Harker v. State

Bloom, J., delivered the opinion of the Court. David Watkins Harker, appellant, was convicted by a jury in the Circuit Court for Harford County (Close, J.) of assault with intent to murder and received a thirty year sentence. On this appeal appellant contends: I. The trial judge erred in denying appellant’s motion to suppress the extrajudicial and in-court identifications of appellant. ⁴⁶² II. The trial judge erred in permitting a jailhouse informant to testify.

III

The trial judge abused his discretion in denying appellant’s motion for a new trial. Facts Mervyn Graham Thompson, a management assistant with the Harford County Department of Planning and Zoning, attended a concert on the evening of December 7, 1980. When he returned home that night, his daughter-in-law informed him that a man had called at the house to inquire about an old truck. Shortly thereafter, Thompson received a telephone call from a "Mr. Palmer,” who told Thompson that his (Palmer’s) son had cut his hand on Thompson’s truck, indicating that the boy may have damaged the truck.

Palmer said he wanted to pay for any damage done by his son and asked Thompson to examine the truck with him. Thompson agreed to meet him. Thompson’s daughter-in-law drove him down the driveway to where Palmer’s car was parked. Palmer and Thompson examined the truck but could find no evidence of recent damage.

At that point, Thompson’s daughter-in-law drove off. Palmer then asked Thompson to help him look for his glove; but after they looked for awhile, Palmer jumped into his car and, from inside the car, pointed a shotgun at Thompson. Thompson instinctively threw his flashlight at Palmer and ran. After running for about twenty yards, Thompson turned in time to see Palmer leaning against a light pole, taking aim at him with the shotgun.

Palmer said, "You son of a bitch,” and started firing. Three shots were fired at Thompson. The first shot hit him in the left arm and side, knocking him down. The second shot grazed his head while he was in a kneeling position.

The third shot apparently missed him. At that moment Thompson remembered he had a pistol with him and starting shooting at Palmer. Thompson fired four shots before Palmer got into his car and drove off. Then Thompson ⁴⁶³ managed to get back to his house and summons help.

His left arm had been so badly mangled by the first shot that it had to be amputated. On December 10, Thompson was interviewed by Deputy Sheriff David Saneman. Thompson initially described his assailant as "a white male, approximately six foot two in height, medium dark to dark brown hair, medium build, thirty five to forty years of age, wearing a flannel shirt over a regular shirt.” He described the assailant’s car as "a red Honda four door with either red velour or vinyl interior, with a maroon print.” With Thompson’s assistance, Saneman prepared a composite sketch of the assailant. 1 On December 22, 1980, Trooper First Class Mark H. Ward of the Maryland State Police observed a red Honda Accord four door sedan being driven by a man who bore a strong resemblance to the composite sketch, which Ward had seen several days earlier. Because of that resemblance and the similarity between the vehicle he observed and the description of the automobile which accompanied the composite sketch, Trooper Ward noted the license tag number, which he subsequently ran through the computer.

The vehicle observed by Trooper Ward was registered to one David Watkins Harker, 1812 Blakefield Circle, Lutherville, Maryland. The physical description of the owner was "white male, six one, two hundred pounds, date of birth 8/25/44.” The automobile was listed as a 1976 Honda two door sedan. Trooper Ward informed the Harford County Sheriffs Department of his observations and findings. Deputy Sheriff Jordon V. Watts, Jr., upon receipt of the information furnished by Trooper Ward, went to 1812 Blakefield Circle, Lutherville, and talked to David Harker, Sr., who advised that his son owned a red Honda automobile.

When shown a copy of the composite sketch, Mr. Harker stated that it was similar to his son’s appearance. 2 ⁴⁶⁴ One aspect of the victim’s story puzzled the investigating officers. Thompson’s recollection was that he was standing near the back of his truck when he was shot, but physical evidence at the scene tended to indicate that he must have been standing at the front of the truck. In an effort to clarify the apparent discrepancy and, hopefully, obtain the license number of the red Honda, the investigating police officers suggested to Thompson that he be hypnotized. Thompson agreed and was taken to Montgomery County to be hypnotized by Lieutenant James Roby of the Montgomery County Police Department.

Lt. Roby was assisted by Sergeant Lloyd White of the Maryland State Police. During the hypnotic session, Thompson was asked to recall the events of December 7, 1980. 3 Under hypnosis, Thompson could not recall the license number of the red Honda, but did give the following description of his assailant: Merv (Thompson): Just a stocky build, but not heavy, not slender, but not heavy, and he’s got his hair just styled. It was over on the side of his head, you know he didn’t have any sideburns, long sideburns, no moustache, or beard.

He had light to medium brown hair. And his glasses were something like mine only they had light gold rims around them. He had on sort of a brown wool type shirt over top of another shirt that he had on as I recall just a colored shirt you couldn’t see much of that except the collar and I remember ... shirt with ⁴⁶⁵ the coattail hanging out you know, not down in the trousers, just hanging out like a jacket, just a mild night, he had on just a pair of slacks, just dress slacks, not jeans or anything rough like that, just dress slacks, I think they were maybe tan, dark, dark in color, dark brown or something matching that. To me that flannel shirt was a sort of a medium tan, maybe a little plaider, like plaid, not plaid to be noticeable that it wasn’t plaid.

Roby: (Inaudible) general look closely, is there anything. Merv: I see a fairly nice looking man, he is not rough looking, he’s not a hard looking guy, he looks like a guy that would have a nice clean car (inaudible). Roby: Do you think you would recognize his face? Merv: Yes, Yes I would, yes (extreme emotion).

I’d do anything if I could only see him .. . I’ve gone through ... I’d never forget it as long as God gives me memory!! Roby: Just relax.

Merv: I’d never forget it if he doesn’t change, but he would change wouldn’t he? He would change his hair style, he would change everything. I would. Roby: I want you to relax, look on the screen, .. . what do you see now?

Merv: He’s an average build man. Roby: Just look at screen, nothing is going to happen to you. Just relax. Merv: He’s 180 or 190 pound man, nice seems to be (inaudible).

Seems to be well built. Roby: Now, lowering the camera, farther down what do you see now? Merv: I see the trousers and his legs. Dress shoes even, just brown dress shoes. ⁴⁶⁶ Roby: Describe the shoes.

Merv: I don’t think they’re boots, they’re not fancy boots. I don’t remember anything like that. Roby: (Inaudible) allow yourself to look and anything else that you see. Merv: I don’t know what to say, he just seemed like a pretty ordinary sort of a guy, who most likely, looked like a person that could get, I mean a man that would actually have interest in his child.

Four days after the hypnotic session, Thompson was shown an array of photographs and was told by Deputy Saneman that the picture of the man who shot him might or might not be included in the group of ten photographs. Thompson selected appellant’s photograph as possibly that of the man who shot him but wanted to get a look at him in person. He felt the photograph strongly resembled his assailant except for the hair style. On February 10, 1981, Thompson was escorted to the County Courts Building in Towson, assigned a vantage point in a corridor and told to observe the people in the courthouse because the man who shot him might or might not pass by.

Some forty minutes later, appellant walked down the hallway and into a courtroom. He was dressed in a three piece blue suit and camel hair topcoat. Thompson said appellant looked like his assailant, but he wanted to get a better look at his face. Later that morning, appellant walked out of the courtroom and stopped in front of Thompson who at that time was able to make a positive identification of appellant as the man who shot him.

Appellant moved to suppress any in-court identification by Thompson on the grounds that it had been "tainted” by hypnosis. He also moved to suppress the identification made by Thompson at the photographic line-up and as a result of the confrontation at the County Courts Building in Towson. The motions were denied. At trial, Thompson identified appellant as his assailant, stating: "Believing that on the final day God will be my ⁴⁶⁷ judge and all the Saints my jury, there stands the man who tried to murder me.” Appellant had driven his automobile to California and, while there, sold it.

Photographs of the vehicle, a red, four door Honda Accord, were admitted into evidence by stipulation. The State’s final witness was one Larry Eley who met appellant at the Harford County Detention Center where Eley was incarcerated pending trial on several charges of theft. Eley testified that appellant told him "he shot [the zoning man’s] arm off but meant to shoot him in the heart.” Eley further testified that appellant hinted that if he (Eley) could get out of jail on bond he could earn about five thousand dollars by killing Thompson, mentioning the name of a man to see about earning the money. 4 Appellant testified in his own defense, denied shooting Thompson and presented an alibi defense which was corroborated by his parents and two friends. Appellant was convicted of assault with intent to murder; his motion for a new trial was denied; and this appeal was timely taken.

I. Suppression of Identifícation A. Hypnotically Induced Description Appellant’s first attack upon the extrajudicial and in-court identifications of him by the victim is an assertion that those identifications were "tainted by hypnosis.” In Harding v. State, 5 Md. App. 230 (1968), cert. denied, 395 U.S. 949 (1969), our first reported decision concerning the admissibility of hypnotically induced testimony of a prosecuting witness, we held that such testimony was admissible and that the effect of hypnosis upon the recollection of the witness affected only the weight of the ⁴⁶⁸ evidence. In State v. Temoney, 45 Md. App. 569 (1980), vacated on other grounds, 290 Md. 251 , relying on Harding, supra, we again held that hypnotically induced testimony was admissible. A number of jurisdictions similarly ruled that pretrial hypnotism raises questions as to the weight and credibility, rather than the admissibility, of the evidence. See United States v. Adams, 581 F.2d 193, 198 (9th Cir. 1978), cert. denied, 439 U.S. 1006 , 99 S.Ct. 621 (1978); United States v. Narciso, 446 F.Supp. 252, 284 (E.D. Mich. 1977); Creamer v. State, 232 Ga. 136, 138 , 205 S.E.2d 240, 242 (1974); People v. Smrekar, 68 Ill.

App. 3d 379 , 385 N.E.2d 848, 853 (1979); State v. Jorgensen, 8 Or. App. 1, 9 , 492 P.2d 312, 315 (1971). But see Greenfield v. Commonwealth, 214 Va. 710 , 204 S.E.2d 414 (1974). In some cases, the use of hypnotism was deemed analogous to the use of a document shown to a witness at trial to refresh his or her recollection.

Kline v. Ford Motor Co., Inc., 523 F.2d 1067 (9th Cir. 1975); Wyller v. Fairchild Hiller Corp., 503 F.2d 506, 509 (9th Cir. 1974). After Harding , in Reed v. State, 283 Md. 374 (1978), a case involving the use of testimony based on spectrographs ("voiceprints”), the Court of Appeals first adopted the now familiar "general acceptance rule” enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). As stated in Reed , the Frye test, initially used in the context of a lie detector examination but applicable to various newly developed methods of scientific discovery, mandates that: "[Bjefore a scientific opinion will be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field.” Reed, supra, 283 Md. at 381 . This Court, speaking through Judge Moore in Polk v. State, 48 Md. App. 382 (1982), determined that the Frye test is applicable to this technique of memory retrieval, even though the testimony resulting from it involves neither the use of scientific equipment nor the expression of an opinion ⁴⁶⁹ by an expert.

We noted there that Minnesota and Arizona had considered the issue and applied Frye to hypnotically induced testimony. The Supreme Court of Minnesota, in State v. Mack, 292 N.W.2d 764 (Minn. 1980), and the Supreme Court of Arizona, in State v. Mena, 624 P.2d 1274 (Ariz. 1981), held that a witness whose memory has been "revived” by hypnosis may not be permitted to testify in a criminal proceeding as to matters which he or she "remembers” under hypnosis. The rationale of both decisions, of course, is that the results of hypnosis are not scientifically reliable as accurate and that cross-examination to