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                MEMORANDUM DECISION - NOT FOR PUBLICATION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


                                               2
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


                                               3
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


                                              4
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

                                               5
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,

                                       6
       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


                                               7
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

                                               8
       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

                                               9
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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