*1 19, Massey, 98 S.Ct. v. 487 U.S. Greene (1978). also L.Ed.2d See (Stewart, Bolsinger,
v. dissenting).
J., concurring and reason, the should be conviction
For case for dismis- and the remanded
reversed charges.
sal of HOWE, C.J., C.J.,
HALL, Associate DURHAM, J., concur in the STEWART, opinion J.
separate Utah, Appellee, Plaintiff
STATE MITCHELL, Preston
Francis Appellant.
Defendant
No. 860237. of Utah.
Supreme Court
Aug. Brown, City, R.
Kenneth Salt Lake appellant. defendant and *2 1H7 Wilkinson, Dorius, lay Tyrrell and David L. Earl F. Salt underneath a blanket and plaintiff appellee. City, Lake and continued to watch television. approximately p.m., At a man carry- ZIMMERMAN, Justice: gun through a burst the front door of ap- Defendant Francis Preston living the house into the Tyrrell and room. peals of first his conviction instinctively rolled Duncan, murder, for a life sen- received jumped up, escaped and out the front door. 76-5-202(l)(d) Ann. tence. Tyrrell street, ran the briefly, down hid and (Supp.1989). ap- He makes on two claims police then called the from nearby house. peal: admitting trial court erred police gunman arrived to find the (i) hypnotically into evidence enhanced tes- had fled and Duncan had been shot in (ii) timony of eyewitness an and the head and was dead. telephone operator aof who him overheard Shortly the shooting, Tyrrell after de- acquaintance, telephone, an tell over the scribed killer the and the circumstances agree just that he had killed a man. We surrounding Bell, to Frank reject first with Mitchell’s claim but his chief, City Park police only very general we find second. Because cannot the error initially terms. gunman She described the harmless, reverse the conviction and male, as a approximately tall, feet six remand for a new trial. build, clothes, wearing medium dark and 4, 1984, August On p.m., around 9:30 smooth, carrying pistol flat that looked fiancee, Tyr- Fred Duncan and Patricia like an automatic his left hand. She told rell, lying living were room floor of police give that she chief could no other Oliver, City Park house of Brian whom description, details of the man’s that he had visiting, they watching were television. Ol- during said nothing encounter, their brief room, asleep having another iver and that as she bolted the door out she sleeping and pills taken medication to re- heard pop presumed that she to be the problems. lieve some stomach Around 10 pistol discharging. sound of the days Two p.m., Tyrrell phone, accepted answered the later, 6,1984, Tyrrell on stated that call, spoke agitated a collect an with shoot, she screamed “Don’t don’t shoot!” man who identified himself “Tom” as gunman when the the room burst into quite emphatic speaking who about peripheral she with her vision saw the Tyrrell Oliver. informed the caller that she gunman pointing gun at Duncan and disturb Oliver since he was exclaiming just “You bastard” before she asleep and sick had earlier. The call- been escaped gun go and heard the off. At that upset er became more and demanded to time, Tyrrell indicated that she could not speak Tyrrell handed Oliver. then any describe facial features of the repeated gunman killer. When asked whether the message that Oliver would not be mask, stated, wearing she could phone. awakened to come to the Duncan “I recognized not see.” asked if When she hung up phone and then it off took voice, gunman’s vaguely she said it was lights He off all hook. turned recog- familiar not one could but that she Soon after house and locked doors. directly nize. She was asked about Mitch- this, acquaintance of Duncan’s drove ell: whether she knew who was and on over to the Oliver knocked and Duncan sort door, had and told Duncan that an individual relationship that could led to Tom had named Greco called and re- shooting. Tyrrell stated she had met go quested that he over to Oliver’s house year Mitchell once about a and a half earli- put phone ask that Duncan back he, Greco, er and was not familiar with him. In the the receiver so could tele- this, following shooting, two months Park phone Oliver. Duncan refused do City stating police kept Tyr- in close as his reason Oliver’s need to have contact with sleep. progress then re- rell and her an undisturbed informed about the floor, investigation. room where he turned evening called earlier that the man who had two months after October demanding speak to Oliver. videotaped shooting, Tyrrell underwent University of Cali- at the hypnosis session apprehended in October of Mitchell was Angeles. did this Los She fornia at charged 1985 and entirely independent of action own and 76-5-202(l)(d) of the Code. under section attempt to police in an part 76-5-202(l)(d) (Supp. Utah Code Ann. § *3 1989).1 theory that she could iden- at trial was that memory so The State’s improve intentionally shot and killed Dun- had killed Duncan. gunman who tify the committing process in the of or can while interview, hypnotic how- By time of the burglary2 ag- or attempting to commit a twenty con- ever, had more than she had burglary.3 gravated Mitchell testified at versations, tele- in-person and both Duncan, shooting trial and admitted but concerning police phone, claimed that the was accidental. photo- also been shown crime. She had jury on The case submitted to the that he was and been told graph of Mitchell permitted it to instructions that would have During hypnosis prime suspect. guilty degree of first or sec- find Mitchell to session, able “remember” Tyrrell was degree manslaughter. or He ond many about the first time details for the degree murder. convicted of first videotape of shooting. reviewed She appeal raises the same claims on four or five times hypnosis session he made He first claims below. preliminary hear- testifying at before allowing Tyrrell erred in the trial court testimony enhanced ing. Her testify to that she “remembered” matters into evidence at trial. also admitted undergoing hypnosis. He ar- only after alia, gunman testified, inter She testimony gues hypnotically enhanced stocking mask over his face nylon wore a as evidence be- should not be admissible room into Oliver’s burst inherently cause it is unreliable. shooting; that she saw night of the State, hand, any contends that on the other his mouth when mask pull the reliability hypnoti- questions about just “You bastard” before he uttered go should to its cally enhanced up raised his head who admissibility. weight, to its struggle “no;” no that there was and said Duncan; that she gunman and between reviewing challenge a trial In gun room when the still in the ruling admissibility of court’s evi head from a dis- directly dence, ruling fired at Duncan’s unless we will not disturb inches; in error. approximately clearly appears six seven it was tance of (Utah gun- Gray, 717 P.2d that it was the State v. that she realized Code, provides: “Mur- 3.Section 76-6-203 of the Code of the entitled 1. Section 76-5-202 pertinent degree," provides in der in the first part: (1) aggravated burglary person guilty A committing, fleeing attempting, or if (1) constitutes murder Criminal homicide burglary, participant the actor or another intentionally degree or if the actor the first knowingly crime: another the death of under causes (a) any physical injury person Causes following circumstances: crime; participant is not a in the or (b) use Uses or threatens the immediate (d) committed while the homicide was against any dangerous deadly weapon or of, engaged commission or in the actor was crime; participant person who is not commit, flight attempt after commit- or or commit, aggravated ting attempting ... or (c) deadly weapon pos- Is armed with a or burglary.... burglary, attempts explosive sesses or to use or 76-5-202(l)(d) (Supp.1989). Code Ann. § Utah deadly weapon. 76-6-202(1) provides: "A 2. Section (2) Aggravated burglary felony is a of the first burglary person guilty he enters or degree. building any portion unlawfully in a remains (1978) (amended Code Ann. 76-6-203 § felony building with intent to commit a of a 1989). &1988 any person.” theft or commit an assault 76-6-202(1) (1978). Utah Code Ann.
H19 1986); Gallegos, State v. not, therefore, 1985). analysis lengthy No been one exoneration. necessary to decide trial court whether the jury might have convicted admitting Tyrrell’s hypnotically erred in en- less than first murder. in- It was testimony. hanced Tuttle, 780 structed that it could convict on the lesser (1989), P.2d 1203 hyp- determined that murder, included offenses second notically enhanced testimony is inherently manslaughter, negligent homicide, ag- unreliable and inadmissible as evidence. gravated burglary if it concluded that Therefore, we conclude that the trial court prove beyond had failed a reason- erred in admitting Tyrrell’s testimony of able doubt committed details surrounding the shooting that she degree murder. To determine whether “remembered” after undergoing hyp- there was a “reasonable likelihood” nosis.4 lesser viction on a included offense absent *4 admission of the hypnotically enhanced tes- question The next is whether timony, necessary it will be to review Tyrrell’s admitting trial court’s error in degree charge against murder Mitch- hypnotically testimony requires enhanced ell, testimony, prosecutor’s his trial and the reversal Mitchell’s conviction. Under Tyrrell’s use of hypnotically testi- enhanced 30,5 Utah Rule Criminal Procedure an mony. requires reversal if conclude charged Mitchell was with first that absent there was reason 76-5-202(l)(d) murder section under of a able likelihood result more favorable 5—202(l)(d) Code. Utah Ann. § Rimmasch, accused. State v. to the 76— 775 (Supp.1989). Specifically, charged he was Tuttle, (May 1989); State v. P.2d 388 780 intentionally killing or knowingly Verde, 12; State v. 1213n. P.2d at 770 P.2d Duncan while commission at- (Utah Bell, 116, 121 1989); State v. 770 P.2d tempted ag- of a burglary commission (Utah 100, 105-07 1988). A reasonable likeli gravated burglary. em- prosecutor As the hood of more favorable outcome exists trial, phasized throughout in order con- to in our confidence the verdict is undermined. charge, vict Mitchell this neces- Knight, (Utah State v. sary jury unlawfully for the to find that he 1987). case, present question In the house in- entered Brian Oliver’s with the whether, in Tyrrell’s becomes the absence of felony tent to commit an assault or on a hypnotically testimony, enhanced there was person intentionally he or know- a reasonable likelihood of a more favorable ingly Duncan. It is clear killed Mitchell. result for
jury require- that it verdict understood this jury There is no that Mitchell ment. The stated: “We the doubt verdict Duncan; peers he admitted it at case of Francis Preston Mitch- killed trial. charged guilty result” for ell find him as as “more favorable directed i.e., Jury’ the erro to the might have been obtained absent ‘Instruction’s ‘Instruc- [sic] ”6 Tyrrell’s hypnotically neous admission of tion No. 1’ and ‘Instruction No. 13.’ case, pretrial suppress requirements made a to exist in this Mitchell’s claim 4.Mitchell motion testimony; preserved it was appeal. of error for objection specific He did not state a to denied. testimony when it was introduced at trial. states; this 5. Utah Rule Criminal Procedure 30 103(a) requires timely of Evidence Utah Rule error, defect, "Any irregularity or variance objection evidentiary specific preserve and error for ever, rights affect the which does not substantial 103(a). appeal. How- Utah R.Evid. disregarded.” party Utah R.Crim.P. 30 shall be Johnson, (codified (1982), Code Ann. 77-35-30 1987), this Court held that a defendant 1, 1990). July repealed effective object objec- required or renew his or preserve appeal trial for tion at issue repeated 6. No. 1 the first Instruction judge when the trial is the same one ruled charge appeared as it informa- pretrial record or on the transcript motion and where the pertinent tion. Instruction No. 13 stated hearing indicates that a the mo- on part: held. Because both Johnson tion was sprawled on earlier, admit- and saw Brian Oliver mentioned window As was bed, him by and the but was unable to awaken breaking into house Oliver’s ted to Also, on the He then circled tapping window. August on and, look- he to the front of the house trial that around witnesses testified at several window, bay in the front noticed two he killed Duncan. told them on the He was sure he intended forms floor. specifically denied that hide they attempting let were anyone inside the to assault this, injured. television support kill Duncan. were alone thought inordinately loud. He During the week seemed following: testified dining room 4, 1984, movement in the August aware detected prior to he became Oliver, premises Brian decided that should enter good Greg friend that his drug going He took out the son, in a see what was on. had been involved Oliver’s door, open and burst into “gone gun, that as a kicked that had sour” and deal way dining room on his result, strong possibility there was so, he He talked room area. When he did immediate- Greg would be harmed. Oliver stumbled, and ly tripped something, fell. his concern to Brian Oliver about discharged, killing gun accidentally 4th. The p.m. around panicked infor- evening, he additional Duncan. said That received Fearing that no one more concerned fled the crime scene. mation that made him even accident, was an Greg safety. at a would believe Oliver’s While days Palace, jurisdiction fled the a few later. he asked a friend cert at the Salt *5 his Brian Oliver and tell him to warn call prosecutor’s theory killing of the for his that a warrant had been issued son that Mitchell murdered Duncan be- thought that he arrest. Mitchell testified personal animosity and cause of because presumably cause information would this was a rival co- Mitchell believed Duncan flee, Greg making to him safe Oliver thus starting infringe to dealer who was caine danger. from When Mitchell learned certainly trade. While factors on his these not let his friend that Duncan would killing, a such provide could motive for the Oliver, through he phone calls to Brian necessarily alone a motive to go City to Park himself warn decided jury that of the the Mitchell’s version vince possibly protect Greg Oliver. killing was not true and that Mitchell had premises a the an intention to Mitchell testified that he obtained entered with intentionally felony or Greg took a Oliver’s commit a and had weapon and taxi Accordingly, ev- knowingly killed Duncan. City. in Park Oliver was residence theory supporting then Brian Oliver’s the the Mitchell idence home. went intentional, arriving, than acci- away. Upon rather a few blocks dental, the critical to the State’s case. lights were out and he noticed nothing Tyrrell’s quiet, something virtually Mitchell There was place was hyp- Saturday given to thought highly police for a statements before unusual that conflicted with Mitchell’s night. He around to the bedroom nosis session went Defendant, intentionally you such can 4.That death was Before convict Mitchell, defendant, crime of knowingly Preston of the Francis caused Francis Homicide, Mitchell; De- Murder in the First Criminal Preston beyond gree, you must find from the evidence doubt, following ele- a reasonable all you establishes If believe that the evidence the crime: ments of each and all of the essential elements doubt, beyond your it is offense reasonable defendant, Francis Preston 2. That duty guilty of Criminal to find defendant Mitchell, dwelling entered the of Brian Oliver Degree. First On Homicide—Murder in the felony or assault with the intent commit a hand, evidence has failed so the other any person; elements, one or of the said establish more unlawfully remaining That while duty your find the defendant not then it defendant, Oliver, dwelling of Brian Fran- guilty of Criminal Homicide—Murder the death of Fred cis Preston Mitchell caused Duncan; Degree. First
H21 says Tyrrell’s say version of events. he didn’t Defendant those statement, hypnosis, Patty Tyrell words. lying made after Either [sic] nylon stocking lying. mask wore Defendant pulled burst into house and that added.) (Emphasis In attempting to refute away the mask from his to utter mouth closing argument defense counsel’s “You bastard” before night Mitchell’s on the actions of the shoot- entirely State’s consistent with the the- ing were inconsistent with an intentional ory and inconsistent with Mitchell’s version killing, prosecutor part: stated in prosecutor, therefore, of events. The em- Why he leave did a witness? Mr. phasized throughout the trial that Mitchell hardly Tyrell, Patty knew [sic] night wore a mask crime. years had met her one time couple statement, opening prosecutor shooting.
In its before the He didn’t describing animosity Tyrell referred to the mask in Patty towards [sic]. shooting: getting She wasn’t in his involved busi- all, important ness. And most
The man into the room. burst Pat- thought that because he seen hadn’t ty Tyrell, who’s covered with an [sic] years, those two because had a afghan, afghan jumps throws off mask, get could with the up shoot, yells “Don’t don’t shoot” Tyrell Unfortunately, Patty crime. because she sees the [sic] Defendant identify eventually. was able to him gun in his hand. The Defendant virtual- ignores ly Tyrell, goes Patricia over added.) (Emphasis [sic] Finally, summing up in front of Fred takes that argument, prosecutor its returned to its weapon, apparatus pulls type mask theme that either other mouth, bastard”, says “You lying again witnesses were referred to through and shoots the head [sic] says you mask: “Mr. Brown don’t have single with a shot. Patty Tyrell believe or Preston [sic] lying. Their is con- added.) (Emphasis During [is] cross-examina- Garbage. Mask, sistent with other. each Mitchell, asked, prosecutor tion of *6 bastard, you struggle, the statement no no you you “How come wore a mask when shot, physical they contact before the are closing into home?” In went its state- added.) (Emphasis not consistent at all.” ment, again prosecutor referred to the discussing mask. of the While wit- Tyrrell only hyp- What “recalled” after believe, prosecutor nesses to stated: supporting nosis was not the evidence Patty prosecutor’s theory part Ty- Then we have the that inten- tionally rell’s she you where told killed but it the most [sic] person open persuasive emphasized. that who and the most As kicked earlier, wearing door a And accord- discussed the admission of this tes- mask. Defendant, ing wearing timony that he wasn’t was error. We conclude ab- Patty Tyrell lying hypnotically testimony, a mask. Either is sent the enhanced [sic] lying. or the Defendant is there likelihood that the was a reasonable outcome have been favorable more Patty pulled said he Tyrell that [sic] i.e., Mitchell, might for have been face, and then the mask his from “You degree victed of or some second said the words bastard.” Therefore, other lesser included offense. person a Why would want wear a Tyrrell’s we conclude the admission that person A mask? would wear mask if hypnotically testimony constitut- enhanced prevent people seeing he wants to from ed harmful error. Mitchell’s conviction is is, trying disguise appear- who his reversed case for a and this remanded new is lying. ance. Someone trial. Then we have further from emphasize Patty Tyrell that Defendant We that our decision wish [sic] af- covering to reverse Mitchell’s conviction and remand pulled ter he his from proceedings is based the words “You bastard.” matter for further mouth said West, City approximately erro- three that absent the Park our determination away. in the miles Somewhere course of hypnotically en- neous admission flight, friend, decided to call a Sean testimony, there was a reasonable hanced Sears, Florida, Miami, get might lived likelihood that ob- some trial, i.e., advice as what should do. result more favorable at tained a the Red Pine went to Condomin- by being of an offense other than convicted pay phone iums in Park and used the West agree first murder. We trial, At check-in counter. in Chief Hall’s dissent- observation Justice recalled he described what as a apart improperly opinion that state, placed “pretty incoherent” a col- testimony, admitted lect call to As soon as Sean Sears. Sears support sufficient evidence to there was said, phone, Mitchell answered the “This is murder conviction. Preston. is an accident.” There After by not the standard which harmless responded by asking something Sears are to be made. determinations you ripped?” like “are Mitchell blurted Rather, reviewing court is to decide out, “I somebody. do I killed What do?” whether, considering evidence, all the there jury likelihood that the a reasonable telephone operator The testified that differently. the case would have decided 5th, shortly after a.m. she Knight, handled a from a coin telephone collect call exists, 1987). If such likelihood City placed Park area. The man who to have jury defendant is entitled consid- call said his name was Preston and that anew, er free from the taint of the the case emergency there was an that involved a car like- inadmissible evidence. reasonable operator accident. recalled just question is not the substantial lihood answered, she an- rather, disguise; focuses evidence test it nounced the collect call Preston. Af- by If the taint caused error. pushed accepted, ter call was she sufficient, taint is irrelevant that there release to disconnect herself from button support untainted evidence to sufficient begin timing transmission order Any interpretation verdict. stricter billing the call purposes for and started to as the seemingly such one harmful brought read a book she work. As she here, by runs employed the Chief Justice this, doing she heard Mitchell’s initial substituting our judgment risk remark to testified Sears. She that she could be jury criticized as say, heard Mitchell “There had been an improper encouraging the admission of evi- accident, rip my a man tried to off. [sic] weakening the sanctions dence de facto He had a I killed him.” gun, Comment, Harmless Er- against See it. subpoenaed by Sean the prose- Sears was *7 Misconduct, ror: Abettor Courtroom of cutor he also testified at Mitchell’s Criminology (1983). & J.Crim.L. examination, trial. Under direct he first argument ap Mitchell’s second said was that Mitchell aware owned peal pistol trial court in is that the erred admit .45-caliber similar one in- ting an AT in testimony operator of & T volved the of Duncan. He the was telephone specific stating be not in overheard conversation what had during conversation, telephone and a friend occurred said tween Mitchell that the but killing. shortly after the Mitchell also testified that Mitchell called in the in admitting early morning August 5th, the court erred the claims that hours of knowledge my of the individual called. Both the of best said “[t]o statements differed somewhat from Mitch had blown someone.” ell’s the con version of call. We court argues that the trial erred argument sider because the issue is this admitting in into evidence of re-emerge likely to on retrial. telephone operator and Sean both operator that after He Mitchell testified Sears. claims that the inter- cepted his in he fled on from Park conversation violation of sec- Oliver’s foot
H23 and, therefore, 77-23a-2(4) the correctness of trial of the Code Because tion hinges ruling court’s here of flowing terms related to or from the all evidence Code, 77-23a-4 of the section accord intercept suppressed pur- have been should legal the trial court’s no particu conclusion Code, of suant to section 77-23a-7 ap lar deference review and instead illegal provides for the exclusion of BMG praise it for correctness. intercepts or evidence has been de- Scharf that (Utah 1985). Corp., intercepts.7 rived from such Although issue entirely is not free responds by The State this claim con- doubt, reading from our of the statute as a statement, tending that Mitchell’s as well suggests argu- whole State's first the other evidence derived from as wit, correct; ment is not statute is and, statement, lawfully obtained designed to exclude from evidence other- therefore, properly admitted at trial. Sec- penalize overhearings wise inadvertent 77-23a-9(3) provides that tion Rather, here. such as occurred the stat- resulting intercept an can information prohibit ute’s aim to intentional surveil- proceedings judicial be admitted in if it was of lance activities a court absence intercept as a result of an obtained order. Indicative of this is the text of provisions of ducted accordance with 77-23a-2(4) of the Code: section 77-23a-9(3) Code Ann. the Code. Utah § privacy of safeguard To innocent (1982). interception persons, the of wire or oral suggests grounds find- The State two the parties communications when none of intercept ing was not conducted to the communication has consented to First, of the State ar- violation the Code. interception only should allowed be operator’s overhearing gues that the Mitch- competent authorized a court of when and, therefore, ell was inadvertent jurisdiction and should remain under the proscribed by “intercept” supervision the intentional control and of authoriz- Interception oral 77-23a-2(4) court. of wire and section of the Code. Alterna- limit- communications should further be argues tively, the that even major types ed to certain of offenses and overhearing in- operator’s Mitchell was an specific categories crime with assur- tercept, lawful because the Code interception justified and ance that the intercepts occur makes lawful thereby the information obtained “engaged operator is switchboard not misused. will be necessary activity which is a incident to telephone] 77-23a-2(4) service.”8 (1982). rendition Ann. We Utah Code [the § 77-23a-4(2)(a)(i) (1982). Code Ann. the inadvertent therefore conclude pushing operator overhearing “intercept,” act not an as that 77-23a-3(4), button to disconnect herself release term is used in section preclude she overheard him. its Mitchell’s call when section 77-23a-7 does activity talking argues simply that this is started The State admission. get necessary operator rendi- could off the line. is a incident before “which overhearing Mitchell’s statement that telephone] service.” Her tion [the communication, Code, to in- Chapter entitled transmission a wire of title 23a Communications,” disclose, “Interception exten- tercept, or use that communication supplemented in sively 1988 and amended and employment while the normal course *8 251, 2-14; §§ Laws ch. 1989 1988 Utah 1989. activity necessary engaged any is a in 122, provisions perti- All §§ Laws ch. 1-7. Utah nent Mitchell’s rendition his service or to incident of argument appeal second rights property protection or changed by amendments or were either not communication, and the com- carrier only stylistically modified. shall utilize common carriers munication observing monitoring ex- service or random 77-23a-4(2)(a)(i) provides: Section 8. quality cept for service control mechanical chapter under this It shall be for lawful checks. switchboard, officer, operator or an em- aof (1982) (em- 77-23a-4(2)(a)(i) Utah Code Ann. agent ployee, communication com- added). phasis carrier, whose are used in the mon facilities 1124 killed a purely man accidental. De tor’s that she overheard defen- jurisdictions
cisions from
reject
other
that
dant say
rip
that someone had
tried
challenges
incriminating
to admission of
off
that
per-
and
defendant had
killed
inadvertently
statements
overheard
tele
son.
phone operators
persons
support
other
light
In
of all of the facts and circum-
Ross,
our conclusion. See United States v.
trial,
stances
per-
adduced at
I am not
(8th Cir.1983);
1125 standard I harmless error This consistently the Court has utilized and Contrary the view ex-
employed.6 opinion, it has not and main
pressed “encourag[e] improper admis-
does weakening the by de facto of evidence
sion fact, only it is against it.”7 In
sanctions this standard
through continued use of “substituting our actually avoid
that we jury.”8 that of
judgment for C.J.,
HOWE, concurs Associate HALL,. C.J. dissenting opinion Utah, Appellee, Plaintiff and
STATE
v. LAMPER, Defendant
James Appellant.
No. 870177. Court of Utah.
Supreme 1,
Sept. 1989. doubt) comparing beyond Robison v. See, reasonable e.g., Johnson, 870096, 6. State v. No. 115 1080, (“er State, (Okla.Crim.App.) P.2d 1085 677 6, 10-11, 5, Adv.Rep. slip op. 11-12 post-hypnotic identifica roneous admission 17, 1989) (all circumstances of case con- evidence, other because the tion was harmless Bruce, sidered in analysis); harmless error 119 circumstantial, overwhelming"), although (error P.2d at 656 was harmless in view of fact 3524, 1246, denied, 104 S.Ct. 467 U.S. cert. presented that state sufficient evidence of essen- State, (1984) Harmon L.Ed.2d 831 case); Tuttle, tial elements of (“er (Okla.Crim.App.1985) P.2d 1203, 1213-1214, (1989) (“Whether an error in post-hypnotic identifica roneous admission [hypnotically admission of enhanced] testi- beyond a reasonable harmless tion was not mony by offered the State or in the exclusion of against evidence doubt other because testimony reliability [on of that evidence] hair was inconclusive evidence defendant] [the offered accused is harmless under [the admissions”), damaging peti reports of and two federal constitutional harmless error] standard Tillman, reh’g pending; State v. tion depends many factors. Those factors in- (Utah 1987) (alleged constitutional importance testimony, clude witness’s overwhelming in face of harmless found cumulative, whether the guilt, isolated nature of defendant’s evidence contradicted, was corroborated or instruction). judge’s trial strength and the overall State’s case.” (citations Majority omitted); analysis 7. at 1122. quoted factors leads to conclusion errors were Id. harmless