*1 jury instruction on the element of intent, party objected, to which neither
quoted suggested standard instruction: person or restrain a de-
“To confine
prive go him of his freedom to where he
pleases lawfully go, and is entitled to or to
leave the where he is.” 10 Minn.Dist. Ass’n, Practice,
Judges Minnesota CRIMJIG (1977). simply There
15.04 is no evidence deprive boy
that Dokken intended to go pleases.”
his “freedom to where he In
fact, strongly suggests the evidence
contrary. period Each of confinement was brief,
quite lasting no more than a few boy
minutes. The never felt as if he were Furthermore,
being against held his will.3
there is no evidence whatsoever to show
that Dokken ever continued the restraint boy
after the desired his release. Dokken
simply possess requisite did not intent boy’s
to restrict freedom of movement
against his will. Whatever else Dokken acts, reprehensible have done imprison-
did not commit the crime of false
ment.
Reversed. Minnesota, Respondent,
STATE of Byron KOEHLER, Appellant.
Patrick
No. 50996. 16, 1981.
Rehearing Denied Dec. rely boy’s during periods 3. We do not on the “consent” to conduct the brief of confinement because, Judge confinement as Willette cor- are stated here as further evidence of trial, rectly specific noted at is no minor’s consent Dokken’s intent. Rather, boy’s mind and defense. state of
109
Jones,
Defender,
Paul
Public
and J.
ther
eight
C.
remembered the number
in the
Cuneo,
Defender,
Christopher
plate,
Asst. Public
license
which
appel-
coincided with
appellant.
Minneapolis,
plates.
for
lant’s
Immediately
hypnosis,
after
police
Houle was taken to
garage
the
where
Gen.,
Paul,
Spannaus, Atty.
Warren
St.
he was
only appellant’s
shown
car and iden-
Mitchell, County Atty.,
Alan L.
and Peter
tified it as the car he saw on Beck’s road.
Banovetz,
Duluth,
County Atty.,
M.
Asst.
He so testified at
trial. This was the
respondent.
only
State’s
direct
linking appel-
evidence
lant to the area of the crime.
Appellant
raises issues
the
evidence,
sufficiency of the
the unintention-
OPINION
State,
by
al loss of evidence
qualifi-
the
the
OTIS, Justice.
witness,
expert
cations of an
improprie-
the
ty
prosecution’s
of the
closing arguments,
Byron
appeals
Defendant Patrick
Koehler
hypnotically
and the admission of
influ-
from a conviction for murder in the first
testimony.
only
enced
We address
the is-
degree. We remand for a new trial.
decision,
sues determinative of our
whether
Wiita,
twelve-year-old
Karen
the
sister of
by
the loss
potentially exculpa-
the State of
appellant’s
companion,
former woman
tory evidence entitles
judg-
defendant to a
February
badly
murdered on
1978. Her
acquittal,
ment of
and whether the trial
body
beaten
was found in the late after-
court committed reversible error in admit-
Spirit
noon near
Mountain Recreational
ting
the
of the witness whose
Shortly thereafter,
Area in Duluth.
memory
was refreshed
investigation by
police began
Duluth
to fo-
appellant.
cus on
During
autopsy performed
an
Appellant accounted for his whereabouts
day after the murder the victim’s stomach
approximately
after
day
a.m. on the
Although
contents were removed.
the con
the murder. The
attempt-
State therefore
probative
tents
have had
value ill es
ed to show that
the murder took
tablishing
death,
they
the time of
were
sometime between 8 a.m. when Karen Wiita
inadvertently
appellant
lost before
had an
school,
left home for
and 9 a.m.
opportunity to examine them.
appellant’s family
Members of
testified
Carlson,
Prior to Houle described she have survived for several hours young girl expression” sustaining beating with a “blank after rid- from which she ing passenger off-green, in the digestion seat of an died. Thus the extent of as re compact hypnosis, mid-1960’s car. After vealed her stomach contents would not Houle necessarily recalled it as a four-door mid-1960’s indicate when the attack oc compact light car of brown color. He fur- curred. While we do not condone the
HO evidence, v. Mack when negligent loss of under the sion State this case was State’s of this case we do not con- tried and the standards set forth in that acquittal appropriate.1 the sanction of applied retroactively. sider I case should would hold the evidence was not recently the is This court addressed prejudicial. sue of whether influenced tes proceed is admissible in a criminal *3 Mack, ing. N.W.2d 764
(Minn.1980),2 recognized we the “historical
unreliability” hypnosis of and held that tes “previously hypnotized witness of a subject matter adduced at pretrial hypnotic may interview proceeding.”
admitted in a criminal Id. at WILLIAMS, Jr., John Arthur et 772. In Mack we noted circumstances al., Appellants, suspect,” specif which we considered “most ically hypnotist lacked formal edu understanding cation and scientific of LYND, TOWNSHIP OF defendant and memory, process sugges human or of the of party plaintiff, Respondent, third hypnotist tion The was hired police, “whose interest in the out Taveirne, party Louis E. third hypnotic come of the session well defendant, Respondent. subject. have been communicated” to the No. 81-463. Id. dramatically here indi- potential cate the and the 1981. unreliability” hypnosis. “historical of prior Houle’s recollection of defendant’s car hypnosis incomplete
to was and inaccurate. positively
After identified de-
fendant’s car as that which he saw on opinion
Beck’s road. In our incriminating
influenced extreme, and its admission into evi- highly prejudicial.
dence was remand,
On Thomas Houle not testi-
fy pretrial hyp- to matters adduced at the except
notic interview as such matters were
previously unequivocally disclosed authorities, prior hypnosis.
him to the to the new
Remanded for a trial.
YETKA, (dissenting). Justice
I would affirm the conviction because the guilt overwhelming
evidence of even
apart from the evidence secured hypnosis.
from the witness under The trial
court did not have the benefit of our deci- remand, foundation, subject proper subsequent to we 2. Mack On was decided trial of of the victim’s consider evidence the color this case. stomach contents to be admissible.