McCoy v. State

SMITH, Judge. This is yet another case involving hypnotically enhanced testimony. See State v. Collins, 296 Md. 670 , 464 A.2d 1028 (1983), for our leading case on the subject, and Simkus v. State, 296 Md. 718 , 464 A.2d 1055 (1983), for an application of Collins to the co-defendant of Charles William McCoy, the appellant in this case. Other applications of Collins are found in Calhoun v. State, 297 Md. 563, 574-78 , 468 A.2d 45, 49-51 (1983), cert. denied, ___ U.S. ___, 104 S.Ct. 2374 , 80 L.Ed.2d 846 (1984); State v. Metscher, 297 Md. 368 , 464 A.2d 1052 (1983), and Grimes v. State, 297 Md. 1 , 464 A.2d 1065 (1983).

We shall hold that, as in Simkus , there was sufficient evidence of a prehypnotic base for the testimony in question to permit its admission. I At issue here is the identification of McCoy at trial by Deborah Hurdel over the defendant’s objection. She had been hypnotized previously. The judge who heard the motion to suppress specified that her testimony would “be confined to testimony not hypnotically induced.” The record shows: “Q. Okay.

Ms. Hurdel, I’m going to ask you a series of questions, and I’d like you to recall now only what you ⁶⁶⁹ knew prior to that day that you met Dr. Stern on March 3rd, 1981. Do you understand that? “A. I think so.” This was followed by an objection and the ruling of the judge presiding at trial based upon the ruling of the judge who had heard the motion to suppress. He specified that counsel should ask questions based only on what was recalled prior to hypnosis. McCoy was convicted by a Howard County jury of murder in the first degree.

The Court of Special Appeals reversed the conviction in an unreported opinion. It held “that it was error to have admitted into evidence the testimonial identification by Mrs. Hurdel.” We granted the State’s petition for a writ of certiorari and ordered “that the case be remanded to the Court of Special Appeals of Maryland for reconsideration in light of State v. Collins, [ 296 Md. 670 , 464 A.2d 1028 (1983)].” State v. McCoy, 297 Md. 5 , 464 A.2d 1067 (1983). On remand the Court of Special Appeals reviewed the evidence before the trial judge on the motion to suppress. It affirmed the conviction in an unreported opinion.

That court referred to our opinion in Collins, 296 Md. 670 , 464 A.2d 1028 , where we said: “We see no reason why a person should not be permitted to testify in court in accord with statements which it clearly can be demonstrated he made prior to hypnosis. Such is not then hypnotically enhanced testimony. This seems to be in accord with the majority view. We do not go so far as to spell out the exact procedures which must be followed to clearly demonstrate that such statements were made prior to hypnosis.

One method certainly might be to follow the guidelines laid down by the Arizona court in [State ex rel.] Collins [v. Superior Court, etc.], 132 Ariz. 180, 210 , [ 644 P.2d 1266 (1982),] which we have heretofore quoted. Since one cannot possibly envision all possible situations in which statements prior to hypnosis might be demonstrated to accord with posthyp ⁶⁷⁰ notic testimony, we deem it wise not to attempt to spell out each and every condition or possibility for demonstrating reliability. To do otherwise is to risk omission of acceptable solutions which do not occur to us.” 296 Md. at 702-03, 464 A.2d at 1044-45. The Court of Special Appeals went on to say: “The appellant in Simkus v. State, supra, was a co-defendant of the appellant, McCoy, although he was tried separately and convicted of the murder of Ms. Napieralski.

Simkus appealed to this Court and the Court of Appeals granted certiorari prior to argument in this Court. In affirming Simkus’ conviction the Court of Appeals said: ‘ “It is clearly demonstrated in this case that Mrs. Hurdel’s identification of Simkus does not depend upon hypnosis. The trial judge’s ruling was in accord with Collins.” ’ “Since the evidence adduced at McCoy’s trial was substantially identical to that adduced at Simkus’ trial, we are compelled to conclude that it was clearly demonstrated in McCoy’s trial that Mrs. Hurdel’s identification of McCoy does not depend upon hypnosis. The trial judge’s ruling admitting her testimony was in accord with State v. Collins, supra.” We granted McCoy’s petition for a writ of certiorari.

II Background is provided in a portion of the agreed statement of facts which the parties have entered into pursuant to Maryland Rule 828 g: “On February 15, 1981, Debbie Hurdel came to the Woodlawn Police Station in Baltimore County to report that her friend, Debbie Napieralski, was missing. Hurdel told the police that she and Napieralski had been approached by two men as they were leaving the Hidden Valley Country Club at approximately 1:45 a.m. One ⁶⁷¹ man came up to Napieralski and said: ‘Hey, where’s my valentine’s kiss?’ Napieralski gave him a kiss. The other man came up to Hurdel and asked her if they wanted to go to breakfast.

Hurdel declined, but Napieralski agreed ‘to go to breakfast with them.’ The two men then followed Hurdel and Napieralski to Hurdel’s house. Before leaving with the two men, Napieralski told Hurdel that ‘if my mother calls in the morning, just tell her I’m sleeping.’ ” Officer Schaeffer of the Baltimore County Police Department testified at the suppression hearing that the descriptions given by Mrs. Hurdel to him on the morning of February 15 were as follows: “The first subject was described as a white male, twenty-five or twenty-six years old, approximately five eight, thin build, blonde hair and blonde mustache. The second gentleman was described as a white male, twenty-five or twenty-six years old, five seven, thin build, with short, curly blonde hair, wearing black rimmed glasses.” 1 Admitted into evidence at the suppression hearing was a copy of the report written by Officer Schaeffer on February 15, 1981, which contained these descriptions. At the request of a friend of the family, Officer Hamel of the Baltimore County Police Department became involved, while off duty, in investigation into the disappearance of Deborah Napieralski.

He talked to Mrs. Hurdel by telephone on February 17, 1981. He testified as to the description given to him: “A. She said one of the subjects had dirty blond hair and a mustache, with the hair parted in the middle and further back, in his twenties, approximately between twenty-four and twenty-five years. The second subject had curly tight dirty blonde hair with black rimmed glasses rounded at the bottom with thick frames, and looked goofy, in her words, and had real crooked teeth.” ⁶⁷² “Q. Okay, did she indicate what race these people were? “A. Both were white males.” Introduced as evidence were his notes of the telephone conversation. As to one individual the notes state: “Dirty blonde curly hair Thick blk rim glasses Lt. colored pants Clean shaven [-] 20’s Looked crazy & goofy [-] crooked teeth” As to the other individual the notes reflect: “Parted in middle dirty blond Feathered back 5.8/5 — 9 [-] Thin — 20’s Mustache no beard” Officer Hamel submitted a written report of his telephone conversation, admitted into evidence, in which the descriptions appear as follows: “Hurdel described subject # 1 as: “A white male with dirty blonde hair which was parted in the middle and feathered back.

Also a light mustache. 5'07" to 5'08" very thin approx 24 to 25 yrs. No further description. “Subject # 2: “A white male with dirty blonde hair which was a tight curie [sic] wearing glasses.. Shorter than the first subject. Thin build.

Goofy looking approx 22 yr of age.” On February 18 Officer Hamel spoke with Hurdel at her home. He again had her describe the two men. His notes, which were admitted into evidence, read: “Subject # 1: Dirty blonde hair & mustache parted in middle feathered back 5-07 to 5-8 very thin approx 24-25 yrs. “# 2: Curly tight dirty blonde hair black rim rounded at bottom thick frame. Looked goofy.

Approx 23 yrs. ⁶⁷³ old thin build shorter than first subject light tan cordory [sic] pants real crooked teeth.” On February 19 Officer Hamel and Officer Collins showed Hurdel a photograph of Ronnie Alder. It was a single photo, not in an array. Officer Hamel testified: “Q. Okay, and was any identification made of that photo? "A. Debbie Hurdel said that the subject looked similar to the one that she had seen that evening, but she wasn’t positive it was the same.

"Q. Did she indicate any discrepancies with that photo and the person she had seen? “A. The hair was different, yes.” Officer O’Brian, assigned to the plain clothes street crimes unit at the Woodlawn Station of the Baltimore County Police, interviewed Mrs. Hurdel on February 18 and again on February 22. On the latter occasion he visited the Hurdel residence to notify her of the discovery of Napieralski’s body. He took a written statement from Mrs. Hurdel at that time which statement was admitted into evidence. The descriptions contained in it are: “# 1 — W/m, tall, thin, about 5/10-6/00, blondish hair with some brown, style back, about collar length, 23/24 yrs., slight acne below sideburns & lower jaw, I’m pretty sure he had a mustache. “# 2 — W/m, 5/08, 23/24 yrs., thin, no mustache, curly blondish hair, wide nose, glasses, poss. wire frame, (not sure), he acted weird.

Poss. wearing an unk [sic] nylon quilted type jacket.” After Napieralski’s body was found in a corn field near Columbia in Howard County, the investigation was turned over to Detective Richard Witte of the Howard County Police Department. He testified as to the