People v. Lee
| Decision Date | 28 February 1990 |
| Docket Number | Docket No. 78005 |
| Citation | 450 N.W.2d 883,434 Mich. 59 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert LEE III, Defendant-Appellant. |
| Court | Michigan Supreme Court |
Defendant, Albert Lee, III, was convicted of first-degree felony murder 1 and sentenced to life imprisonment. We granted leave to appeal limited to:
(1) Whether the testimony of witnesses who had been hypnotized was properly admitted; and
(2) Whether similar acts evidence was properly admitted.
We hold first that the rules of People v. Gonzales 2 and People v. Nixon 3 were violated and thus that it was error for the trial court to admit the identification testimony of the hypnotized witnesses. Second, the similarities between the charged crime and the similar acts testimony satisfies the standards of People v. Golochowicz, 413 Mich. 298, 319 N.W.2d 518 (1982).
Procedurally this case has a long history. Following his conviction, defendant moved for a new trial which was denied. Defendant appealed by right. The Court of Appeals held that the standards of People v. Gonzales, supra, dealing with hypnotized witnesses were not satisfied. 4 However, the Court of Appeals held that because this case was decided before Gonzales its holding was inapplicable "but that reversal is nevertheless required in a pre-Gonzales case if defendant was prejudiced by admission of testimony as to recollections induced by hypnosis." Thereafter the Court found that the identification procedures were not "unnecessarily suggestive or conducive to irreparable misidentification," upholding the trial court's admission of the testimony of hypnotized witnesses.
Judge Maher dissented on the hypnosis issue. He concluded that on the basis of the factors pronounced by this Court in People v. Hampton, 384 Mich. 669, 187 N.W.2d 404 (1971), People v. Gonzales, supra, should be applied retroactively. 5 Thus, he found that defendant was denied a fair trial because the eyewitness testimony was tainted by hypnosis.
Relative to the similar acts testimony, the Court of Appeals found that the facts were sufficiently substantial to justify admission to show identity. The Court held that the trial court did not abuse its discretion and that the evidence was not erroneously admitted.
A request for review was filed with this Court and it was held in abeyance pending release of another hypnosis case, People v. Nixon, 421 Mich. 79, 364 N.W.2d 593 (1984). Following the release of Nixon, the case was remanded to the Court of Appeals for reconsideration. On remand, the case was reaffirmed. 6 We granted leave to appeal. 429 Mich. 885, 416 N.W.2d 312 (1987).
The undisputed facts of this case are that an eleven-year-old Grand Rapids girl was abducted from her school safety patrol post on the morning of February 12, 1979. Later that same day her body was found near the Regency Park Apartments. The cause of death was strangulation.
The extensive investigation by police produced four categories of evidence: (1) eyewitness identifications, (2) physical evidence, (3) similar acts evidence, and (4) testimony of defendant's former cellmate which is not at issue in this appeal. The propriety of the similar acts evidence is discussed below. We therefore turn to a discussion of the eyewitness identification and the physical evidence.
There were seven key prosecution witnesses (Jack Hill, James Vos, Jack Vos, Greg Start, David Orr, Jr., Timothy Wilcome and Jim Bonnema), all of whom were hypnotized. Moreover, five of the witnesses were hypnotized on two separate occasions by different hypnotists. The first hypnotic session was conducted by Mr. Robert Mazur, a local hypnotist, who operates the Grand Rapids Hypnotic Clinic. Mr. Mazur is not a psychiatrist or a psychologist and did not testify at trial. Dr. Donald Rossi of the Michigan Department of State Police conducted the second hypnotic sessions. Most of the hypnotic sessions were audio-taped but not videotaped. According to the experts who listened to the tapes, the hypnosis sessions themselves were conducted without any deliberate "attempt to alter [witnesses] memories."
Police were notified of the incident by Jack Hill who witnessed the last stages of the abduction. At the intersection of the abduction, Jack Hill noticed a car parked on the wrong side of the road and stopped to offer assistance. He spoke to a black man standing outside the vehicle and noticed a young white girl in the back seat. As the black man drove off Mr. Hill attempted to follow the car. Mr. Hill described the car as a clean, shiny black two-door. He originally told the police that he thought the car might be a Chrysler; however, at trial he testified that the car was a black Grand Prix. The driver was described as a neatly dressed black man with a neat haircut. Mr. Hill did not notice any facial hair on the man. 7
James Vos was driving his son, Jack Vos, to school at the time of the abduction when he noticed a black car skidding fast around a corner towards his vehicle. Mr. Vos was stopped for traffic when Mr. Hill informed them that he needed assistance pursuing a vehicle because a young girl had been abducted. James Vos described the car as a clean black two-door hardtop Pontiac Grand Prix with fancy wheel hubs and white walls. Mr. Vos noticed a black man driving the car who was approximately twenty-five to thirty years old, clean in appearance, wearing a dark leather jacket, and having an afro haircut moderate in length. However, he was unable to clearly identify the man driving the car. He did not notice anyone in the car and, in fact, stated that his main concentration was on the car and not on the person driving the car. At trial he was confident about his testimony concerning the make and model of the car.
Like his father, Jack Vos observed the car as being a Grand Prix because of the insignia and the grill on the vehicle. He was confident about the description of the car. However, unlike his father, he did observe a small girl in the back seat. He testified that she was a white girl, with blond hair, wearing a blue hat and a green coat.
On the day of the incident, February 12, 1979, Jack Hill was taken to the police department where two composite drawings were made. The first composite drawing was made prior to Mr. Hill being hypnotized. A second composite was compiled during the hypnotic session with Mr. Mazur. Jack Hill, James Vos, and Jack Vos were also all hypnotized on February 12 by Mr. Mazur.
Greg Start, a school crossing guard, gave testimony that he had seen a black car with red pinstriping and a red interior drive by his patrol corner twice. He noticed the car a second time because the driver had run a stop sign. Greg's testimony was more specific in that he identified the car as a Grand Prix because he saw the letters on the front fender of the car. Further, he described the driver as a young black man with a mustache and an afro hairstyle.
The victim's knapsack was recovered from a dumpster at the Georgetown Condominiums by the rubbish collector sometime on the afternoon of February 12, 1979. The Georgetown Condominiums are located within one mile of where the victim's body was found. On the morning of February 12, a black car driven by a black man was lodged in a snowbank at the condominium. Two grounds maintenance men, David Orr, Jr., and Timothy Wilcome testified that they helped the man free his vehicle. Specifically, Mr. Wilcome testified that a black man with neat hair (not an afro style), wearing a leather jacket walked up to the shed and asked for assistance to push his car out of a snowbank. Wilcome stated further that the black man smoked Kool cigarettes 8 and that the car looked like a black Monte Carlo. 9 Mr. Orr stated specifically that the car was a black Monte Carlo because of the emblem on the back of the car. 10 Also that the car had bicentennial license plates 11 and spoke-type wheels with curb feelers. Thereafter, Mr. Orr saw him get out of the car and throw something away in a nearby dumpster. Two days after the incident, February 14, 1979, Timothy Wilcome and David Orr, Jr., were hypnotized.
As the police continued to receive tips on the abductor, three mugbooks were compiled. Defendant's picture appeared in mugbooks one and two, however he was not pictured in the third mugbook. The first photo showing (mugbook one) occurred on February 15, 1979. Jack Hill, David Orr, Jr., James Vos, Jack Vos, and Timothy Wilcome participated, but no positive identification was made. In fact, each witness identified persons other than defendant as possessing features similar to the abductor.
Mr. Jim Bonnema notified the police about seeing the particular vehicle on the morning of February 12 after reading about the incident in the newspaper and seeing a story on television. He was hypnotized on February 16, 1979, 12 and while under hypnosis he gave a license plate number. However, he was unable to positively identify the driver of the vehicle.
On February 23, 1979, Jack Hill, Jack Vos, David Orr, Jr., and Timothy Wilcome were hypnotized for the second time by Dr. Donald Rossi. During the hypnotic session with Mr. Hill, a police artist was present who attempted to sketch a third composite drawing while Mr. Hill was under hypnosis. Following the hypnotic sessions each witness participated in a second photo showing (mugbook two). Mr. Orr identified defendant, among others, from this mugbook. Otherwise there was no positive identification by any other witness.
On February 26, 1979, defendant went to the police department for a polygraph...
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