Harding v. State

Thompson, J., delivered the opinion of the Court. ²³² James Milton Harding, the appellant, appeals from convictions for assault with intent to rape and assault with intent to murder in a jury trial in the Criminal Court of Baltimore, Judge James A. Perrott presiding. He was sentenced to a term of 20 years on the assault with intent to rape charge and to a consecutive term of 15 years on the assault with intent to murder charge. There was evidence from which the jury could find: On Sunday, September 18, 1966, at approximately 5 :00 P.M., Harding 'met Mildred Coley, the prosecuting witness, in a bar in Baltimore City. Subsequently, they joined Barbara Miles and Robert Dee Sanders, and all four of them drank and rode around the city in Sanders’ car until approximately 8:30 P.M. when they left to go to Howard County.

Mildred Coley was not previously acquainted with any of the other three persons. En route to and in Howard County, they made several stops. Mildred sat in the front seat of the car with Barbara and Sanders, while Harding sat in the back seat alone. Harding became angry and argued with Mildred because of her refusal to sit in the back seat with him and her refusal to have sexual relations with him.

Eventually, Harding told Mildred he had a gun and he was going to have sexual relations with her before she left the car. Mildred told Harding that “If you put your damn hands on me, I’m going to cut you.” After making this statement, Mildred opened her purse to get a face sponge, and when she turned in the direction of Harding, he shot her. She had no weapons. After the shooting Sanders wanted to call the rescue squad or take Mildred to the hospital; however, Harding, with gun in hand, ordered him to drive to Mayfield Avenue, a back road in an isolated area of Howard County.

Harding removed Mildred, who was unconscious and presumed dead, and placed her on the side of the road. After returning to the car, Harding directed Sanders to drive to Club Vegas near Fort Meade, and then to Club 1630. At this club, Harding met his brother, Charles B. Harding. Barbara, who lived in Baltimore, left the club with some friends, while Sanders and Harding left together.

Sanders drove Harding home and was followed by Harding’s brother in his station wagon. When Sanders left he observed Harding get into his brother’s station wagon. ²³³ On Monday, September 19, 1966, at approximately 7:15 A. M. State Trooper William J. Foxwell, in response to a complaint, found Mildred lying four or five feet off the traveled portion of Meadow Ridge Road in Howard County, which was two or three miles from the spot where she had been placed after being shot. She was in a state of shock, wearing only a black dress, with her undergarments beside her. She was taken to St. Agnes Hospital where an emergency operation was performed on her chest.

Further examination disclosed spermatozoa in her vagina. Initially, Mildred was questioned by Trooper William George who testified as follows : “Q. You said that the first time you interviewed the victim she indicated she had been raped by whom ? “A. She told me three colored males. She had been abducted from Baltimore City at knife point, taken into the County, raped and stabbed. “Q. Now, the second time you visited her in the hospital you inquired of her again, and what did she tell you ? “A. Essentially — Well, by this time we knew she hadn’t been stabbed. In fact, she had been shot.

During both of these periods she appeared to be in shock or going into shock. Both of these times were before she was operated on and only an Emergency Room type investigation of her wounds had been made. On the second occasion, after receiving the description of the car and knowing this person Robert Lee Sanders, a picture of him was taken and shown to her. “Q. Then what did you do ? “A. After she positively identified this picture, then Robert Lee Sanders was' later in the afternoon arrested and taken to the Barracks for investigation.” !|s * “Q. You said then you visited the victim a third time and the third time the situation changed again. What happened there ? “A. At this particular time, which happened to be on 9/21 at two p.m., she was visited in the Intensive ²³⁴ Care Unit of St. Agnes Hospital and talked to thoroughly, and it appeared evident that this girl could not remember certain parts of what had happened to her.

She would take us all the way up to the point where she had been shot. She would go on to the point where she was put out of the car and then she told me she couldn’t remember anything. Her mind had cleared to the point where she knew who had shot her. She knew who was with her and she knew the complete description of the automobile.” On October 12, 1966, upon being released from the hospital, Mildred was taken to the Waterloo Police Barracks where she was put under hypnosis by Ralph P. Oropolo, Chief Clinical Psychologist at Clifton T. Perkins State Hospital.

While under hypnosis, and without prompting, Mildred was able to recall events that had occurred after she was shot. On the witness stand she testified as follows: “Q. Do you recall anything that was said to you while you were under hypnosis ? “A. Anything was said to me? Yes, when I was yes. . . “Q. When you were hypnotized, you recall what was said to you ? “A. What had really, what had blanked out in my mind all came back to me.” ;{C í|< j}S “Q. Then when you awakened from this sleep they told you what you had said while you were asleep ? “A. No, I told them what happened after I woke up. I was awake.” * * “Q. Did anybody talk to you when you awakened from this trance ? “A. Yes. “Q. Who? “A. Trooper George. “Q. What did he say to you? “A. He asked me how was I feeling.

He say ‘How ²³⁵ does it feel to be hypnotized?’, and 1 told him it was a nice sleep. “Q. What else did he say ? “A. He asked me questions what happened between Harding and I and I could answer them then, things I couldn’t answer before. It all came back to me. “Q. Were you told what happened and then it came back to you ? “A. No, I wasn’t told what happened and it came back to me. When I was asleep it all came back to me and I told them what happened when I wTas awake.” In addition, she identified Harding as the person who shot her, and she also testified that while she was lying on the side of the road, she saw a vehicle approaching which looked like a bread truck or station wagon. The vehicle stopped and Harding picked her up and threw her into the back of the vehicle and drove off.

On arrival at another location, he threw her on the ground between an old house and a tree. He then unzippered her dress as she passed out. When she regained consciousness, she noticed that all of her clothes had been removed except her dress, that she tried to stand but was too weak, so she dragged her clothes with her and scrambled to the highway. Mildred also testified that when she regained consciousness, she “realized that he had sex with me.” Harding did not testify.

His brother admitted that he had a station wagon and was at Club 1630 where he saw Harding on the night in question but denied that Harding used his car. Harding contends that the testimony of Ralph P. Oropolo, the psychologist, and the testimony of Mildred Coley with respect to the assault with intent to rape were not admissible; and the evidence was insufficient to support the conviction for this crime. The objection concerning the testimony of Oropolo was as to his qualifications. The record discloses that he has a Master’s Degree in Psychology and has pursued work on his doctorate.

He is Chief Clinical Psychologist at Clifton T. Perkins State Hospital and a lecturer at the Institute of Correctional Administration, American University, Washington, D. C. He was for ²³⁶ merly staff psychologist at Crownsville State Hospital and has been employed as a consulting psychologist by .several law enforcement agencies and state’s attorneys’ offices in Maryland and other states. In addition, he has qualified to testify in court as an expert in the field of psychology in Baltimore City and several counties in Maryland. In his training and education as a psychologist, he was familiarized with hypnosis or 1 hypnotherapy as a form of treatment. The record further disclosed that hypnosis is used as an analytical tool and technique by psychologists and the medical profession, as a form of therapy, and as a means of assisting patients to recover lost memory.

During the past four years, Oropolo has used the technique of hypnosis, and he has also used hypnosis under circumstances similar to those in the case at bar. Harding’s objections to the qualifications are based primarily on the fact that Mr. Oropolo did not graduate from any school of hypnotism. The Court of Appeals in the case of Hewitt v. Maryland State Board of Censors, 243 Md. 574 , 221 A. 2d 894 held that the admission of expert testimony is primarily a matter for the trial judge to decide. But the opinion makes clear that formal training is unnecessary so long as the record demonstrates that he is possessed “of any knowledge or information which would elevate his opinion above the level of conjecture or personal reaction,” Hewitt, supra at 221 A. 2d 902 .

The formal training in hypnosis which was provided in Mr. Oropolo’s education as a psychologist and his use of hypnosis for four years indicates to us that the trial judge quite properly admitted his testimony. The admissibility of Mildred Coley’s testimony concerning the assault with intent to rape case causes no difficulty. On the witness stand she recited the facts and stated that she was doing so from her own recollection. The fact that she had told different stories or had achieved her present knowledge after being hypnotized concerns the question of the weight of the evidence which the trier of facts, in this case the jury, must decide.

Borman v. State, 1 Md. App. 276 , 229 A. 2d 440 , Carroll v. State, 3 Md. App. 50 , 237 A. 2d 535 , Thompson v. State, 4 Md. App. 31, 240 A. 2d 780 . The sufficiency of her evidence to support the verdict re ²³⁷ quires more elaborate discussion. We will begin by quoting extensively from the testimony of the psychologist. “Q. Mr. Oropolo, 1 wonder if I could ask you to step down to this blackboard and illustrate to the Jury exactly what you accomplish by hypnosis. “A. Hypnosis is really — takes no great feat. Essentially anyone can do it, despite what appears to be a very mysterious kind of process.

All that is involved in inducing a person into hypnosis is a very boring voice and monotonous repetition of words. Any of us can do it. The other thing that is necessary is a certain amount of willingness on the part of the individual, because hypnosis is essentially a very conscious type activity because you are asking the individual to focus on something or asking an individual to listen to something, and if he doesn’t want to, he can look some place else and intentionally distract himself. So, a great amount of willingness is necessary on the part of the individual being hypnotized, so you don’t have somebody under your power, so to speak.

This is not quite accurate and you do require a certain amount of conscious participation by the individual. What happens in hypnosis, or what is involved, you are reducing a certain amount of consciousness. For instance, all of you see everything going on in here, but there are different degrees of things you are consciously aware of. Because I am speaking and standing here, you are more conscious of me than other people in the courtroom.

There are levels of consciousness with respect to certain things in particular areas. In hypnosis what we try to do is try to reduce the number of things that distract a person and try to get the person to focus on a certain thing. In this way more details can be impressed upon the person. For instance, if T were to direct your attention to the blackboard and you are reducing your consciousness of me even more so and I would ask you to give the details of this blackboard, you could do it fairly well.

If I didn’t direct your attention to the blackboard, the amount of details would ²³⁸ be somewhat reduced. In a sense you might say you are sort of hypnotized there. Because of focusing you are reducing your external or outward stimulations. We get an individual to focus all his stimulus on an object, neutral, that has no consequence as a means of reducing or removing consciousness or awareness of other things.

What I usually do, the instrument I use is just a thumbtack pinned into a wall, that is shiny, or I may use a spiral type thing, something like this. This is what the novice uses, but the essential element is that the person is able to focus on a relatively neutral object for the purpose of reducing all outward influences. The reason for this is in recovering memory what happens is — let’s kind of try to divide the mind something like this: this being the conscious part. What I mean by conscious, this is the part that makes us aware of who we are, of the courtroom of people.

These are all various stimulations that come in from without and you are consciously aware of it. There may be other material that will come through, but go down here. Might say this is sort of unconscious, wherein we can’t really deprive the stimulation from coming through. We can refuse to acknowledge it and its presence here because it is rather painful to us, rather traumatic to us, what have you, but we cannot prevent it from coming in but prevent it from acknowledgment.

You might be in a social setting with maybe three or four people on a walk. There is somebody you dislike a great deal. You can’t refuse to let him be present but you can refuse to talk to him. You are refusing his physical presence.

The same thing happens essentially with respect to certain stimuli or certain things that occur to us. We cannot prevent them from occurring but we can refuse to acknowledge. That goes through this area of consciousness and gets hurried down here in the unconscious. You might regard it as a basement; everything gets thrown down there you don’t want.

By hypnosis, by compelling a person to focus on one stimulus what you essen ²³⁹ tially do is his area of consciousness becomes limited. So, the only thing the person is conscious of is this one stimulus, the thumbtack in the wall, or the spiral or the clinician’s phrase telling him you are getting tired, getting sleepy, all this other stuff is kind of eliminated. With the elimination of all this extraneous material you can help the patient to focus their stimulus on occurrences or events that went right through and as a result of reducing the conscious influence which kind of acts as a distraction, this barrier a little bit, so now you don’t have all this conscious stuff acting as a conscious influence and reinforces the barrier between the conscious and the unconscious. You leave the mind fairly clear to focus on this one subject and as a result quite frequently you can have the subject come back into conscious awareness.

Whether you can do this or not depends how far down the material is, how long ago it happened, so forth, by the determination the material the conscious did not want to acknowledge, although it occurred, to come back into acknowledgment, into awareness. This is essentially what happens on hypnosis, theoretically.” “Q. Mr.