Opposition Brief — Jean v. Collins
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Supreme Court
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No. 98-980 JAN 15 1999
CLERK 2
In The oes
Supreme Court of the United States
October Term, 1998
’
LESLY JEAN,
Petitioner,
DELMA COLLINS, Chief of Detectives of the City of
Jacksonville, Individually; JAMES SHINGLETON,
Police Officer with the City of Jacksonville, North
Carolina Police Department, Individually,
Respondents.
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On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Fourth Circuit
S
RESPONDENTS’ BRIEF IN OPPOSITION
¢
KENNETH R. Wooten
Counsel of Record
Mary V. CavaANAGii
WarRD AND Smitn, P.A.
1001 College Court
Post Office Box 867
New Bern, North Carolina
28563-0867
(252) 633-1000
Counsel for Respondents
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
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TABLE OF CONTENTS
Page
SPE LI PURE REPRE SE os woo os ha ck cen Waa ci wawates ii
PEARL ETE Me AMEE A cnvscbu bce bbeckvaucieieaes 1
Fit OG UE WIM 5 adn So eda we edo abe Suse a eeN 1
DS OT CE sn 9-5 hh xs ae eas creas nen ee Nas 7
REASONS FOR DENYING THE WRIT............. 7
I. THE FOURTH CIRCUIT’S APPROACH iN
DETERMINING WHAT SOURCES OF LAW
SHOULD ORDINARILY BE USED TO DECIDE
WHETHER A RIGHT WAS CLEARLY ESTAB-
LISHED DOES NOT CONFLICT WITH ANY
SUPREME COURT CASE OR WITH ANY DECI-
SIONS OF OTHER CIRCUIT COURTS ........ 7
Il. THE FOURTH CIRCUIT IN THIS ACTION
CORRECTLY APPLIED ANDERSON V.
CREIGHTON IN DEFINING THE RIGHT AT
ISSUE WITH THE REQUIRED LEVEL OF PAR-
RAE ras tea oo ees RED Coed ree Cakes 13
Ill. THE FOURTH CIRCUIT DID NOT ERR IN
HOLDING THAT THE LAW WAS NOT
CLEARLY ESTABLISHED IN 1982 THAT
POLICE OFFICERS HAD A CONSTITUTIONAL
DUTY TO TURN OVER THE EVIDENCE AT
ISSUE TO THE PROSECUTOR . .<.5..5-c0eeses 19
IV. THE FOURTH CIRCUIT CORRECTLY HELD
THAT RESPONDENTS WERE ENTITLED TO
QUALIFIED IMMUNITY BECAUSE THEIR
CONSTITUTIONAL DUTY OF DISCLOSURE
WAS NOT CLEARLY ESTABLISHED IN 1982.. 24
CAEP RAPURIES chic Cs Pees Cad TONES Cod occa eee di wana 25
il
TABLE OF AUTHORITIES
Page
CASES
Anderson v. Creighton, 483 U.S. 635 (1987) ....... passim
Anderson v. Romero, 72 F.3d 518 (7th Cir. 1995) ...... 18
Barbee v. Warden, 331 F.2d 842 (4th Cir. 1964)... 21, 22, 23
Boone v. Paderick, 541 F.2d 447 (4th Cir. 1976) ....... 22
Brady v. Maryland, 373 U.S. 83 (1963)..... 40, why Bhs 42
Buckley v. Rogerson, 133 F.3d 1125 (8th Cir. 1998)..... 9
Carter v. Burch, 34 F.3d 257 (4th Cir. 1994), cert.
dented, S13 US. FISo Cis « os veh nn eee wok tawseses 23
Davis v. Scherer, 468 U.S. 183 (1984)................. 10
Doe v. State of Louisiana, 2 F.3d 1412 (5th Cir. 1993),
cert. denied, 510° UG. 1166 C2996) 06g iis 10
Elder v. Holloway, 510 U.S. 510 (1994) ............... 10
Emmett v. Ricketts, 397 F. Supp. 1025 (N.D. Ga.
1975) = ovina sa ee 22
Fernandez v. Leonard, 784 F.2d 1209 (1st Cir. 1986) .... 18
Giglio v. United States, 405 U.S. 150
(SO7E) na 268s a xh oe 0 OReee taaee Ree 16, 19, 20, 21, 22
Goodwin v. Metts, 885 F.2d 157 (4th Cir. 1989), cert.
dented, 494 US. 1061 O90). 5:6 eek 23
Grendell v. Gillway, 974 F. Supp. 46 (D. Me. 1997).... 18
Harlow v. Fitzgerald, 457 U.S. 800 (1982)............. 25
ili
TABLE OF AUTHORITIES —- Continued
Page
Henderson v. DeRobertis, 940 F.2d 1055 (7th Cir.
1991), cert. denied, 503 U.S. 966 (1992).............. 9
Jenkins v. Talladega City Board of Education, 115 F.3d
821 (11th Cir. 1997), cert. denied, 118 S. Ct. 412
SRNERS 0 VA aeRO Shs UVR O Oh oe CP eKTS LOR Ob rhe s 9, 13
Medina v. City and County of Denver, 960 F.2d 1493
Ey MERC Sea ia k aha s Sen eate hen ee ses d ieee 9
Ohio Civil Service Employees Assoc. v. Seiter, 858
eee A RR SP ovine vst due utnedsvesetedeess 9
Ortega v. O'Connor, 146 F.3d 1149 (9th Cir. 1998) ..... 9
Pro v. Donatucci, 81 F.3d 1283 (3rd Cir. 1996)........ 10
Russell v. Selsky, 35 F.3d 55 (2nd Cir. 1994)........... 9
Ryder v. United States, 515 U.S. 177 (1995)............ 8
Santamorena v. Georgia Military College, 147 F.3d
er Peres ore Pere ere 18
Soto v. Flores, 103 F.3d 1056 (1st Cir. 1997), cert.
OE BRE FE CEPT) cicccsccstcevubevvcdeece 10
Taylor v. Waters, 81 F.3d 429 (4th Cir. 1996).......... 23
United States v. Bagley, 473 U.S. 667 (1985) .......... 21
Linited States v. Lanier, 117 S. Ct. 1219
Rah Hibsis uth Ny Fed oe Sen bhs vekaes 34,22, 13, 17, 16
United States v. Miller, 411 F.2d 825 (2nd Cir. 1969) .... 22
iv
TABLE OF AUTHORITIES —- Continued
Page |
Statutes & RuLes
TS VBA. ORR a vig es oy en RADA Sean cpr ee een OS
OS UR Bs od v2 fake tk tssececddeesesnuungl passim |
Supreme Court Rule 10. 60. cc. acccoceses cdesversi en 16
Supreme Court Rule 15.2 .........cccecsesveccesnsens 1
OTHER
Internal Operating Procedure of the Fourth Cir-
CURE GO. vi Svc ce cnc eotadae det tsvus ayuvheutsxus ene 1
ei EIT ES ACN a
RESPONDENTS’ BRIEF IN OPPOSITION
Respondents Delma Collins and James Shingleton
respectfully request that the Court deny the Petition of
Lesly Jean for a writ of certiorari to review the judgment
of the United States Court of Appeals for the Fourth
Circuit in this case.
+
STATEMENT OF CASE
A. Statement of Facts
Pursuant to Supreme Court Rule 15.2, Respondents
have restated the relevant facts in this action in an effort
to correct the numerous mischaracterizations and mis-
statements of fact in Petitioner’s Statement of Facts.
Respondents particularly note Petitioner’s almost exclu-
sive reliance on the facts as set forth in the Fourth Cir-
cuit’s panel opinion, which was vacated by the en banc
court and which contains several factual inaccuracies.!
On July 21, 1982 from approximately 3:00 a.m. to 4:15
a.m., Ms. Alice Kathleen Wilson was brutally raped, sexu-
ally assaulted and beaten in her bedroom. Ms. Wilson
was abie to see her assailant’s face because of the light
shining into her bedroom from the kitchen. Resp. App.
37, J.A. 93.2 After the rape, a police officer arrived, took a
1 Internal Operating Procedure of the Fourth Circuit 40.2,
which was in effect at the time, provides that the original
judgment and opinion of the Fourth Circuit “are vacated” once a
petition for rehearing is granted.
2 References to the Appendix (“App.”) are to the appendix
attached to Petitioner’s brief. References to Respondents’
brief description of the perpetrator from Ms. Wilson and
broadcast it on the police radio; the description was of a
black male, five feet eight inches, 160 or 165 pounds,
wearing a dark shirt, dark jogging shorts, “high-top”
socks and white, high-top tennis shoes. App. 3; J.A. 423,
559. Ms. Wilson also described her assailant as having a
slight accent. J.A. 423. At approximately 4:40 a.m.,
Respondent James Shingleton, a police officer with the
City of Jacksonville, North Carolina, stopped a man walk-
ing along the highway who fit this general description of
Wilson’s assailant. After Shingleton questioned him for
about one and one-half minutes, the man fled into nearby
woods. App. 3. Later that morning, Shingleton described
the person he stopped as black, five feet ten inches tall,
170 pounds, close-cut hair and a mustache, and wearing
blue shorts, a blue shirt with writing, white knee-high
socks, and white tennis high-tops. App. 3; J.A. 429, 595.5
Shortly after the rape, Ms. Wilson was taken to the
hospital for treatment and then to the police station to
give a statement. In this statement, she describes the
rapist as a black male, five feet eight inches tall, 165 or
Appendix (“Resp. App.”) are to the appendix attached to this
brief. References to the Joint Appendix (“J.A.”) are to the joint
appendix filed by the parties in the United States Court of
Appeals for the Fourth Circuit.
> Although Petitioner, quoting from the Fourth Circuit’s
panel decision, asserts that Wilson’s description “did not match,
in many respects, that provided by Shingleton” (Petition at 2),
the two descriptions given by Wilson and Shingleton before any
hypnosis both identify a black male, approximately the same
height and the same weight, with dark shorts, a dark shirt, long
socks, and white tennis shoes.
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170 pounds, muscular, with dark, probably navy blue,
shorts, white crew socks, high top sneakers and black
“marine” close-cut hair. App. 4; J.A. 436. Later that morn-
ing, Ms. Wilson met with an S.B.I. artist to produce a
composite sketch of the suspect. She specifically told the
artist that her assailant had “light freckling” and a “larger
freckle on the left, lower cheek.” J.A. 582. However,
because the artist’s attempts to denote the larger freckle
with a biack grease pencil “caused the freckle to become
too prominent or to become too distinct,” the artist sim-
ply “left it off” the sketch. J.A. 586.
On July 22, 1982, Respondent Delma Collins, who
had attended an eighty-hour training course on hypnosis
and was then head of the detective division, hypnotized
Shingleton concerning the description of the suspect
Shingleton had stopped the day before. Resp. App. 1-4,
J.A. 57-60.4 During this hypnosis session, Shingleton now
recalled that the writing on the shirt was a sweat mark
instead, that the suspect did not have a mustache and
that the suspect’s socks had blue stripes. App. 4; J.A. 445,
612. After the hypnosis, Detective Steve Smith, the lead
investigator on the case, recorded in his notes that Shin-
gleton’s description “matches the one given by victim.”
App. 4; J.A. 441.5
4 Petitioner, again quoting from the Fourth Circuit panel
opinion, infers that Shingleton was hypnotized in an effort to
reconcile the differences between his description and that given
by Ms. Wilson. Petition at 3. There is no evidence in the record to
support such an assumption.
* Petitioner, relying on a factual mistake in the Fourth
Circuit’s panel decision, erroneously asserts that this statement
was contained in Respondent Collins’ log and that it was the
On July 26, 1982, Chief of Police Roger Halbert, who
had seen the S.B.I. composite sketch of the suspect,
noticed a man in a donut shop who looked “just like” the
sketch; the man was Petitioner Lesly Jean, who was then
a marine stationed at Camp LeJeune in Jacksonville. J.A.
107. Chief Halbert called Officer Shingleton to the donut
shop, Shingleton identified Petitioner Jean as the person
he had stopped just after the rape, and Jean was arrested.
App. 4.° Detective Smith interviewed Jean and, after
Jean’s consent, searched his locker and laundry bag at the
marine base. Smith confiscated a pair of white high-top
tennis shoes, dark blue athletic shorts, and a blue t-shirt.
App. 5. Jean was later released.
On July 27, 1982, Wilson returned to the police sta-
tion to view a photo lineup that included Jean’s picture.
Although Wilson could not make a positive identification
at that time, she called Detective Smith the next day
because one of the photos had made her “feel sick.” App.
“only notes recorded” after Shingleton’s hypnosis. Petition at 4.
The record clearly reveals that the statement was recorded by
Officer Smith in his notes (J.A. 441) and that Respondent Collins
completed a Hypnosis Information Worksheet on the results of
Shingleton’s hypnosis. J.A. 445.
© Petitioner asserts that at the time of his arrest, he had “no
freckles or remarkable spots on his face.” Petition at 4, n.1. As
noted above, Ms. Wilson described a large “freckle” on Jean's
left cheek to the S.B.I. artist on the day of her attack, before any
hypnosis. During Jean’s criminal trial, Ms. Wilson specifically
pointed out this freckle to the court; Jean admitted at trial that
he had such a mark but claimed he learned of its existence just
“the other day.” J.A. 527-28, 690.
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5, J.A. 442, 449.7 She returned to the station and pointed
to Jean’s photo as the one who made her feel ill. J.A. 449.
On July 30, 1982, on the recommendation of Detective
Smith, Respondent Collins hypnotized Wilson to deter-
mine if she could recall anything else about the photo
that made her feel sick. During this hypnosis session,
only three pieces of information were added to Wilson’s
description, that the assailant’s eyes were gray, that she
remembered his shoes had white shoelaces and a Nike
emblem, and that the accent she had earlier described to
the police might be Puerto Rican. App. 5; J.A. 458.8 In
fact, Detective Smith and Officer Collins considered the
session to be unproductive because of the lack of new
information. Resp. App. 7; J.A. 63; App. 5. On August 4,
1982, Ms. Wilson positively identified Jean’s voice as her
7 Again, Petitioner misstates the facts, asserting that on the
second day Ms. Wilson stated only that Jean’s eyes looked
“haunty.” Petition at 5.
8 Petitioner makes multiple misstatements concerning
Wilson’s hypnotic session: (1) he cites as “new information”
revealed during the hypnosis Wilson’s belief that the shorts
were a solid dark color without any stripes; the Hypnosis
Information Worksheet contains no reference to stripes and
Wilson had already, pre-hypnosis, identified the shorts as dark,
probably blue; (2) Petitioner cites as “new information”
Wilson’s statement during hypnosis that Petitioner may have
had freckles. Ms. Wilson, on the day of the attack and before
hypnosis, had already told the S.B.I. artist that Petitioner had
light freckling on his face and a larger freckle on his left cheek,
which Ms. Wilson later identified in court (J.A. 458, 527-28, 586);
and (3) he cites as “new information” Wilson’s belief that her
attacker had an accent. However, Ms. Wilson informed Officer
Pullicino shortly after the assault that her assailant had a “slight
accent.” (j.A. 423). Petition at 5.
rapist? and, on September 17, 1982, identified Plaintiff out
of a three-person live lineup. J.A. 136-137; App. 6.
Petitioner was indicted in October 1982 for rape and
first degree sexual offenses. App. 6. Respondents
informed the prosecutor, Walter Vatcher, well before trial
that Ms. Wilson and Officer Shingleton had been hypno-
tized and, as Mr. Vatcher admits, turned over all evidence
that he requested from them. Resp. App. 43-46. Mr.
Vatcher apparently never asked the officers for any mate-
rials related to the hypnoses, such as the Hypnosis Work-
sheets or the tape-recordings of the hypnoses sessions.
Resp. App. 43-46, App. 22. Vatcher disclosed to defense
counsel the fact that Shingleton and Wilson were hypno-
tized prior to Ms. Wilson’s cross-examination at trial; he
never disclosed the recordings of the hypnotic sessions,
despite general pretrial discovery requests and a more
specific request by defense attorneys at trial. App. 6; J.A.
163.
Petitioner’s counsel at the criminal trial cross-exam-
ined both Shingleton and Wilson concerning the hypnoses
® Petitioner asserts that Ms. Wilson “tentatively selected
two possible voices” and “after more play backs and delay,”
identified Jean’s voice. Petition at 5-6. The record does not
support these allegations. Ms. Wilson identified one voice, that
of Petitioner, on August 4, 1982 after listening to the tapes “two
or three times.” J.A. 461, 563-566; App. 6. On August 10, 1982,
Ms. Wilson called Detective Smith to check on the case; when
she learned that Officer Smith had not considered her statement
on August 4 as a positive identification of Jean’s voice, she
explained that she had meant her August 4 action to be a
positive and conclusive identification of Jean’s voice as that of
her assailant. J.A. 565-566; App. 6.
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and the results of the hypnoses. Shingleton testified that
his description of the suspect changed in certain respects
under hypnosis and that he was not “absolutely sure” of
his in-court identification of Petitioner. J.A. 612-615. On
December 5, 1982, Plaintiff was convicted of rape and
sexual assault and sentenced to two consecutive life terms.
B. Proceedings Below
Petitioner claims that the United States District Court
for the Eastern District of North Carolina, in its decision
granting Respondents qualified immunity, determined
that Petitioner’s right to have the government disclose
“exculpatory evidence” regarding hypnosis-related testi-
mony was not clearly established in 1982. Petition at 9.
The District Court, however, specifically found that the
evidence at issue was not exculpatory but had impeach-
ment value only. App. 72. Petitioner also mischaracterizes
numerous aspects of the Fourth Circuit’s en banc decision,
_ which misstatements will be addressed below.
+
REASONS FOR DENYING THE WRIT
I. THE FOURTH CIRCUIT’S APPROACH IN DETER-
MINING WHAT SOURCES OF LAW SHOULD
ORDINARILY BE USED TO DECIDE WHETHER A
RIGHT WAS CLEARLY ESTABLISHED DOES NOT
CONFLICT WITH ANY SUPREME COURT CASE
OR WITH ANY DECISIONS OF OTHER CIRCUIT
COURTS
In its en banc opinion, the Fourth Circuit adopted an
“approach” for determining what sources of law a court
generally may consider in deciding whether a right was
clearly established for qualified immunity purposes:
“ordinarily, therefore, courts in this circuit need not look
beyond the decisions of the Supreme Court, this court of
appeals, and the highest court of the state in which the
case arose to determine whether a right was clearly estab-
lished at a particular time.” App. 18. The Fourth Circuit’s
rationale for adopting this approach is firmly grounded
in the Supreme Court’s own recognition that public offi-
cials should be shielded from liability for “judgment calls
made in a legally uncertain environment.” Ryder v. United
States, 515 U.S. 177, 185 (1995). As the Fourth Circuit
cogently explained:
The very immensity of American jurisprudence
creates the distinct likelihood that jurisdictions
will offer conflicting opinions over how govern-
ment officials should carry out their tasks. To
hold officials responsible for sorting out these
conflicts, without any guidance about what
jurisprudence to follow, could generate wide-
spread confusion over the scope of official obli-
gations. An unbounded legal universe would
give rise to guessing games over whether this or
that decision in this or that jurisdiction created a
clearly established right. Such a limitless uni-
verse would also give judges broad latitude to
second-guess the actions of officers on the spot.
App. 17-18 (cite omitted). Contrary to Petitioner’s argu-
ments, the Fourth Circuit’s approach creates no conflict
with other circuit courts or with any Supreme Court
opinion.
First, Petitioner attempts to create a conflict where
none exists by exaggerating the differences between the
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circuit courts in their handling of this issue - what law
should be considered in determining whether a right was
clearly established at the time of the conduct in question.
Respondents freely acknowledge that the circuit courts
have formulated standards which differ slightly from
each other. Like the Fourth Circuit, the Eleventh Circuit
looks to decisions of the United States Supreme Court, its
own circuit or the highest court of the state in which the
case arose. See Jenkins v. Talladega City Board of Education,
115 F.3d 821, 826 n.4 (11th Cir. 1997), cert. denied, 118
S. Ct. 412 (1997). The Second and Sixth Circuits rely on
case law of the Supreme Court and courts within their
own circuit. Russell v. Selsky, 35 F.3d 55, 57 (2nd Cir. 1994);
Ohio Civil Service Employees Assoc. v. Seiter, 858 F.2d 1171,
1177 (6th Cir. 1988). The Tenth Circuit “ordinarily” bases
its judgment on Supreme Court or Tenth Circuit prece-
dent “or the clearly established weight of authority from
other courts.” Medina v. City and County of Denver, 960
F.2d 1493, 1498 (10th Cir. 1992).
The Ninth Circuit has stated that it looks “to
Supreme Court precedent and then to lower court deci-
sions with an eye toward whether the Supreme Court
would adopt their analysis.” Ortega v. O'Connor, 146 F.3d
1149, 1157 (9th Cir. 1998). The Seventh and Eighth Cir-
cuits seem to take a broader view, looking at all relevant
case law but requiring a sufficient consensus of that case
law. Henderson v. DeRobertis, 940 F.2d 1055, 1058-59 (7th
Cir. 1991), cert. denied, 503 U.S. 966 (1992); Buckley v.
Rogerson, 133 F.3d 1125, 1129 (8th Cir. 1998). Finally, the
Fifth Circuit has stated that Supreme Court and Fifth
Circuit cases “will loom largest in our inquiries,” but that
the court has some discretion to look to other decisions
10
depending on the circumstances of each case. Doe v. State
of Louisiana, 2 F.3d 1412, 1416 n.8 (5th Cir. 1993), cert.
denied, 510 U.S. 1164 (1994).!°
These marginally different standards simply repre-
sent variations on a common theme and do not evince a
“hopeless split” among the circuits, as Petitioner con-
tends. Petition at 15. The common theme is the Supreme
Court’s general standard that “in the light of pre-existing
law the unlawfulness must be apparent.” Anderson v.
Creighton, 483 U.S. 635, 640 (1987). Beyond that, the
Supreme Court has directed only that “a court engaging
in review of a qualified immunity judgment should there-
fore use its ‘full knowledge of its own [and other rele-
vant] precedents.’ ” Elder v. Holloway, 510 U.S. 510, 516
(1994), quoting Davis v. Scherer, 468 U.S. 183, 192 n.9
(1984). Thus, the Court presumably has left it up to each
10 Petitioner mischaracterizes two decisions by circuit
courts in his effort to manufacture dissension among the ranks
on this issue. Petitioner states that the First Circuit held that a
clearly established right may be found even where the Supreme
Court and the circuit court had never addressed the issue.
Petition at 14. In Soto v. Flores, 103 F.3d 1056, 1065 (1st Cir. 1997),
cert. denied, 118 S.Ct. 71 (1997), the court merely cited a treatise
with a statement to that effect. The Soto court found, however,
that the right in that case was not clearly established, in part
because the First Circuit had not addressed the contours of the
right at the time of the conduct in question. Similarly, Petitioner
asserts that in Pro v. Donatucci, 81 F.3d 1283 (3rd Cir. 1996), the
court found a right to be clearly established where that court
had not ruled on the issue and there was a “split” on the issue in
other circuits. In that case, however, two local district court
cases had decided the issue and the “split” in the circuits
consisted of only one other circuit.
11
circuit court to define for itself what those relevant prece-
dents are, as long as the courts remain within the bounds
of Anderson's instruction that the officials must have suf-
ficient notice from the “pre-existing law” that their con-
duct was unlawful.
None of the circuits has strayed from these basic
Supreme Court guidelines. Each has formulated a rule,
although each one slightly different, to guide its courts in
determining when the “pre-existing law” was established
clearly enough that those public officials within the cir-
cuit would know that their conduct was unlawful.
Indeed, there is no need for the Supreme Court to set
forth a universal rule as to the precedents that may or
must be considered in determining clearly established
law. As long as government officials know the rule that
their own circuit has adopted on this issue, they have
sufficient notice as to the sources of law that govern their
conduct. Thus, no split exists among the circuits that
needs to be resolved by the Supreme Court.!!
Second, Petitioner attempts to create a conflict where
none exists between the Fourth Circuit’s approach and
this Court’s decision in United States v. Lanier, 117 S. Ct.
'! Petitioner attempts to portray the Fourth Circuit's rule as
way out of line with that of other circuits. As set forth above,
however, it is identical to the rule that has long been established
in the Eleventh Circuit and is very similar to the rules of the
Second and Sixth Circuits. Likewise, Petitioner’s characteriza-
tion of the Fourth Circuit’s approach as “rigid” and
“formalistic” ignores the Fourth Circuit's caveat that the rule
should “ordinarily” apply, clearly leaving open the possibility
that circumstances might warrant the application of a different
rule. Petition at 15; App. 18.
12
1219 (1997). In Lanier, the Supreme Court rejected the
Sixth Circuit’s determination that only Supreme Court
precedent could clearly establish the law for purposes of
18 U.S.C. § 242. The Court analogized that, in the quali-
fied immunity context under 42 U.S.C. § 1983, it had
“referred to decisions of the Courts of Appeals when
enquiring whether a right was ‘clearly established.’ ” Id.
at 1226. Although the Supreme Court validated the Sixth
Circuit’s “concern” that disparate decisions in different
circuits might leave the law “insufficiently certain,” it
declined to create a “categorical rule” that only Supreme
Court precedents could be used to provide “fair warning”
under Section 242. Id. at 1226-27. Thus, the Lanier decision
held simply that a court under 18 U.S.C. § 242 should not
rely solely on Supreme Court precedent in determining
whether the defendant had received “fair warning.” The
Court implied that circuit court opinions could be relied
on in addition to Supreme Court precedent but, signifi-
cantly, it did not dictate for the lower courts exactly
which courts or which jurisdictions they could and could
not follow, even though it had every opportunity.
This unwillingness to set one absolute standard as to
the body of case law that may be considered for “fair
warning” under Section 242 in no way indicates a con-
demnation of the Fourth Circuit’s approach for determin-
ing “clearly established” law in the qualified immunity
context. As with Lanier, the Supreme Court has had many
opportunities in Section 1983 cases to create a “categori-
cal rule” for the lower courts to follow in defining the
sources of law that may be considered in enquiring
whether a right was “clearly established.” Its failure to do
so supports the argument that the Supreme Court is
13
allowing the circuit courts to create their own standards,
as long as those standards provide sufficient notice to
public officials as to the lawfulness of their conduct. 1.
Fourth Circuit’s standard, which is almost identical to
that of several other circuits, meets this criterion.!2
Ii. THE FOURTH CIRCUIT IN THIS ACTION COR-
RECTLY APPLIED ANDERSON V. CREIGHTON IN
DEFINING THE RIGHT AT ISSUE WITH THE
REQUIRED LEVEL OF PARTICULARITY
Petitioner, again, attempts to create a conflict where
none exists, this time by arguing that the Fourth Circuit,
in opposition to several circuits and dicta from the
Supreme Court, has set forth a rule requiring an exact
“case on point” before it will find a right “clearly estab-
lished” under the qualified immunity analysis. The
12 Indeed, the Eleventh Circuit, which has adopted the
same approach as the Fourth Circuit for determining relevant
precedents, has already considered and dismissed this same
argument concerning Lanier. In Jenkins v. Talladega City Board of
Education, 115 F.3d 821, 827 n.4 (11th Cir. 1997), cert. denied, 118
S. Ct. 412 (1997), the court rejected the argument that Lanier
created “tension” with the Eleventh Circuit’s “decisional law
deeming relevant solely in-circuit precedent.” As the Eleventh
Circuit noted, “the Supreme Court in Lanier simply did not
address the extent to which decisions of the ‘lower courts’ must,
should, or may be considered in deciding whether a
constitutional right has been clearly established, nor did it
identify any impropriety in considering only the decisions of
the circuit or highest court of the state in which the relevant
events took place. We therefore do not construe Lanier as being
in conflict with our precedent regarding the relevant decisional
law to which we must look in analyzing a claim of qualified
immunity.” Id.
14
Fourth Circuit’s opinion in this case establishes no such
rule and adheres strictly to the Supreme Court's direc-
tions in Anderson v. Creighton, 483 U.S. 635 (1987).15
The Supreme Court’s mandate in Anderson concern-
ing the process by which a court should determine
whether the law was “clearly established” bears repeat-
ing here, especially in light of Petitioner’s charge that the
Fourth Circuit’s opinion reveals “a complete misunder-
standing about the nature of qualified immunity” (Peti-
tion at 19):
The operation of this standard, however,
depends substantially upon the level of gener-
ality at which the relevant ‘legal rule’ is to be
identified. For example, the right to due process
of law is quite clearly established by the Due
Process Clause, and thus there is a sense in
which any action that violates that Clause (no
matter how unclear it may be that the particular
action is a violation) violates a clearly estab-
lished right. Much the same could be said of any
other constitutional or statutory violation. But if
the test of ‘clearly established law’ were to be
applied at this level of generality, it would bear
no relationship to the ‘objective legal rea-
sonableness’ that is the touchstone of Har-
low . . . It should not be surprising, therefore,
that our cases establish that the right the official
is alleged to have violated must have been
'S Petitioner declares that “in multiple citations throughout
the majority opinion, the Fourth Circuit clearly requires a case
on point for § 1983 liability to ever attach.” Petition at 17-18. It is
indicative of the weakness of this argument that Petitioner
neither quotes from nor cites to any of these “multiple
citations.” They simply do not exist.
15
‘clearly established’ in a more particularized,
and hence more relevant, sense: The contours cf
the right must be sufficiently clear that a reason-
able official would understand that what he is
doing violates that right. This is not to say that
an official action is protected by qualified
immunity unless the very action in question has
previously been held unlawful . . . but it is to
say that in the light of pre-existing law the
unlawfulness must be apparent.
Anderson, 483 U.S. at 639-40.
The Fourth Circuit’s opinion in this case illustrates its
understanding of and allegiance to these principles. The
en banc decision states that Anderson “requires that the
right be defined at a high level of particularity” but “of
course” does not require “that a prior case have held
identical conduct to be unlawful.” App. 16, 19. Nor does
the Fourth Circuit itself require, suggest or even intimate
that a case exactly on point is needed for a right to be
clearly established. The issue in this case was whether a
police officer in 1982 would know that he had a constitu-
tional duty to provide evidence to prosecutors. The
Fourth Circuit’s analysis that no relevant case law had
clearly established this proposition did not reject factu-
ally similar cases in a zealous quest for the perfect “on all
fours” case. The court’s review of case law existing in
1982 revealed that decisions had established a prosecutor's
duty to disclose evidence but that no cases had held that
a police officer also had that constitutional duty. App.
19-21. As the Fourth Circuit explained, “police officers in
1982 could not have been expected to survey decisions
involving prosecutors’ failures to disclose evidence to the
16
defense and conclude that, by analogy, they bore an inde-
pendent constitutional duty to provide evidence to prose-
cutors.” App. 19.14 Thus, the Fourth Circuit made a well-
reasoned decision that cases bearing on a prosecutor’s
duty to disclose evidence did not reach the level of fac-
tual particularity which the Anderson decision requires.
This decision exhibits no “misunderstanding” about the
qualified immunity analysis and needs no review by this
Court.!5
Not only is the Fourth Circuit’s decision that the law
was not clearly established sound under Anderson princi-
ples, it also creates no conflict with the law of any other
circuit or with any ruling of the Supreme Court. Peti-
tioner cites three court of appeals cases for the proposi-
tion that “numerous circuits have held it is not necessary
there be a specific holding in order to find a constitu-
tional rule has been ‘clearly established.’ ” Petition at 18.
All three cases, however, require some pre-existing law to
exist which clearly establishes the right in question; they,
14 Indeed, the Fourth Circuit noted that in this case
Respondent police officers turned over all the evidence the
prosecutor requested and that it was the prosecutor's duty under
Giglio v. United States, 405 U.S. 150 (1972), to ask the police
officers for any materials related to the hypnoses. App. 22.
15 Supreme Court Rule 10 provides that “a petition for a
writ of certiorari is rarely granted when the asserted error
consists of . . . the misapplication of a properly stated rule of
law.” Petitioner cannot dispute that the Fourth Circuit properly
stated Supreme Court case law as to when a right is clearly
established. Even if Petitioner’s contention that the Fourth
Circuit misapplied that law under the facts of this case had
merit, such a fact-specific argument does not present a question
for review by this Court.
17
like the Fourth Circuit and the Supreme Court, simply do
not require a case directly on point.
Nor does the Fourth Circuit’s analysis of clearly
established law conflict with this Court's dicta in Lanier.
In Lanier, this Court reiterated Anderson's warning that
liability should attach in the qualified immunity context
“only if ‘the contours of the right [violated are] suffi-
ciently clear that a reasonable official would understand
that what he is doing violates that right.’” 117 S. Ct. at
1227, quoting, Anderson, 483 U.S. at 640. It then noted that
different factual circumstances may necessitate different
levels of factual particularity to satisfy Anderson's stan-
dard:
In some circumstances, as when an earlier case
expressly leaves open whether a general rule
applies to the particular type of conduct at
issue, a very high degree of prior factual partic-
ularity may be necessary. See, e.g., Mitchell v.
Forsyth . . . But general statements of the law
are not inherently incapable of giving fair and
clear warning, and in other instances a general
constitutional rule already identified in the deci-
sional law may apply with obvious clarity to the
specific conduct in question.
Id. No conflict exists between this language and the
Fourth Circuit’s analysis in this case because the Fourth
Circuit applied the level of “prior factual particularity”
necessary under the circumstances. The present case is
not one in which, under Lanier, a “general constitutional
rule” applied “with obvious clarity” to the specific con-
duct in question. Indeed, the issue of whether police
officers in 1982 had a constitutional duty to disclose
hypnosis-related evidence to the prosecution has been
18
deUated in this and related cases for some fourteen years,
with various state and federal courts split as to whether
or not Respondents violated the constitution in failing to
disclose the evidence. App. 73. See Santamorena v. Georgia
Military College, 147 F.3d 1337, 1340 n.6 (11th Cir. 1998)
(noting that Lanier’s statement that a general constitu-
tional rule may apply involves only “exceptional cases”
which “rarely arise”).
Finally, Petitioner extrapolates the Fourth Circuit’s
reasoned and rational approach in this case to a bizarre
world where public officials commit heinous constitu-
tional offenses and go laughingly free from liability
because no exact case on point has addressed that partic-
ular egregious conduct before. Petition at 20. Petitioner’s
scenario might very well be the Lanier case where a
general constitutional rule applies “with obvious clarity”
and thus there is no need for a court to look for case law
with a high degree of “prior factual particularity.” Lanier,
117 S. Ct. at 1227. Several federal courts have recognized
that conduct that “shocks the conscience” is so patently
egregious that the constitutional right it violates is neces-
sarily clearly established. Grendell v. Gillway, 974 F. Supp.
46, 52 (D. Me. 1997); Anderson v. Romero, 72 F.3d 518,
526-27 (7th Cir. 1995); Fernandez v. Leonard, 784 F.2d 1209,
1216 (1st Cir. 1986).
That scenario is not this case, where Respondents
believed that the hypnoses sessions did not create any
exculpatory evidence (J.A. 63, 75-76), where a federal
district court judge found the evidence to have impeach-
ment value only (App. 72), and where Petitioner’s crimi-
nal trial attorneys admitted that, after hearing Ms.
Wilson’s trial testimony concerning her hypnosis, they
19
did not even move to re-open voir dire on the identifica-
tion issue because they believed that “no new evidence
[was] developed” during her testimony. J.A. 716. Nor is
there any indication by the Fourth Circuit in this decision
or any other decision that it would require an exact case
on point to establish Section 1983 liability for any situa-
tion, much less one where the conduct was patently
egregious. Petitioner's argument that the Fourth Circuit
has created a rule requiring a case directly on point
misreads the court’s careful application of Anderson to the
facts of this case.
Ill. THE FOURTH CIRCUIT DID NOT ERR IN
HOLDING THAT THE LAW WAS NOT CLEARLY
ESTABLISHED IN 1982 THAT POLICE OFFICERS
HAD A CONSTITUTIONAL DUTY TO TURN
OVER THE EVIDENCE AT ISSUE TO THE PROS-
ECUTOR
Petitioner brands as error the Fourth Circuit's deter-
mination that, as of 1982, the relevant law was not clearly
established that a police officer had a constitutional duty
to turn over the evidence at issue in this case to the
prosecution. A careful examination of Petitioner’s argu-
ment as well as the legal history of this case reveals that
the Fourth Circuit committed no error.
Petitioner’s argument itself supports a finding of no
error. Petitioner contends that “in conclusion, Brady, Gig-
lio, and Barbee directly control this case. As of 1982, the
police were under a long-established duty to disclose
20
exculpatory information to the prosecutor.” Petition at
24.16 Yet, only five paragraphs earlier, Petitioner himself
admits that Brady and Giglio involved the prosecutor's
duty to disclose exculpatory information to the defense,
not the police officer’s duty. Petition at 20-21. As Peti-
tioner correctly notes:
In the case at bar, however, it is not the prosecu-
tor’s decision to withhold exculpatory evidence
that is at issue; rather it is the decision of the
investigating police officers which is in ques-
tion. Thus, the issue narrows to whether in 1982 a
police officer’s failure to disclose information to
prosecutors, as derived from Brady v. Maryland,
was clearly established.
16 Throughout his brief, Petitioner consistently refers to the
evidence that was not disclosed as “exculpatory.” Petition at 19,
21, 23-24. Respondents argued in the federal district court and
before the Fourth Circuit that the evidence had impeachment
value only and therefore did not fall under the rule of Brady v.
Maryland, 373 U.S. 83 (1963). Specifically, the hypnosis
testimony and accompanying records in no way exculpated
Petitioner; they served only as a possible means of impeaching
the testimony of Ms. Wilson and Respondent Shingleton as to
the differences in their pre- and post-hypnosis descriptions.
App. 72. Thus, Respondents object to Petitioner’s continued
characterization of the evidence at issue as exculpatory. The en
banc opinion, however, does not address this difference or rely
on it in its analysis of whether the right of disclosure was clearly
established. It correctly focuses on the fact that, in 1982, only the
prosecutor’s and not the police officer’s constitutional duty to
disclose hypnosis-related evidence to the defense had been
established. App. 19-24.
21
Petition at 21 (emphasis added). That is exactly the point
that the Fourth Circuit made; Brady and Giglio do not
control this case because they involve the prosecutor’s
duty to disclose evidence and do not address the police
officer’s duty. App. 19. The factual particularity required
by Anderson is not satisfied.
That leaves Petitioner, under his own argument, with
the lone case of Barbee v. Warden, 331 F.2d 842 (4th Cir.
1964), as clearly establishing a police officer’s duty to
disclose evidence to the defense. The Fourth Circuit dis-
tinguished Barbee as follows:
Barbee did not require police, as a constitutional
matter, to furnish evidence to a prosecutor.
Instead, as this circuit later explained, Barbee
held simply that the police’s knowledge of such
evidence would be imputed to the prosecutor in
deciding whether the prosecutor had fulfilled
his Brady duties . . . Thus, while prosecutors are
not relieved of their Brady duties for failing to
disclose material evidence known only to the
police, police officers who in 1982 failed to give
such evidence to prosecutors did not themselves
violate a clearly established constitutional right.
App. 20.
That the Barbee decision did not clearly establish the
right in question is also notably illustrated by the legal
history of this action. In October 1995, the United States
District Court for the Eastern District of North Carolina
granted Respondents qualified immunity, holding that
Brady was not controlling and that the right in question
was not clearly established until the 1985 Supreme Court
decision of United States v. Bagley, 473 U.S. 667 (1985).
22
App. 71-73. Reversing this decision in March 1997, the
Fourth Circuit panel opinion held that the right was
clearly established. Significantly, however, Judge Ervin,
writing the panel opinion, never cites Barbee in his anal-
ysis of whether “the specific right infringed was clearly
established in 1982.” App. 52. Instead, the panel decision
relies on Giglio, Boone v. Paderick, 541 F.2d 447 (4th Cir.
1976), United States v. Miller, 411 F.2d 825 (2nd Cir. 1969),
and Emmett v. Ricketts, 397 F. Supp. 1025 (N.D. Ga. 1975)
as “clearly establishing” the right. Judge Hamilton, con-
curring in the judgment, declined to accept the panel’s
“clearly established” analysis; he found that the Supreme
Court in 1982 had not “explicitly addressed the disclosure
duties of police under Brady,” but that the Fourth Circuit
had done so in Barbee, a case not mentioned once in the
panel opinion’s “clearly established” analysis. App.
61-62. =
Interestingly, once Judge Hamilton cites Barbee in his
concurrence in the panel opinion, it suddenly becomes
the “critical case” which beyond all doubt established the
right in question. Petition at 21. In his dissent from the en
banc opinion, Judge Ervin, who in the panel opinion
relied on every case but Barbee as establishing the right in
question, now jumps on the Barbee bandwagon, declaring
that the police’s duty to turn over evidence had been
“clearly established in this circuit since at least 1964 [the
date of Barbee].” App. 35. In Judge Hamilton’s dissent
from the en banc opinion, he once again proclaims Barbee
as the clear precedent on this issue and bolsters his
argument by noting that “in cases post-Barbee, we have
consistently held that a police officer can be liable under
§ 1983 for the failure to disclose material exculpatory
23
evidence.” App. 40. Notably, none of the three “post-Bar-~
bee” cases he cites ever mention Barbee as the Fourth
Circuit precedent establishing the police officer’s dis-
closure duties, or even mention it at all. See Taylor v.
Waters, 81 F.3d 429 (4th Cir. 1996); Carter v. Burch, 34 F.3d
257 (4th Cir. 1994), cert. denied, 513 U.S. 1150 (1995);
Goodwin v. Metts, 885 F.2d 157 (4th Cir. 1989), cert. denied,
494 U.S. 1081 (1990). The Barbee decision surely cannot be
hailed as clearly establishing the constitutional right in
question when the panel opinion overlooked it and cases
since Barbee consistently have failed to cite it as control-
ling precedent.
Finally, the Fourth Circuit’s determination that the
right in question was not clearly established likewise is
supported by the heated debate and notable lack of con-
sensus among the courts who have considered the ques-
tion. The Supreme Court of North Carolina, in denying
Jean’s appeal from his criminal conviction, and Judge
Boyle of the United States District Court for the Eastern
District of North Carolina, in denying Petitioner’s writ of
habeas corpus, found that Respondents had committed
no constitutional error in failing to disclose the hypnosis-
related evidence. App. 73. The Fourth Circuit reversed,
holding that the state’s failure to disclose was a violation
of Brady v. Maryland, 373 U.S. 83 (1963). Judge Howard of
the Eastern District of North Carolina then held that
Respondents were entitled to qualified immunity on Peti-
tioner’s § 1983 claims, specifically finding that the right
in question was not clearly established. App. 71-73. The
Fourth Circuit panel reversed, and the en banc majority
affirmed the district court. Moreover, even the courts who
have found the right clearly established have not agreed
24
as to when and by what case law the unlawfulness
became apparent. The cardinal premise of the qualified
immunity doctrine, that public officials are to be shielded
from liability when they act in a legally uncertain envi-
ronment, would be seriously compromised by holding
Respondents here liable for conduct that learned state
and federal judges of the Fourth Circuit cannot, even in
hindsight, agree as to its lawfulness or unlawfulness.
IV. THE FOURTH CIRCUIT CORRECTLY HELD
THAT RESPONDENTS WERE ENTITLED TO
QUALIFIED IMMUNITY BECAUSE THEIR CON-
STITUTIONAL DUTY OF DISCLOSURE WAS
NOT CLEARLY ESTABLISHED IN 1982
Contrary to Petitioner’s argument, the Fourth Cir-
cuit’s opinion does not hold that, even though a police
officer’s constitutional duty of disclosure was clearly
established, Respondents were nonetheless entitled to
qualified immunity because no Section 1983 case had as
of 1982 held officials monetarily liable for that particular
transgression. Instead, the Fourth Circuit found that an
officer’s constitutional duty was not clearly established in
1982. As the Fourth Circuit explained:
In sum, police officers in 1982 could reasonably
have expected to be internally accountable to
prosecutors for not turning over evidence in
their possession . . . But the officers had no
earthly idea that they would be subject to a
federal cause of action for money damages
when no relevant decision had held that the
police’s responsibility to furnish evidence to the
25
prosecution was governed by federal constitu-
tional law. ‘
App. 21.
The Fourth Circuit’s reasoning strictly adheres to the
long-standing principle that the purpose of a Section 1983
action is “for vindication of constitutional guarantees.”
Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982) (emphasis
added). The Fourth Circuit properly determined that,
because police officers in 1982 were not aware that their
conduct violated any constitutional guarantee, Respon-
dents were entitled to qualified immunity. That is a far
cry from Petitioner’s suggestion that the Fourth Circuit,
in conflict with “nearly every other circuit in the coun-
try,” will now grant qualified immunity to every govern-
ment official unless there exists “a specific monetary
liability case [] on point.” Petition at 25.
¢
CONCLUSION
The writ of certiorari should be denied.
Respectfully submitted this 15 day of January, 1999.
Kenneth R. Wooten
Counsel of Record
For the firm of
Warp and Smith, P.A.
1001 College Court
Post Office Box 867.
New Bern, North Carolina
28562-0867
Telephone: (252) 633-1000
Facsimile: (252) 636-2121
Attorneys for Respondents
App. 1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WILMINGTON DIVISION
CIVIL ACTION FILE NO.: 4:94-CV-62-H2
LESLY JEAN,
Plaintiff
V.
DELMA COLLINS, Chief of
Detectives of the City of
Jacksonville, North Carolina,
Individually, and JAMES
SHINGLETON, Police Officer
with the City of Jacksonville,
North Carolina, Police
Department, Individually,
Defendants
AFFIDAVIT OF
DELMA G. COLLINS
Nem ee eee ee ee ee eee ee ee eee”
1. I am Delma G. Collins and I am competent to
make the statements contained herein based upon my
personal knowledge.
2. I am currently the Assistant Chief of Police in
charge of Investigatory Services for the Jacksonville,
North Carolina Police Department. I have been employed
with the Jacksonville Police Department since 1970. I
worked my way up through the ranks of the Department
from a patrol officer to my current position. During July-
December, 1982, I held the rank of Captain with the
Jacksonville Police Department.
3. During July 1981, I received training from the
State of North Carolina at its Justice Academy in Salem-
burg to hypnotise [sic] witnesses in criminal inves-
tigations. The requirements for acceptance into the
App. 2
program where I received this hypnosis training were ten
years of experience on a police force and a recommenda-
tion from the police department. Over 150 law enforce-
ment officers applied for this training program, but only
14-16 were accepted. I was told that the persons accepted
were the cream of the crop of law enforcement officials.
4. The training program lasted two weeks, five days
per week, and eight hours per day. Dr. Stan Riesess, a
Psychiatrist from Charlotte was one of the instructors. He
performed approximately eighty to eighty-five percent of
the training. I received intense training. Dr. Riesess and
the other officials hired by the State to train the\class
appeared to me to believe quite strongly that hypnosis
was scientific. They also appeared to me to approach our
training in hypnosis as a science class. My perception of
the training I received was that the instructors believed
that hypnosis was the solution or cure for faulty con-
scious memories. They appeared to me to believe that
hypnosis was the tool to unlocking existing memories
trapped within the subconscious mind. They trained me
on how to perform hypnosis and I performed several
hypnoses while receiving training. Likewise, | was hyp-
notised [sic] during this training. Where further informa-
tion was needed from a witness who had provided a
partial description of a suspect, I was trained to base my
questions on information already known, which, in hind-
sight, may appear to be impermissibly leading or sugges-
tive. In any event, I emerged from this two-week
indoctrinating class with a total belief in hypnosis as a
tool for unlocking stored memories. At all times, I had a
good faith belief that hypnosis was extremely reliable and
truly unlocked, not created, memories stored inside of a
App. 3
person’s subconscious. I believed hypnosis was the cata-
lyst which sparked the flow of memory between the
subconscious and the conscious portion of the brain. I
also emerged from my training believing that the oppo-
nents of hypnosis were medical doctors or psychologists
who, in large part, were not fundamentally opposed to
hypnosis, but had a monetary interest in limiting hyp-
nosis to medical doctors and psychologists. During the
early 1980s, one could hear arguments from all over the
spectrum concerning hypnosis in law enforcement inves-
tigations. Standards or procedural safeguards concerning
how to conduct a hypnosis for law enforcement purposes
also varied widely.
5. In 1982, hypnosis was legal in North Carolina
and, although fragmented controversy existed among the
legal and medical communities, especially in other states,
the officials retained by the State of North Carolina who
trained me were zealously in favor of the liberal use of
hypnosis.
6. Since 1981, I have been a member of the North
Carolina Association of Law Enforcement Hypnotists. I
have even served as President of the Association. Since
1981, the Association has met and, during these meetings,
often discussed new material concerning hypnosis. I also
reviewed training brochures on hypnosis periodically.
7. Once I was trained in hypnosis, I performed hyp-
nosis for the Jacksonville Police Department and other
law enforcement agencies. Before the Jean case, | per-
formed hypnosis approximately 16-20 times in investiga-
tions. In addition to performing hypnosis for the
Jacksonville Police Department, I performed hypnosis for
App. 4
law enforcement agencies in Lenoir County, the City of
Kinston, and for either Craven County or the City of New
Bern.
8. On the afternoon of July 22, 1982, Detective Step-
hen Smith requested me to hypnotize Jacksonville Police
officer James Shingleton in reference to the description of
a suspect Officer Shingleton had stopped during the early
morning hours of July 21, 1982, on Highway 24 in Jack-
sonville, North Carolina. I was informed that this suspect
matched the description of an assailant who had commit-
ted rape and sexual assault nearby. I was informed that
Officer Shingleton had reached the extent of his ability
to recall identifying features of the suspect. From conver-
sations with Detective Smith, I believed all other investi-
gative methods concerning Officer Shingleton’s
identification of the suspect had been exhausted so I
agreed to hypnotize Officer Shingleton.
9. During the hypnosis of Officer Shingleton, I fol-
lowed the training I received to the best of my ability.
Detective Smith told me he had completed a report of
what Officer Shingleton had remembered so I believed
this report served as the pre-hypnotic report of Defen-
dant Shingleton’s knowledge. Pursuant to my training, I
tape recorded the session. I also completed a hypnosis
work sheet. From talking with Detective Smith, I believed
that all necessary information surrounding the hypnosis
was recorded either by Detective Smith or was otherwise
preserved on the audiotape. From these items, pre- and
post-hypnotic memory can be obtained.
10. At all times, I acted in zood faith and tried not
to influence or implant memory into Officer Shingleton’s
App. 5
mind. I used the information he had already provided as
the foundation and tried to probe him to unlock the
memories of what he had seen. Pursuant to my training, I
believed that his subconscious mind had recorded the
entire incident and hypnosis was the catalyst to getting
his conscious memory to remember the incident fully.
11. During the hypnosis, Officer Shingleton began
remembering exact conversations he had with Jackson-
ville Police Dispatch. I certainly did not piant these mem-
ories into his consciousness. In fact, I did not implant any
memory into his consciousness. I emerged from the hyp-
nosis believing that he simply relaxed to the point where
he remembered the events that occurred on July 21, 1982,
in an environment free from the stresses and strains of
outside influences. At trial, Officer Shingleton testified
that he was not 100 percent sure that Mr. Jean was the
person he saw during the early morning hours of July 21,
1982. At no time did hypnosis strengthen his memory to
the point of fanatical certainty where such certainty did
not otherwise exist.
12. On July 30, 1982, Mrs. Alice Kathleen Wilson
consented to hypnosis upon the recommendation of
Detective Smith. Mrs. Wilson had been the victim of a
rape and sexual assault 9 days earlier. Mrs. Wilson had
received medical treatment and, although she was upset
by the rape when it occurred, she was calm before, dur-
ing and after the hypnosis. She appeared to me to be
willing and emotionally able to go through hypnosis.
Before the hypnosis, she assured me that she was willing
and emotionally able to go through hypnosis. She did not
appear to me to be then in a current state of trauma.
App. 6
13. I got permission from the Chief of Police to
hypnotise [sic] Mrs. Wilson. | relied on the advice and
consent of my superior officer to hypnotize Mrs. Wilson.
At no time before, during or after the hypnosis did my
opinion change as to her ability to go through hypnosis
without emotional trauma. She was not then undergoing
medical care, so there was no medical provider with
whom I needed to consult before hypnotizing her. I had
been assured by Detective Smith that she had reached the
extent of her memory and that there were no other inves-
tigatory techniques available to restore her memory.
14. The main purpose of the hypnosis was to relax
her and get her into a state of comfort and compiete
security so she would not fear harm from remembering
the rape and assault. The last thing I wanted to do was to
create a situation where she would, in effect, be raped all
over again as if it was actually happening to her again
and for her to face, in her mind, the threat of death. I
wanted her to view the rape without experiencing it. I
hoped that she would be able to view the rape and better
describe the rapist. | based my questions upon the infor-
mation she had provided. She had provided the factual /
'oformational foundation on which I developed my ques-
tions. At no time did I intend, nor did I believe, I created ~
false memories in her mind. I did the best I could under
the circumstances faced with the uncertainties of the case
and my knowledge of hypnosis at the time.
15. Ll inquired as to why a picture had made her feel
sick. She had stated that the picture made her feel sick
and I simply tried to unlock the subconscious basis for
this memory. Again, she had laid a foundation upon
which I formulated and asked questions. It could have
App. 7
very well been that she would have remembered a situa-
tion involving a person unconnected with the rape who
looked like the person in the picture. Such a circumstance
would have cleared her memory and allowed her to focus
upon the characteristics of the rapist, thus clearing the
person in the picture. I was simply acting in good faith to
get her to unlock the reasons why this picture made her
feel sick. At no time did I act with the intent to cause her
to identify incorrectly Mr. Jean as the assailant. In fact, I
do not believe the hypnosis caused her to identify Mr.
Jean incorrectly as her assailant. She subsequently picked
his voice out of a voice exemplar and made a positive
identification at a show-up based upon features not visi-
ble in the photograph in question.
16. After the hypnosis ended, I believed that it was
not productive. In my opinion, it certainly did not create
exculpatory evidence or evidence material to Mr. Jean’s
defense based upon my knowledge and understanding of
the law concerning hypnosis as it existed in 1982. I
thought all we had gained was that the assailant’s accent
was possibly Puerto Rican where we had known before
that it was not southern United States. Also, the
assailant’s shoe laces, which can be changed by an [sic]
person at anytime without anyone noticing, changed
from white to black. This was not a reason to celebrate
thinking that we had our man. I have attached a chart,
which was prepared by Special Deputy Attorney General
(now retired) Richard N. League that was used in the
State of North Carolina’s Brief to the Fourth Circuit dur-
ing Mr. Jean’s habeas corpus case. I adopt the statements
as to her pre- and post-hypnotic memory as my own
App. 8
because they accurately depict my knowledge and under-
standing of how the hypnosis session was not productive
nor did it substantially alter or create in Mrs. Wilson [sic]
memory that lead to Mr. Jean’s conviction.
17. Before the /can trial, I hypnotised [sic] Assistant
District Attorney Walter Wayne Vatcher on a matter not
relevant to the Jean case. I explained to him my methods
and the documents and other recordings which are cre-
ated as a result of hypnotizing a witness.
18. Assistant District Attorney Vatcher knew of the
documents and recordings concerning the hypnosis of
Officer Shingleton and Mrs. Wilson. I informed Assistant
District Attorney Vatcher of my possession of these items
and he acknowledged my possession of them. He never
requested me to turn them over to him or to Mr. Jean’s
defense counsel.
19. At no time did I receive a copy of any discovery
request, either oral or written, directing me to turn over
items concerning the hypnosis to Mr. Jean’s criminal
defense counsel. If I had received such a request, I would
have turned over the items to Assistant District Attorney
Vatcher, as attorney for the State.
20. At no time did I intentionally withhold this
evidence from Mr. Jean’s criminal defense counsel.
21. I believed that the hypnoses performed in the
Jean case revealed only inculpatory evidence. Because of
this belief, it did not occur to me that I had a duty to
bypass the District Attorney’s Office and deliver these
items directly to Mr. Jean’s criminal defense counsel.
Even with evidence material to the defense, I was trained
App. 9
that my duty is to inform the District Attorney’s Office of
_ the evidence and turn it over to taat Office when
requested. I believe I would only have an obligation to
bypass the District Attorney’s Office and go directly to
the trial judge or defense counsel if I perceived that the
District Attorney’s Office was withholding material or
exculpatory evidence. I have never been involved in such
a situation. Likewise, I have never known the Onslow
County District Attorney’s Office to perform such acts.
22. I never acted with malice, actual or implied,
towards Mr. Jean.
23. I did not create the voice exemplar.
24. While I was present at the showup, I was not the
lead investigator on the case.
25. Iwas not responsible and I did not participate in
the making or the selection of the pictures of Mr. Jean and
the other suspects shown to Mrs. Wilson.
26. At no time did I learn of evidence that negated
probable cause to believe that Mr. Jean had committed
the rape and sexual assault of Mrs. Wilson. At all times
during the investigation in 1982, the evidence obtained
progressively strengthened the case against Mr. Jean.
27. In 1995, it is easy to look back at a 1982 investi-
gation and investigatory techniques with the benefit of
more complete hindsight knowledge and make judg-
ments as to what should or should not have been done,
but I believe this ignores the practical realities and uncer-
tainties involved in such a criminal investigation as it
develops from day one. Decisions had to be made based
App. 10
on the resources we had and using the investigatory
techniques that the State of North Carolina taught.
28. At no time during the investigation did I or
anyone in the Jacksonville Police Department who was
known to me acquire additional information casting
doubt upon Mr. Jean’s guilt that was not made known at
trial in front of the jury. At all times, I availed myself of
information that was reasonably available to me and at
all times, I believed Mr. Jean was guilty.
29. At no time in my career as a police officer has
anyone ever trained me that I was responsible for decid-
ing what evidence should be provided to a defense coun-
sel in a criminal case in lieu of providing it to the District
Attorney’s Office. Likewise, | have never been trained
that I am responsible for deciding what evidence will be
presented at trial. At all times, I have been trained that
the above-mentioned duties are the duties of the District
Attorney's Office.
30. I was not at the trial of Lesly Jean.
Further Affiant saith naught.
/s/ Delma G. Collins
Delma G. Collins
STATE OF NORTH CAROLINA
COUNTY OF ONSLOW
I, Crystal D. Keel, a Notary Public in and for said
County and State, do hereby certify that DELMA G. COL-
LINS personally appeared before me this day and
acknowledged the due execution of the foregoing instru-
ment.
App. 11
WITNESS my hand and notarial seal, this the 11 day
of April, 1995.
/s/ Crystal D. Keel
Notary Public
My Commission Expires:
11/29/99
* * *
The minimal likely effect of hypnotism on the trial
testimony of the witnesses is also starkly pointed up by
comparisons of their pre-hypnotic descriptions, descrip-
tions under hypnosis and at-trial descriptions of Peti-
tioner. These show the descriptions were neither
generally poor in content nor inaccurate overall, United
States v. Hughes, 716 F.2d 234, 241 (4th Cir. 1983). In Ms.
Wilson’s case, there were apparently four pre-hypnosis
descriptions within 24 hours of the crime - one at the
scene, shortly after the intruder had gone; one later in the
morning to the lead investigator; a handwritten statement
about the same time; and one to the SBI on that afternoon
for purposes of making the composite (App 340-342). A
pre-hypnosis form also indicates some discussion of char-
acteristics on July 30 (App 238). Five reports reflect these
and Column 1 below is a combination of the described
features from those reports®; the astericks [sic] in Column
Two reflect the items Petitioner argues are new and sus-
pect.
© The descriptions in these reports and the testimony about
them are set out individually at App 178-184 plus App 238.
Pre-Hypnosis Description From
View from the Time of the Crime
Black race
5'8", 5'8"-6'?
Light coloration (police officer);
Dark coloration (SBI)
160-170, 165-170, 180(?) Ibs.
Medium build/ muscular
Some accent
Early 20’s
Short black hair, close cut Military
- USMC, kinky
High-top white tennis shoes /
sneakers, Nike
White high-top crew socks
Dark or blue running shorts
Dark pull-over shirt
Eyes not brillantly white, dark,
not bright and sparkly, almond-
shaped eyes close together
Square chin
High cheekbones
Freckle (“looked like”)
App. 12
Description During Hypnosis
*Possibly Puerto Rican accent
*White high-top shoes with Nike
emblem
White socks
Dark shorts
Dark shirt
*White shoelaces
*Gray eyes/almond shape
Ears don’t stick out
Face shape same as photograph
At-Trial Recollection of View From
the Time of the Crime
Dark skinned
5'8"
165 Ibs.
“Smooth”/possibly Puerto Rican
Short close cut, USMC Kinky hair
White high-top Nike tennis with
Nike swirl
White, almost to knee, crew
Dark blue, like jogging shorts
Dark pullover shirt
Not bright, almond shape
Square face
Eyebrows not bushy
High cheekbones
Mole/ freckle on cheek
No facial hair
App. 13
As can be seen, the descriptions were largely the same
throughout to the extent they cover the same things; the
hypnotic session dealt with very few points of descrip-
tion; the only truly new memory from hypnosis was that
the shoes had white laces, which was not recalled at trial.
Mr. Shingleton gave one description before hypnosis,
to Detective Smith. Comparisons of his descriptions from
App 185-186:
Pre-Hypnosis Description From
View at Time of Interception
Black
5'10"
170
High-top tennis shoes
White knee high socks
Blue shorts
Blue shirt with writing
Close cut hair
Mustache
App. 14
Description During Hypnosis
Black
5'10"
*180
White high-top basketball shoes
*White shoelaces
*Knee-high white socks with two
1-inch blue stripes
*Blue elastic jogging shorts
without stripe
*Blue short-sleeve pull-over with
something dark on chest
Short hair, no part
*Clean shaven
*Baby faced
Four-inch forehead
Thin eyebrows
*Glassy eyes
*Full cheeks
No moles or scars
*Big nose
*Oval jaw
*Big lips/bottom lip larger
At-Trial Recollection of
Description From the Time of
Interception
Black
5'9" — 5°10"
Jamaican accent
White basketbali type tennis shoes
White shoelaces
White
Blue jogging shorts with white
trim
Blue
No Mustache, but testified that
before hypnosis, suspect had a
mustache.
Long face
Again, the characteristics marked with asterisks are those Petitioner contends show the dangers of
hypnotism were present
Be rat
BP a :
App. 15
IN’ THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WILMINGTON DIVISION
CIVIL ACTION FILE NO.: 4:94-CV-62-H2
LESLY JEAN,
Plaintiff
V.
DELMA COLLINS, Chief
of Detectives of the City
of Jacksonville, North
Carolina, JAMES
SHINGLETON, Police
Officer with the City of
Jacksonville, North
Carolina, Police
Department, Individually,
AFFIDAVIT OF
JAMES SHINGLETON
meee eee eee eee
Defendants
1. I am James Shingleton and I am competent to
make the statements contained herein based upon my
personal knowledge.
2. Iam currently a Detective with the Jacksonville,
North Carolina Police Department. During July-Decem-
ber, 1982, I was a patrol officer with the Jacksonville
Police Department.
3. During the early morning hours of July 21, 1982, I
heard reports of a rape and sexual assault occurring at
104 Sherwood Drive in Jacksonville. Soon after hearing
reports of the rape and sexual assault, I was travelling on
Highway 24 near that location when I spotted a male
App. 16
matching the description of the rapist walking beside of
the road.
4. I turned on the blue lights of my patrol car and
stopped. I told the male he was a suspect to a rape and
that | wanted to ask him a few questions. I asked him to
turn around and place his hands against my patrol car. By
the light of both my patrol car’s headlights and flashing
blue lights, I could see him. He then fled into the nearby
woods. I yelled for him to stop and drew my service
pistol. I thought about shooting him, but did not do so
because, pursuant to my training, I realized that I did not
have probable cause to believe he was a dangerous flee-
ing felon. I immediately called for backup and attempted
to find him. Other Jacksonville Police Officers and United
State Marines Corps Military Police Officers responded to
my call and assisted me-in the unsuccessful search for
him.
5. Over the course of the next 24-36-hours, I tried
hard, probably too hard, to remember his exact descrip-
tion. I knew if I saw him again, I could identify him.
Putting what I saw into words that could be understood
for a sketched artist, however, was not possible at that
time. I was stressed and tense.
6. After I had tried my best to remember everything
and with no other investigatory techniques available to
my knowledge, Detective Steve Smith asked me to
undergo hypnosis. I had generally heard about hypnosis
and believed it to be highly productive so I agreed to be
hypnotized. I was not receiving any medical treatment
nor did I feel it was medically unsafe for me to be
hypnotised.
App. 17
7. I believe that the hypnosis, conducted on July 21,
1982, was therapeutic in nature because it helped me to
relax and remember events.
8. The clothing recovered from Mr. Jean’s locker
matched the clothing I saw him wearing on the morning
of July 21, 1982 when I stopped him on Highway 24, just
before he fled into the woods. No one in the Jacksonville
Police Department, including Officer Collins, had seen
the clothing in Mr. Jean’s locker before I was hypnotised.
9. I am bewildered by the allegations that I with-
held exculpatory or material evidence. If hypnosis was so
drastic that it altered my memory as a witness to events I
saw, it seems impossible to me that I should have been
expected to realize that these memories, my memories,
are not true and accurate. Back in 1982, hypnotically
refreshed testimony was admitted in North Carolina’s
courts and believed by me and other law enforcement
officials known to me to be highly effective.
10. On the night on July 26, 1982, I was called to the
Dunkin Donuts near where the rape occurred and near
where I had confronted the suspect who fled. I got out
[sic] my patrol car, saw a man who turned out to be Lesly
Jean, and immediately recognized him as the man who |
saw on the Highway 24 just after the rape and sexual
assault occurred. I identified him without hesitation and
without having previously seen his photograph. When I
later saw the clothing from his footlocker, I recognized it
as being the clothing I saw on him on Highway 24 just
after the rape occurred. Before I was hypnotized, I stated
that I thought I could identify the person who | saw on
App. 18
Highway 24 if I saw him again. I believe that my identi-
fication of Mr. Jean was based upon my pre-hypnotic
memory. In any event, at no time did I act in bad faith to
identify Mr. Jean while believing he was not the person
who I encountered on Highway 24 just after the rape
occurred.
11. I did not have the documents and recordings
concerning my hypnosis or the hypnosis of Mrs. Wilson
in my possession, custody, or control. I believed that
Assistant District Attorney Walter Wayne Vatcher knew
of the existence of the items and where they were stored.
In 1982, the working relationship between the Jackson-
ville Police Department and the District Attorney’s Office
was a close one. The other officers who I observed and |
worked well and were frank with Assistant District Attor-
ney Vatcher about evidence believed to be exculpatory or
otherwise material to the defense. No one I knew, includ-
ing myself, wanted to carry around the guilt of sending
an innocent person to jail as the result of failing to inform
the District Attorney’s Office of exculpatory or material
evidence. Upon information and belief, Mr. Vatcher had
discussions while I was present with him and with either
Officer Collins or other members of the Department as to
the existence of the items relating to the hypnoses and the
other identification procedures used. I was never asked to
turn these items over to Assistant District Attorney
Vatcher or to Mr. Jean’s defense counsel.
12. At no time did I receive a copy of any discovery
request or an oral request directing me to turn over items
concerning the hypnosis to Mr. Jean’s criminal defense
counsel. If I had received such a request, I would have
notified Assistant District Attorney Vatcher, as attorney
App. 19
for the State, of the fact that I did not have any such items
and tried to direct him as to where he may obtain them. If
I truly had believed that exculpatory or material evidence
was being withheld from Mr. Jean’s lawyers by any mem-
ber of the Jacksonville Police Department or the District
Attorney’s office, I would have done the morally correct
thing and informed the trial judge, the Honorable Her-
bert O. Phillips, III, or circumvented normal procedure
and directly informed Mr. Jean’s lawyers of the evidence.
13. Attached are portions of the transcript of my
testimony at Mr. Jean’s criminal trial. This testimony
shows that I remembered the hypnosis and described for
the jury how my description of the person I encountered
changed as a result of the hypnosis. As reflected in that
transcript, I believe my testimony showed to the jury that
the questions asked me during the hypnosis were sugges-
tive even though that was not the point I intended to
make. Likewise, I do not believe the questions were sug-
gestive, but were founded upon the facts known at that
time. The jury had knowledge: that I was hypnotized;
that my description of the person I encountered changed
“a great deal” during the hypnosis; that I “found out”
new identifying features during the hypnosis; and that I
was not 100% sure that the person I encountered on
Highway 24 was Mr. Jean, although I believed it was him.
Since the State stipulated at trial that the partial prints
from the general area of my patrol car where the person
who I encountered had placed his hands did not match
Mr. Jean’s prints, the jury had evidence material to Mr.
Jean’s defense presented to it. In front of the jury, I freely
admitted facts upon which the jury could have found that
Mr. Jean was not the person who I stopped on Highway
App. 20
24 just after the rape. In fact, based on the discrepancies
in my testimony, which I obviously did not withhold
from the jury, the jury could have easily found that a
person other than Mr. Jean, who looked liked [sic] Mr.
Jean and who matched the description of the rapist, was
in the vicinity of the rape immediately after it occurred. I
believe the evidence purportedly withheld could have
done little more than my admission that the suspect's
physical features changed and that “[m]y memory
improved a great deal,” both as a result of hypnosis. I
freely admitted the point in front of the jury so that, in
my opinion, the facts leading to this point were some-
what cumulative.
14. Atno time did I intentionally withhold evidence
from Mr. Jean’s criminal defense counsel.
15. At all times, I had a good faith belief that the
memories I had were genuine.
16. I never acted with malice, actual or implied,
towards Mr. Jean.
17. I did not create the voice exemplar.
18. I was not present at the showup where Mrs.
Wilson identified Lesly Jean as the rapist. I was not
responsible for organizing or supervising the show-up.
Detective Smith was the lead investigator. Likewise, I was
not responsible and | did not participate in the making,
selection, or showing to Mrs. Wilson of the pictures of Mr.
Jean and the other suspects.
19. At no time did I learn of evidence that negated
probable cause to believe that Mr. Jean had committed
the rape and sexual assault of Mrs. Wilson.
App. 21
20. In 1995, it is easy to look back at a 1982 investi-
gation with knowledge gained in the interim and judge it
harshly. This does not mean that every investigation in
which I was involved to any degree is flawed, but just
that with perfect knowledge, the right course of action
becomes clearer and courses of action, which appeared
wholly reasonable at the time, may no longer be reason-
able because of subsequent learning and understanding.
This is what I believe has happened with the Jean case. In
1982, we did not have the benefit of hindsight, but had to
act according to what we believed was right at that time.
21. At no time in my career as a police officer have I
been trained that I am responsible for deciding what
evidence will be presented at trial or disclosed to a crimi-
nal defense counsel in response to legal discovery
requests.
22. At no time during 1982 did I believe Assistant
District Attorney Vatcher was doing anything wrong, but
I am not a lawyer.
23. I did not sit at the prosecutor’s table during the
trial of Mr. Jean. I was in the courtroom, however, when
Assistant District Attorney Vatcher held up a nightgown
and asked Mrs. Wilson, who was on the witness stand,
whether she was wearing the nightgown when she was
raped and sexually assaulted. Immediately after Assistant
District Attorney Vatcher asked Mrs. Wilson this ques-
tion, Mr. Jean nodded affirmatively in full view of every-
one, including the jury.
Further Affiant saith naught.
/s/ James Shingleton
James Shingleton
App. 22
STATE OF NORTH Carolina
COUNTY OF ONSLOW
I, Crystal D. Keel, a Notary Public in and for said
County and State, do hereby certify that JAMES SH'N-
GLETON personally appeared before me this day and
acknowledged the due execution of the foregoing instru-
ment.
WITNESS my hand and notarial seal, this the 11 day
of April, 1995.
/s/ Crystal D. Keel
Notary Public
My Commission Expires:
11/29/99
* * *
[p. 416] A I was with him approximately three or
four hours.
Q I mean up until you released him to Detective
Smith?
A Approximately 20 minutes, sir.
Q Thank you very much, sir.
MR. VATCHER: That's all I have.
COURT: Any cross examination?
App. 23
MS. MOORE: Yes, your Honor.
COURT: Go ahead, please.
CROSS EXAMINATION by MS. MOORE:
Q Officer Shingleton, let’s begin by going back to
the highway — where was it, Highway 24?
A 24, yes, ma’am.
Q And you stated you turned around and headed
east and you saw a black male on the right side of the
road. Was it the right side or left side?
A It would be the right side. Initially, when | first
observed him, I was going westbound. The subject was
on the eastbound.
© You stated this area was rather dark?
A Yes, ma’am.
Q And you had to use your headlights and blue
lights to be able to see?
A No, ma’am. When I first stopped him, that’s
when I activated the blue lights. When I first observed
him, he was coming up the hill towards the blinking
light.
[p. 417] Q He stopped when you told him to stop,
this person?
A Yes, ma’am.
Q And you began to question him about where he
had been?
A Yes, ma’am.
App. 24
Q Now, you stated that the person that you stopped
told you that he had been to see some friends?
A He had been to a friend’s house.
Q Did you try to search him at that time?
A No, ma’‘am, I did not.
Q Did you advise him that he was a suspect of any
kind?
A After I put his hands on the hood of the car, yes, I
did.
Q Now, what part of the car did you put his hands
on?
A It was on the left front fender, right above the
tire.
Q And you stated you had, another person had to
put their hands on the car also?
A Yes, ma’am.
Q What is the purpose of having their hands on the
car?
A When I talk to anybody, I like to make sure they
don’t have any weapons.
Q Isn't it also to get fingerprints if you need them?
No, ma’am.
A
Q Isn't it to take fingerprints?
A No, ma’am, it’s not standard procedure.
Q
That's not standard?
App. 25
A No.
[p. 418] Q On this particular evening, did anyone
come out to take fingerprints off of the car?
A No, ma’am, not that evening.
Q When were the fingerprints taken off?
A_ I believe it was dusted for prints the following
The following day? And where was that?
That was in back of the police department.
Were you present when that was done?
Yes, ma‘am.
And did you advise — who took the fingerprints?
> DO F&F OD PP DN
The evidence technician, Lieutenant Buchanon.
Q Lieutenant Buchanon? And did you advise Lieu-
tenant Buchanon where the person had stood, the two
people had stood?
A Yes, ma’am.
Q And he took both of the fingerprints as far as you
know?
A As far as I know, the only thing he was able to
secure off the vehicle was a partial palm print.
Q Allright. You also stated that the person that you
stopped was wearing some white tennis shoes?
A Yes, ma‘am.
App. 26
Q And they were hightops?
A Yes, ma‘am.
Q Now, isn’t it — is it unusual in the summertime for
black males to wear high-top tennis shoes?
MR. VATCHER: Objection, your Honor.
[p. 419] COURT: Overruled.
If you know?
No, ma’‘am.
And what about shorts and tops?
> Of * ©
No, ma‘am, not when you're jogging.
Q So, most people wear these during the summer,
do they not?
A Yes, ma’am.
Q The only distinctive feature that you are — about
the person you stopped was, according to your testimony
or according to what you were told, is that he was 5'9" or
5'10" and a black male?
A_ No, ma’am. Also that he had on blue shorts and
T-shirt with white tennis shoes. That’s the description
that was given out.
Q So, you cannot positively say that those white
tennis shoes or those blue and white shorts or that blue
shirt belonged to the person you saw that night, can you?
A No, ma’am, not positively.
Q Now, you stated that they are similar in type?
App. 27
A Yes, ma’am.
Q Now, you also stated that — well, let me ask you,
were you hypnotized at any time concerning this particu-
lar case?
A Yes, ma’am, I was.
Q And who hypnotized you?
[p. 420] A Detective Captain Collins.
And when was that done?
That was done on the 22nd.
The 22nd of July?
Yes, ma’am.
And what happens when you're hypnotized?
RD Dee
I don’t really know other than you're asleep or
your conscious or your subconscious goes to sleep and
you [sic] subconscious takes over your thoughts.
Q What was said to you, if you know?
A He asked basic questions as to the physical
description of the individual that I had stopped on High-
way 24.
Q And what description did you give him at that
time?
A Black male, approximately 5'9", wearing a blue
shirt, blue shorts, white high-top tennis shoes, white
socks, and I believe they had a blue stripe on the top of
the white socks.
App. 28
Q Now, do you recall what color shoe strings were
in his shoes?
A No, ma‘am.
Q Isn’t it usual or usually white shoe strings in
white tennis shoes?
MR. VATCHER: Objection, your Honor.
Q If you know?
COURT: Overruled.
A Usually you wear white laces with white tennis
shoes, yes, [p. 421] ma’am.
Q So, wouldn’t those black shoe strings be distinc-
tive in your mind?
A Ordinarily, yes, ma’am. That’s when you were
looking for it.
Q So, you can’t remember if there were black shoe
strings in those tennis or not, can you?
A No, ma’‘am.
Q Now, let’s go back to your hypnosis. Now, could
you tell the Court and jury exactly what happens when
you're hypnotized? That’s what I need to know.
A Described in my own words? Detective Captain
Collins asked several questions and in order for me to
relax and kind of put me in a sleepy mood and very
relaxed mood, and once I was there he asked several
questions. And I described the instant from start to finish.
And the questions he did ask — or one particular
question was, I believe, on the night that the incident
App. 29
occurred, which was the 21st, that I imageined [sic] some
type of design on the, this T-shirt, which under hypnosis
we found out it was not a design, but which was instead
sweat mark. Evidently the individual had been running
or jogging.
Q Okay, what else?
A There were some discrepancies, I believe, on the
initial identification of the assailant in that my physical
description [p. 422] of his face was somewhat vague and
under hypnosis there, the questions that I had — for
instance, whether the individual I had, on the night in
question, I thought he had a mustache, but under hyp-
nosis we found out that he did not have a mustache.
Q Can you think of anything else that was, that
changed under hypnosis?
A_ No, ma’am, that’s the only thing that I can recall.
Q So, now, prior to being hypnotized you thought
that the person you saw out on Highway 24 had a mus-
tache?
A Yes, ma’am.
Q Was there any other distinctive factors that you
noticed about the face of the person that you saw on
Highway 24?
A I believe there was a discrepancy as far as the
width of the nose.
Q And what was your idea of the width of the nose
before the hypnosis?
App. 30
A_ I don’t remember, really recall what the whole
discrepancy was.
Q Do you recall seeing any freckles on the person
out on Highway 24?
A No, ma‘am.
Q What about any black moles on the face?
A No, ma’am, none that I can recall.
Q Now, after the hypnosis, well, you stated that you
thought [p. 423] you saw some marks of some kind of
writing on the T-shirt?
A Yes. I thought I initially saw a design on the
T-shirt.
Q Now that was your initial thinking, was it not?
A Yes, ma’am.
Q Now, I’m going to ask you if there is any type of
design on this T-shirt, if you know?
A Other than the left sleeve, no, ma’am.
Q Do you see any sweat marks?
A No, ma’am.
Q And initially you thought that that person had a
mustache?
A Yes, ma’am, initially.
Q Now, what made you change your mind except
for being under hypnosis?
A Well, I wasn’t really positive. I believe when I
first give the man from SBI lab was doing the Identikit, I
App. 31
believe I was kind of hesitant about portion of the indi-
vidual’s facial features. That was something I couldn’t get
right in my mind, whether he did or did not have a
mustache. I thought he had a mustache.
Q And you really wanted to be sure?
A Yes, ma’am.
Q Now, after the hypnosis, though, you decided
that this man didn’t have a mustache?
A_ No, ma‘am, he did not after the hypnosis. He did
not have a mustache.
[p. 424] Q Or was it after you went to the Dunkin
Donuts and saw the defendant at the Dunkin Donuts that
you decided he didn’t have a mustache?
A No, ma’am. I was hypnotized before I arrested
the defendant at Dunkin Donuts.
Q Officer Shingleton, you were with the person at
the, on Highway 24 approximately how long?
A Approximately a minute and a half to two min-
utes at the most.
Q So, you can’t be positively sure that that person
was this defendant, can you?
A Not absolutely sure, no, ma’am.
Q So, when you went to Dunkin Donuts, did you
say that looks like the man or I’m positively sure that
that’s the man?
A_ No, ma’am. My statement was to my superviser
that that is the man.
App. 32
Q That is the man?
A Yes, ma’am.
Q And what makes you so sure that that is the
man?
A That's the feeling I had from my encounter with
the individual on the 21st, that the defendant is the
subject I had the encounter with.
Q After seeing that person only one minute and one
half?
A Yes, ma’am.
Q And were you standing face to face with him the
whole, [p. 425] entire one minute and a half?
A Yes, ma’am.
© What about when he had his hands on the car?
A Then I had a profile view of the subject at that
Q What was that profile view?
A Similar to the defendant here.
Q Can you describe it?
A The facial features. He had the long jaw, the ears,
the size of the lips, upper and lower lips.
Q Did you write any of this down at that time or
when you came back to the station? Did you take any
notes about what you saw?
A No, ma’am, | didn’t have time.
App. 33
Q Did you take any notes about what you saw at
any time prior to today?
A Yes, ma’am. I had some notes that I jotted down
previously, on the night of the 21st, which was just my
own physical description of the individual’s clothing,
where he had gone into the woods.
Q And when did you write that?
A That was after I came out of the woods across
from — between 7:30 and quarter to 8.
Q What did those notes say, if you can remember?
A Just a black male, 5 foot 9, blue T-shirt, blue
shorts, white tennis shoes.
[p. 426] Q Do you recall whether — what type white
tennis shoes?
A They were just the hightop, similar to basketball
shoes.
Q So, you don’t know whether it had any black
stripe or not, do you?
A No, ma’am.
MS. MOORE: Ihave no further questions of this
witness.
COURT: Anything on redirect?
MR. VATCHER: Yes, sir, your Honor.
REDIRECT EXAMINATION by MR. VATCHER:
Q Patrolman Shingleton, as a result of the hypnosis,
did your memory of the events improve or become
worse?
App. 34
A My memory improved a great deal, sir.
Q Now, you indicated to Miss Moore that you jotted
down some initial notes on the 21st. Did those notes ever
mention anything about facial hair?
A_ No, sir.
Q Thank you very much, sir.
MR. VATCHER: That’s all I have, your Honor.
COURT: Thank you.
MS. MOORE: I would like to ask Officer Shing-
leton one more question.
RECROSS EXAMINATION: by MS. MOORE:
Q Do you happen to have those notes present?
A No, ma’am.
App. 35
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WILMINGTON DIVISION
CIVIL ACTION FILE NO.: 4:94-CV-62-H2
LESLY JEAN,
Plaintiff
V.
DELMA COLLINS, Chief of
Detectives of the City of
Jacksonville, North Carolina,
Individually, and JAMES
SHINGLETON, Police officer
with the City of Jacksonville,
North Carolina, Police
Department, Individually,
Defendants
DECLARATION OF
ALICE KATHLEEN
WILSON
(28 U.S.C. § 1746)
me ee ee ee ee eee ee ee
I, Alice Kathleen Wilson, pursuant to 28 U.S.C. § 1746
(1989), state as follows: _
1. I am the person formerly known as Alice
Kathleen Wilson. Since 1982, my name has changed and I,
pursuant to Court order, am resuming the use of my
former name to protect my identity from Lesly Jean. 1 am
competent to make the statements contained herein based
upon my personal knowledge.
2. On July 21, 1982, I awoke during the early morn-
ing hours by a man who raped and otherwise sexually
assaulted me. The accounts of this incident have already
been recorded and do not need repeating here.
App. 36
3. When I was calm and days after having needed
and received medical treatment so that hypnotizing was
not a risk to me, Officer Delma Collins of the Jacksonville
Police Department hypnotized me. Because I was hypno-
tized, Mr. Lesly Jean was freed and has now filed a
lawsuit alleging that another person who was also hyp-
notized, Officer James Shingleton, and Officer Collins
withheld exculpatory evidence from the prosecutor and
Mr. Jean’s criminal defense lawyers. This is not true
because approximately one week before trial, the pros-
ecutor, Assistant District Attorney Walter Wayne Vatcher,
and I discussed the case in great detail. We specifically
discussed the procedure. used in my identification of
Lesly Jean as the assailant and the hypnoses of Officer
Shingleton and me. During this conversation, we also
discussed the fact that my hypnosis had been tape
recorded. The prosecutor appeared to me to be highly
knowledgeable about the identification procedures, hyp-
noses and other investigative methods used by the Jack-
sonville Police Department.
4. | want to try to set the record straight for this
honorable Court. Mr. Jean got out of jail because I, the
sole witness to the rape and assault, cannot now testify at
a criminal trial in a North Carolina State Court as to the
identification of the man who raped me, Lesly Jean. |
cannot testify at a criminal trial because | was hypno-
tized. This fact does not mean that Lesly Jean is innocent
of raping me. He is not innocent.
5. I want the Court to know that I was hypnotized,
not rendered brain injured. | remember what occurred
during the hypnosis and how my memory changed as to
some details. I also know what I saw the night I was
App. 37
raped and assaulted. I can differentiate between the two.
When | identified Lesly Jean as the rapist | was remem-
bering facts from during the rape and assault, which was
before I was hypnotized. My basis for identifying Lesly
Jean was not compromised by the hypnosis. I had seen
Lesly Jean’s face clearly during the time he was in my
bedroom because a light was on in my kitchen. When the
attack first began, however, I was shocked and petrified
with fear. At first, I tried not to look at him so that he
would not think I could later identify him. I thought that
if he thought I could identify him, then he would kill me.
Because of this and because I was also extremely scared,
I, at first, could not tell whether he was black or just very
dark until he told me so. After he told me and over the
remaining course of the hour and fifteen minutes he was
in my bedroom, I began to take notice of his features.
From previously living in San Diego, I remembered a
television show I had seen which told of what to do if
raped and how to try to remember identifying features of
the rapist. Even so, after having gone through such a
horrible experience, I was not capabie of putting every-
thing I saw into words. However, I knew what I saw. I
knew that if I ever saw him again in person, i could
identify him. I underwent hypnosis simply to assist in the
investigation. I assure this Court that my identification of
Lesly Jean was not based upon the hypnosis. In just
several paragraphs, the Complaint attempts to selectively
state and alter events occurring over many days and to
create uncertainties as to my identification of Lesly Jean.
It is true that given the magnitude of the charges and the
two-dimensional, black and white photographs I saw,
which failed to capture all of his identifying physical
App. 40
10. From everything I observed, Officers Collins
and Shingleton, as well as the other members of the
Jacksonville Police Department who investigated the rape
and assault, acted in good faith to capture the man who
actually raped and assaulted me. In fact, from my contact
with the Jacksonville Police Department, Officer Collins
participated very little in the investigation and Officer
Shingleton participated even less. I mainly thought of
Officer Shingleton as another witness in the case whose
participation was limited to seeing a person who matched
the general description of the rapist a short time after the
rape. The Jacksonville Police Department appeared to me
to be fair and non-biased towards all suspects and poten-
tial suspects. In fact, they appeared to me to be almost too
cautious in protecting the rights of the suspects, espe-
cially Lesly Jean.
11. While I was testifying at Lesly Jean’s criminal
trial in 1982, the prosecutor showed me a nightgown and
_asked me if it was the nightgown I was wearing when I
was raped and assaulted. Immediately after the prosecu-
tor asked me this question, I saw Lesly Jean nod affirma-
tively. He was in full view of the jury when this occurred.
12. Let Lesly Jean deny that he flunked a polygraph
test in 1982 as to his innocence. Unless he is willing to
commit perjury, he cannot make such a denial to this
Court.
13. After the jury convicted Lesly Jean, the Court
allowed him to make a statement. While he was making
this statement, I understood him to be trying to explain
why he was not on base when the rape and assault
occurred. He, and other marines, had testified during
App. 41
trial that he had been in bed on base when the rape and
assault occurred.
Further Declarant saith naught.
I, Alice Kathleen Wilson, am executing this Declara-
tion within the United States, and declare under penalty
of perjury that the foregoing is true and correct.
Executed on this the 3ist day of March, 1995.
/s/ Alice Kathleen Wilson
Alice Kathleen Wilson
App. 38
features, my identification of Lesly Jean may have
appeared tentative to the Police at first. However, I did
pick out his picture and, when I returned to the police
station again before | was hypnotized, I was ready to
identify his picture again. I was certain of his identity
before I was hypnotized. I did not communicate my read-
iness clearly enough, but after the hypnosis, I selected his
picture from among the others, just as I could have done
and was ready to do before the hypnosis. Also, I never
said Lesly Jean had a mole as big as a dime as the
Complaint alleges. The composite, created after the rape
and before the hypnosis, shows that the mole was not
that large. After having been raped, I was trying as best I
could to communicate that his complexion looked uneven
where the mole was located, which was caused by a mole.
6. Based on my memory before I was hypnotized, |
am sure that Lesly Jean was in my bedroom for approxi-
mately one hour and fifteen minutes and close to me for
an hour of that time. Also, without knowing it was his
voice at the time and without being hypnotized as to it, I
identified Lesly Jean’s voice as the person who raped and
sexually assaulted me out of five other voices, which I
thought were otherwise similar. Before I was hypnotized,
I identified his accent as not being southern United States
and as possibly being a Puerto-Rican from New York. I
have not been exposed to many types of caribbean
accents so pinpointing it as creole or Haitian was not
possible for me then, anymore than it would be for me
now to pick out a South American or Asian accent and
name the specific country of origin.
7. Once I saw Lesly Jean in person, a flood of pre-
hypnotic memories hit me. I saw identifying features that
App. 39
the two dimensional photographs did not capture and
that I had not sufficiently put into words before that time.
In addition to other identifying characteristics, Lesly
Jean’s profile and the shape of his torso left no doubt in
my mind he was the man who raped me. Plain and
simply, I identified him by his total physical identifying
features. I knew Lesly Jean was the man who raped me
when his total identifying characteristics hit me in a wave
of horror. After the lineup, I [sic] took me a few minutes
to steady myself. The police could have had anyone else
there standing with him when I viewed the line-up, and,
in fact they did have two black men who I thought
otherwise matched his description standing next to him,
but my eyes cut straight through to him. He and I both
know what occurred on July 21, 1982. He knows that I
identified him based on the fact that he was in my bed-
room on that date and not because I was hypnotized to
believe he was the rapist.
8. Based on my being raped and assaulted, and
being with him for over an hour, I will never forget him. I
believe I would remember Lesly Jean and could identify
him once I saw him in person even if I had been hypno-
tized for hours on end to forget him. I believe there are
just some memories that are so deep that no amount of
hypnotizing or time can substantially change them. I
remember what occurred during the hypnosis in which I
participated and it certainly did not change my memories
from someone else to Lesly Jean.
9. I remember the man who raped me. That man is
Lesly Jean. I pray unto this Court not to allow him to be,
in essence, compensated for raping and assaulting me.
App. 42
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WILMINGTON DIVISION
CIVIL ACTION FILE NO.: 4:94-CV-62-H2
LESLY JEAN,
Plaintiff AFFIDAVIT OF
- WALTER WAYNE
VATCHER
DELMA COLLINS, Chief of
Detectives of the City of
Jacksonville, North Carolina,
Individually, and JAMES
SHINGLETON, Police Officer
with the City of Jacksonville
North Carolina, Police
Department, Individually,
Defendants
1. I am Walter Wayne Vatcher and I am competent
to make the statements contained herein based upon my
personal knowledge.
2. From 1979 to 1984, I was an Assistant District
Attorney for Onslow County, North Carolina.
3. In 1982, 1 prosecuted Mr. Lesly Jean on charges of
first-degree rape and sexual assault.
4. The District Attorney for the Fourth Prosecutorial
District of North Carolina, the Honorable William H.
Andrews, assigned Mr. Jean’s criminal case to me. Pur-
suant to N.C. GEN. STAT. sect. 7A, -63, I had previously
taken an oath of office and could perform the same duties
of the District Attorney’s when assigned by him to per-
form those duties. Because of the assignment of duties
App. 43
from the District Attorney to me in Mr. Jean’s criminal
case, the North Carolina Constitution, Article IV, section
18, provided that I was “responsible for the prosecution
on behalf of the State.... ”
5. I, not Officer Delma Collins or Officer James
Shingleton, performed the constitutional duties of the
District Attorney for the Fourth Prosecutorial District of
North Carolina on behalf of the District Attorney.
6. In Mr. Jean’s criminal cases, I performed the
duties of a prosecutor to the best of my ability. At all
times, I acted in good faith. At no time did I step beyond
my duties as a prosecutor. For the prosecution of Mr.
Jean, and any acts or omissions incidental thereto, I claim
prosecutorial immunity to the fullest extent allowed by
the law. Ke
7. I have had occasion to read the Complaint of Mr.
Jean filed in the above-captioned action. To the best of my
knowledge Officer Collins and Shingleton never withheld
or suppressed any evidence. While I was acting in my
prosecutorial capacity in regard to the criminal prosecu-
tion of Mr. Jean, one or both of these Officers informed
me of the existence of the hypnoses and identification
procedures mentioned in the Complaint. This was done
months before trial during the Summer of 1982. During
this same time period, the Jacksonville Police also
advised me of the existence of the other evidence that Mr.
Jean alleged in his Complaint was withheld from me,
which included the sequence of facts and identification
procedures used leading to the rape victim’s identifica-
tion of Mr. Jean. On one or more occasions, including one
App. 44
occasion around the end of August or first part of Sep-
tember of 1982, I reviewed reports concerning evidence
examined by the State Bureau of Investigation’s crime
laboratory. During this time and on many other occasions
before the trial of Mr. Jean, I had discussions concerning
the physical evidence and identification procedures that
Mr. Jean alleges was withheld from me.
8. In 1982, an excellent working relationship existed
between the Jacksonville Police and the District Attor-
ney’s Office on matters pertaining to criminal investiga-
tions and evidence establishing or defeating probable
cause.
9. In executing my discretion as a prosecutor to seek
an indictment and try Mr. Jean, I had to have and did, in
fact, receive complete updates on the investigation,
including facts concerning the identification procedures
used. The Jacksonville Police were frank with me con-
cerning the pros and cons of the case against Mr. Jean
because, based upon my perceptions of them, they did
not wish to see an innocent person convicted, which
necessarily means that a guilty person remains free.
10. In my opinion, the identification procedures
used were not impermissibly suggestive. They were not
otherwise exculpatory or material to Mr. Jean’s defense.
11. No one rushed to arrest Mr. Jean to quell public
concerns over an at-large rapist. We waited, not because
the evidence made Mr. Jean appear innocent, but because
we wanted to make sure he was the rapist. As facts were
uncovered during the investigation, the case against Mr.
Jean became stronger, not weaker.
App. 45
12. On one occasion during this time frame, Officer
Collins even hypnotized me on a subject unrelated to the
case. I did not request Collins to testify or produce docu-
ments. Based on my professional judgment, I believed
that the hypnoses did not contain exculpatory informa-
tion. I produced all information I felt was required by
law.
13. Mr. Jean’s criminal defense counsel learned of
the hypnoses of the rape victim and Officer Shingleton on
voir dire on Defendant Jean’s Motion to Suppress Identi-
fication, which occurred before the witnesses testified at
trial. In front of the jury, Mr. Jean’s criminal defense
counsel cross examined the rape victim on the fact that
she had been hypnotized. (See Exhibit A). She remem-
bered being hypnotized and the questions asked.
14. Mr. Jean’s criminal defense counsel also cross
examined Officer Shingleton on the fact that he had been
hypnotized. Officer Shingleton testified as to how he was
hypnotized and the questions asked. (See Exhibit B). He
remembered what occurred during the hypnosis and how
his description of the person he encountered changed as a
result of the hypnosis. All of this testimony was given by
him in full presence of the jury.
15. Officer Collins was available to testify, but Mr.
Jean’s criminal defense counsel did not call him to testify
as to the procedures used. Mr. Jean’s counsel did not
request a voir dire on what his testimony would be con-
cerning the methods he used to hypnotize the victim and
Officer Shingleton.
App. 46
16. Officers Shingleton and Collins turned over all
evidence that I requested from them. I knew of the exis-
tence of the hypnoses having been conducted. I received
a lengthy document from Mr. Jean’s criminal defense
counsel containing numerous discovery requests. The dis-
covery did not name items concerning hypnosis by name.
I turned over all the items I was compelled to do under
the law at that time.
17. At no time did I act with the intent to withhold
or suppress any exculpatory evidence or convict Mr. Jean
improperly, nor am I aware of any other person withhold-
ing or suppressing evidence. It is my opinion that the
evidence produced by the police department in 1982 was
sufficient for a finding of probable cause, a trial and a
conviction.
18. By filing this Affidavit, I do not waive the abso-
lute immunity afforded to me for my acts as a prosecutor.
Further I do not waive the other immunities that may be
available to me, which may include qualified immunity,
governmental immunity or otherwise. Further affiant
saith naught.
/s/ Walter Wayne Vatcher
Walter Wayne Vatcher
STATE OF NORTH CAROLINA
COUNTY OF ONSLOW
I Lisa D. Hawkins, a Notary Public in and for said
County and State, do hereby certify that WALTER
WAYNE VATCHER personally appeared before me this
day and acknowledged the due execution of the forego-
ing instrument.
App. 47
WITNESS my hand and notarial seal, this the 31 day
of March [LDH] 1995.
[SEAL]
/s/ Lisa D. Hawkins
Notary Public
My Commission Expires:
2/3/97
EXHIBIT A
* * ”
[p. 285] I saw him at the fire station, his face, I knew him
immediately, who he was and the profile and details of
his face.
Q And so on the 17th of December, 1982 -
A September.
Q 17th of September, 1982, you became 100 percent
positive? That that was the man, Mrs. Wilson?
A Sir, I hadn’t been able to see him in person up to
this time. When I saw him in person, yes, sir, | knew who
he was.
Q Okay. So on the 17th of December, that’s when
you became 100 percent positive, isn’t that correct,
ma’am?
A Sir, that’s when I made my identification of him,
yes, Sir.
App. 48
Q And are you today 100 percent positive that he
was the assailant?
A Yes, sir.
Q And are testifying today that your testimony was
not influenced by either the pictures, anything or any-
one?
A That's right, sir.
Q That this was based solely on your memory?
A Yes, sir.
Q Mrs. Wilson, do you recall if you’ve ever been
subjected to hypnosis?
A Yes, sir.
Q Do you recall what date that was?
A No, sir.
[p. 286] Q Do you recall who did it?
A Yes, sir.
Q Who was it?
A Detective Collins.
Q And do you recall what month it occurred in?
A_ No, sir.
Q You don’t recall whether it was September or
August?
A_ No, sir, I don’t remember if it was July or August.
It was either the end of July or beginning of August.
App. 49
Q And you were hypnotized by Detective Collins?
A Yes, sir.
Q You have any idea what took place or what was
said to you?
A Yes, sir.
Q While you were in the hypnotic state?
A Yes, sir.
Q In other words, you were conscious?
A_ Yes, sir.
Q And yet you were hypnotized?
A Yes, sir.
Q
And that in no way influenced your testimony at
A No, sir.
Q And that in no way made you positively identify
an individual?
A_ No, sir.
- Q And you were positive on your own that this is
the man?
[p. 287] A Yes, sir.
Q Then why may I ask, Mrs. Wilson, did you sub-
ject yourself to hypnosis if you were so sure?
A Would you please repeat that question?
Q Yes, ma’am. If you did everything on your own,
as you're certain, ma’am, you were not influenced by
App. 50
anything or anyone, why would you subject yourself to
hypnosis, ma’am.
A They asked me to go under hypnosis to see if I
could remember anything more about the picture that
bothered me so much, and I didn’t remember any more
about it under hypnosis than I do normally. I remem-
bered anyway and that’s it.
Q How did you know the results of the hypnosis?
A Because I know what was said during the hyp-
nosis. You don’t not remember what was said. You know
what’s said to you during that time.
Q Were you not placed in a state of unconscious-
ness at that time?
A_ No, sir.
Q You were conscious and understood each and
ever word that was said to you and what you said back?
A Yes, sir.
Q And you gained nothing from that hypnosis?
A_ No, sir.
Q Except perhaps the identity -
A_ No, sir.
[p. 288] Q - of the picture that made you feel ill?
A No, sir.
Q Mrs. Wilson, would your testimony here today be
influenced at all by a desire to avenge a crime?
App. 51
A No, sir.
Q What about would it be influenced by a desire to
exact vengeance on someone you believe is guilty based
on laboratory reports and anything anyone else told you?
A_ No, sir.
Q So, as you sit here now, you have no doubt in
your mind that Lesly Jean does not have a twin, does not
have anybody that looks like him, that he’s the one?
A That’s right, sir. I have no doubt in my mind that
that was the man that raped me.
Q No possibility for error or excuse?
A That's right, sir.
Q And certainly no desire, either consciously or
unconsciously, to support an identification made by
someone else?
A_ No, sir.
MR. WRIGHT: I have no further questions,
your Honor.
THE COURT: Anything on redirect by the
State?
MR. VATCHER: Yes, sir, your Honor.
REDIRECT EXAMINATION by MR. VATCHER:
Q Kathy, you testified that the object was placed to
your head while you were in your bedroom on the 21st of
July, that
App. 52
EXHIBIT B
* + *
[p. 419] COURT: Overruled.
If you know?
No, ma‘am.
And what about shorts and tops?
> DO fF 0
No, ma’am, not when you're jogging.
Q So, most people wear these during the summer,
do they not?
A Yes, ma’am.
Q The only distinctive feature that you are — about
the person you stopped was, according to your testimony
or according to what you were told, is that he was 5’ 9" or
5° 10" and a black male?
A No, ma’am. Also that he had on blue shorts and
T-shirt with white tennis shoes. That’s the description
that was given out.
Q So, you cannot positively say that those white
tennis shoes or those blue and white shorts or that blue
shirt belonged to the person you saw that night, can you?
A No, ma‘am, not positively.
Q Now, you stated that they are similar in type?
A Yes, ma’am.
Q
Now, you also stated that — well, let me ask you,
were you hypnotized at any time concerning this particu-
lar case?
App. 53
A Yes, ma’am, I was.
Q And who hypnotized you?
[p. 420] A Detective Captain Collins.
And when was that done?
That was done on the 22nd.
The 22nd of July?
Yes, ma‘am.
And what happens when you’re hypnotized?
> ODO > © PF
I don’t really know other than you’re asleep or
your conscious or your subconscious goes to sleep and
you [sic] subconscious takes over your thoughts.
Q What was said to you, if you know?
A He asked basic questions as to the physical
description of the individual that I had stopped on High-
way 24.
Q And what description did you give him at that
time?
A Black male, approximately 5' 9", wearing a blue
shirt, blue shorts, white high-top tennis shoes, white
socks, and I believe they had a blue stripe on the top of
the white socks.
Q Now, do you recall what color shoe strings were
in his shoes?
A No, ma’am.
Q Isn’t it usual or usually white shoe strings in
white tennis shoes?
App. 54
MR. VATCHER: Objection, your Honor.
Q If you know?
COURT: Overruled.
A Usually you wear white laces with white tennis
shoes, yes, [p. 421] ma’am.
Q So, wouldn’t those black shoe strings be distinc-
tive in your mind?
A Ordinarily, yes, ma’am. That’s when you were
looking for it.
Q So, you can’t remember if there were black shoe
strings in those tennis or not, can you?
A No, ma‘am.
Q Now, let’s go back to your hypnosis. Now, could
you tell the Court and jury exactly what happens when
you're hypnotized? That’s what I need to know.
A Described in my own words? Detective Captain
Collins asked several questions and in order for me to
relax and kind of put me in a sleepy mood and very
relaxed mood, and once I was there he asked several
questions. And I described the instant from start to finish.
And the questions he did ask - or one particular
question was, I believe, on the night that the incident
occurred, which was the 21st, that I imageined [sic] some
type of design on the, this T-shirt, which under hypnosis
we found out it was not a design, but which was instead
sweat mark. Evidently the individual had been running
or jogging.
App. 55
Q Okay, what else?
A There were some discrepancies, I believe, on the
initial identification of the assailant in that my physical
description [p. 422] of his face was somewhat vague and
under hypnosis there, the questions that I had - for
instance, whether the individual I had, on the night in
question, I thought he had a mustache, but under hyp-
nosis we found out that he did not have a mustache.
Q Can you think of anything else that was, that
changed under hypnosis?
A No, ma’am, that’s the only thing that I can recall.
Q ‘So, now, prior to being hypnotized you thought
that the person you saw out on Highway 24 had a mus-
tache?
A Yes, ma’am.
Q Was there any other distinctive factors that you
noticed about the face of the person that you saw on
Highway 24?
A_ I believe there was a discrepancy as far as the
width of the nose.
Q And what was your idea of the width of the nose
before the hypnosis?
A_ I don’t remember, really recall what the whole
discrepancy was.
Q Do you recall seeing any freckles on the person
out on Highway 24?
A No, ma’am.
App. 56
Q What about any black moles on the face?
A No, ma’am, none that I can recall.
Q Now, after the hypnosis, well, you stated that you
thought [p. 423] you saw some marks or some kind of
writing on the T-shirt?
A Yes. I thought I initially saw a design on the
Te 3*t.
Q Now that was your initial thinking, was it not?
A Yes, ma’am.
Q Now, I’m going to ask you if there is any type of
design on this T-shirt, if you know?
A Other than the left sleeve, no, ma’am.
Q Do you see any sweat marks?
A No, ma’am.
Q And initially you thought that that person had a
mustache?
A Yes, ma’am, initially.
Q Now, what made you change your mind except
for being under hypnosis?
A Well, I wasn’t really positive. I believe when I
first give the man from SBI lab was doing the Identikit, I
believe I was kind of hesitant about portion of the indi-
vidual’s facial features. That was something I couldn’t get
right in my mind, whether he did or did not have a
mustache. I thought he had a mustache.
Q And you really wanted to be sure?
App. 57
A Yes, ma’am.
Q Now, after the hypnosis, though, you decided
that this man didn’t have a mustache?
A No, ma‘am he did not after the hypnosis. He did
not have a mustache.
[p. 424] Q Or was it after you went to the Dunkin
Donuts and saw the defendant at the Dunkin Donuts that
you decided he didn’t have a mustache?
A No, ma’am. I was hypnotized before I arrested
the defendant at Dunkin Donuts.
Q Officer Shingleton, you were with the person at
the, on Highway 24 approximately how long?
A Approximately a minute and a half to two min-
utes at the most.
Q So, you can’t be positively sure that that person
was this defendant, can you?
A Not absolutely sure, no, ma’am.
Q So, when you went to Dunkin Donuts, did you
say that looks like the man or I’m positively sure that
that’s the man?
A No, ma’am. My statement was to my supervisor
that that is the man.
Q That is the man?
A Yes, ma’am.
Q And what makes you so sure that that is the
man?
App. 58
A That's the feeling I had from my encounter with
the individual on the 21st, that the defendant is the
subject I had the encounter with.
Q After seeing that person only one minute and one
half?
A Yes, ma’am.
Q And were you standing face to face with him the
whole, [p. 425] entire one minute and a half?
A Yes, ma’am.
Q What about when he had his hanas on the car?
A Then I had a profile view of the subject at that
Q What was that profile view?
A Similar to the defendant here.
Q Can you describe it?
A The facial features. He had the long jaw, the ears,
the size of the lips, upper and lower lips.
Q Did you write any of this down at that time or
when you came back to the station? Did you take any
notes about what you saw?
A No, ma’am, I didn’t have time.
Q Did you take any notes about what you saw at
any time prior to today?
A Yes, ma’am. I had some notes that I jotted down
previously, on the night of the 21st, which was just my
own physical description of the individual’s clothing,
where he had gone into the woods.
App. 59
Q And when did you write that?
A That was after I came out of the woods across
from ~ between 7:30 and quarter to 8.
Q What did those notes say, if you can remember?
A Just a black male, 5 foot 9, blue T-shirt, blue
shorts, white tennis shoes.
[p. 426] Q Do you recall whether — what type white
tennis shoes?
A They were just the hightop, similar to basketball
shoes.
Q So, you don’t know whether it had any black
stripe or not, do you?
A No, ma’am.
MS. MOORE: Ihave no further questions of this
witness.
COURT: Anything on redirect?
MR. VATCHER: Yes, sir, your Honor.
REDIRECT EXAMINATION by MR. VATCHER:
Q Patrolman Shingleton, as a result of the hypnosis,
did your memory of the events improve or become
worse?
A My memory improved a great deal, sir.
Q Now, you indicated to Miss Moore that you jotted
down some initial notes on the 21st. Did those notes ever
mention anything about facial hair?
App. 60
A No, sir.
Q Thank you, very much, sir.
MR. VATCHER: That's all I have, your Honor.
COURT: Thank you~
MS. MOORE: 1 would like to ask Officer Shing-
leton one more question.
RECROSS EXAMINATION by MS. MOORE:
Q Do you happen to have those notes present?
A No, ma‘am. [p. 427] So I wouldn’t know whether
it had any mention of hair or not, would I?
MR. VATCHER: Objection.
COURT: Overruled.
A No.
Thank you.
COURT: Thank you Officer Shingleton, you can
have a seat.
Next witness ready now, sir?
MR. VATCHER: Yes, sir, she is.
COURT: Let your witness come up.
MR. VATCHER: Joan [sic] P. Medlin, your
Honor.
JONA P. MEDLIN, being first duly sworn, testified as
follows during DIRECT EXAMINATION by MR.
VATCHER:
App. 61
Q Please state your name and occupation For the
Court and jury?
A Jona P. Medlin. I’m a forensic serologist
employed by the State Bureau of Investigation.
MS. MOORE: I’m sorry, I missed the first name.
MR. VATCHER: Could you spell that, please?
A j-o-n-a.
Q And what are your duties with the State Bureau
of Investigation, Mrs. Medlin?
A I'm a forensic serologist.
Q Would you define that for the jury?
4 * *
a
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