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North Carolina v. Flack

Filed: December 4, 1984.

STATE OF NORTH CAROLINA
v.
LESTER FLACK AND RICHARD FLACK



Defendants appeal as a matter of right pursuant to G.S. 7A-27(a) from a judgment entered by Ferrell, J., during the 28 February 1983 Session of Superior Court, Rutherford County, sentencing defendants to consecutive life sentences for first degree rape, first degree murder, and first degree burglary.

Henry E. Frye, Associate Justice, wrote the opinion.

Frye

The primary issue for consideration by this Court is whether the trial court was correct in admitting the hypnotically induced testimony of the prosecution's chief witness. Because of our recent decision in State v. Peoples, 311 N.C. 515, 319 S.E.2d 177 (1984), which resolved this identical issue, we find that the trial court erroneously allowed such hypnotically induced testimony. Furthermore, since this evidence constituted the heart of the State's case, such error constitutes prejudicial error. N.C. Gen. Stat. ยง 15A-1443(a).

I.

Miss Nannie Newsome was eighty-eight years old, a retired school teacher, and a respected member of the community of Union Mills, located in rural Rutherford County. On 8 January 1982, her body was discovered near her home. She was clad in bloody pajamas and was lying face down on top of a rake. An autopsy revealed that Miss Newsome had scrapes on her neck, bruises over many parts of her body, severely scraped knees, lacerations in her genital area, and four broken ribs. The cause of death was determined to be a heart attack, resulting from assault in the form of manual strangulation, beating, and sexual assault. Miss Newsome's death caused a wave of anger and revulsion within the Union Mills Community.

The county sheriff, highway patrol, SBI, and other law enforcement agencies secured the crime scene and made a thorough search of the entire area for evidence. The investigation revealed that Miss Newsome's house had been broken into but did not appear to have been ransacked. There were clear imprints of what appeared to be a single set of men's size ten and a half tennis shoes. Bare footprints, later identified as those of Miss Newsome, were also found.

The house was dusted and sprayed for fingerprints. Blood, hair, and fiber samples were taken throughout the house and the field where the body was discovered. Analysis of this physical evidence and comparison fingerprints and hair samples from Lester and Richard Flack failed to show any connection of the items with Lester or Richard Flack. In fact, both parties concede that no physical evidence whatsoever placed either of the defendants at the crime scene.

During the early afternoon of the day the body was discovered, bloodhounds were brought out to track the tennis shoe prints found at the crime scene. Some distance away from the Newsome residence, the dog happened to pass Lester Flack and another man, Herman King, as they jogged down the street. Different versions of the event were presented in court. In the State's version, the dogs lunged toward the men and tried to follow Flack. The State contends that the dog had to be restrained by the dog handler. However, the defendant Lester Flack and Herman King testified that the dog did nothing as it passed within three or four feet of Lester.

Officers of the Rutherford County Sheriff's Department went house to house seeking information from area residents about the crime. Within a day or so after the murder, Otis Forney was taken in for questioning. He lived with his brothers, Bernard, Gilbert, and Maurice, about two-tenths of a mile down a dirt road directly in front of the Newsome residence. While Otis was in custody and still a suspect, the police investigation began to focus on his younger brother, Maurice Forney.

On 21 January 1982, Maurice Forney was taken into custody on the orders of Rutherford County Sheriff Damon Huskey. Originally, he was kept in custody for public intoxication. Police officers questioned Forney, who maintained that he knew nothing about the events concerning Miss Newsome's death, except what he had read in the newspapers and heard through gossip. In fact, for a period of approximately two or three weeks after Miss Newsome's body was found, Maurice Forney stated that he knew nothing of the details of her death. He did state that he was in his car at approximately 12:30 a.m. on 8 January 1982 in front of Miss Newsome's house and "saw a light pop on and someone in her bedroom."

Lester Flack was taken into custody for questioning on the evening of 21 January 1982. He denied any involvement in the events that occurred at Miss Newsome's residence. On 22 January 1982, Lester Flack and Maurice Forney were given voice stress tests, which they were told they had failed. Although Maurice Forney maintained that he knew nothing about the details surrounding Miss Newsome's death, there was testimony that the officers told Forney he was not telling the truth and that he did know about the murder. Warrants charging Maurice Forney and Lester Flack with murder were formally drawn on 23 January 1982. Four days after these two men were charged, Maurice Forney was hypnotized in Charlotte on two separate occasions by Dr. Stann Reiziss, a psychologist and trained hypnotist.

Defendants' transcripts of the video-taped hypnotic sessions revealed that Maurice Forney, while under hypnosis, "zoomed in" on Miss Newsome's house on 8 January where he saw either Lester or Richard Flack through the bedroom window. This was the first time Richard Flack's name was mentioned in connection with the murder. While in a hypnotic trance, Maurice Forney stated that Lester Flack had come to his house, placed Maurice Forney on his shoulders, and jogged to the Newsome residence. Forney also said that Lester Flack had Christoper Hunt across his shoulders during this time. Forney then described how they broke into Miss Newsome's house, carried Miss Newsome out of the house, raped, and murdered her. Subsequently, ...


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