479 U.S. 894 (1986)

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U.S. Supreme Court

BUNDY v. FLORIDA , 479 U.S. 894 (1986)

479 U.S. 894

Theodore Robert BUNDY
No. 85-6964

Supreme Court of the United States

October 14, 1986

On petition for writ of certiorari to the Supreme Court of Florida.

The petition for a writ of certiorari is denied.

Justice BRENNAN, dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227, 2950, 49 L. Ed.2d 859 (1976), I would grant certiorari and vacate the death sentence in this case.

Justice MARSHALL, dissenting from denial of certiorari.

Petitioner was convicted of first degree murder and sentenced to death. His conviction was based on evidence the Florida Supreme Court found constitutionally suspect. The Florida Supreme Court nonetheless concluded that admission of the evidence was harmless constitutional error . I would grant certiorari to review the Florida Supreme Court's application of Schneble v. Florida, 405 U.S. 427d 340 (1972) and Fahy v. Connecticut, 375 U.S. 85d 171 (1963).

Page 479 U.S. 894 , 895


Petitioner became a suspect in the disappearance of Kimberly Leach after local authorities learned that he was suspected in a number of murders in the northwestern United States. Leach was reported missing from school on February 9, 1978 and her body was found two months later, after a highly-publicized search. The only eyewitness to the abduction was Clarence Anderson. He came forward on July 18, after seeing petitioner on a television newscast. At that time, Anderson was unable to identify the date of his observation, although he thought it was "around April," and he could not provide a detailed description of the man or the girl he had observed. App. to Pet. for Cert. 17a-21a. At the request of the Assistant State Attorney, Anderson underwent two hypnotic sessions designed to refresh his recollection.

Petitioner moved to suppress Anderson's testimony due to the lapse of time between Leach's disappearance and his initial statement, the massive publicity surrounding her disappearance and petitioner's arrest and indictment and an alleged misuse of hypnosis by the persons conducting the sessions. He maintained that these factors rendered Anderson's identification unreliable under the rule established by this Court's decision in Neil v. Biggers, 409 U.S. 188 ( 1972). At the suppression hearing, several experts testified that a witness whose recollection has been hypnotically refreshed is unable to distinguish between what he recollected before hypnosis and any "details" added during hypnosis.

The trial court denied petitioner's motion to suppress. At trial, Anderson testified that he had observed a man leading a young girl into a white van near Leach's junior high school on February 9, 1978. He identified the man as petitioner and the girl as Kimberly Leach. Anderson's testimony was vital to the State's case; it supplied "the crucial link in the chain of circumstantial evidence of [petitioner's] guilt." Bundy v. State, 471 So.2d 9, 23 (Fla.1985) (Boyd, C.J., concurring specially).

On appeal, the Florida Supreme Court agreed with petitioner's arguments against the use of hypnotically refreshed testimony. Id., at 18 . The court noted that the highest courts of several other states have categorically excluded hypnotically refreshed testimony. E.g., People v. Shirley, 31 Cal.3d 18, 723 P.2d 1354, 181 Cal.Rptr. 243, cert. denied, 458 U.S. 1125 (1982); People v. Gonzales, 415 Mich. 615, 329 N.W.2d 743 (1982). The court discussed several of the problems associated with such testimony, not the least of which is [479 U.S. 894 , 896]

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