PEOPLE v. PUGH (1984)

OPINION

Defendant Thomas Floyd Pugh appeals his conviction of two counts of murder (Pen.Code, § 187), two counts of kidnapping (Pen.Code, § 207), and two counts of assault with a deadly weapon (Pen.Code, § 245(a)).   In his habeas petition, Pugh argues the prosecution's suppression of material evidence violated his right to due process, and the testimony of two witnesses who were hypnotized before trial should have been suppressed.   In his appeal, he argues the trial court erred in admitting an in-court identification into evidence, denying his motion for a new trial, and denying his Penal Code section 1118.1 motion.   He also argues the evidence was insufficient to support his convictions of first degree murder.

FACTS

Since 1975, the Hangman Motorcycle Club has been engaged in a “biker war” with Ryan Baker's motorcycle group (the Beach Bikers).   The “war” began when Rick Gruber of the Beach Bikers stole Jim Earls' motorcycle.   Both Jim Earls and Thomas Pugh are members of the Hangman Motorcycle Club.

In 1978, Pugh began dating Tina Wiltz.   Wiltz was Pugh's “third girl”;  Pugh was married to Sue Pugh and had another girlfriend named Denise.   Wiltz was also Ryan Baker's “second girl.”   While dating both Pugh and Baker, Wiltz attempted to arrange a sale of motorcycle parts between them.   Although she was unsuccessful, Baker learned where Pugh lived during the negotiations.

On February 6, 1978, Pugh and his wife were assaulted in their home by three men who Pugh believed to be members of the Beach Bikers.¹  Pugh was shot in the back and hospitalized for a week.   A few days after he returned home from the hospital, Pugh asked Wiltz to help him locate the residences of Tony Murray, Ryan Baker, and Charlie Taylor (all Beach Bikers).   Wiltz refused.

Approximately one month later, Pugh picked up Wiltz from work and drove her and Earls past the homes of several Beach Bikers.   Pugh asked Wiltz to help him set up Baker and said he would do “anything” to get him.   Wiltz refused to go along with the plan.

When Pugh dropped Wiltz off at her house that night, she went inside and got two photographs for him.   One was of Ryan Baker and the other one was of Baker and Charlie Taylor.   Pugh took the photographs from her and said “Have a nice life.   Hope you're not there when it all happens.”   Wiltz went inside her house and called Charlie Taylor to warn him and his girlfriend, Nancy Arroyo, to get out of their house so they would not get hurt.

Later that evening, Arroyo left her apartment and walked to her car in the carport.   Charlie and his brother, Allen, followed her.   Ken McCausland, a neighbor, was in the carport area talking to Charlie and Allen as Arroyo began to back her car out of the carport.   Suddenly two men jumped out from behind a bush and yelled “Freeze.   This is the police.   Down spread eagle.”   Arroyo was pulled out of her car and ordered to lie down on the ground.   The two men then handcuffed Charlie and Allen and dragged them off toward a field behind the apartment complex.

Arroyo remained on the ground until she thought all the men were gone.   She then stood up and ran toward her apartment.   Someone shouted “Stop or I'll shoot.”   Arroyo testified she turned and looked at Pugh for two to four seconds before she dropped to the ground inside another carport.   A few minutes later Arroyo returned to her apartment.

The next day Pugh was arrested at Earls' house and Arroyo tentatively identified Pugh from a photo lineup.   Charlie and Allen Taylor have not been seen or heard from since they were kidnapped.   Pugh was convicted of first degree murder, kidnapping, and assault with a deadly weapon.   He was sentenced to life imprisonment in accordance with Penal Code section 669 as it existed in 1978.

On May 24, 1982, this court ordered the superior court to conduct an evidentiary hearing regarding the suppression of certain evidence.   Several months later, we supplemented our order by asking the superior court to determine whether the prosecution had withheld information favorable to the defense by failing to advise the defense that two prosecution witnesses had been hypnotized.   The superior court was instructed to determine whether the withholding of any information favorable to the defense was prejudicial or deprived Pugh of a fair trial.   The superior court judge issued the following finding:  “The Referee has reviewed all known transcripts of pre-hypnosis interviews, statements and preliminary hearings.   In addition, the video-taped hypnotic interviews of Tina Wiltz and Nancy Arroyo have been viewed.   The Referee has also reviewed the transcripts of the testimony of said witnesses given during trial.   It is the undersigned's conclusion no information favorable to the defense was withheld nor was the testimony of either witness as to content affected by the hypnotic interviews.   Therefore, failure to disclose the fact of hypnosis was not prejudicial and did not deprive defendant of a fair trial.”

DISCUSSION

 Pugh argues the failure of the prosecution to inform him that two key prosecution witnesses had been hypnotized before trial denied him a fair trial and violated his Sixth Amendment right to confront witnesses.   He correctly contends the suppression of substantial material evidence bearing on the credibility of a key prosecution witness is a denial of due process within the meaning of the Fourteenth Amendment.  (People v. Ruthford (1975) 14 Cal.3d 399, 408, 121 Cal.Rptr. 261, 534 P.2d 1341.)   The California Supreme Court has recognized “a duty on the part of the prosecution, even in the absence of a request therefor, to disclose all substantial material evidence favorable to an accused, whether such evidence relates directly to the question of guilt, to matters relevant to punishment, or to the credibility of a material witness.”  (Id., at p. 406, 121 Cal.Rptr. 261, 534 P.2d 1341, emphasis deleted.)   This rule applies to either intentional or negligent prosecutorial suppression of evidence.  (Ibid., citing Brady v. Maryland (1963) 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215;  In re Ferguson (1971) 5 Cal.3d 525, 533, 96 Cal.Rptr. 594, 487 P.2d 1234.)   Where the suppressed evidence bears on the credibility of a key witness, the accused is entitled to a new trial if the suppressed evidence is “material” and it is “reasonably probable” the defense could have obtained a different verdict had it been aware of the evidence.  (People v. Ruthford, supra, 14 Cal.3d at p. 408, 121 Cal.Rptr. 261, 534 P.2d 1341, citing Giglio v. United States (1972) 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104, In re Ferguson, supra, 5 Cal.3d at p. 535, 96 Cal.Rptr. 594, 487 P.2d 1234, and Napue v. Illinois (1959) 360 U.S. 264, 271, 79 S.Ct. 1173, 1178, 3 L.Ed.2d 1217.)

 We hold that as a matter of law, substantial material evidence favorable to the defendant was improperly suppressed.   Therefore, we conclude Pugh was denied a fair trial, and we grant his petition for writ of habeas corpus.

The failure to inform Pugh that both Arroyo and Wiltz were hypnotized deprived him of the opportunity to use the hypnosis testimony to impeach the witnesses' credibility.   Because Pugh presented an alibi defense, the credibility of the witnesses was crucial to the outcome of the case.   Pugh could have relied upon the hypnosis testimony to impeach the witnesses' trial testimony by pointing out inconsistent statements or to elaborate on the witnesses' inability to perceive or remember the events.

 The prosecution's alleged lack of knowledge regarding the hypnosis sessions does not justify failure to disclose the evidence.   A District Attorney conducted the hypnosis session of Arroyo, and a private hypnotist was hired by the District Attorney's office to conduct the hypnosis of the other witness.   Therefore, the District Attorney's office had constructive knowledge of the hypnosis sessions and was required to disclose this evidence to the defense.

The People argue they were relieved of their duty to disclose evidence because the hypnosis sessions did not result in evidence favorable to the defense.   Arroyo was hypnotized in an attempt to have her identify a second suspect and to recall a license plate number.   Although she described the second assailant during hypnosis, she was unable to identify anyone from a photo lineup after hypnosis.   She was also unable to recall the license plate number of the van seen in front of her apartment complex after the kidnapping.   Wiltz was hypnotized in an attempt to enhance her memory regarding the address of a house where Pugh stopped for approximately one-half hour on the night of the crime.   She was also unable to recall the information under hypnosis.

 The People's contention that these “unsuccessful” hypnosis sessions did not produce evidence “favorable” to the defense is without merit.   Besides depriving Pugh of the opportunity of using the hypnosis statements to impeach the witnesses' trial testimony, Pugh was precluded from arguing trial testimony is inherently unreliable when the witness was hypnotized before trial for purposes of memory enhancement.   Pugh could have supported this argument by introducing expert witness testimony.   Therefore, we conclude the evidence was “favorable” to the defense and should have been disclosed.

In People v. Shirley (1982) 31 Cal.3d 18, 66, 181 Cal.Rptr. 243, 641 P.2d 775, the California Supreme Court held that after a person is hypnotized, “the resulting ‘memory’ may be so fixed in his mind that traditional legal techniques such as cross-examination may be largely ineffective to expose its unreliability.”  (People v. Shirley, supra, 31 Cal.3d at p. 66, 181 Cal.Rptr. 243, 641 P.2d 775.) ²  Thus, Pugh's ability to effectively cross-examine and impeach the witnesses may have been impaired when the witnesses were hypnotized so that disclosure by the prosecution would not have preserved Pugh's Sixth Amendment right to confront witnesses.  (See United States v. Miller (2d Cir.1969) 411 F.2d 825.)

 Because we conclude the prosecution suppressed material evidence, we hold Pugh was deprived of a fair trial.   This error cannot be deemed harmless beyond a reasonable doubt.  (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.)   Thus, Pugh is entitled to a new trial.   The petition for writ of habeas corpus is granted and the conviction is reversed.

 In view of this determination, we need not reach the other issues raised in Pugh's petition and consolidated appeal.   For purposes of retrial, however, we note the evidence is insufficient to support first degree murder based on lying in wait.   Although there is evidence of lying in wait to kidnap the victims, the record does not establish the lying in wait immediately preceded the killing or constituted the means of killing.  (See People v. Merkouris (1956) 46 Cal.2d 540, 297 P.2d 999.)

The judgment is reversed.

FOOTNOTES

1.   Sue Pugh viewed a photo lineup and identified Tony Murray as one of the assailants.   She tentatively identified Ryan Baker as one of the masked assailants.

2.   Although the Shirley decision initially was to apply to all cases not yet final as of the filing of Shirley, the opinion was modified to read “[w]e take no position at this time as to the application of those principles to witnesses hypnotized before the date of this decision.”  (People v. Shirley, supra, 31 Cal.3d at p. 67, fn. 53, 181 Cal.Rptr. 243, 641 P.2d 775.)   The retroactivity issue is presently pending before the California Supreme Court in People v. Aquino, Crim. No. 22657 and People v. Guerra, Crim. No. 22327.

WALLIN, Associate Justice.

TROTTER, P.J., and SONENSHINE, J., concur.