The opinion of the court was delivered by: WOODS
HENRY WOODS, UNITED STATES DISTRICT JUDGE
On the 20th day of April, 1987, a hearing was held on the consolidated petitions for habeas corpus filed by the petitioners, Michael Ray Orndorff, James William Holmes, Hoyt Franklin Clines and Daryl V. Richley, pursuant to 28 U.S.C. § 2254. For the reasons stated in this opinion the relief sought is granted in part and denied in part.
The facts giving rise to the instant petitions for habeas relief, stated in part in narrative form, are as follows. At approximately 9:45 p.m. on the night of January 8, 1981, the front doorbell rang at Don Lehman's home in Rogers, Arkansas. Lehman opened the door just a few inches to see who was there but was immediately shoved back as four masked men forced their way into his home. At least two of the men were armed with handguns and one was carrying a chain. Following a brief struggle with the intruders Lehman was thrown into his bedroom. He was probably shot once as he was thrown into the room, and was shot twice more while held down on his own bed. He died of the gunshot wounds within minutes. Approximately fifteen to thirty minutes later the four intruders fled the scene, taking with them over $ 1,200.00 in cash and Don Lehman's collection of guns. Lehman's wife and daughter were present during the entire incident.
Six days later an information was filed by the Benton County, Arkansas prosecuting attorney charging Orndorff, Holmes, Clines and Richley, collectively referred to as the petitioners, with capital felony murder. The information alleged that during or in furtherance of a robbery one or more of the petitioners caused the death of Don Lehman under circumstances manifesting extreme indifference to the value of human life. See Ark. Stat. Ann § 41-1501(1) (a) (Repl. 1977) (now codified at Ark. Code Ann. § 5-10-101 (1987)). On May 14, 1981 an amended information was filed which charged the petitioners each, in addition to the felony murder counts, with two counts of aggravated robbery for the alleged use of a deadly weapon with the purpose of committing a theft from Lehman's wife and daughter. See Ark. Stat. Ann. § 41-2102 (Repl. 1977) (now codified at Ark. Code Ann. § 5-12-103 (1987)).
The petitioners were tried jointly, despite numerous motions for severance, and the jury returned verdicts of guilty on all counts. On September 28, 1981 the trial judge sentenced each of the petitioners to consecutive life terms on the aggravated robbery counts and, following the unanimous recommendation of the jurors, sentenced each of them to death by electrocution on the felony murder counts. The convictions were affirmed on appeal to the Arkansas Supreme Court and petitions for collateral relief pursuant to Arkansas Rule of Criminal Procedure 37 were summarily denied. See Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983), cert. denied, 465 U.S. 1051, 79 L. Ed. 2d 723, 104 S. Ct. 1328 (1983).
On June 28, 1984 appointed counsel filed in this court separate petitions for habeas corpus relief on behalf of each petitioner. These petitions were consolidated for disposition by order of October 23, 1984. Between June, 1985, and August, 1986, the case was closed for administrative purposes as there was a case before the United States Supreme Court which, if decided in the petitioners' favor, would have mandated that habeas relief be granted. It was not so decided and a hearing was scheduled for April, 1987, on the remaining issues raised in the consolidated petitions. See Lockhart v. McCree, 476 U.S. 162, 90 L. Ed. 2d 137, 106 S. Ct. 1758 (1986), reversing sub nom. , Grigsby v. Mabry, 758 F.2d 226 (8th Cir. 1985) (en banc) (in which the Eighth Circuit held the "death qualified Jury" unconstitutional). At the habeas hearing the court ordered that post-hearing briefs be filed and agreed to let counsel for each of the petitioners divide the issues raised so that they did not duplicate each other's efforts, and so they could each devote more time to the research of each issue. Following a delay of over one year, occasioned by numerous requests for extensions of time in which to file the briefs and the necessity of appointing substitute counsel for one of the petitioners after the briefs had been filed, the case is now ready for disposition.
In their consolidated petition and common briefs the petitioners allege as grounds for relief: (1) that the Arkansas Capital Felony Murder Statute is unconstitutional; (2) that the trial court's denial of motions for severance violates their Fourteenth Amendment right of due process; (3) that the use of a "death qualified jury" violates the fair cross section requirement of the Sixth Amendment; (4) that the jury was improperly "death qualified" under Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968); (5) that the trial court's decision limiting them to a total of twelve peremptory challenges violates their Fourteenth Amendment right to equal protection of the law; (6) that non disclosure of the fact that two state witnesses had been subjected to hypnosis at the prosecutor's direction violates their Sixth and Fourteenth Amendment rights; (7) that allowing the jury to consider the motive of "pecuniary gain" as an aggravating circumstance in the sentencing phase of the trial violates their Eighth Amendment rights; and (8) that petitioner Clines was denied his Sixth Amendment right to effective assistance of counsel. The respondent concedes that all state remedies have been exhausted. Each issue will be addressed below, not necessarily in the order raised.
The murder victim's wife, Virginia Lehman, and their daughter, Vicki Lehman, were at home on January 8, 1981 and were witness to the tragic events which took place that evening. On January 9 and January 14, 1981 both Virginia and Vicki were interviewed by the police and their statements were recorded. Vicki was able to give the police a description of the four masked men and she helped a police artist sketch the one who had removed his mask during the commission of the crime. She later identified petitioner Clines in a police line up as that man. The prosecutor testified at the habeas hearing, however, that on February 10, 1981 he had made the decision to have the Lehman women hypnotized. The reason articulated for this decision was that Virginia's descriptions were vague and that Vicki was unable to recall the name one of the intruders had called the other.
At the prosecutor's suggestion Virginia and Vicki Lehman went to Peters' office to be hypnotized on February 18, 1981. Peters asked that the prosecutor not show him the Lehmans' prior statements because he did not want to be in a position to ask questions which suggested the answer. Peters had, however, previously seen newspaper accounts of the crime and he conducted more than one session with the Lehmans at which their stories were recited. In his deposition, which was introduced in evidence at the habeas hearing, Peters testified that he did not think Virginia was a good subject for hypnosis but that he would stand corrected if someone told him otherwise. He recalled that Vicki, on the other hand, was quite good and that he had four or five sessions with her. He only twice tried to hypnotize Virginia, and she testified at the hearing that she thought he had only two sessions with Vicki.
Virginia was permitted to attend Vicki's sessions with Peters, and Vicki was present at Virginia's. But other than Peters no others were present. During the sessions Peters would try to get his subjects to revisualize and relive the events of January 8 and, following each session, he and the Lehmans would report to the prosecutor's office. Peters took notes of each session but no electronic recording devices were used. His notes were never turned over to the prosecutor and have since been destroyed. Neither Peters or the prosecutor have any record of the questions asked and the responses given.
At the habeas hearing the prosecutor testified that he did not inform defense counsel that the Lehmans had been hypnotized because no new information had been elicited and he did not consider the fact that hypnosis had been performed to be exculpatory evidence. In fact, counsel for the petitioners were not aware that hypnosis had been performed until after the appeal was filed with the Arkansas Supreme Court. The petitioners argue now that this failure to disclose the fact of hypnosis violates their Sixth Amendment right of confrontation and their Fourteenth Amendment right of due process. The state responds that the non disclosure was harmless error beyond a reasonable doubt.
A. The Sixth Amendment Claim
The Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with witnesses against him." The purpose of this right to confrontation is to secure for the defendant the opportunity for cross-examination, and the right is applicable to state as well as federal proceedings. Davis v. Alaska, 415 U.S. 308, 315, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974); Douglas v. Alabama, 380 U.S. 415, 418, 13 L. Ed. 2d 934, 85 S. Ct. 1074 (1965). A defendant shows a violation of the Sixth Amendment right to confrontation if he proves that he was prevented from exposing facts to the jury from which they could reasonably make inferences about the reliability of the witness. Delaware v. Van Arsdall, 475 U.S. 673, 680, 89 L. Ed. 2d 674, 106 S. Ct. 1431 (1985); Davis v. Alaska, supra at 318 ; United States v. Gregory, 808 F.2d 679, 680-81 (8th Cir. 1987); United States v. Dempewolf, 817 F.2d 1318 (8th Cir.), cert. denied, 484 U.S. 903, 108 S. Ct. 245, 98 L. Ed. 2d 203 (1987). But an otherwise valid conviction should not be set aside if the reviewing court is able to confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt. Delaware v. Van Arsdall, supra at 684 ; Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967). In this case the court finds that there was constitutional error committed and that the error was not harmless beyond a reasonable doubt.
There have been a plethora of recent federal and state court decisions concerning the effects of hypnotically enhanced testimony, most of which are noted in the Supreme Court's recent decision on the subject. See Rock v. Arkansas, 483 U.S. 44, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987). Although Rock decided the converse of the issue presented here -- the right of a previously hypnotized criminal defendant to testify on his own behalf -- that opinion is, nonetheless, instructive. In Rock, the Supreme Court granted certiorari to review a Supreme Court of Arkansas ruling which limited the testimony of a criminal defendant who had been hypnotized to "matters remembered and stated to the examiner prior to being placed under hypnosis." The basis for the Arkansas court's decision was that hypnotically refreshed testimony of a witness is inadmissible per se because the dangers of admitting such testimony always outweigh whatever probative value it may have. The Supreme Court vacated and remanded, reasoning instead that the per se exclusionary rule impermissibly infringed on a criminal defendant's right to testify on his own behalf, in part because the Arkansas rule left the trial court with no discretion to admit such testimony even if it was determined to be reliable.
Discussing the reliability of hypnotically refreshed testimony the Court stated that the most common response to hypnosis appears to be an increase in both correct and incorrect recollections. Id. at 107 S. Ct. 2713. In the Court's words this occurs because
the subject becomes "suggestible" and may try to please the hypnotist with answers the subject thinks will be met with approval; the subject is likely to "confabulate," that is, to fill in details from the imagination in order to make answers more coherent and complete; and, the subject experiences "memory hardening," which gives him great confidence in both true and false memories, making effective cross-examination more difficult.
The Court went on to say that
the inaccuracies the process introduces can be reduced, although perhaps not eliminated, by the use of procedural safeguards. One set of suggested guidelines calls for hypnosis to be performed only by a psychologist or psychiatrist with special training in its use and who is independent of the investigation. These procedures reduce the possibility that biases will be communicated to the hypersuggestive subject by the hypnotist. Suggestion will be less likely also if the hypnosis is conducted in a neutral setting with no one present but the hypnotist and the subject. Tape or video recording of all interrogations, before, during, and after hypnosis, can help reveal if leading questions were asked . . . 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. (citations omitted).
107 S. Ct. at 2713-14. Similar procedural safeguards have also been suggested by the Eighth Circuit Court of Appeals. See Sprynczynatyk v. General Motors Corp., 771 F.2d 1112 (8th Cir.), cert. denied, 475 ...