People v. Gonzales

• Decision Date: 28 July 1981
• Docket Number: Docket No. 51316
• Citation: 310 N.W.2d 306,108 Mich.App. 145
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Salvadore GONZALES, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 306

310 N.W.2d 306

108 Mich.App. 145

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Salvadore GONZALES, Defendant-Appellant.

Docket No. 51316.

Court of Appeals of Michigan.

July 28, 1981.

Released for Publication Sept. 28, 1981.

Geoffrey H. Nickol, Pontiac, for plaintiff-appellee.

Curtis G. Rundell, II, Clawson, for defendant-appellant.

Before CYNAR, P. J., and BRONSON and WALSH, JJ.

BRONSON, Judge.

Defendant and John Duncan Wallach were charged with the first-degree murder of Elmer Evans, in contravention of M.C.L. § 750.316; M.S.A. § 28.548. Gonzales and Wallach were separately tried, however. Following a jury trial in the Oakland County Circuit Court, defendant was found to be guilty as charged. He was sentenced to a mandatory term of life imprisonment. Defendant now appeals as of right.

On Sunday, January 28, 1979, two bodies were found buried in the snow next to a house located on Silver Down Court in Waterford Township, Michigan. The victims later were identified as Fred Torres and Elmer Evans. Torres had been stabbed to death, and Evans died as the result of a beating.

The case against defendant was based almost solely on the testimony of Rhonna Burns. Burns' testimony had been hypnotically refreshed prior to trial and was admitted over defense objections that the hypnosis may very well have irreparably tainted her true memory so that she was merely parroting suggestions implanted by the police.

According to the testimony of Burns, on Saturday night, January 27, 1979, she was at the Liberty Bar with John Wallach. Late that evening Wallach introduced her to defendant. Wallach then went over to Elmer Evans while Burns and defendant conversed. After talking to Evans, Wallach came back to the booth where Burns and defendant were. He said that Evans needed a ride home. Defendant then went over to Evans who gave defendant his car keys. Defendant then left by way of the front door apparently to go to Evans' car which Evans had said was parked in front of the bar. Wallach, Burns, and Evans exited through the back door of the bar and went to Wallach's station wagon. The trio drove to a warehouse. Defendant was waiting there, standing in front of a small blue car. Defendant got into the back seat of the station wagon and sat next to Evans. They then drove to a house on a hill and stopped in front of a garage. Stating that he had to go to the bathroom, defendant got out and went out around the garage toward the right. Wallach and Evans then got out of the car and went toward the left, out of Burns' view. After approximately 10 or 20 minutes, defendant returned. Wallach returned immediately thereafter. Evans, however, did not return. Wallach's right hand was cut and blood was on his hand and pants. Burns and Wallach then dropped defendant off downtown.

The question which is dispositive of this appeal is whether the trial court erred in allowing the testimony of Rhonna Burns since her memory had been hypnotically refreshed and her testimony consisted mostly of posthypnosis recollections. If so, defendant's conviction must be reversed. If not, at most, the other claims raised by defendant constitute harmless error.

In People v. Tobey, 401 Mich. 141, 145, 257 N.W.2d 537 (1977), the Michigan Supreme Court reaffirmed its adherence to the rule of Frye v. United States, 54 U.S.App.D.C. 46, 47, 293 F. 1013, 1014 (1923), limiting the admission of scientific evidence to techniques which have gained general acceptance in the particular areas in which they belong. Moreover, the general scientific recognition of a particular technique must be established by disinterested experts and not by those intimately linked to the technique. As will be detailed below, at present we believe that hypnosis as a scientifically accepted technique is akin to the polygraph examination. See People v. Barbara, 400 Mich. 352, 255 N.W.2d 171 (1977). While both polygraph examination and the hypnosis technique under consideration here have achieved some degree of acceptance, neither has gained that degree of general acceptance in the scientific community which distinguishes a true science from a pseudoscience.

Two decisions of this Court have spoken to the problem of the admissibility of hypnotically "refreshed" testimony. In People v. Hangsleben, 86 Mich.App. 718, 273 N.W.2d 539 (1978), the defense sought to introduce into evidence a tape recording of an interview between a psychiatrist and defendant while the latter was under the effects of hypnosis. The trial court denied the defense request. This Court held that no error had occurred. ¹ Hangsleben differs significantly from this case. There the issue was not whether a witness who had been hypnotized could give testimony but, rather, whether a criminal defendant could permissibly inform the jury that his memory was restored by hypnosis to bolster his credibility. The Hangsleben Court noted out-of-state opinions calling posthypnotic testimony suspect and concluded by holding that if error had occurred it was harmless since any reference to a hypnotic memory tended to impeach, rather than enhance, credibility.

The other Michigan decision dealing with this problem, People v. Tait, 99 Mich.App. 19, 297 N.W.2d 853 (1980), is much more like the instant matter than Hangsleben. In Tait, a prosecution witness gave hypnotically refreshed testimony. Defense counsel did not learn of the hypnosis until after the first day's testimony and then moved for a mistrial which was denied. ² In Tait, no evidence concerning the reliability of hypnosis as a method of uncovering a true memory was introduced. Furthermore, the hypnotist was an amateur and not a professional psychiatrist. Tait found that in respect to hypnotically refreshed memory the Tobey test for reliability had not been satisfied.

While Hangsleben was limited in its holding to the lack of adequate foundation presented in that case, Tait is unclear as to the intended scope of its holding. It appears, however, that the Tait decision has a more expansive scope than Hangsleben and stands for the proposition that hypnosis has not achieved sufficient scientific acceptance to allow the admission of testimony affected by the process. ³

It generally is agreed among those who have studied the hypnotic state that it is a condition of altered consciousness marked by heightened suggestibility. A subject in a hypnotic state may not have accurate recall. Indeed, there is a tendency in the hypnotized subject to relate false memory, distortions of memory caused by the process of age regression induced by hypnosis in which distinct experiences are jumbled and recalled as one, fantasies, and confabulations (the creation of bits of information to fill in the gaps between that which is actually remembered). This problem is exacerbated significantly by the tendency of the subject to respond in a way which he believes the hypnotist desires. See, among others, Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Cal.L.Rev. 313 (1980); Note: Hypnotized Witnesses May Remember Too Much, 64 ABAJ 187 (1978); Spector and Foster, Admissibility of Hypnotic Statements: Is the Law of Evidence Susceptible?, 38 Ohio St.L.J. 567 (1977); Dilloff, The Admissibility of Hypnotically Influenced Testimony, 4 Ohio N.U.L.Rev. 1 (1977); Comment: Refreshing the Memory of a Witness Through Hypnosis, 5 UCLA-Alaska L.Rev. 266 (1976); Comment: Hypnosis, Truth Drugs, and the Polygraph: An Analysis of Their Use and Acceptance by the Courts, 21 U. of Fla.L.Rev. 541 (1969); Note: Hypnotism, Suggestibility and the Law, 31 Neb.L.Rev. 575 (1952); Ladd, Legal Aspects of Hypnotism, 11 Yale L.J. 173 (1902). ⁴

Bernard Diamond, professor of both law and clinical psychiatry, states in Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, supra, 314-315 (hereinafter Diamond):

"In many cases, presentation to the jury of all facts, whether legally relevant or not, may be desirable. Indeed, I have often expressed the opinion that traditional rules of evidence restricting the information available to the trier of fact may impede a just decision. This principle does not, however, apply to the testimony of witnesses whose memories have been previously enhanced by hypnosis. I believe that once a potential witness has been hypnotized for the purpose of enhancing memory his recollections have been so contaminated that he is rendered effectively incompetent to testify. Hypnotized persons, being extremely suggestible, graft onto their memories fantasies or suggestions deliberately or unwittingly communicated by the hypnotist. After hypnosis the subject cannot differentiate between a true recollection and a fantasy or a suggested detail. Neither can any expert or the trier of fact. This risk is so great, in my view, that the use of hypnosis by police on a potential witness is tantamount to the destruction or fabrication of evidence. Recently, some courts have shown a healthy suspicion of the veracity of this sort of testimony. Yet even under stringent safeguards, including presentation to the trier of fact of the fullest possible information on the effects of hypnosis, the trier will not be able to sort out reality from witness fantasy and weigh this testimony properly." (Footnotes omitted.)

Despite a lack of general scientific acceptance and the problems with hypnotically refreshed or created memory recognized by scholars who have done research in this field, at present the majority of jurisdictions which have considered the question have allowed the testimony of one who has had his memory "refreshed" through hypnosis. In light of our research which indicates that if such testimony be admitted at all, it should be allowed only with stringent safeguards in the hypnotic process we were understandably surprised with the widespread acceptance of hypnotically "refreshed" testimony. Upon examination of the case law, however, we...