People v. McIntosh

• Decision Date: 12 July 1985
• Docket Number: Docket No. 66096
• Citation: 370 N.W.2d 337,142 Mich.App. 314
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Oren McINTOSH, Defendant-Appellant. 142 Mich.App. 314, 370 N.W.2d 337
• Court: Court of Appeal of Michigan — District of US

Page 337

370 N.W.2d 337

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Oren McINTOSH, Defendant-Appellant.

Docket No. 66096.

142 Mich.App. 314, 370 N.W.2d 337

Court of Appeals of Michigan.

Submitted Nov. 8, 1983.

Decided May 6, 1985.

Released for Publication July 12, 1985.

[142 MICHAPP 315] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Robert E. Weiss, Pros. Atty., and Donald A. Kuebler, Chief, Appellate Div., for the People.

[142 MICHAPP 316] Richard P. King, Flint, for defendant-appellant.

Before ALLEN, P.J., and MAHER and BELL ^*, JJ.

MAHER, J.

Defendant appeals as of right from convictions of conspiracy to commit armed robbery, M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1); M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, assault with intent to rob while armed, M.C.L. Sec. 750.89; M.S.A. Sec. 28.284, and felony murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, following a jury trial. He was subsequently sentenced to serve two concurrent terms of from 35 to 55 years imprisonment concurrently to a term of life imprisonment.

On appeal, defendant first argues that the trial court erred by permitting an eyewitness to the crimes, Kelly Faulkner, to testify at trial after she had been hypnotized by the police during their investigation of the crimes. Prior to trial, the court held an evidentiary hearing to establish the basis of Faulkner's testimony. At the hearing, it was established that Faulkner had given a description of two men immediately after the police arrived at the scene of the crime. She had then given a second statement to another officer within hours of the crime. In these statements, she described the two men as black males between the ages of 15 and 17 years. The first man had worn a dark green stocking cap which had not covered his face, had had a short Afro haircut and had worn a dark blue raincoat. The second man had worn a green army jacket, jeans and had also had a short Afro haircut. This man had a medium to dark complexion. Neither man had facial hair. Faulkner had [142 MICHAPP 317] then related the events leading to the shooting of her friend, Rick Blackmer. ¹ During her statements to the police, Faulkner indicated that she felt "very confident" that she could identify the two men if she were to see them again.

Approximately 10 days later, Police Sergeant Leonard Accardo, a trained hypnotic investigator, conducted an interview with Faulkner. At this point in the investigation, the police did not have any suspects in the case and had turned to Accardo in the hope that Faulkner might be able to recall additional facts under hypnosis. Accardo was not aware that Faulkner had made any previous statements. He was able to hypnotize Faulkner so that she went into "a very light trance", which he described as "almost not in hypnosis". The session was tape-recorded and later transcribed. At the evidentiary hearing, the court reviewed the transcript. Under hypnosis, Faulkner described the first man as a small black man, approximately 15 or 16 years old and weighing around 125 pounds. He had worn a dark blue thin coat of medium length which Faulkner described as a "ladies coat". The coat had snaps down the front and four pockets. He also had worn a dark green knit hat with the knitting pattern going vertically down the hat. She thought he might have worn blue jeans, although she could not be sure. She described the second man as approximately 5'5" tall, and slightly taller and slightly heavier than the first man. He had worn a green medium-length army jacket and blue jeans. The jacket had a patch on it that said "US Army". The second man had a medium amount of hair which he wore "natural looking". Faulkner then again described the events at the time of the shooting. At the close [142 MICHAPP 318] of the hypnosis session, as Accardo brought Faulkner out of the hypnotic trance, the following exchange occurred:

"Q. You will and every time you think about it it will become clearer and clearer to you. And what you've done is you've just refreshed your memory. You've overcome those obsticles [sic] that stand in your way, trauma, maybe even poor memory. I don't know if you've go [sic] a good memory or not.

"A. I don't."

Eight months after this interview, Faulkner was asked to come to the police station to view a six-person lineup. When asked if she recognized anyone in the lineup, she replied, "I'm not really sure". When asked if anyone looked familiar, she replied, "I couldn't really tell. Well, a couple looked, but I couldn't say for sure. Number one and number four I think it was." Finally, when asked if she could positively identify anyone under oath, Faulkner replied, "No, I don't think so for sure. The second person I didn't see too clear; and the one, I saw his feet only--looked smaller to me." "Number one" in the lineup was codefendant Thaddeus Centers and "number four" was defendant.

At the conclusion of this hearing, the trial court ruled that Kelly Faulkner would be permitted to testify at trial and that she could testify to her posthpynotic "identification" of defendant at the lineup. The court reached this decision based on its comparison of Faulkner's pre-and post-hypnotic statements, the fact that the police did not have any suspects at the time Faulkner was hypnotized and that fact that the lineup itself had not been suggestive.

After both the trial court's decision in this case [142 MICHAPP 319] and the actual trial, the Supreme Court issued its opinion in People v. Gonzales, 415 Mich. 615, 329 N.W.2d 743 (1982). In Gonzales, the Court stated:

"The process of hypnosis is not a reliable means of accurately restoring forgotten incidents or repressed memory, and to permit posthypnotic testimony would unfairly denigrate the defendant's right to cross-examination. Therefore, we hold that until hypnosis gains general acceptance in the fields of medicine and psychiatry as a method by which memories are accurately improved without undue danger of distortion, delusion, or fantasy, and 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.

"We do not foreclose, by this opinion, the use of hypnosis as an extremely useful investigative tool. A party could preserve a witness's prehypnotic testimony by using an MRE 804(b)(1) deposition. After the hypnotic session, the subject would be considered 'unavailable as a witness'." 415 Mich. 626-627, 329 N.W.2d 743.

The Supreme Court subsequently modified its opinion by adding the following language:

"This opinion should not be read as determining the question of the admissibility of this witness's testimony concerning facts she was able to recall and relate prior to hypnosis, a question which is reserved until raised on an adequate record in an appropriate case." 415 Mich. 627, 329 N.W.2d 743.

The issue raised by the modification was recently addressed by the Supreme Court in People v. Nixon, 421 Mich. 79, 364 N.W.2d 593 (1984). In Nixon, two witnesses who had been hypnotized during the police investigation of the crime were permitted to testify at the trial. One of the witnesses testified that he had, in fact, identified the [142 MICHAPP 320] defendant in a lineup. ² The trial court in Nixon permitted their testimony after listening to tape recordings made before, during and after the hypnosis sessions, and after examining the police detective who had hypnotized the two witnesses. The trial court concluded that the police officer had not suggested any facts to the witnesses and permitted them to testify, although also permitting the defendant to play the tape recordings to the jury to assist them in evaluating the witnesses' credibility and the suggestiveness of the hypnosis procedures. On appeal to the Supreme Court, the Court not only affirmed the defendant's conviction but concluded that the trial court had not abused its discretion in admitting the testimony:

"The trial testimony of VerHage and Porter was consistent with the facts which they had recalled and related prior to hypnosis. These prehypnotic statements were recorded, and defense counsel was given adequate notice of the statements and the circumstances surrounding the hypnosis. Furthermore, the trial court found that the procedures used by Detective Powell were not suggestive. Although additional safeguards could have been undertaken to ensure that the hypnosis did not taint the witnesses' prehypnotic recollections, we cannot say that the trial court abused its discretion in allowing the witnesses to testify." 421 Mich. 90-91, 364 N.W.2d 593.

The Supreme Court reached this result after first ruling that posthypnotic testimony is admissible at trial provided it is based solely on facts recalled [142 MICHAPP 321] and related by the witness prior to hypnosis and the party offering the testimony establishes its reliability by clear and convincing evidence.

On the basis of this analysis, we conclude that the trial court in this case also did not abuse its discretion, either in permitting Kelly Faulkner to testify or in permitting her to testify to the "identification" of defendant which occurred nine months after she had been hypnotized. ³ As found by the trial court, Faulkner's pre- and posthypnotic descriptions of the men were almost identical and, because the police had no suspects at the time of the hypnosis session, there was little likelihood that the police officer "suggested" a description to Faulkner. Although the danger of "confabulation" still existed ⁴, the tentative nature of Faulkner's "identification" lessened this danger. Finally, as also noted by the trial court, eight months elapsed between the hypnosis and the lineup. We, therefore, conclude that the identification itself was based on facts recalled and related prior to hypnosis so that it was admissible at trial. ⁵ Further [142 MICHAPP 322] support for ...