Opinion
Docket No. 84502.
Decided June 4, 1985.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Geoffrey H. Nickol and Robert F. Davisson, Assistants Prosecuting Attorney, for the people.
Cooper, Shifman Gabe (by Philip H. Seymour), for defendant on appeal.
Amicus Curiae:
Terence R. Flanagan, Assistant State Appellate Defender, of the State Appellate Defender's Office.
Before: CYNAR, P.J., and BRONSON and WALSH, JJ.
ON SECOND REMAND
In our original opinion, People v Wallach, 110 Mich. App. 37; 312 N.W.2d 387 (1981), we held that, while certain post-hypnotic statements of defendant's girlfriend should not have been admitted into evidence, the witness could testify about those aspects of the case remembered prior to undergoing hypnosis. We further held that, given the very compelling evidence which was properly admitted, the introduction of the witness's post-hypnotic testimony was harmless error.
In an order dated March 29, 1983, the Supreme Court vacated our opinion affirming defendant's conviction and remanded for reconsideration in light of People v Gonzales, 415 Mich. 615; 329 N.W.2d 743 (1982). 417 Mich. 937 (1983). On remand, we stated:
"The present appeal cannot be distinguished from Gonzales, supra. This is a companion case to Gonzales, which involves not only the same witness, but in fact the very same hypnosis-induced testimony that was found to have improperly contributed to the conviction in Gonzales.
"Accordingly, upon reconsideration in light of Gonzales, we conclude that the admission of witness Rhonna Burns's post-hypnotic testimony could not have been harmless beyond a reasonable doubt. Accord, People v Nixon (On Rem), 125 Mich. App. 807; 337 N.W.2d 33 (1983). The conviction is reversed and the matter remanded to the lower court for a new trial." People v Wallach (On Remand), 131 Mich. App. 539, 540-541; 345 N.W.2d 607 (1983).
Our reconsideration on remand concerned whether the admission of post-hypnotic testimony could ever be considered harmless error. Apparently, although not explicit in our opinion, we believed that the admission of post-hypnotic testimony could not constitute harmless error. Our conclusion was bolstered by this Court's opinion in People v Nixon (On Remand), supra, where Judge KELLY stated:
"The Supreme Court, however, subsequently determined that `to permit posthypnotic testimony would unfairly denigrate the defendant's right to cross-examination'. Gonzales, 415 Mich. 627. The Court concluded that `until the barriers which hypnosis raises to effective cross-examination are somehow overcome, the testimony of witnesses which has been tainted by hypnosis must be excluded in criminal cases'. Gonzales, supra, p 627.
"This holding by the Supreme Court undercuts any possible conclusion that the admission of posthypnotic testimony in the instant case was harmless beyond a reasonable doubt. * * *
"In light of the Supreme Court's opinion in Gonzales, supra, we now find that the erroneous admission of testimony of a previously hypnotized witness was not harmless beyond a reasonable doubt. The inability of defendant to cross-examine the witness due to the lasting effects of hypnosis denied defendant a fair trial. We therefore reverse defendant's two first-degree murder convictions and remand this case for a new trial."
In an order dated April 23, 1985, the Supreme Court again vacated our opinion and remanded for reconsideration, this time in light of People v Nixon, 421 Mich. 79; 364 N.W.2d 593 (1984). 422 Mich. 874 (1985).
Addressing the question which it had expressly reserved in Gonzales, the Supreme Court held in Nixon that a witness who has undergone hypnosis may testify at trial to facts which the witness recalled and related prior to hypnosis. For the purposes of this remand, however, the importance of Nixon lies in the application of the harmless error doctrine and the holding by the Court that, despite the admission into evidence of certain posthypnotic statements of the witnesses, defendant received a fair trial. The Court, therefore, reversed and reinstated defendant Nixon's conviction. Id., pp 90-92 and fn 3.
Given the Supreme Court's treatment of the admission of post-hypnotic statements, we believe that our task on this remand is to determine, as we held originally, whether the admission of the witness's post-hypnotic statements was harmless error. For the reasons set forth in our original opinion, we believe the erroneous admission of Rhonna Burns's post-hypnotic statements was harmless. People v Wallach, 110 Mich. App. 72-75. Unlike the testimony in Gonzales, Burns's pre-hypnotic statements placed defendant with the victims in the bar and, more importantly, at the murder scene. In addition, other very compelling evidence available against defendant, including defendant's own statements, distinguish this case from Gonzales. We therefore affirm defendant's conviction.
Affirmed.