On petition for writ of certiorari to the Supreme Court of
Florida.
The petition for a writ of certiorari is denied.
Justice BRENNAN, dissenting.
Adhering to my view that the death penalty is in all
circumstances cruel and unusual punishment prohibited by the Eighth
and Fourteenth Amendments, Gregg v. Georgia,
428 U.S.
153, 227, 2950, 49 L. Ed. 2d 859 (1976), I would grant
certiorari and vacate the death sentence in this case.
Justice MARSHALL, dissenting from denial of certiorari.
Petitioner was convicted of first degree murder and sentenced to
death. His conviction was based on evidence the Florida Supreme
Court found constitutionally suspect. The Florida Supreme Court
nonetheless concluded that admission of the evidence was harmless
constitutional error . I would grant certiorari to review the
Florida Supreme Court's application of Schneble v. Florida,
405 U.S. 427d 340
(1972) and Fahy v. Connecticut,
375 U.S. 85d 171
(1963).
Page 479 U.S.
894 , 895
I
Petitioner became a suspect in the disappearance of Kimberly
Leach after local authorities learned that he was suspected in a
number of murders in the northwestern United States. Leach was
reported missing from school on February 9, 1978 and her body was
found two months later, after a highly-publicized search. The only
eyewitness to the abduction was Clarence Anderson. He came forward
on July 18, after seeing petitioner on a television newscast. At
that time, Anderson was unable to identify the date of his
observation, although he thought it was "around April," and he
could not provide a detailed description of the man or the girl he
had observed. App. to Pet. for Cert. 17a-21a. At the request of the
Assistant State Attorney, Anderson underwent two hypnotic sessions
designed to refresh his recollection.
Petitioner moved to suppress Anderson's testimony due to the
lapse of time between Leach's disappearance and his initial
statement, the massive publicity surrounding her disappearance and
petitioner's arrest and indictment and an alleged misuse of
hypnosis by the persons conducting the sessions. He maintained that
these factors rendered Anderson's identification unreliable under
the rule established by this Court's decision in Neil v. Biggers,
409 U.S. 188 (
1972). At the suppression hearing, several experts testified that a
witness whose recollection has been hypnotically refreshed is
unable to distinguish between what he recollected before hypnosis
and any "details" added during hypnosis.
The trial court denied petitioner's motion to suppress. At
trial, Anderson testified that he had observed a man leading a
young girl into a white van near Leach's junior high school on
February 9, 1978. He identified the man as petitioner and the girl
as Kimberly Leach. Anderson's testimony was vital to the State's
case; it supplied "the crucial link in the chain of circumstantial
evidence of [petitioner's] guilt." Bundy v. State,
471 So. 2d 9,
23 (Fla.1985) (Boyd, C.J., concurring specially).
On appeal, the Florida Supreme Court agreed with petitioner's
arguments against the use of hypnotically refreshed testimony. Id.,
at 18 . The court noted that the highest courts of several other
states have categorically excluded hypnotically refreshed
testimony. E.g., People v. Shirley,
31 Cal. 3d 18,
723 P.2d 1354, 181 Cal. Rptr. 243, cert. denied, 458 U.S. 1125
(1982); People v. Gonzales, 415 Mich. 615,
329 N.W.2d
743 (1982). The court discussed several of the problems
associated with such testimony, not the least of which is
Page 479 U.S.
894 , 896
its effect on the defendant's right under the Confrontation
Clause of the Sixth Amendment to cross-examine witnesses against
him. The Florida court noted the " 'danger of distortion, delusion,
or fantasy,' " as well as " 'the barriers which hypnosis raises to
effective cross-examination.' " Bundy v. State, supra, at 18
(quoting People v. Gonzales, supra, 415 Mich., at 626-27, 329
N.W.2d, at 748). Furthermore, the court recognized the danger that,
after undergoing hypnosis,
"the subject (1) will lose his
critical judgment and begin to credit 'memories' that were formerly
viewed as unreliable, (2) will confuse actual recall with
confabulation and will be unable to distinguish between the two,
and (3) will exhibit an unwarranted confidence in the validity of
his ensuing recollection." Bundy v. State, supra, at 17 (quoting
People v. Shirley, supra, 31 Cal.3d, at 39-40, 641 P.2d, at 787,
181 Cal.Rptr., at 255).
The Florida Supreme Court concluded, in a holding to which it
gave only prospective effect, that "hypnotically refreshed
testimony is per se inadmissible in a criminal trial in this state,
but hypnosis does not render a witness incompetent to testify to
those facts demonstrably recalled prior to hypnosis." Bundy v.
State, supra, at 18.
II
Since petitioner was convicted and sentenced to death after a
trial in which the "crucial link" was supplied by a witness with
extremely limited pre-hypnotic memory who had undergone two
hypnotic sessions, the Florida Supreme Court should have overturned
his conviction. Instead, the court somehow determined that
Anderson's testimony was refreshed under hypnosis as to only three
details: the color of the football jersey the girl was wearing, the
numbers on the jersey, and the fact that the man was wearing a
pullover sweater and a shirt. Then, purporting to apply the "
harmless-constitutional-error rule" of Schneble v. Florida,
405 U.S. 427
(1972) and Fahy v. Connecticut,
375 U.S. 85 (1963), the
court concluded that "sufficient evidence does exist, absent the
tainted testimony, upon which the jury could have based its
conviction of Bundy. There is no reasonable possibility that the
tainted testimony complained of might have contributed to the
conviction." Bundy v. State, supra, at 19.
This review for harmless constitutional error is seriously
flawed. First, the Florida court improperly based its enumeration
of tainted testimony on Anderson's own testimony at trial.
Page 479 U.S.
894 , 897
App. to Pet. for Cert. 86a-87a. Anderson's own assessment of the
impact of hypnosis on his recollection was inherently unreliable
and was not subject to effective cross-examination, for the very
reasons the court relied upon in holding that such evidence would
in future be inadmissible. The hypnotically refreshed
"recollection" of the precise date of his observation is the most
glaring omission from Anderson's list. [
Footnote 1] Having identified constitutional error in the
admission of hypnotically refreshed testimony, the Florida Supreme
Court was not free to excise a fraction of that evidence and
conclude that the rest could not have contributed to the
conviction. Second, the Florida court evidently confused review for
harmless constitutional error with review for sufficiency of the
evidence, despite this Court's explanation of the difference in
Fahy: "[w]e are not concerned here with whether there was
sufficient evidence on which the petitioner could have been
convicted without the evidence complained of. The question is
whether there is a reasonable possibility that the evidence
complained of might have contributed to the conviction." Id. 375
U.S., at 86-87. See also Delaware v. Van Arsdall, 475 U. S. ___,
___, ___ (1986) (applying Fahy standard); Chapman v. California,
386 U.S.
18, 23, 827-28 (1967) (same). When the evidence admitted at
petitioner's trial is reviewed in this light it becomes clear that
the tainted testimony significantly bolstered the State's case
against him, for the untainted evidence was far from
overwhelming.
"We must recognize that
harmless-error rules can work very unfair and mischievous results
when, for example, highly important and persuasive evidence . . .
though legally forbidden, finds its way into a trial in which the
question of guilt or innocence is a close one." Id., at 22, 87 S.
Ct. at 827. Because the Florida Supreme Court misapplied the
harmless constitutional error rule in such a way as to place in
doubt the reliability of a verdict in a capital case, I would grant
the petition for certiorari. [
Footnote 2]
One of
petitioner's experts testified at the pre-trial suppression hearing
that Anderson's testimony was "enhanced" by numerous details in
addition to the date of the occurrence and the three items listed
by Anderson. These enhancements included what Anderson was doing on
that day, the man's weight, the fact that he was clean-shaven, the
description of the van and the fact that he could see the man and
the girl through its rear window. Pet. for Cert. at 12. The court
below evidently ignored this portion of the record in reaching its
conclusion as to harmless error.
Footnote 2 Since the Florida
Supreme Court found constitutional error and the State has not
cross-petitioned for certiorari on that question, this Court is not
called upon to decide whether admission of hypnotically refreshed
testimony in a criminal trial violates the Due Process Clause of
the Fourteenth Amendment or the Confrontation Clause of the Sixth
Amendment. Accordingly, I express no view on this question.
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