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May 25, 1990.


The opinion of the court was delivered by

[246 Kan. 542]


Hypnotically refreshed testimony of the defendant, William T. Butterworth, was admitted by the trial court over the State's objection during Butterworth's trial on three counts of first-degree murder and one count of felony theft. The jury returned a verdict of acquittal. The State reserved the question of the propriety of the admission of Butterworth's testimony and appeals. K.S.A. 22-3602(b)(3). We deny the State's appeal.

The sole question before use is whether the trial court erred in admitting into evidence defendant Butterworth's posthypnotic recollections. We limit the issue in this case to whether the testimony of a criminal defendant who has undergone hypnosis to refresh his or her recollection is admissible and, if so, under what circumstances.

  Melvin P. Fager and his daughters, Sherri and Kelli, were found dead at their Wichita home on December 31, 1987. The Fagers' car was missing; also missing was William T. Butterworth, who had been working on a solarium for the Fagers. Three days later, Butterworth called his wife from Florida. She told him the police were looking for him; he then called the police and was arrested and charged with killing the Fagers. Butterworth repeatedly told the police he could remember nothing of what happened during the relevant time period of the murders. He remembered preparing for work on the morning of December 30. The next thing he remembered was hearing a news broadcast on the radio about the Fager murders after which he called his wife.

  When Butterworth still had not recovered his lost memory a month after being charged, he told his appointed defense counsel, public defender Richard Ney, that he wished to see a psychologist to see if that would help his recall. After consulting another doctor, Ney obtained a reference to Dr. Robert Pace, a licensed clinical psychologist experienced in the use of hypnosis. This was Ney's first contact with Dr. Pace, who was not regularly employed by defense counsel or the State. Butterworth attended twenty sessions with Dr. Pace in the doctor's office over a four-month period; during ten of those sessions, Butterworth was hypnotized.

  Dr. Pace made extensive notes of each session; these were furnished to the court and to counsel at trial. None of the sessions

[246 Kan. 543]

      were tape-recorded and none were videotaped. The following description of the sessions is summarized from Dr. Pace's notes and his testimony.


  Ney was present during the first session on February 15, 1988, during which he talked to Dr. Pace regarding fees and explained that Butterworth had no memory of the crimes with which he was charged. Dr. Pace introduced Butterworth to hypnosis techniques and induced a light trance, but did not attempt to regain Butterworth's lost memory. He also directed Butterworth to prepare a written statement of his memories immediately prior to and after his memory lapse.

  Dr. Pace talked to Ney alone at the beginning of the second session on February 18. Dr. Pace was somewhat uneasy and had some concern about seeing Butterworth alone. Ney gave Dr. Pace some background information on the Fager family, but gave him no details about the crimes charged. This was the last session that Ney attended. No one but Dr. Pace and Butterworth was present at the rest of the sessions, except when Mrs. Butterworth came in and talked to the doctor after the seventeenth session was terminated.

  During the second session, Butterworth discussed the stress his arrest and lack of memory had caused him and his family. Dr. Pace determined that his anxiety was too great for hypnosis at that time and that some of Butterworth's emotional problems must be treated first. At the third and fourth sessions, on February 20 and 27, no hypnosis was attempted.

  At the fifth session on March 3, Butterworth was hypnotized; no recall was attempted. Butterworth simply practiced relaxation techniques and visual imaging. Dr. Pace noted the physical indicia of a hypnotized state were present.

  During his next session on March 19, Butterworth talked about the stress he and his family were under and how difficult he found it to relax and try to bring back his memory of the lost four days. He said, "Mr. Ney says he's done all he can until something happens here." Using an accepted technique, Dr. Pace hypnotized Butterworth and regressed him to earlier positive experiences in his life. He then regressed Butterworth to an earlier unpleasant experience. This technique prepares the patient

[246 Kan. 544]

      to recover potentially unpleasant memories and enhances the patient's feeling of self-control. It also minimizes bias that might occur if the therapist attempted to direct and rush memory recall.

  After a seventh session on March 26 devoted entirely to treatment of anxiety, Dr. Pace hypnotized Butterworth during the eighth session on April 1 and had him continue a series of "successive approximations." This is a technique where the patient is asked to come closer to the feared memory by facing other unpleasant memories. Dr. Pace asked Butterworth, without recalling the time of the murders, to regress to memories of prior adversity and punishment from an authority figure.

  On April 9, another session was devoted entirely to treating anxiety. Butterworth talked about viewing pictures of the crime scene the day before. Butterworth was hypnotized during the tenth session on April 12 and visualized the Fagers' home. He also remembered it was cold the morning of the 30th and that he ate lunch at a fast-food restaurant different from the one he usually patronized. During hypnosis in the eleventh session on April 19, Butterworth remembered stopping for coffee on his way to work on the 30th. He also remembered details of his morning's work at the Fagers' home.

  Butterworth was not hypnotized during the twelfth session on April 26, but was hypnotized during a two-hour session on April 30. He remembered talking to Mr. Fager before leaving for lunch on the 30th about the work he was doing. He remembered eating lunch and noting when he returned that Mr. Fager had either left or put his car in the garage. He remembered starting work and then thinking someone was in the spa in the solarium because of the smell of chlorine and the condensation on the glass. He thought it might be Kelli Fager and her boyfriend. He felt uncomfortable and decided to leave until they were done so he could work without disturbing them. He then decided to go to the mall to see if there were any after-Christmas sales. He remembered buying some new clothes.

  Butterworth was not hypnotized during the fourteenth session on May 2, but was hypnotized during the fifteenth session the next day. He recalled seeing acquaintances while he was at the mall, one of whom was William Dotts, a retired police captain. Butterworth thought it was about 4:30 p.m. when he left the

[246 Kan. 545]

      mall; it was getting dark when he returned to the Fagers' home. There were no lights on in the solarium; he remembered getting his key to open the door.

  Butterworth appeared depressed and frightened at the sixteenth session on May 5 and did not wish to be hypnotized. He was hypnotized during a two-hour session on May 7. He recalled seeing the Fagers' car as he returned from the mall. He cried as he recalled opening the solarium door and seeing Sherri Fager face up in the spa. He started to pull her out and realized she was dead. He went into the house and saw Mr. Fager lying dead on the floor. He knelt beside him, saw some keys beside him, and picked them up. He went to his van and tried to leave, but the keys would not work. He started hitting the steering wheel and then realized he was using Fager's keys. He grabbed the sack of new clothes from the van and drove away in the Fagers' car. He said he felt afraid and cowardly for running away. At this point, Butterworth appeared extremely upset. Dr. Pace ended hypnosis and, for the first and only time, allowed Butterworth's wife to come in to comfort him. Dr. Pace, in front of Butterworth, told Butterworth's wife he believed Butterworth to be innocent but suffering from guilt and self-condemnation. Dr. Pace notified Ney that Butterworth had recovered some memory but warned him not to push him very hard.

  During the subsequent sessions on May 9 and 11, no hypnosis took place, while Butterworth and Dr. Pace tried to discover why Butterworth had such deep feelings of shame and cowardice. Butterworth noted at the May 9 session that jury selection began that day. He also said that, although Kelli had been found with Sherri, he had only remembered seeing Sherri. He said the spa was not so large that he could have missed seeing Kelli if she had been in the spa.

  During the last session on May 14, 1988, Dr. Pace hypnotized Butterworth and asked him to return in his thoughts to the Fager house. Butterworth recalled that he entered the house after finding Sherri in order to call for help. He then saw Mr. Fager and knelt beside him trying to get him to move. He remembered being cold and wet from trying to get Sherri out of the ...

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