically Enhanced State, Md.App. Harding court cited 5 Testimony, & 20 Colum.J.L. Soc.Probs. 246 A.2d 302 cert. denied Mesmerizing Justice: Use U.S. L.Ed.2d Testimony Hypnotically-Induced primary authority. Since as its Trials, Syracuse L.Rev. however, Criminal been Chapman, Harding has (1983); Note, Zamarripa: People v. To Md.App. overruled. Collins Hypnotize Hypnotize, Not to West As additional 447 A.2d Note, (1986); Hyp ern State U.L.Rev. 651 Chapman determination in support for its Testimony and notically on Flor- majority relied cases from also Refreshed

289 Pendulum, Balancing U.Ill.L.Rev. raised the of issue whether a continuance Comment, (1985); Criminal Law- granted. should have Case been The frequency Admissibility with which Testimony district courts deny- have been of Evidence - ing substantive motions for by Hypnosis Satisfy Fails continuance Refreshed alarming, as is the Acceptance General frequency with Com which Scientific fairness, this court affirms where Standard, People v. pro- munity due Hughes, 8 justice cess and v. are denied. Gentry (1983); Thur.Mar.L.Rev. 451 Case Com State, Wyo., ment, Urbigkit, A New Standard Admissibility J., dissenting; Tageant v. Wyo., 683 Hypnotically Testimony, of Refreshed (1984); P.2d 667 Sims v. Wyo., 530 (1985); Comment, Hypno Wash.U.L.Q. 325 (1965). P.2d 1176 Choice, sis the Accused: of Defendant’s Criminology (1984). J.Cr.Law & trial, day On the before law- Haselhuhn’s yer first learned eyewitnesses, that the two Hypnosis investigative is an therapeu- Safeway employees Barney Mr. and Ms. tool, credibility suspect tic and its as an Shively, hypnotized had been in an effort to evidentiary tool. jurisdic- Cases from other enhance their recollections of robber’s scholarly tions and contrary treatises are appearance.1 This hypnosis occurred after the rule of law as set forth Chapman Barney Mr. had been unable to identify the Furthermore, Gee. most scientists in the photo defendant Haselhuhn in a line-up and psychology medical or fields insist positive before his pre- identification at the reliable, hypnosis is not and therefore has liminary hearing. Haselhuhn’s attorney no place Creigh- in the courtroom. See 19 quickly expert enlisted an witness from ton supra. L.Rev. The court should Lakewood, Colorado, testify on the ef- rule Chapman. abandon the However, hypnosis. fects of that witness was unable such on short notice to make URBIGKIT, Justice, dissenting. trip River, from Lakewood to Green A compounds series trial errors Wyoming. In order to secure the needed problem by discussed Justice Brown testimony only recognized, im- counsel dissent, join. with which I The cumulative mediately presented a motion for continu- effect these additional occurrences de- ance with an affidavit an overview prived Haselhuhn of a fair trial. Schmunk proposed testimony. The motion for State, Wyo., v. (1986). 714 P.2d 724 There- rejected by continuance was De- the court. fore, I by addressing argu- further dissent opportunity nied a minimal counter I, III, V, VI, ments presented significant development only known appellant’s brief. involving questiona- last moment a clearly “ * * * is a It fundamental facet of due event, ble resulting inability to process charged that a defendant with a present expert testimony singu- available crime be afforded to establish larly affected fairness and due present Delga State defense.” of the criminal trial. do, 8 Conn.App. A.2d case, generally this established determining criteria for whether or not Corchado, See also 188 Conn. there has been violation of court discre- 453 A.2d 427 denying align ap- a continuance pellant’s favor: ARGUMENT (A) prejudice litiga Substantial

Denial the Motion A rights tive party. movant Tomash Continuance Evans, (1985); Wyo., Fox, A appeals substantial number of Urich been heard recently court which and other cases cited in the dissent in Gen- course, hypnotist, person 1. prose- maintenance at a local hour home was admitted power plant, experienced unqualified expert. and trained a 32- cution as an 290 (C) against justice oppos to the Fairness and supra. The witnesses

try v. Johnson, ing litigant. Higgins v. Fla. hypnotized appellant had been (1982); App., 422 16 So.2d Winkelman v. person at Pacific Power maintenance 22, (1974); Allen, 214 Kan. 519 P.2d 1377 taken one 32-hour Light Company who had Johnson, 269, 13 Bairas v. Utah 2d perfect This is a course to learn his craft. opposing litigant, P.2d 375 example application of Justice which merits State, would not have suffered a denial of concurring specially Brown’s advice his justice had a continuance fairness been majority opinion Pote opinion to his own showing No granted. was made 617, State, Wyo., 695 P.2d v. witness evidence would have been lost they “People do not know what who continuance, because or that the State ought ‘monkey around’ doing are not prejudiced. would have been otherwise jeopardize impor- hypnotism they lest an and cost the state a lot of mon- tant case (D) docket control and mainte Court had a ey.” 695 P.2d at 632. Haselhuhn nance, general necessity reach presenting interest evidence substantial State, Urbig- ing Gentry a conclusion. v. may explain hypnotic how the session kit, J., dissenting, supra. grant aof distorted the witness’ recollection and have appellant’s pro to allow the continuance suggestion that instilled in the witness a expert opportunity posed witness an His the accused had committed the crime. travel to Green River would been attorney explained to the trial court: docket control sufficient. Court should “ * * * appellant don’t need to have the wit- prevail over the of an [Y]ou defense, story changed in to have present ness’s order United States v. Bur ** * ton, 327, 485, [Ijt’s pos- hypnosis take an effect. 189 A.D.C. 584 F.2d (D.C.Cir.1978), 1069, simply to enhance the witness’s own cert. denied U.S. sible 837, nor story in what he—in whatever it is 99 S.Ct. over belief justice. Budget Laundry the interests of telling. I that he is And submit to Munter, 13, Company v. 450 Pa. 298 A.2d Court that a careful review of the evi- (1972), Roberts, concurring. 59-60 J. just got dence we indicates that’s what happened happened in the case of —has agree with Justice Brown and Justice Barney. pro- Mr. As time went Rose, State, Wyo., dissenting in v. Gee gressed from uncertain identification an (1983): positive to one that he’s dead of now. “Discovery during trial that a state’s wit- And we’ve observed the record here hypnotized ness has been is useless infor- very effect the doctor has mation. Advice that a witness has been warned about.”2 immediately hypnotized before trial (B)Presence contributory or absence not much better. When a defendant’s responsibility litigant preju- hyp- counsel receives late information on Sharp Sharp, Wyo., notism, dice. ability prepare for trial is (1983); Eddy, Wyo., prepare Cates impaired. He needs time to (1983); Craver, Wyo., Craver v. 601 P.2d questions, cross-examination consult and own, expert and other cases cited in the of his perhaps call witnesses law, Gentry supra. dissent sur- review the check circumstances sessions, rounding hypnotic check the appellant preju- did not contribute to the person hypno- appellant knowledge qualifications dice. The lacked the witness, obtaining the record way knowledge and a tized the and review hypnotized. hypnotic the two witnesses had been A session. Such accomplished immediately be- necessary ap- continuance was cannot be allow during pellant prepare a defense. fore trial or trial. People Shirley, L.Ed.2d 114 U.S.

2. See 31 Cal.3d 181 Cal. -, cert. 243, 272, Rptr. denied

291 ability prepare majority, the for is the concurring “When and dissenting and impaired, right to the effective counsel comments in Vester v. Tex.Cr.App., guaranteed by the Sixth of (1986). Amendment 713 S.W.2d 920 See also Harker v. the States ren- United Constitution is (4th Maryland, Cir.1986); 800 F.2d 437 meaningless. difficulty dered of ad- Beck Norris (6th Cir.1986); F.2d 242 equately cross-examining previously Moreno, Hawaii, State v. hypnotized witness constitutes serious Developments, Recent State v. infringement right the of of confronta- Admissibility Moreno: The Hypnosis of tion.” Hawaii, Testimony Enhanced 8 Hawaii L.Rev. 655 agree I also that: State should have an affirmative “[T]he duty specifically advise defendant of III ARGUMENT hypnotism trial;

the making before the Nondisclosure Exculpatory of State’s files available to defendant is not Information discharge duty.” sufficient 107. P.2d at This issue raised several of violations prosecutor’s duty to abide his constitu recently We have defined discretion crite- obligation tional to assist the defendant in Martin v. ria in presentation a fair of his case under Brady (1986) composite many things, as a of Maryland, 83, 83 S.Ct. among which are drawn from conclusions 1194, 10 L.Ed.2d 215 and United objective criteria as under circum- — U.S. -, v. Bagley, States stances, determined facts of the 3375, In addition to being case arbitrary capricious. without the failure to disclose use hypnosis, criteria, objective applied These to the facts State, supra, Gee v. pur case, of this define abuse of discretion posely did not disclose to the defense that error, well as constitutional contradis- witness, Hunter, the State’s Dean had told tinction to the majority decision. police officer that at Haselhuhn was A purpose provid- continuance for the approximately home the same time that the ing time ap- attendance trial of at robbery occurring. was officer pellant’s expert witness hypnotism on was did not make a written record of the state indispensable constitutionally required ment, and the defense first Mr. heard due process, justice. fairness and Neither Hunter’s statement during trial. Wyoming (no Constitution in Art. 7§ The majority conclude that this informa- absolute, arbitrary power), Art. § tion was not material because Haselhuhn (right defend), of accused to nor the United (Haselhuhn) also knew that he at V, States Constitution VI Amendments night Hunter’s home on the of the roughshod and XIV countenance this viola- That conclusion is faulty per- at best procedural process. due See People Sorscher, haps totally unjusti- further described as Mich.App. 391 N.W.2d fied. It is not what Haselhuhn knew that long “so as the defendant is of issue rather confirmatory but what allowed hypnosis establish the fact of information, available, if support- could be to introduce expert regarding evidence testimony. ive to his This is the essence of possibility inherent of confabulation” prosecutorial duty (of disclose. danger recall) affected minimized. case, In this only question evidence as materiality taint- “The evi- ed by hypersuggestibility hypercompli- prosecutor’s dence control arises against defendant, ance used situations,’ quite but ‘three different [United indispensable was denied an responsive Agurs, States U.S. opportunity present knowledgable 2392, 2397, (1976)]. ex- S.Ct. L.Ed.2d 342 pert testimony First, in defense. knowing- See discussion where has of hypnotically enhanced ly perjured testimony, identification used judgment at the place other than the crime scene any reason ‘if there is set aside

must be Certainly false crime. it was excul- that the time of the likelihood able alibi, judgment and, affected since it established an patory, could have 103-104, 96 S.Ct. at 2397. jury.’ Id. doubt created a reasonable the evidence Second, spe made a defendant has where exist. corrob- did not otherwise When exculpatory evi pretrial request for cific witnesses, leak-proof de- orated other aside if dence, must be set judgment the existed if the facts might fense have suppressed might evidence ‘the police af had known to the at the trial.’ Id. the outcome of to the defense. fected been made available added); (emphasis 104, 96 S.Ct. at opinion of the court can be construed The 104-06, at 2397-98. 96 S.Ct. see id. at encourage officers to law enforcement gen Third, has made ‘a defendant where exculpatory deliberately exclude evidence material,’ Brady or has request for eral avoiding a means of police records as all, judgment the request at made no requirements Brady. A reversal on the ‘if the omitted evidence aside must be set offi- point would send law enforcement doubt that did not a reasonable creates signal. cers a different United States 112, at Id. at otherwise exist.’ prosecution rath- supra. Criminal Bagley, ** Brown, Chaney the game one-upmanship er than a (10th Cir.), cert. 1339-1340 F.2d responsibility society in en- solemn most S.Ct. denied of behavior while afford- forcing its rules L.Ed.2d rights of the individual ing constitutional case, gener- appellant made a In this Constitutions, charged the violation. with information, invoking request Brady al events, determinative sporting set the Hunt- Chaney. discussed the standard principles. Either we have a standards and likely testimony could create and er’s rules, or a society ennobled consistent doubt, have created a reasonable would arrogance. As a despotism of individual given had been especially if the defendant society, not choose to travel we should he could trial so the information before pathway violated by paving the with road question the other subpoena or at least justified by good intentions. principles game trivial-pursuit at participants standards, the enforcer societal violation of regarding their recollection Hunter’s house equivalency standard himself to an lowers stopped to use the of the time that of the accused criminal. telephone. majority The assume that be- where Haselhuhn cause Hunter remembers V ARGUMENT time, date at a certain was on a certain identically also remem- Haselhuhn would Test Polygraph The Evidence of capability Each of us has a different ber. quotes portion of the tran- The court recalling dates or a different reason that a script jury was informed wherein complaint The criminal and events. had been adminis- polygraph examination for a warrant were issued on June robbery, and then suspect to a tered April on 1984. It is crime committed plain-error criteria concludes that that Haselhuhn did reasonable to believe Wyo., 558 P.2d Hampton v. exactly stopped what time he at not know (1977) that the error are not satisfied and phone April use the Hunter’s house to on reasoning by Haselhuhn. Our invited was complaint six weeks before met will plain-error criteria were that the him, against reasonably as is found filed explanation require a more detailed average person may not re- facts. his exact whereabouts on a date construct past.

six weeks robbery, the after the During the week mes- received the investigating detective information, gave which Hunter prison- County Jail sage that a Sweetwater policeman chose and which prisoner, record, him. The er to visit with make a located Haselhuhn at wanted not to Albaugh, versely told the detective that his Milt affect some substantial right of Albaugh robbery, concept knew about procedurally expressed son Rick 49(a), Haselhuhn and co-defendant Rick Rule W.R.Cr.P. [Citations.]” robbery, Hampton Prime had committed supra, 558 P.2d at weapons they threw all the “that 507. clothing everything else in the Black’s Hampton The first two criteria of are Albaugh gave

Fork River.” Rick later clearly present. The transcript fully has information, the same detective told the revealed what occurred at trial. jury detective that he knew where the search of was told that Mr. Hamilton explained how conducted, being river and to con- his got into the Black’s Fork Riv- searching tinue that location. detec- er, polygraph that a examination was run tive testified that Rick wanted to work a Hamilton, “passed” on and that he —that get jail. father deal to out of polygraph didn't indicate that he was speci- After a concentrated search of the Second, lying. there is a clear and un- location, police fied eventually found a equivocal of rule law which these facts shotgun .20-gauge sawed-off in the river. clearly transgress. Ownership through was gun’s traced “Generally, the results of polygraph a serial number to John Hamilton Hamilton. examination are not admissible in evi passed polygraph concerning examination State, Wyo., dence. Cullin v. 565 P.2d river, gun got how his into the (1977). Improper reference to shotgun State asserted at trial that the results polygraph of a examination retrieved from the river was not the one See, has been held e.g. reversible error. used in the The jury was told State, Birdsong Okla.Crim.App., 649 passed polygraph that Hamilton examina- (1982); Green, P.2d 786 State 271 Or. explanation why tion about his his sawed- 531 P.2d 92 A.L.R.3d 1301 shotgun river, off jury was but the (1975). We approved, upon stipula have given never explanation: was that actual parties, tion of the admission of the re “Q [By the What reason Prosecutor]: polygraph sults of a examination. Dan give did he for throwing the [Hamilton] iel v. Wyo., 644 P.2d shotgun in the river? (1982); State, supra, Cullin v. at 455. “A my If memory [The Detective]: In the of a stipulation absence for admis me correctly just serves is what sion, a conviction must be reversed when —this getting I’m Thompson, from detective a polygraph the results of are revealed to bought shotgun that he had and— jury. Sutherland, State v.

“Q I’ll you tell Let's let what. Detec- Wash.2d Thompson, tive I assume Kilpatrick, Kan.App.2d that he’ll be called, explain.” let’s let him P.2d 1147 The reluctance to ad mit the polygraph results of a or ‘lie Thompson Detective was never called. « * * * detector’ examination stems from the sought when review is under the fact of these results examina plain doctrine, error this Court must be tions not reli been established as record, able to discern from the without able. It also from a fear stems speculation equivocal resort to infer- jurors may give weight too much ence, trial, is, what occurred at we examination, perhaps results of the even are entitled particular to know the facts. accepting proof guilt it as of or inno Further, proponent of [Citations.] cence.” Schmunk v. plain error must demonstrate the exist- 731. unequivocal ence of a clear and rule of particular law transgress Finally, adversely which the facts the error affected a obvious, merely argua- right in a clear jury and substantial of the accused. The ble, way. If criteria informed aby these was officer that anoth- [Citations.] met, are investigating the error or defect must ad- er officer was convinced that testified, telling Admissibility, 16 U.W.L.A. Hamilton, Closed Door never was who of re L.Rev. examination polygraph in a the truth sum, polygraph shows shotgun came to be “In while the garding how validity on its only promise, Hasel- the research River. Not Black’s Fork relevance, quantity, and too limited to cross-examine huhn denied support its use as evi generalizability one Hamilton, included the statement but Further, drugs, problems dence. offi testimony regarding another officer’s countermeasures, repeated effects veracity the out- cer’s evaluation testing, friendly polygrapher effects person who of another of-court statement guilt, suggest rates true the statistical suspect, to be potential was himself very lie could detector results polygraph questionable substantiated misleading Additional to triers-of-fact. State, supra. This See exam. Schmunk against innocent ly, problems with biases evidence material simply not creditable hung subjects anticipated trials upon which defendant to the trial issues argue as a matter court costs Albaugh, that Milt convicted. fact simply policy, social evidence will com the crime was jail was in when current do not cost too much. The data mitted, that a was used knew support necessity creating a new the shot crime and knew that commit the industry: forensic the truth business.” at a Fork River gun was in Black’s Beaber, Poly Symposium, The General location, the fact that particular Courts, by graph Guilty Not and location, are too shotgun found at that 16 Polygraph, Reason U.W.L.A. rely on corroborating jury to allow 27, (1984). L.Rev. 35 conclusion, sub investigating officer’s particu polygraph, that this by stantiated VI ARGUMENT in the shotgun lar was not used Haselhuhn’s Sixth The violated The Invocation Co-defendant’s right to another Amendment cross-examine Amendment Fifth suspect. California, potential Faretta an Appellant’s final assertion of error is 562, 2525, 806, 45 422 95 L.Ed.2d U.S. S.Ct. example prosecutorial misconduct which plain-error that the I am satisfied Ap- accepted by this should not be court. Hampton supra, criteria of Prime, co-defendant, Rick pellant’s Additionally by appellant. been met the appellant, for trial after was scheduled believability quotient of the total events subpoenaed by as witness the State. is why polygraph rejected us reminds days began, appellant’s Four before trial Everyone in Sweet- scientifically reliable. prosecu- attorney Rick Prime’s notified leaving County water is not in the habit of exer- writing tor in of Prime’s intention to shotguns River3 in Black’s Fork sawed-off rights his and to cise Fifth Amendment place the informant at the identical where in re- appellant’s remain silent at trial robbery weapon could be found. said every question. De- sponse each and lie, “You I will expression, The old and notice, called spite this Prime was lie, it,” might replaced by “You swear be in- appeared appellant’s trial and prove polygraph.” it true rights and we will in front his Fifth Amendment voked 400, Beachman, 189 Mont. jury State when he was sworn in as Sevilla, (1980). See, however, obviously an ef- P.2d 337 This would have witness. consequently and elicited Symposium, Polygraph jury and fect on the General Courts, from counsel for defendant: reaction Polygraph Behind 1984: deposit place people to each a sawed-off River stream two 3. Black’s Fork is a small mountain Utah, its Mountains in location within headwatered Wasatch at about same running through generally easterly Wyo- Coun- journey Uinta approximately 70-mile western ty County Wyoming and join western Sweetwater ming. likely It is not a with the Green River. Honor, might if I 276; it. “Your heard on 14 L.Ed.2d United States v. Tuck Honor, my opinion, simply er, It’s Your (3d Cir.1959); F.2d United calling this man to have him Maloney, (2d [Rick Prime] States v. 262 F.2d 535 Cir. jury take stand front 1959). It is also error for the Fifth is in and of itself testimonial. And co-defendant, to call a knowing that he that, I don’t I aside think need to privilege. will invoke the See State v. prejudicial talk at all about the effect Tanner, 54 Wash.2d going jury. that’s to have on the (1959). There is no reason for distin yesterday Court was there and saw what guishing these cases on the basis that happened jury with the when Rick Prime party calling the witness was the took the Fifth when he was sworn in. government.” Smith, prosecution And think for the to call a Wash.2d circumstances, witness under these judgment part, vacated in know, knowing they what is tantamount S.Ct. prosecutorial misconduct.” grounds overruled on other sub nom. Gosby, State v. 85 Wash.2d possible It is from the discern jury record how the Everyday reacted. experience prejudicial bears out the effect Michigan Supreme Court has ex- probably which this jury had on the which plained the reason for the rule: apparently attorney the defense observed. “ * * * The American Bar Association part The most offensive pros- this is the relating standards knowledge ecutor’s advance that the co-de- provide defense functions that it un- fendant would remain silent professional conduct for a blatant use of that preju- co-defendant to lawyer representing a defendant jury appellant’s dice the a kind # * * * * * of nontestimonial evidence. call “—‘to a witness who he knows will probably

This is egregious er- most privilege claim a valid not testify, to ror all of defects in found this record. This purpose upon for the of impressing evidence, “If you do not try have the jury of privilege.’ the fact the claim of prejudice” prosecutorial opportunity. The courtroom of event that individual later to “The of rationale the rule has been ex- be as co-conspirator, being identified a plained by Supreme Court of Iowa: “ jury called before the early stage at that alleged accomplice ‘When an invokes take the of anticipated oath a witness with privilege presence of the and response, realized Fifth Amendment jury, prejudice arises from the human probably jury determined the verdict be- tendency privilege to treat claim of fore evidence was ever introduced. crime, a creating confession of an testimony of the given defendant when adverse inference which an accused is essentially later had been destroyed in ad- powerless by to combat cross-examina vance. Allen, 237, tion.’ v. State 224 N.W.2d (Iowa, 1974). Washington 241 Supreme ex- Court has plained applies the rule which here: “A number of state courts have reversed “ * * * is It for forbidden convictions where a an called witness, knowing

call accomplice that the witness knowing that he exer would privilege, will purpose invoke of privilege. cise his Amendment Fifth having Duhon, the jury (La.1976); see the witness exercise State v. 332 So.2d 245 right. 6, constitutional DeGesualdo Johnson v. 158 Tex.Cr.R. 252 426, People, 374, (1952); 147 Colo. 364 P.2d 86 S.W.2d 462 v. Peo DeGesualdo Mitchell, 374, ple, 426, A.L.R.2d 1435 State v. 147 Colo. 364 P.2d 86 A.L. 513, (1964), (1961). 268 Minn. 130 N.W.2d 128 R.2d Vega, 1435 Cf. State v. 85 984, 1351, 269, cert. denied 380 85 (Ct.App.1973).” U.S. S.Ct. N.M. and federal constitutions and Bill Giacalone, 250 the state 399 Mich. People denigrated they (1977). Rights cannot be so that of 494-495 N.W.2d only if innocence is first available become 572, 390 425 Mich. People Dyer, also See accepted by empirically appellate tribu- N.W.2d adjudication is result-oriented nal. This exceptions to the recognized None it rankest kind. Albert Einstein said See, case. present rule of law are “Whoever undertakes to set himself well: Scheldt, 182 Colo. People v. up judge as a the field of truth and (1973), prospective witness where laughter knowledge shipwrecked by immunity and State granted had been gods.” that the wit required to assume not refusing to by rule violate the ness would Critically jury is the fact that the obvious Ariz. Moya, also testify. See presented. To decides with the evidence (1983), prosecu where P.2d 959 believing say that in the defendant be knowledge that the wit prior tor had no jury was not guilty say I then Amendment invoke her Fifth would ness proper failure of due and misled Comment, Exer to remain silent. privilege only challenge right evidence is Privilege Against cise Self-Incrimi fairly conducted jury reason of the nation Witnesses Codefendants: so, why If did inquiry. this is not Accused, 33 U.Chi. Upon the The Effect constitutions, of our both state the framers L.Rev. 151 federal, only not mandate Hopkinson v. The citation of process, criminal and due but of fairness cert. denied Wyo., 632 P.2d through the accomplished conviction be U.S. accept in this case jury decision. cannot authority or nominal to con is weak proceeding there is to any criminal general princi the.well-established travene supervening standard that the end be a a non- relating prejudice exposing ple I do know with histor- justifies the means. jury as a form of testifying witness to the recently demon- perspective, as more ical jury prosecutorial nonverbal and near ex- strated in the world crisis impact. 1940’s, that the tinction of the 1930’s “ * * * may high it court jury think truly paved with self-de- road to hell can probative significance room drama of good fined intentions. the Fifth.’ a witness ‘takes when curiosity high improbability that It is a probative of the event is reality the value in affirmance of the conviction combined * * * entirely undercut almost hypnosis, poly- in this case is it is a form of evidence fact continuance, withheld infor- graph, denied subject to cross-examination.” Bowles mation, Amend- Fifth States, 142 A.D.C. 439 F.2d United certainly in guilty, ment. If he is which denied, (D.C.Cir.1970),cert. 541-542 record, question on this then convic- some 1240, 28 L.Ed.2d proper in a surely be achieved tion can trial, process. due with fairness and majori- It is noted that author errors, Based on this accumulation highly opinion recently authored a ty has in and of of which are reversible several philosophic emotional dissent Chambers themselves, I reverse. would (1986). Differing State, 726 P.2d 1269 completely, procedural would believe suitably measured

due cannot guilt abject disregard

by self-determined constitutional, statutory and recognized

procedural standards. dissent recognition of that

Only as a applied, I would believe that

which is here

Case Details

Case Name: Haselhuhn v. State

Court Name: Wyoming Supreme Court

Date Published: Oct 31, 1986

Citation: 727 P.2d 280

Docket Number: 85-268

Court Abbreviation: Wyo.