Zani v. State

WHITE, Judge,

concurring.

I join in the decision of the majority that “in some instances hypnotically enhanced testimony may be admissible.” I agree with the standards for admissibility of hypnotically enhanced testimony which the majority sets out in its opinion. These factors constitute a workable and reasonable test for use by the trial courts of this State. I also join in the decision of the majority to dismiss the appellant’s ground of self-representation as improvidently granted.

However, I disagree somewhat with the majority’s rendition of the facts in the instant case. As for Mogoyne’s pre-hypnotic memory, he not only recalled that he had seen a white male in the store, but also that the white male was behind the counter in the Town and Country Store on the morning of the murder. The man was waiting on customers, but Mogoyne noted he was not the usual Sunday morning attendant who had waited on him on previous occasions. Mogoyne, however, could not identify the man behind the counter who waited on him until after he was hypnotized.

The financial difficulties of the appellant were an important element of the State’s case. This need for money combined with the appellant’s knowledge of the Town and Country Store, provided evidence of both motive and opportunity for appellant to commit the crime.

The State proved at trial that, while enrolled in the University of Texas at Austin, the appellant was hired by Charles Dinges as a temporary store clerk at the Town and Country Store, working evenings during the week and mornings one day a weekend. He learned the combination of the safe, and he knew the store’s routine was for a night’s receipts to be taken to the bank on the following morning.

Appellant was also employed by the University on a part-time basis. In May, 1967, the appellant obtained his degree. He quit his job at the Town and Country Store during the first weekend of June, 1967. Appellant then got a job during the summer of 1967 as a Spanish translator for the Baker Center.

On June 27,1967, appellant married Irma Serano, a Mexican citizen, in Mexico. Appellant could not get his wife into the United States at that time, and he returned to the U.S. without her. On July 5, 1967, the appellant enlisted in the Marine Corps, with a formal induction scheduled for the Fall. From June 15, 1967 until the day that Vi-zard was killed (July 23, 1967), the appellant’s only source of income was his job at the Baker Center.

On August 1, 1967, appellant took two weeks leave of absence from the Baker Center to return to Mexico. Before leaving, he deposited his paycheck from the Baker Center, which raised his balance to $187.86. Prior to this deposit, appellant’s bank account was overdrawn. On August 12 appellant returned from Mexico with his wife and family. He returned to work on August 17.

On September 14, 1967, appellant resigned from the Baker Center to fulfill his enlistment in the Marines. However, on September 15, 1967, he withdrew his application to the Marine Corps, giving the reason that he had financial indebtedness, along with a pregnant wife and two children to support.

The State believed these facts established the following conclusions: the appellant knew that a large amount of receipts from Saturday night would still be in the *247 store’s safe on Sunday morning; appellant knew the combination of the safe; though he had less than $200 in early August, he was able to travel to Mexico and bring his pregnant wife and two children to the United States; and, lastly, after appellant returned from Mexico with a family to support, he left his job at the Baker Center and backed out of the Marine Corps.

At trial, the State did present evidence that money was taken from the Town and Country Store on the morning of the murder of George Vizard. The only uncertainty concerned the amount of money that was taken. There was no evidence to rebut this.

The manager of the Town and Country Store, Charles Dinges, originally reported that $300.00 was missing from the store’s safe. On direct examination at trial, he explained that even more money was taken from the safe:

A. (Dinges): It was probably gotten out by me just making a statement that the change found was $300.00 for the store, because we had a definite policy that we would not give the media the amount of money, because we didn’t want anyone to know the amount of money in the safe.

Q. Okay. Do you have an estimate of the amount of money that was in the safe on July 23rd?

A. The store averaged sales of about $1200 to $1500 every Saturday.

Dinges implied that instead of only $300.00 being taken from the store, there was over $1,000.00 taken from the store on the morning George Vizard was shot. This money included not only Saturday’s receipts in the safe, but also an operating fund of $300.00 to $600.00 from the cash register.

In recounting the presence of the appellant’s fingerprints from the items on the counter, the majority correctly noted that none of these items had been left on the counter when the store was closed the night before the murder. It was also shown that the next person in the store after it closed would have been George Vizard when he opened the store at 7:00 a.m. Sunday morning. Since the bread was delivered every day and appellant had not worked in the store in over a month, the implication was that appellant’s fingerprints were on the items on the counter because he had been there at the time of the murder. Other than these few comments I agree with the majority’s account of the trial and the facts in the instant case.

Instead of remanding the instant case to the Court of Appeals for review of admissibility in light of the test we have set out, I would have this Court resolve the issue before us. As the majority stated, the record before us is adequate to determine admissibility. Under the test we have promulgated, the testimony of Jerry Mo-goyne, Jr. was properly admitted into evidence.

There are several factors which satisfy the test and support the conclusion that Mogoyne’s testimony was admissible. The hypnotist, Texas Ranger Carl Weathers, was independent of the law enforcement personnel who investigated the case, as well as the attorneys for the State and the defense. At trial, Weathers testified that he knew nothing of the details of this case prior to the hypnosis session. There was a record in the instant case, by interview with Jerry Mogoyne, Jr., of what Mogoyne recalled prior to hypnosis. The hypnosis session was tape recorded. The majority concluded that the questioning was not overtly suggestive. Although two other persons were present during the session, they did not exert an influence on the subject during hypnosis. Lastly, there was sufficient corroboration, both direct and circumstantial, of the hypnotically enhanced testimony.

As corroboration, the police investigators discovered the presence of the appellant’s fingerprints on three of the objects on the counter that morning. The fingerprints were present, even though appellant had not worked there in over six weeks. The objects had not been on the counter when the store was closed on the night before the murder. One of the objects bearing the appellant’s fingerprints was a loaf of *248 bread, which was delivered fresh to the store on a daily basis. This evidence establishes the fact that appellant was in the Town and Country Store on the morning of July 12, 1967, around the store’s counter, between opening time and the arrival of Jerry Mogoyne, Jr. This corroborated Mo-goyne’s testimony that he saw the appellant behind the counter. The fact that the appellant, at the time of the shooting, owned a firearm which was the same model and calibre as the murder weapon further corroborated the witness’ testimony. The hypnotically induced testimony was corroborated by the State’s evidence at trial.

Though I believe that the testimony of Jerry Mogoyne, Jr. satisfies the test set out by the majority, I do not dissent to the remand order of the majority.

Lastly, I do not agree with footnote eight of the majority opinion, wherein the majority discusses a Sixth Amendment attack to hypnotic testimony. The majority mentions that hypnosis might interfere with a defendant’s ability to effectively cross-examine a witness against him. The appellant did not present this Sixth Amendment argument in this appeal.

I also disagree with footnote eight because I do not believe there is a reasonable Sixth Amendment claim in the instant case. When a witness is shown a photographic line-up, or a line-up with physical objects, in order to assist him in positively identifying a suspect, there has been no interference with a defendant’s right to effectively cross-examine that witness.

Similarly, when Mogoyne was hypnotized in order to assist him in identifying a suspect, there was no interference with the appellant’s cross-examination. In the instant case, the hypnosis session was properly conducted and was not impermissibly suggestive. I do not join in footnote eight.

I concur with the decision of the majority.

W.C. DAVIS and McCORMICK, JJ., join this concurrence.