Opinion
Docket No. 85072.
Decided July 16, 1985. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and A. George Best, II, Assistant Prosecuting Attorney, for the people.
Carl Ziemba, for defendant on appeal.
Before: DANHOF, C.J., and J.H. GILLS and BRONSON, JJ.
ON SECOND REMAND
By order of the Supreme Court dated May 10, 1985, we once again revisit this case and, as before, affirm defendant's conviction. This Court originally upheld defendant's conviction in People v Perry, 115 Mich. App. 533; 321 N.W.2d 719 (1982). The case was remanded back to this Court for reconsideration in light of People v Gonzales, 415 Mich. 615; 329 N.W.2d 743 (1982). See 417 Mich. 908; 330 N.W.2d 852 (1983). Upon that remand, we held that, "since the witness indicated at trial that all of the statements she made at trial were those which she made prior to the hypnotic session, we do not believe that Gonzales, supra, requires reversal of defendant's conviction". People v Perry (On Remand), 126 Mich. App. 86, 88; 337 N.W.2d 324 (1983).
The present remand order instructs that we reconsider our second opinion in light of People v Nixon, 421 Mich. 79; 364 N.W.2d 593 (1984). 422 Mich. 881; 367 N.W.2d 68 (1985). In Nixon, the Supreme Court held that a witness may testify at trial based upon facts recalled and related prior to hypnosis. While we noted in our previous holding that the witness had made the same statements prior to hypnosis, it is arguable whether her testimony alone to that effect constituted clear and convincing evidence of reliability, as required by Nixon, supra, p 90. However, we affirm defendant's conviction on the ground that error, if any, was harmless beyond a reasonable doubt.
The challenged testimony concerned Christine Brandon's recitation of conversations with defendant about the latter's arrangement to have her husband "beat up". This testimony was cumulative to other testimony presented at trial. The preliminary examination testimony of co-defendant Knight, in which Knight testified as to the arrangement made with defendant to kill her husband, was introduced at trial. There was also testimony from three other witnesses concerning warnings and/or threats by defendant regarding the killing of her husband and meetings between her and the assailants. Of most importance, the evidence against defendant was quite substantial. As in Nixon, supra, p 92, the most damaging evidence against defendant was the testimony of Knight, a co-conspirator, which fully revealed defendant's involvement. Under these circumstances, defendant received a fair trial and error, if any, in the admission of Brandon's testimony was harmless.
Affirmed