Roark v. Commonwealth

90 S.W.3d 24 (2002)

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Nature of the Case

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Facts

On November 29, 1997, N.T., was at home alone when she heard a noise that sounded like breaking glass. She later discovered that a basement window had been broken and that her bedroom had been ransacked. Money and numerous items of jewelry were missing including a cross and chain that had been a gift from her sister on the occasion of N.T.'s fiftieth birthday. Also missing were photographs taken before and after N.T.'s recent surgery to remove her sternum, several ribs, and a portion of her lungs. On December 19, 1997, she was again at home alone. The intruder placed a knife against N.T.'s throat and told her to remain quiet. He then forced her to the floor and covered her head with his overcoat. N.T. lay still for a few minutes, then removed the overcoat from her face, intending to flee from the residence. However, the intruder was standing only a few feet away. She was able to observe the intruder for approximately five seconds before he exclaimed, 'Now I am going to kill you,' then attacked her and pulled her robe up over her head. As the two struggled on the floor, the intruder ordered N.T. to 'turn over, I want to see your operation,' and forced her onto her back. He tied her hands in front of her body, cut off her underwear with the knife, and digitally penetrated her vagina and anus. He left the residence and N.T. called the police. N.T. later discovered that the intruder had stolen money and a cameo broach from the same bedroom from which the November 29th burglar had also stolen money and jewelry. N.T. described the intruder as a white male, 25 to 30 years old, five feet six inches to five feet seven inches tall, weighing approximately 155 pounds, and having light-colored hair. She did not mention whether his hair was thick or thin and specifically could not recall whether he had any facial hair. Shortly thereafter, N.T. described her assailant to Detective Thomas as a white male, 18 to 25 years old, five feet five inches tall, weighing 150 pounds, with light-colored hair that was shorter in the front than in the back, and with a four-to-five day growth of facial hair. After being checked for injuries at a local hospital, N.T. was transported to the police station where she could not identify her assailant from several hundred mug shots. She then assisted in the creation of two computer-generated composite sketches. The second composite, created the same day, was described as very similar to the first, except that the hair line on the second composite was higher on the forehead than on the first. The first composite was introduced at trial and shows a full head of hair and no facial hair. The second composite was either lost or misplaced but the P admits it also showed a full head of hair and no facial hair. N.T. was shown two photo lineups, approximately 250 photos of employees of a nearby meat packing plant, ten high school yearbooks, and a photo lineup of known sexual offenders. She was unable to identify her assailant from any of these photographs. Police suggested hypnosis. She was hypnotized by Jill Brunner, a 'certified hypnotherapist' and an acquaintance of N.T.'s husband. The hypnosis was conducted in the presence of N.T.'s husband and was audiotaped. N.T. described her assailant in various ways, i.e., white male, between 25 and 30 years old, between 22 and 24 years old, 150 to 155 pounds, about 140 pounds, between five feet six inches and five feet eight inches tall, and similar in appearance to one of her neighbors. She also described him for the first time as bald and having a full beard. N.T. delivered the audio recording of the hypnotism session to the police and examined another photo lineup but to no avail. In an unrelated matter. D's residence was searched by police and they discovered N.T.'s property. On November 10, 1998, N.T. was shown another photo lineup, including, for the first time, a photograph of D. She immediately identified D. She was also presented with audiotapes of different male voices speaking words that had been spoken to her by her assailant. She immediately identified D's voice. The police conducted a 'showup,' allowing N.T. to observe D in jail clothes on a television monitor as he awaited his initial arraignment. The trial judge overruled D's pretrial motion to suppress N.T.'s photograph and voice identifications. The judge ruled under the 'totality of circumstances' to be considered in determining the validity of the identification including the use of hypnosis. D was convicted and appealed.