People v. Centers

• Decision Date: 30 July 1985
• Docket Number: No. 76265,76265
• Citation: 377 N.W.2d 4,422 Mich. 951
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Thaddeus Cheyenne CENTERS, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 4

377 N.W.2d 4

422 Mich. 951

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Thaddeus Cheyenne CENTERS, Defendant-Appellee.

No. 76265.

Supreme Court of Michigan.

July 30, 1985.

ORDER

On order of the Court, the application for leave to appeal is considered and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we VACATE the judgment of the Court of Appeals, 141 Mich.App. 364, 367 N.W.2d 397 (1985), as it pertains to the admissibility of the testimony of witness Kelly Faulkner. The trial court did not abuse its discretion in permitting her to testify after she had been hypnotized since her tentative lineup identification of the defendant after hypnosis was based on facts recalled and related prior to hypnosis and was similar to identification testimony elicited prior to hypnosis. People v. Nixon, 421 Mich. 79, 364 N.W.2d 593 (1984). We REMAND the case to the Court of Appeals to determine whether its findings of error on other issues raised by the defendant amounted to reversible error or whether they were harmless beyond a reasonable doubt.

We do not retain jurisdiction.

LEVIN, Justice, dissents from the dispositions and says:

In Centers, following the prosecutor's application for leave to appeal, we granted Centers' request for the appointment of counsel on May 20, 1985. Counsel was appointed on June 11; no brief has been filed by counsel as of this writing (July 18, 1985). On June 27 these cases, consolidated on appeal, were considered at conference, following preparation and circulation to the justices of the commissioner's report dated June 19, 1985, and the orders above set forth were agreed to by a majority of the Court.

In People v. McIntosh, 142 Mich.App. 314, 370 N.W.2d 337 (1985), the defendant filed an application for leave to appeal in propria persona. No application has been filed by the prosecutor seeking affirmance of the judgment of the Court of Appeals.

In light of the certified conflict, I would grant leave to appeal in both cases.

I

The Court should not have considered, let alone have decided, whether to reverse the judgment of the Court of Appeals in Centers before providing counsel, appointed to represent Centers, a reasonable opportunity to be heard--Centers' answer to the prosecutor's application was not overdue on June 27 or now; nor should it have decided to affirm the judgment in McIntosh without an application seeking such relief from the prosecutor and the appointment of counsel to represent McIntosh. ¹

Centers and McIntosh have been denied procedural due process by this Court's considering and deciding the issues without, in Centers, hearing from Centers' lawyer and without, in McIntosh, an application from the prosecutor presenting the issues and appointment of counsel to represent the indigent defendant.

II

The orders in Centers and McIntosh, decided upon following the prosecutor's application in Centers and the application in propria persona in McIntosh, go beyond People v. Gonzales, 415 Mich. 615, 329 N.W.2d 743 (1982), modified 417 Mich. 968, 336 N.W.2d 751 (1983), and People v. Nixon, 421 Mich. 79, 364 N.W.2d 593 (1984), and accordingly, may not properly be decided upon peremptorily, without oral argument and plenary consideration.

III

Absent an application for leave to appeal from the prosecutor seeking the relief set forth in the last sentence of the Centers order, the Court should not direct the Court of Appeals to provide the relief there set forth--it should not, on its own initiative raise the issues there identified.

IV

Thaddeus Centers and Charles McIntosh were convicted of first-degree felony murder for a killing that occurred on June 29, 1980, during the attempted robbery of a convenience store. Kelly Faulkner, a clerk at the store, tentatively identified Centers and McIntosh at a line-up eight months after a police officer had hypnotized her in an effort to elicit information concerning the crime. Centers and McIntosh claimed the hypnotic session may have tainted the identification and, therefore, the trial court improperly admitted evidence pertaining to Faulkner's identification.

A

Faulkner was first interviewed by the police minutes after the crime. ² A few hours later she was interviewed again at the police station. ³ Neither statement was sworn to nor subjected to cross-examination , and Faulkner gave no testimony before being hypnotized on July 1, 1980. ⁴

On March 3, 1981, after the hypnosis, Faulkner viewed a line-up of six persons, including Centers and McIntosh. The trial judge ultimately found that "Kelly Faulkner picked out of that lineup codefendants Thaddeus Centers and Charles McIntosh as resembling the perpetrators of the crimes in question." ⁵ (Emphasis added.)

At the preliminary examination, Faulkner said that, on the basis of the line-up photo, she was able to identify McIntosh as the first robber, but was not able to identify Centers. ⁶

At the trial, Faulkner again viewed the photograph of the line-up, and said that at the line-up she had picked out McIntosh as the first robber, but was unable to identify Centers. ⁷ The prosecutor introduced the evidence of a witness to the line-up who said that Faulkner had also tentatively identified Centers at the line-up. ⁸ At the trial, Faulkner was not asked whether she could then identify either defendant.

B

On August 6, 1981, the trial court entered an order foreclosing the testimony of Kelly Faulkner, but on September 18, 1981, the court reversed the decision embodied in that order after conducting a testimonial hearing. The court reversed on the basis of its finding that Faulkner's two prehypnosis "statements were in substantial accord with each other as well as her testimony given in the [posthypnosis] preliminary examination" and because "Faulkner's testimony surrounding the commission of the crimes in question was neither augmented nor diminished because of the fact that she had been hypnotized and there is no evidence to show that [the hypnotizing officer] influenced said witness or that said witness gave testimony which was the product of said hypnotic session." The court also found that the hypnotic session had not "in any way affected witness Faulkner's identification at [the] lineup."

C

In Nixon, supra, 421 Mich., p. 91, n. 3, 364 N.W.2d 593, this Court said "[s]tatements obtained after hypnosis are inadmissible per se under Gonzales, except as otherwise stated in this opinion." (Emphasis in original.) Faulkner's tentative identification of the defendants, as distinguished from her description of the defendants, was obtained after hypnosis. Because Faulkner's identifications were based on facts which were--within the meaning of the exception discussed in Nixon, supra, p. 89, 364 N.W.2d 593--neither "recalled" nor "related" before the hypnosis, all evidence pertaining to Faulkner's identification would, under Nixon, be inadmissible.

A description based on objective criteria such as height and weight is not the same as an identification. The prosecutor did not need Faulkner to show that a person in the line-up was five feet five inches or weighed one hundred and thirty pounds or was slim or had a light or dark complexion or no facial hair or a particular hair style. Faulkner's identification of Centers and McIntosh was needed because only she could verify whether the suspects possessed the unquantifiable, unique and subjective features that distinguished and defined the robbers' appearance.

It is questionable whether Faulkner, in fact, "recalled" before the hypnosis anything respecting the appearance of the robbers other than objective facts. While in her first report to the police she said "she was quite sure she could identify the subjects if she was to see them again," only hours later when asked what the second robber looked like, Faulkner said "I really didn't notice him that well."

Even if Faulkner did "recall" subjective features of the robbers, there is nothing in the record tending to show that she had "related" this recollection before the hypnosis as required under Nixon. (See Faulkner's statements in ns 2 and 3.) Faulkner did not describe to the police the features of the robbers (for example, she did not say that a robber looked like a celebrity or someone she knew), and, although the officer who reported from the scene of the crime said Faulkner was taken to the police station "to attempt composite drawings of the subjects," the record does not indicate whether she gave a further description or such drawings were ever made. Also, although Faulkner apparently was shown "mug shots," there is no record of her reaction to such photographs.

Faulkner testified to little more than that Centers and McIntosh "were familiar " (emphasis added)--this was at the preliminary examination, the record of which was not and could not have been admitted at the trial. At the trial, she merely again viewed the line-up photo and picked out one robber but not the other. Because Faulkner was tentative and uncertain about the identifications, it is questionable whether one could properly conclude that such tentative and uncertain identifications were based on "prior related recollections."

The prosecutor did not--within the meaning of Nixon, supra, p. 90, 364 N.W.2d 593--establish with "clear and convincing evidence" that the identifications were based on "prior related recollections."

I would grant leave to appeal in both cases.

1 It appears that the trial judge, at the suggestion of the local defender administrator, appointed (also on June 11) a lawyer to represent McIntosh, the same lawyer appointed to represent Centers. The lawyer appointed was the lawyer who represented McIntosh in the Court of Appeals.

2 The officer at the scene recorded her first description of the two robbers as follows:

"# 1 subject was a B/M [black male] approx. 5'5" slim build ... having a dark complexion, approx. 15-16 yrs., ... no facial hair, and short afro hair....