Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
Jul 15 2013, 6:07 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PETER D. TODD GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
ANGELA N. SANCHEZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MACK A. SIMS, )
)
Appellant-Petitioner, )
)
vs. ) No. 20A03-1210-PC-431
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable Evan S. Roberts, Judge
Cause No. 20D01-1108-PC-5
July 15, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Mack A. Sims was convicted of attempted murder for shooting Shane Carey at close
range through his car window. Eighteen years later, he filed a petition for post-conviction
relief, claiming that the outcome of his trial was materially affected by the State’s failure to
disclose the fact that, prior to trial, Carey had undergone hypnosis. The post-conviction court
denied his petition, and he now appeals. Because we conclude that the findings of fact and
the record as a whole support the post-conviction court’s determination that the State’s
nondisclosure did not materially affect the outcome of Sims’s trial, we affirm.
Facts and Procedural History
On the evening of November 2, 1993, Shane Carey was working security for an adult
education center in Elkhart. As he sat in the parking lot inside his vehicle, Sims and two
other men approached. Sims stood just outside Carey’s driver’s side window, and Carey
looked him “square in the eyes.” Tr. at 225. Sims shot Carey through the window, striking
him in the face. Shortly thereafter, police arrived on the scene, and Carey gave them a
description of his assailant: a black male in his late twenties with a large build, short hair,
and wearing a dark three-quarter length leather coat, dark pants, and boots. Moments later,
police found Sims crouching behind a nearby dumpster. His clothing and physical traits
matched the description provided by Carey, so police took him to the precinct for
questioning. Meanwhile, Carey was transported to a nearby hospital.
When police arrived at the hospital emergency room, they showed Carey photos of
Sims and several other men, and Carey positively identified Sims as his assailant. Two days
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later, Carey again identified Sims from a photo array. Carey identified Sims a third time
when presented with a photo array at the prosecutor’s office.
The State charged Sims with class A felony attempted murder. In the intervening
months between Carey’s release from the hospital and Sims’s jury trial, Carey underwent a
single session of hypnosis in order to sharpen his recollection concerning the shooting. The
State arranged and paid for the hypnosis session, but never disclosed it to the defense or the
trial court. During Sims’s trial, Carey positively identified Sims as his assailant. Included in
the trial court record was evidence of Carey’s previous identifications of Sims as well as
police testimony concerning their apprehension of Sims based on the description provided by
Carey. On December 1, 1994, the jury convicted Sims as charged, and the trial court
subsequently sentenced him to thirty-five years. In August 1996, another panel of this Court
affirmed his conviction. Sims v. State, No. 20A04-9510-CR-398 (Ind. Ct. App. Aug. 9,
1996), trans. denied.
In May 2012, Sims filed an amended petition for post-conviction relief, claiming that
the State had failed to disclose exculpatory evidence, which he cited as newly-discovered
evidence. In his post-conviction petition, Sims claimed that the victim Carey, the only
eyewitness to the shooting, had provided tainted, inadmissible testimony based on the State’s
failure to disclose that Carey had undergone one hypnosis session in the months leading up to
trial.
The post-conviction court held a hearing and took witness testimony on the issue of
whether Carey was sufficiently able to identify Sims before he underwent hypnosis. Sims
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cited a conversation between the chief prosecutor and a deputy prosecutor in which the chief
commented to the deputy that Carey was able to identify Sims only after the hypnosis. The
chief prosecutor testified that Carey was able to identify Sims before undergoing hypnosis
but that the hypnosis simply made him more certain about his previous identifications of
Sims. He also indicated that at the time he made the comment to the deputy prosecutor, he
had not yet familiarized himself with Sims’s case. The investigating police lieutenant
testified that, from the beginning, Carey could identify his assailant and that Carey’s
descriptions matched Sims’s physical description. The post-conviction record also contains
evidence of Carey’s pre-hypnotic identifications of Sims through photo lineups/arrays.
Following the hearing, the post-conviction court denied Sims’s petition, concluding
that while the State failed to disclose evidence favorable to the defense, the undisclosed
evidence is not material because it is not reasonably probable that disclosure would have
changed the result of Sims’s jury trial. This appeal ensued. Additional facts will be provided
as necessary.
Discussion and Decision
Sims contends that the post-conviction court erred in denying his petition for post-
conviction relief. The petitioner in a post-conviction proceeding “has the burden of
establishing grounds for relief by a preponderance of the evidence.” Ind. Post-Conviction
Rule 1(5); Brown v. State, 880 N.E.2d 1226, 1229 (Ind. Ct. App. 2008), trans. denied.
When issuing its decision to grant or deny relief, the post-conviction court must make
findings of fact and conclusions of law. Ind. Post-Conviction Rule 1(6). A petitioner who
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appeals the denial of his post-conviction petition faces a rigorous standard of review. Massey
v. State, 955 N.E.2d 247, 253 (Ind. 2011). In conducting our review, we neither reweigh
evidence nor judge witness credibility; rather, we consider only the evidence and reasonable
inferences most favorable to the judgment. Id. “A post-conviction court’s findings and
judgment will be reversed only upon a showing of clear error—that which leaves us with a
definite and firm conviction that a mistake has been made.” Brown, 880 N.E.2d at 1230
(citation and quotation marks omitted). In other words, if a post-conviction petitioner was
denied relief in the proceedings below, he must show that the evidence as a whole leads
unerringly and unmistakably to a conclusion opposite the one reached by the post-conviction
court. Massey, 955 N.E.2d at 253.
The post-conviction court’s findings of fact state in part,
6. On August 9, 1996, the Indiana Court of Appeals affirmed Petitioner’s
conviction holding, “Even if an improper exhibition of a single photograph of
Sims took place, given the totality of these circumstances we find that there
was a sufficient basis independent of the improper photo display to support the
admissibility of the in-court identification of Sims …;”
….
9. On 5/10/2012, Petitioner, with the assistance of counsel, filed an
Amended Petition for Post-Conviction Relief which added two grounds for
relief:; (1) The State of Indiana failed to disclose exculpatory evidence and (2)
The aforementioned evidence was “newly discovered evidence.” This Order
addresses these claims;
….
11. On 2/8/2012, it was revealed by Deputy Prosecuting Attorney Graham
Polando in the course of the Post-Conviction proceedings that Shane Carey
(hereafter “Carey”), the State’s only eyewitness, was hypnotized prior to his
in-court identification at the jury trial. There is no dispute that Petitioner was
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not made aware of the hypnosis until it was disclosed by DPA Polando, after
Petitioner had finished his sentence in D193CF104, in the course of the
proceedings related to this Petition;
12. There is no dispute that Carey had been hypnotized at the suggestion of
Deputy Prosecuting Attorney (now Judge) Charles Wicks, prior to his
testimony in the 1994 jury trial. The court therefore finds that such hypnosis
did in fact occur;
13. The Court determines that the hypnosis was never disclosed. There is
no argument that then Prosecutor Wicks did not disclose this hypnosis to
Petitioner, Petitioner’s trial counsel … or Petitioner’s appellate counsel … ;
14. At the jury trial, the State presented evidence that Carey was shot by a
man with a distinctive face discoloration, wearing a dark-colored, likely black
three-quarter length jacket, and dark pants. The description was given as
testimony by officers who first responded to the scene and who spoke to Carey
before he was taken to the hospital. At the hospital, Carey was presented with
a lineup of pictures, and he chose Petitioner’s picture;
15. The real dispute is to whether Carey was able to sufficiently identify
Petitioner before hypnosis. Petitioner points to then Prosecutor Wicks’
statement: that Carey was “only” able to identify Petitioner after the hypnosis.
Prosecutor Wicks, however, testified during the post-conviction hearing that
Carey simply became more certain in his identification following hypnosis;
16. At the post-conviction hearing, Carey testified that the hypnosis did
indeed have some effect on his ability to recall the event, which the Court finds
accords with the evidence;
17. The Court finds that there is reason to doubt then Prosecutor Wicks’
original statement that Carey was “only” able to identify Petitioner following
the hypnosis. Prosecutor Wicks testified that he had not had time to consider
the case before speaking with DPA Polando, but that he had consulted his
notes and considered the case in preparation for his testimony at the
evidentiary hearing. His sworn testimony, then is more credible than his
remark to Mr. Polando following an informal conversation about the case;
18. The Court further notes that the contention that Carey was “only” able
to identify Petitioner following the hypnosis is at odds with other credible
evidence as noted in the record. Lieutenant Tom Lerner with the Elkhart
Police Department testified at the jury trial that, from the very beginning,
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Carey said he could identify his assailant, and that his description of that
assailant matched Petitioner. And, the Indiana Court of Appeals noted that at
the hospital later on the evening of the shooting, Carey was shown six or seven
photographs, including one of Sims taken after Sims was apprehended. Carey
identified Sims’s photograph as a picture of his assailant.” This initial
identification occurred well before hypnosis—which was confirmed through
the testimony at the post-conviction hearing;
19. From the record of the case, Carey was able to identify Petitioner well
before hypnosis.
Appellant’s App. at 9-12.
Sims challenges the post-conviction court’s findings and conclusions with respect to
the State’s failure to disclose that the sole eyewitness had undergone hypnosis and the
admissibility of the eyewitness’s testimony. With respect to the State’s failure to disclose the
fact that eyewitness Carey had undergone hypnosis prior to his in-court identification of
Sims, we note that the State has an affirmative duty to disclose material evidence favorable to
the defendant. Brady v. Maryland, 373 U.S. 83, 87 (1963).
To prevail on a Brady claim, a defendant must establish: (1) that the
prosecution suppressed evidence; (2) that the evidence was favorable to the
defense; and (3) that the evidence was material to an issue at trial. Evidence is
material when there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been
different.
State v. Hollin, 970 N.E.2d 147, 153 (Ind. 2012) (citations and internal quotation marks
omitted).
Evidence derived from a hypnotically entranced witness is inherently unreliable as not
having probative value and is therefore inadmissible. Rowley v. State, 483 N.E.2d 1078,
1081 (Ind. 1985). “Such evidence should be excluded because hypnotically induced
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evidence is affected by confabulation, a process whereby the hypnotic subject fills in memory
gaps with fantasy. The post-hypnotic subject is confident that any memory recalled is
accurate and factually based, a conviction which cannot be tested through cross-
examination.” Id. Thus, the State must demonstrate by clear and convincing evidence that
the witness’s “in-court identification has a factual basis independent of the hypnotic session.”
Id. In determining whether there is an independent basis for the witness’s identification of
the defendant, major factors include the witness’s opportunity to observe the defendant and
the reliability of his original, pre-hypnotic recollections and observations vis-à-vis the
defendant. Id. Also important in determining an independent factual basis, free from the
taint of hypnotic suggestion, is the level of consistency between the witness’s pre- and post-
hypnotic statements. Peterson v. State, 514 N.E.2d 265, 270 (Ind. 1987).
Here, the post-conviction court concluded that the State failed to disclose Carey’s
hypnosis and that such evidence would have been favorable to Sims. Nevertheless, the court
concluded that the evidence was not material and that the result of proceeding would not
have been different if Carey’s hypnosis had been disclosed, stating in pertinent part,
7. In this case, the State has proven that Carey could sufficiently identify
his assailant prior to hypnosis. Carey noticed men walking around while he
was reading his book that evening. He observed the Defendant in fair, outside
lighting, who walked up to the side of his vehicle, stared at him and shot him.
Carey gave a description of Defendant immediately after being shot and
walking inside the school opposite for help. This description was sufficient for
officers to begin searching for the culprit. Defendant was found near the scene
of the crime, observing police officers. An officer identified Defendant as a
suspect from the description given by Carey, relying on the three-quarter
length black jacket, presented in court. After Carey was taken to the hospital,
he was presented with a picture lineup, from which he identified Defendant.
Carey never identified any other as his assailant, and he was able to write a
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three page statement on the event. …. This is a sufficient independent basis for
the in-court identification;
8. Further, although Carey admits his testimony was influenced by the
hypnosis, Carey’s description did not substantially change from before to after
the hypnosis, and the discrepancies were fully discussed and tested by
opposing counsel; the sole additions/changes were hair, a cap/hood, the
particular color of the jacket, and more particularities on Petitioner’s face.
Carey’s original description, as testified to by Officer Lerner at the jury trial,
was “a black male, large in build with short or shaved head; described as
wearing a three-quarter-length, what appeared to be black, leather jacket or
coat, dark-colored pants, late twenties possibly.” On cross he stated that he did
not recall Carey mentioning footwear or a cap at the initial identification. In
Carey’s own cross he acknowledged that his initial statement to police
included “black boots,” which, in court, he described as combat boots. It also
did not include a hood or a patch on the jacket, which he testified to in court.
He also acknowledged that the discoloration on Defendant’s face was not in
his initial statement to police. Carey himself stated, “The information that I
gave in the emergency room is the best, especially when the police first arrive
at the scene. When the police first arrived at the scene, I rattled off what I
saw.” These minor changes in Carey’s testimony were fully developed,
examined and vigorously discussed in cross examination and the jury had the
ability to weigh Carey’s credibility regarding the differences;
9. The evidence presented provides sufficient confidence in the verdict.
The record reveals that Carey was able to identify Defendant before hypnosis.
Thus the Court finds that the hypnosis disclosure would not have changed the
outcome, and its nondisclosure did not amount to a Brady violation.
Appellant’s App. at 13-14.
The record supports the trial court’s findings and conclusions with respect to the
immateriality of the undisclosed hypnosis. Carey testified that at the time of the shooting, he
looked directly into the face and eyes of his assailant. P-CR Tr. at 66; Tr. at 224-26, 270. He
described his assailant’s clothing and physical characteristics to police, who apprehended
Sims near the scene shortly thereafter and found his clothing and physical appearance to be
consistent with Carey’s description. He identified Sims three times through photo
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lineups/arrays shortly after the incident and before he underwent hypnosis. Although the
State’s nondisclosure meant that Carey was not specifically cross-examined concerning his
hypnosis, he was subjected to vigorous cross-examination regarding his numerous
identifications of Sims. During the post-conviction proceedings, the essence of Carey’s
testimony was that he remembered his assailant’s appearance when he identified him by
photo just after the shooting but that the hypnosis had helped him to be “extremely sure.” P-
CR Tr. at 60-61. To the extent that Sims now cites discrepancies in how specifically Carey
described Sims’s clothing or certain physical traits in his pre- and post-hypnotic
identifications,1 he invites us to reweigh evidence, which we may not do. Simply put,
Carey’s numerous pre-hypnotic descriptions and identifications of Sims are sufficient to
establish an independent basis for his post-hypnotic in-court identification.
Based on the foregoing, we conclude that the findings of fact and the record as a
whole support the post-conviction court’s determination that it is not reasonably probable that
the outcome of Sims’s trial would have been different had Carey’s hypnosis been disclosed.
Thus, Sims has failed to demonstrate that the post-conviction court clearly erred in denying
his petition for post-conviction relief. Accordingly, we affirm.
Affirmed.
ROBB, C.J., and FRIEDLANDER, J., concur.
1
For example, Sims has a distinctive birthmark on his face. Carey did not include it in his initial
description to police. However, Carey later testified that he had noticed the facial marking from the time of the
shooting but that it really “stood out” after hypnosis. P-CR Tr. at 66.
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