(dissenting) — The defendant, Kevin Coe, was tried in accordance with the instructions laid down by this court in its decision reversing his first conviction. His second trial was conducted with scrupulous fairness. I would affirm his jury conviction on all three counts of rape in the first degree. Accordingly, I dissent from the majority opinion which reverses the Strange and Fitzpatrick counts (as well as from Justice Dore's "dissenting" opinion which would reverse all three counts — Strange, Fitzpatrick, and Harmia).
Summary of Dissent
In State v. Coe, 101 Wn.2d 772, 684 P.2d 668 (1984), this court reversed Kevin Coe's Spokane conviction of four counts of first degree rape on various grounds. In remanding the case to the trial court for retrial, it instructed the trial court as follows:
The testimony of the previously hypnotized witnesses would be admissible if the State can show that the testimony consists solely of prehypnotic memory, . . .
*859(Italics mine.)1 At the retrial in Seattle, pursuant to this instruction, the trial court meticulously reviewed the evidence in two detailed written orders, totaling some 37 pages. It carefully excluded all statements made by witnesses during hypnosis and all facts recalled during hypnosis. The trial court, as distinguished from this court, is the fact finder. As such, it found as a fact that the State had sustained its burden of proving that the victims' identifications of Kevin Coe were based on their prehypnotic memories. Consequently, at the retrial, the trial court admitted their pretrial identifications and permitted them to identify Coe in a court as their attacker. At that retrial, the jury found Coe guilty of three counts of first degree rape and he was subsequently sentenced thereon.
For each of three separate reasons, I would affirm the defendant's convictions on all counts.
First, the trial court followed this court's specific instructions in the first Coe case and therefore did not commit error in admitting the victims' eyewitness identifications of Kevin Coe as their attacker. The trial court very carefully followed the guidelines expressly laid down in the first Coe case in allowing such eyewitness identification testimony as it was required to do.2 It should, therefore, be affirmed on that basis.
Second, unlike the majority, I do not read this court's decision in State v. Laureano, 101 Wn.2d 745, 682 P.2d 889 (1984) as compelling a different result, but even if it were to be so read, I would revise that holding as we have the authority to do. The mandate in the first Coe decision does not even mention this court's decision in Laureano even though it was handed down the same day as Coe. Yet the majority herein now reverses two of the defendant's convictions on the basis that Laureano "rendered all posthypnotic testimony inadmissible, treating the hypnosis as a *860time barrier after which no admissible identifications could be made."3 Justice Dore's "dissenting" opinion would go even further and reverse all three of the counts on essentially the same basis. Totally aside from the fact that Lau-reano was never so much as mentioned in the first Coe opinion, I simply do not read it as declaring the blanket testimonial prohibitions that the majority discovers in it. To the extent that Laureano could possibly be considered as so holding, I would overrule it as improvidently broad at least as it applies to this case which has already been before us. This we have the right to do under our court rules.
The appellate court may at the instance of a party review the propriety of an earlier decision of the appellate court in the same case and, where justice would best be served, decide the case on the basis of the appellate court's opinion of the law at the time of the later review.
RAP 2.5(c)(2).4
Third, even if I were to assume that the majority's reading of Laureano is correct, and that it represents the current view of this court, I would nevertheless hold that in view of the substantial other evidence of the defendant's guilt that exists in this case any error committed by the trial court in this regard was harmless error.
For each of these separate reasons, therefore, I would affirm Kevin Coe's convictions on all counts.
Dissent
To then turn to a more detailed discussion of the bases of my dissent.
Section VII of the first Coe decision addressed the admissibility of testimony by witnesses who had been hypnotized.5 Therein, this court cited its holding in State v. Martin, 101 Wn.2d 713, 722, 684 P.2d 651 (1984) (also *861filed the same day as the first Coe opinion), that "'a person, once hypnotized, should be barred from testifying concerning information recalled while under hypnosis.'"6
The first Coe decision also cited the Martin exception to this prohibition: witnesses may testify as to facts recalled before hypnosis if certain procedural safeguards are met.7 One such safeguard included preserving a detailed record of the witness' prehypnotic memory, as the party offering the testimony would have the burden of establishing what the witness remembered prior to the hypnosis.8 If the testimony were admitted, other Martin safeguards would include giving the opponent the opportunity to show the possible effect of the hypnosis on the witness' testimony, and the manner in which the hypnosis was conducted.9 Martin focused on an alleged victim of statutory rape who was hypnotized because she had no memory of any sexual abuse. During hypnosis, she stated that her stepfather had raped her. In court, the child stated that she remembered the offense only because of the hypnosis.10 Since the victim in that case had no prehypnotic memory of her attack or her assailant, this court held her posthypnotic description of both to be inadmissible.11
This court in the first Coe decision ordered that on remand the admissibility of the testimony of the previously hypnotized witnesses should be determined in accordance with Martin.12 Thus, testimony as to facts recalled during *862hypnosis would not be admissible.13 Facts based on prehyp-notic memory would be admissible, however, provided that Martin's procedural safeguards were substantially complied with. Obviously, since Martin had not yet been decided by this court, the authorities responsible for hypnotizing the Coe witnesses were unaware of Martin's procedural safeguards applicable to prehypnotic memory; therefore precise compliance with these requirements would not have been possible.14 The court in Coe then went on to instruct (or mandate) whichever trial court retried the case as follows:15
Upon remand, the admissibility of the testimony of the previously hypnotized witnesses should be determined in accordance with our holding in State v. Martin, [101 Wn.2d 713, 684 P.2d 651 (1984)]. Thus, testimony as to facts recalled during hypnosis would be inadmissible. Obviously, the authorities responsible for hypnotizing these witnesses were unaware of Martin's procedural safeguards applicable to prehypnotic memory; therefore precise compliance with these requirements was impossible. On remand, in evaluating the admissibility of pre-hypnotic memories, the trial judge should determine whether there has been substantial compliance with these safeguards. The testimony of the previously hypnotized witnesses would be admissible if the State can show that the testimony consists solely of prehypnotic memory, thus assuring that the purposes of Martin's procedural safeguards are satisfied.
In its 7-page order denying the motion to suppress the hypnotized witnesses' identifications, and in its 30-page supplementary order, the trial court repeatedly referred to the mandate in Coe and Martin, as it carefully outlined its reasons for admitting the witnesses' identifications. The trial court first described the impact of Coe and Martin in *863the following terms:16
It is clear that as a result of the Washington State Supreme Court's decisions in State v. Coe [101 Wn.2d 772, 684 P.2d 668 (1984)] and State v. Martin, 101 Wn.2d 713, [684 P.2d 651] (1984) all statements made by the witnesses during hypnosis and all facts recalled by the witnesses during the hypnosis are excluded. . . .
The Washington State Supreme Court has ruled, however, that the pre-hypnotic memories of witnesses may be admissible if it can be shown that there has been substantial compliance with the procedural safeguards set forth in Martin, supra. . . .
It is my finding that there has been substantial compliance with the procedural safeguards of Martin, supra, and that the State has borne the burden of showing what the memory was of each hypnotized witness prior to the date that witness was hypnotized.
The State had preserved the witnesses' prehypnotic memories by means of police reports prepared before hypnosis and they showed in detail what each witness recalled before being hypnotized. Furthermore, tape recordings of the hypnosis sessions amply demonstrated what it was that the witnesses had recalled during those sessions.
The central question for the trial court was whether or not the lineup identifications of Coe by the previously hypnotized victims should be excluded as being based on post-rather than prehypnotic recollections. In resolving this question, the trial court considered the facts of the case important. First, since all of the hypnotic sessions occurred before Coe became a suspect, it would have been virtually impossible for the hypnotist or the police to suggest, even unintentionally, that he was the assailant. The court reviewed the hypnosis tapes and also found that they were not suggestive. Those who performed the hypnosis knew only that a rape was involved, its date and location, and the victim's name. Any chance of suggestiveness was yet further reduced by the fact that the witnesses' identifications of *864Coe were based in large part on his voice.
The trial court also observed that each of the complaining witnesses gave a detailed description of the rape and of her assailant before being hypnotized. "This is not a case where the victims had difficulty recalling the details of the crime", said the trial court, "or the description of the assailant prior to hypnosis."17 It was likewise important to the trial court's determination that each of the victims testified to having had a clear memory of her assailant prior to hypnosis and to making her identification of Coe on the basis of her memory prior to hypnosis.
The trial court then reviewed the evidence to see if there were any suggestive police procedures before or after hypnosis. The trial court found nothing suggestive about the photo montage from which Ms. Strange identified Coe or about the lineup at which all three complaining witnesses identified Coe. The trial court's examination of the evidence also showed substantial corroboration of the witnesses' identifications of Coe (I will shortly refer in more detail to this corroborating evidence). It was only after its detailed factual findings and determinations that the trial court concluded that the witnesses should be permitted to testify regarding their lineup identifications and should also be allowed to make in-court identifications.
Then, in its supplementary order, the trial court carefully examined and described the prehypnotic statements of each witness as well as the comments made during hypnosis. Thereupon the trial court found as a fact that the Martin procedural safeguards had been substantially complied with in each case. The trial court also very carefully listed the bits of information recalled during hypnosis that under its ruling would not be admissible as being based on posthypnotic rather than prehypnotic memory.
In both of these orders, the trial court carefully and meticulously complied with the mandate of this court in Coe and with the guidelines set forth by this court in Mar*865tin, as it was required to do. The trial court specifically noted the State's substantial compliance with the Martin procedural safeguards (formulated by this court long after the rapes and hypnosis in this case had occurred), and admitted the identifications because, as the trial court carefully explained, they were based on each victim's pre-hypnotic memory of her assailant. Even the majority herein observes that neither the Strange nor Fitzpatrick hypnotic sessions provided different or additional evidence from that supplied by the victims before hypnosis. Thus, I am totally unable to comprehend how their later identifications of Coe can now reasonably be said to be based on facts recalled during hypnosis and hence not admissible under Coe and Martin.
The facts of the case before us are clearly distinguishable from those in Martin, where the victim could not even recall her attack until she was hypnotized. Each victim in this case gave a detailed description of her rape and attacker before hypnosis, and then later testified under oath that her subsequent identifications of Coe were based on prehypnotic memory alone. The only reason that the photo and lineup identifications were posthypnotic was that Coe did not become a suspect until after the hypnosis sessions had occurred and for reasons totally unconnected with those sessions.
Thus, as I view it, the trial court did not err when it ruled that the Fitzpatrick and Strange identifications were not based on facts recalled during hypnosis and admitted them as well as the subsequent in-court identifications pursuant to Coe and Martin. Once admitted, the weight of that testimony was for the jury to determine.
Another section of the Coe opinion reinforces my conviction that the trial court's reading of the Coe mandate on hypnosis was sound. In section V of its Coe opinion, this court examined the propriety of ordering Coe to read aloud in court several statements allegedly made by the rapist.18 *866This court then held that it was not error to require him to repeat those statements.19
Because of the distinctive nature of the rapist's voice and because the identification of defendant by many of the rape victims was based in large part on his voice, the sound of Coe repeating the words spoken by the rapist was highly relevant.
This court in Coe then agreed with the first trial court's ruling that the prejudicial impact of the sound of the defendant's voice repeating the rapist's words was substantially outweighed by the probative value of the evidence.20
The defendant was required to read these words in order to assist the victims in making an in-court identification. The jurors did not witness the rapes or hear the rapist, so the reading could not have been for their benefit. Given this court's approval of the admission into evidence of this reading by Coe, the logic of the majority in now concluding that the Coe opinion's statements on hypnosis somehow made the victims' posthypnotic identifications absolutely inadmissible escapes me. Such a reading of the Coe opinion renders one of its sections totally irrelevant and even misleading. Certainly one would reasonably assume that if Coe's reading of the rapist's words to the victims was admissible, then the victims' identifications based in part on that reading would also be admissible.
That the trial court at the second trial so read the Coe opinion is both understandable and supportable. Indeed, the majority today finds it necessary to turn to yet a third case to find support for reversing the trial court's ruling admitting the victims' eyewitness identification of this defendant. The majority now relies on a decision not even mentioned in the Coe opinion or its mandate to the trial court — State v. Laureano, 101 Wn.2d 745, 682 P.2d 889 (1984).
Laureano focused on the hypnosis of a woman whose *867husband was killed when the couple was robbed at home. She was hypnotized for the express purpose of enhancing her ability to identify the perpetrators, and before the identities of the robbers were known or presumed. Three months later, she identified the defendant from a photo montage. She picked him out of a lineup 6 months later, and subsequently identified him at trial.
In that case, the defendant argued that the three identifications were inadmissible because they had been improperly induced by hypnosis. This court agreed, holding that "all posthypnotic testimony should be rejected, and only the prior recall of the witness, properly preserved and documented (as set forth in State v. Martin [101 Wn.2d 713, 684 P.2d 651 (1984)]) should be allowed in evidence."21
The Laureano dissent argued that the identifications were admissible on the grounds that the hypnosis was distinguishable from that in Martin, and was without suggestion.22
Since the identities of the perpetrators of the crime were neither known nor presumed, the purpose of the hypnosis of [the witness] was to gain investigative leads.
No indication is made there was any improper suggestion. Indeed, since there were no known suspects at the time of the hypnosis, there would be little, if any, risk of suggestiveness.
To the extent that the majority in the present case considers Laureano as establishing an absolute bar to posthypnotic identification, the absence of suggestiveness has become irrelevant. Likewise irrelevant, according to that view, would be the extent of such highly relevant facts as how long the eyewitness viewed the assailant during the crime, the purpose of the hypnosis, or the timing of a suspect's arrest as compared with the timing of the hypnosis. This result, if the majority's present reading of it is proper, *868is incomparably broader than anything suggested by the language of Coe and Martin, would overrule them sub silentio and is completely indefensible.
The absurdity of considering the holding in Laureano as an absolute prohibition of all posthypnotic identifications is very well illustrated by the recent Court of Appeals decision in State v. Yapp, 45 Wn. App. 601, 726 P.2d 1003 (1986). In Yapp, a 16-year-old girl was forced into a truck, raped once in the truck by her kidnapper, raped three more times at his home, and forced to commit fellatio. She subsequently reported her abduction to the police and described her attacker, his truck and his house. Because of inconsistencies in her statements, she was asked to take a polygraph examination. That examination detected deception in three areas: (1) the point of abduction; (2) her failure to admit the rape in the truck; and (3) her failure to admit she was forced to commit fellatio.23
The victim then underwent hypnosis on her own accord. She had earlier requested hypnosis, but her request had been refused. After the hypnosis, she explained the reasons for her previous inconsistencies. She had lied about the point of abduction because she did not want her father to know she was a half mile from home late at night. She had not mentioned the rape in the truck because it severely embarrassed her, and had not mentioned being forced to commit fellatio because that embarrassed her even more. Her description of her attacker, his home and his truck was the same both before and after hypnosis.24
The victim in Yapp identified the defendant from a photographic lineup subsequent to being hypnotized. She subsequently testified at his trial, after which he was found guilty of rape in the first degree and unlawful imprisonment.
*869On appeal, the defendant argued that the trial court erred in allowing the victim to testify despite the fact she had been hypnotized. The Court of Appeals cited Martin, Coe and Laureano in holding that the fact that a person has been hypnotized before trial does not absolutely preclude that witness from testifying.25 "A witness may testify to that which was known before hypnosis, provided the appropriate procedural safeguards are present".26 The Court of Appeals then described the Martin safeguards and concluded that they had been satisfied given the State's "ample corroboration and independent verification" of the victim's prehypnotic memory.
The Court of Appeals in Yapp then discussed the admissibility of the posthypnotic identification of the defendant:27
Although K.H. did not identify Mr. Yapp from the photographic lineup until after being hypnotized, 9 days before being hypnotized she told the police she would recognize the suspect if she saw him again, and she testified at trial that prior to being hypnotized she had a clear picture in her mind of the person who kidnapped and raped her. The hypnotist was not given any information by the police, he did not know the details of the abduction and kidnapping, he did not hypnotize K.H. in order to prompt an identification of the assailant, and he did not ask questions during the time K.H. was under hypnosis, other than to tell her to narrate what occurred. Thus, although K.H. did not actually identify Mr. Yapp until after hypnosis, the hypnosis did not affect her identification of Mr. Yapp; it was based on her prehyp-notic memory.
The Court of Appeals then went on to distinguish the hypnosis in Yapp from the hypnosis session in Laureano:28
*870The hypnosis [in Yapp] was conducted to clear up confusion in K.H.'s mind as to certain embarrassing details and not as an aid to identification. Further, K.H., unlike the witness in State v. Laureano, [101 Wn.2d 745, 682 P.2d 889 (1984)] testified that her identification was based on her prehypnotic memory. The court in Lau-reano found that a witness' posthypnotic identification of a suspect is permissible as long as the identification is based on prehypnotic memory and procedural safeguards are satisfied. The trial court here meticulously applied the proper procedural safeguards. Thus, the court properly admitted K.H.'s posthypnotic identification.
For all the same reasons, that should be the holding here as well.
However, according to the majority's view of Laureano, the Court of Appeals in Yapp was dead wrong, the posthypnotic identification was not admissible, the victim's extensive prehypnotic memories and descriptions are irrelevant, and the fact that the victim was hypnotized because she was too embarrassed to describe certain details of her attack is also irrelevant. The foundation for a victim's identification of a defendant is no longer important, according to the majority; if the identification occurs after hypnosis, it will be automatically excluded however certain it may be!
Yapp concerned a victim who was raped four times over a 5-hour period and subjected to other abuses. What about a victim who is kidnapped and raped repeatedly over a period of several days, and then hypnotized to see if she can recall the make of her assailant's car? Under Laureano, as here interpreted by the majority, once the victim is hypnotized for any reason, she can never identify her assailant in court, no matter how engrained his face may be in the victim's memory. Such an absolutist view is not realistic or, to my mind, legally or logically defensible. Particularly is this true in view of the pronouncements on this subject by the United States Supreme Court handed down subsequent to the Martin, Laureano and Coe decisions.
The United States Supreme Court recently criticized a similar per se exclusion of posthypnotic testimony in Rock *871v. Arkansas, _ U.S. _, _ L. Ed. 2d _, 107 S. Ct. 2704 (1987). In Rock, the issue before the Court was the constitutionality of Arkansas' per se rule excluding a criminal defendant's hypnotically refreshed testimony.29 The Court observed that Arkansas' absolute prohibition operated to the detriment of any defendant who undergoes hypnosis, without regard to the reasons for it, the circumstances under which it took place, or any independent verification of the information it produced.30 The Court also noted that many courts have eschewed such per se prohibitions and allow the admission of hypnotically refreshed testimony.31
The Supreme Court then examined hypnosis itself, finding that responses to hypnosis vary greatly, with hypnosis often having no effect at all on memory. "The most common response to hypnosis, however, appears to be an increase in both correct and incorrect recollections."32 The Court then observed that despite the unreliability that hypnosis may introduce, the procedure has been credited as instrumental in obtaining investigative leads or identifications that were later confirmed by independent evidence. The inaccuracies the process introduces can be reduced by the use of procedural safeguards. "Such guidelines do not guarantee the accuracy of the testimony, because they cannot control the subject's own motivations or any tendency to confabulate, but they do provide a means of controlling overt suggestions."33 Furthermore, the more traditional means of assessing accuracy of testimony remain:34
Certain information recalled as a result of hypnosis may *872be verified as highly accurate by corroborating evidence. Cross-examination, even in the face of a confident defendant, is an effective tool for revealing inconsistencies. Moreover, a jury can be educated to the risks of hypnosis through expert testimony and cautionary instructions.
In Rock, the Supreme Court declined to unqualifiedly endorse the use of hypnosis as an investigative tool, but it did conclude that Arkansas was not justified in excluding all of a defendant's testimony that could not be proven to be the product of prehypnosis memory:35
A State's legitimate interest in barring unreliable evidence does not extend to per se exclusions that may be reliable in an individual case. . . . The State would be well within its powers if it established guidelines to aid trial courts in the evaluation of posthypnosis testimony and it may be able to show that testimony in a particular case is so unreliable that exclusion is justified. But it has not shown that hypnotically enhanced testimony is always so untrustworthy and so immune to the traditional means of evaluating credibility that it should disable a defendant from presenting her version of the events for which she is on trial.
(Italics mine.)
Nor do I think that the majority in the present case, or in any previous decision by this court, has demonstrated that a witness' posthypnotic identifications are always so untrustworthy that they must be totally and automatically banned from all in-court consideration. Such an absolute testimonial exclusion makes no sense to me, particularly under the facts of the case before us. Here, the only posthypnotic testimony at issue consists of eyewitness identifications, not an entire recitation of the facts of the crimes. The majority admits that the hypnotic sessions revealed no real new information. Kevin Coe was not even a suspect when the victims were hypnotized, so suggestiveness is absent. Furthermore, the identifications were based in large part on Coe's voice, and the majority has not yet suggested *873that hypnosis can affect one's memory of a voice. In addition, victims Fitzpatrick and Strange faced extensive cross examination, and the defense presented its own expert who testified at length concerning the problems and pitfalls of posthypnotic testimony.
I would hold that the trial court followed the Coe mandate precisely, and that the majority's overbroad interpretation of this court's holding in State v. Laureano, 101 Wn.2d 745, 682 P.2d 889 (1984) should not be allowed to override the express mandate by this court in Coe to the trial court.
Even if this court insists on adhering to an absolute ban on all posthypnotic identifications, however, I would still hold that the admission of such identifications in this case was harmless error. In a recent first degree murder case, the California Supreme Court took this approach in holding that the admission of posthypnotic testimony was harmless error in light of the strong evidence against the defendant.36 Strong evidence also corroborates the victims' identifications of Coe as their assailant in this case, and is sufficient even without those identifications to establish Coe's guilt beyond a reasonable doubt. Let us look carefully at that evidence.
As pointed out above, the majority does not challenge Ms. Harmia's identification of her assailant. Nor does it mention that the Harmia, Strange and Fitzpatrick rapes are strikingly similar in numerous respects. Both Ms. Har-mia and Ms. Fitzpatrick were raped shortly after stepping off a bus, and both Ms. Strange and Mrs. Fitzpatrick were raped early in the morning. (Coe's former girl friend testified that she was often awakened by Coe entering their house early in the morning after what he said was jogging.) In each case, the rapist, dressed as a jogger, grabbed his victim from behind and attempted (and succeeded in the Harmia and Fitzpatrick rapes) to shove a gloved or mitted *874hand down her throat. Ms. Fitzpatrick and Ms. Harmia suffered similar extensive throat injuries. Ms. Strange and Ms. Harmia said their attacker wore gloves; Ms. Fitzpatrick said hers wore oven mitts. Ms. Fitzpatrick said her nose bled during the attack, and she was sure that blood must have gotten on the mitts. At trial, Coe's former girl friend testified that on the Friday before his arrest, she found him washing oven mitts at 6:30 a.m. A policeman testified that the mitts seized from Coe's home were damp. The former girl friend also testified that Coe wore black leather gloves when he went jogging, summer or winter. Coe denied wearing or even owning gloves as an adult. His neighbor, his car repairman, and the repairman's wife all corroborated the former girl friend's testimony that Coe often wore gloves.
In all three rapes of which Coe was convicted at the second trial, the victims were told not to scream, not to look at the rapist's face, and to take their clothes off. They were also told that the rapist had a knife, though none of the three ever saw one. In each instance, the rapist helped his victim disrobe, rubbed her genital area and used the same vulgarity to describe it, penetrated her with his finger, masturbated, used the same vulgarity in asking her when she last had sex, and asked if she enjoyed sex and how often she had sex. Sperm taken from Ms. Harmia and Ms. Fitzpatrick (Strange was not subjected to ordinary intercourse) showed that the rapist had blood type A. Ms. Har-mia, her husband and Ms. Fitzpatrick all have 0 positive blood; Coe has type A blood.
Kevin Coe became a suspect not as a result of the victims' statements or the hypnotic sessions, but because three school custodians reported seeing a car parked by Hart Field in Spokane at 5:30 a.m. on February 5, 1981. Ms. Strange was attacked while jogging on the Hart Field track at about 6:30 that morning. The custodians testified that they saw the car parked in a no-parking zone and that its hood was warm when they touched it. The car was a fairly new 4-door silver and gray Chevrolet Citation with a sun roof. The custodians saw books, binders and a coat inside *875the car. The license plate had a yellow covering but was a Washington plate. The car was gone by 7:30 to 8:00 that morning. The three reported the car to the vice-principal after hearing about Ms. Strange's rape. The vice-principal, in turn, called the police. Ms. Strange had already told the police about a small two-toned car that she saw park briefly by Hart Field 2 days before her rape. The police proceeded to compile a list of everyone in the Spokane area who had bought a 1980 4-door Chevrolet Citation with a factory installed sun roof. They narrowed down the list of owners and found Gordon Coe's name. They knew the rapist was a younger man, and discovered that Gordon Coe had a son, Kevin Coe, who lived in the South Hill area. The police then showed a group of photos to Ms. Strange, who picked out Kevin Coe as her assailant.
Kevin Coe became a suspect on February 25, whereupon the police began following him. He was seen driving his father's Citation on February 26. The police took photos of the car showing that it contained real estate books and binders. The car also had yellow plastic over the license plate. Kevin Coe's best friend later testified that Coe liked to put gold transparent plastic over his license plate to make it more distinctive. The police followed Kevin Coe for approximately 15 days before arresting him on March 10, 1981. During those 15 days, they observed him following buses and bus routes, watching women jog around Hart Field, and driving by parks and other jogging areas with his attention on those areas rather than on the road. They saw him dressed in jogging clothing but never saw him jog. Ms. Strange said that her attacker wore a red quilted ski jacket; the police saw Coe wearing a red quilted ski jacket on more than one occasion.
After Kevin Coe was arrested, a friend visited him in jail. Coe told the friend he had put a sweater in a home listed for sale and insisted that the friend find it and give it to the Goodwill organization. The friend tried twice but could not get the sweater because the home was occupied. Coe's former girl friend testified that Coe always took a change of *876clothing when he left to go jogging, even though Coe testified that he showered at home after he jogged. While in jail, Coe also told his friend to verify his story that the two men (Coe and his friend) were looking for the South Hill rapist, Coe's purpose being to justify his actions in following buses and bus lines. The friend testified that in fact they had never looked for the rapist.
Finally, following his first conviction, Coe confessed to the rape of Ms. Fitzpatrick. His confession was made to a psychiatrist who had told him three times beforehand that their conversation was not privileged. Coe now claims the confession was false and part of his strategy to avoid prison. The psychiatrist testified that when Coe confessed, he at no time mentioned a fear of prison. Coe also told the psychiatrist that 90 percent of what he said to him was the truth.
Thus, even if this court insists on interpreting Laureano as imposing a ban on all posthypnotic identifications, despite the absence of such a requirement in the Coe and State v. Martin, 101 Wn.2d 713, 684 P.2d 651 (1984) decisions, then it should at least hold the Strange and Fitzpatrick identifications to be harmless error.37
To bring this already lengthy dissent to a close, let me just add this in conclusion.
I have read the entire trial record and in my judgment Kevin Coe was fairly tried and his three convictions of first degree rape should be affirmed.
I fully agree with the learned trial judge who allowed the victims to testify that Kevin Coe was the one who had raped them. In the final analysis, perhaps the most eloquent justification for admitting such testimony into evidence at the trial was that provided by one of the victims. Asked how she could possibly identify Kevin Coe as her rapist, when she had seen him only once and while being sexually assaulted, she replied:
*877I became angry and I just felt to myself, I was going to memorize his face as close as I could because I didn't want this to have to happen to anyone else.
Another of the victims expressed it this way:
What you know, you know!
The victims were entitled to identify their rapist in open court and the jury was entitled to hear and weigh that testimony, then determine how much credence should be given to it. In our legal system, the jury is the body to weigh such evidence, not this court. And the jury in this case proved itself most perceptive in this regard. It was not stampeded by emotions; it declined to return a "guilty" verdict on the fourth rape charge against Coe, the one on which the available evidence against him was weakest.
I emphatically disagree with the majority's analysis of prior Washington law as to the effect of hypnosis on a witness. That law does not — or at least until today it did not— establish an absolute bar to all posthypnotic identifications. It is particularly ironic for the majority to so rule in this case where, after more than a week of hearings, the trial court found as a fact that the victims' identification testimony consisted solely of prehypnotic memory. There is simply no way that the hypnosis of the rape victims could have been suggestive as to the identity of the rapist, since the defendant was not even a suspect at the time of the hypnosis.
And finally, even aside from the victims' identifications of their attacker, the evidence of the defendant's guilt is so great that by itself it establishes his guilt of these crimes beyond a reasonable doubt.
For these reasons, I would affirm the convictions of Kevin Coe on all three counts of rape in the first degree.
Callow and Durham, JJ., concur with Andersen, J.
Reconsideration denied April 20, 1988.
State v. Coe, 101 Wn.2d 772, 786, 684 P.2d 668 (1984).
RAP 12.2; Monroe v. Winn, 19 Wn.2d 462, 465, 142 P.2d 1022 (1943).
Majority opinion, at 838.
See Washington State Bar Ass'n, Washington Appellate Practice Handbook vol. 1, § 24.3(f) (1980 & Supp. 1984).
Coe, at 785.
Coe, at 786.
Coe, at 786.
Martin, at 722.
Martin, at 722-23.
Martin, at 717.
Martin, at 723.
Coe, at 786.
Coe, at 786.
Coe, at 786.
Coe, at 786.
Order Denying Defendant's Motion To Suppress Identification of the Hypnotized Witnesses, at 2.
Order, at 4.
State v. Coe, 101 Wn.2d 772, 781, 684 P.2d 668 (1984).
Coe, at 782.
Coe, at 782.
State v. Laureano, 101 Wn.2d 745, 753, 682 P.2d 889 (1984).
Laureano, at 770-71 (Dolliver, J., dissenting).
State v. Yapp, 45 Wn. App. 601, 602, 726 P.2d 1003 (1986).
Yapp, at 603.
Yapp, at 603.
Yapp, at 603-04.
Yapp, at 604-05.
Yapp, at 605.
Rock v. Arkansas, _ U.S. __, _ L. Ed. 2d _, 107 S. Ct. 2704, 2707-08 (1987).
Rock, 107 S. Ct. at 2711-12.
Rock, 107 S. Ct. at 2713.
Rock, 107 S. Ct. at 2713.
Rock, 107 S. Ct. at 2714.
Rock, 107 S. Ct. at 2714.
Rock, 107 S. Ct. at 2714.
See People v. Brown, 40 Cal. 3d 512, 726 P.2d 516, 230 Cal. Rptr. 834 (1985).
See People v. Brown, 40 Cal. 3d 512, 726 P.2d 516, 230 Cal. Rptr. 834 (1985).