State v. Stolp
650 P.2d 1195
Ariz.
1982
Check Treatment

*1 P.2d Arizona, Appellee, STATE of

v. Danny STOLP, Appellant. Adam

No. 5397. Arizona, Supreme Court of In Banc. June 1982. Rehearing Sept. Denied 1982. Corbin, Gen., J. Atty.

Robert K. William Div., III, Counsel, Mi- Crim. Schafer Chief Gen., Phoenix, Jones, chael Attys. D. Asst. appеllee. for Lee, Maricopa De- County Ross P. Public Foreman, fender, Depu- Kappes, John Anne Phoenix, Defenders, ty appellant. Public for GORDON, Vice Chief Justice: was convicted of one count and one count of sexual aggravated assault jury The also found to be true assault. each nature on allegation dangerous ‍​‌​​‌​‌‌‌‌‌‌​​‌​‌​‌​‌‌‌‌​‌‌‌​‌‌​‌​‌​​‌‌‌​‌‌‌​​‌​‍13-604, court count, and the see A.R.S. § allegations true the sitting alone found sen- judge The trial prior two convictions. thеse consecutive terms: tenced assault; twenty years for for the sexual assault. twenty-eight years pursuant to Ariz.Const. Taking jurisdiction 47(e)(5), we 5(3) Art. and Ariz.R.S.Ct. § assault conviction affirm for a new and remand sentence but reverse assault conviction. FACTS Michelle Childs

On December knife near man with a by a was accоsted View in Glen- Mountain Avenue and 51st knife to man held the dale, Arizona. *2 214

her throat and threatened to kill her if she THE AGGRAVATED ASSAULT screamed, but she managed to escаpe. trial, Before Ms. Childs hypno questioned identity ‍​‌​​‌​‌‌‌‌‌‌​​‌​‌​‌​‌‌‌‌​‌‌‌​‌‌​‌​‌​​‌‌‌​‌‌‌​​‌​‍about the 16, 1980, January On a year fourteen old Mena, her attacker. In State v. 128 Ariz. girl walking near 51st Avenue and Olivе in 226, (1981), 624 P.2d 1274 we that a held grabbed Glendale was by a man who held a witness in a incompetent criminal is knife to her throat and threatened to kill testify as to eithеr recall or if she screamed. The attacker un- prehypnotic statements. We modified her, her, dressed raped sodomized Mena conсerning prehypnotic statements in then ran. the rehearing opinion in ex State rel. Col Both gave victims the police general de- Court, 180, lins v. Superiоr 132 Ariz. scriptions of their assailant. Then on Janu- (1982), P.2d 1266 but original added the 19, ary 1980, three days after the second Collins that Mena and ex rel. State attack, asked both victims to applied Collins would be prospectively only, come to the police station to be hypnotized. ex Superior Court, State rel. Collins v. su The purpose of the hypnotic sessions was to pra 7, (original opinion January 1982). filed obtain a more detailed description of thе In hypnosis cases where the subsequent assailant. testimony preceded Mena, our decision in we will not reverse if introduction of the The sessions were sepa conducted testimony amounted to harmless error. rately. While under hypnosis, Ms. Childs Collins, supra (original State ex rel. opin described her аttacker to a artist who ion). drew a from the description. case, hypnotize tried to year the fourteen the posthypnotic testimony occurred pre victim, old but she testified at the Dessu Mena. precisely Ms. Childs could not de reault hearing1 that she never entered a identify scribe or her аttacker until after hypnotic state. description Her during and she precautions had been No after time of the were taken to safeguard against suggesti was the same as her description before bility trial, in the hypnotic session. At did see the picture resulting She testified as her posthypnotic rеcall. Ms. session, however, from Ms. Childs’ and she was the only Childs witness to her assault. stated that it looked like the man who had Appellant’s defense was alibi and misidеnti assaulted her. circumstances, fication. Under these we later, Three Ms. spot- Childs’ brother say cannot introduction of Ms. pos appellant tеd walking along Mountain View thypnotic was harmless error. at 50th Avenue. He noticed immediately Her testimony major was the source both of that lookеd like person proof against appellant direct and rebuttal picture drawn during his sister’s Therefore, appellant’s of his defense. con arrested, session. Appellant was a viction for assault must be re knife and other physical evidence were versed and remanded for a new triаl. eventually seized. THE SEXUAL ASSAULT Appellant only raises one appeal. issue on argues He the testimony at trial of We find that Mena and both victims should havе been excluded un- to the sexual assault apply Collins do not Mena, der State v. 128 Ariz. 624 P.2d case. in his brief assumes that (1981). sepa- consider each cаse hypnotized, had been rately. assumption. support does not Dessureault, 1. A right defendant pressed. in a criminal trial has a State v. 104 Ariz. denied, pretrial (1969), to determine whether a identi 453 P.2d 951 cert. 397 U.S. unduly suggestive (1970). ‍​‌​​‌​‌‌‌‌‌‌​​‌​‌​‌​‌‌‌‌​‌‌‌​‌‌​‌​‌​​‌‌‌​‌‌‌​​‌​‍fication was so a subse 90 S.Ct. 25 L.Ed.2d 257 quent sup in-court identification should be hypnotically induced been from Ms. Childs’ pеople true that some who have It is sincerely they believe that hypnotized scription. Diamond, In- enter a state.

did 13-4035, we have Pursuant to A.R.S. § Hyp- in the Use оf Pretrial herent Problems error record for fundamental searched Witness, Prospective ‍​‌​​‌​‌‌‌‌‌‌​​‌​‌​‌​‌‌‌‌​‌‌‌​‌‌​‌​‌​​‌‌‌​‌‌‌​​‌​‍a 68 Calif.L. nosis on The sexual assault none. but have found nothing 330 n. 82. But Rev. affirmed; is and sentence conviction *3 in the instant case contradicts reversed conviction is assault aggravated testimony Dessureault viсtim’s new trial. for a and remanded efforts, was never despite police successfully hypnotized. at- FELDMAN, JJ., concur. CAMERON light hypnotic to use a trance to tempted allow her to concen- relax HAYS, (concurring part Justice place only trate. The session took three dissenting part): after thе brutal attack how- upon affirming the holding I concur with ever, and she that she was still too stated as- and conviction on judgment Moreover, upset general to relax. I dissent from sault count. the same scription of her attacker remained count. assault holding on the before, during, hypnosis. and after We do not at this time establish a burden proof concurring

of for the state to meet when it Justice, HOLOHAN, Chief subjected asserts that one of its witnesses dissenting: hypnоtic session was in fact sexual of the in the affirmance I concur to hypnotized. encourage We the state conviction, I from dissent assault thе diffi- avoid such situations because of convic- assault reversal of the culty proving subjected of when someone to tion. has or has not entеred a by written While much has been (although trance we note the the facts subject hypnotism, court on the hypnosis in this case occurred before we result illustrate the absurd of this case prospective only established the rule of hyp- on current rule by this court’s caused Collins). Mena and ‍​‌​​‌​‌‌‌‌‌‌​​‌​‌​‌​‌‌‌‌​‌‌‌​‌‌​‌​‌​​‌‌‌​‌‌‌​​‌​‍recаll. The notically developed case, however, the record is uncon- hypnotism subjected the witness establishing tradicted in that the victim was non-hypnо- independent an by corroborated not corrobo- cast aside the witness. To argued has also that all witness this victim and testimony of rated evidеnce that was derived from the system than damage more to our does conception artist’s of Ms. assailant the several by dangers described phantom helped was tainted by subject. on the of this court opinions and, therefore, produce should both convictions. would affirm I As we noted suppressed. disagree. be ex rel. Col original opinion in State lins, from leads supra, evidence obtained

developed from a session is not

susceptible unreliability problems to the tеstimony, with so posthypnotic

connected long as the evidence is not a person hypnotized. Such

statement of suggested evidence cannot be or confabulat ed; subject any is it of the other nor Therefore, there was

dangers as a result no taint on the evidence obtained drawing suspect of a of the artist’s