People v. Nixon

• Decision Date: 29 January 1985
• Docket Number: J,No. 8,Docket No. 71862,8
• Citation: 364 N.W.2d 593,421 Mich. 79
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Richard Michael NIXON, Defendant-Appellee. une Term 1984. Calendar421 Mich. 79, 364 N.W.2d 593
• Court: Michigan Supreme Court

Page 593

364 N.W.2d 593

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Richard Michael NIXON, Defendant-Appellee.

Docket No. 71862, June Term 1984.

Calendar No. 8.

421 Mich. 79, 364 N.W.2d 593

Supreme Court of Michigan.

Argued June 7, 1984.

Decided Dec. 28, 1984.

Released for Publication Jan. 29, 1985.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Juris Kaps, Pros. Atty., Michael A. Nickerson, Asst. Atty. Gen., Lansing, for plaintiff-appellant.

State Appellate Defender Office by P.E. Bennett, Asst. Defender, Lansing, for defendant-appellee.

CAVANAGH, Justice.

The primary question presented in this case was left open in People v. Gonzales, 415 Mich. 615, 329 N.W.2d 743 (1982), modified 417 Mich. 968, 336 N.W.2d 751 (1983), i.e., whether a witness who has undergone hypnosis may testify at trial to facts which the witness recalled and related prior to hypnosis. We must also decide whether Gonzales is to be given retroactive or prospective effect.

I

Defendant was tried and convicted by a jury in February, 1980, of two counts of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548. He was sentenced to two concurrent terms of life imprisonment. The Court of Appeals summarized the facts of this case as follows:

"Defendant was arrested for the shooting deaths of James and Sandra Frank. At defendant's trial, Diane Downer, defendant's girlfriend and accomplice, testified that she and defendant had planned to take $30,000 from James Frank when he came to their home to complete a prearranged deal to buy $30,000 worth of marijuana. When Frank arrived, Downer let him in and led him to the dining room. As Frank entered the room, defendant hit him over the head with a champagne bottle, but failed to render him unconscious. A struggle ensued which ended when defendant shot Frank in the shoulder.

"Downer testified that to protect their reputations as 'honest' drug dealers, she and defendant decided to kill Frank. While transporting Frank to a secluded spot, he escaped from the pick-up truck and ran to a nearby home. As Downer and defendant were struggling to get Frank back into the truck, Donald VerHage came to the door of the house. As Nixon placed Frank in the truck, Downer informed VerHage that Frank had been in an accident and they were taking him to the hospital. After this incident, they drove Frank to a secluded spot behind his house where defendant shot him in the head. The pair then went to Frank's house where they convinced his wife to accompany them to the same spot where they had killed her husband. As she stepped off the truck, defendant shot her in the head." People v. Nixon, 114 Mich.App. 233, 235-236, 318 N.W.2d 655 (1982).

Prior to trial, defendant moved to suppress the testimony of VerHage and Clark Porter (a friend of the Franks) on the grounds that they had been hypnotized during the police investigation of the Franks' disappearance. Defendant also sought to suppress the testimony of Gary Powell, the police detective who had hypnotized VerHage and Porter. After listening to tape recordings made before, during, and after the hypnosis sessions, and examining Powell, the trial court denied the motions. The court concluded that hypnosis was a valid method of refreshing a witness' memory and that Powell had not suggested any facts to VerHage and Porter. However, defendant was allowed to play the tapes for the jury to assist them in evaluating the witnesses' credibility and the suggestiveness of the hypnosis procedures. The witnesses were excused from the courtroom while the tapes were played.

VerHage testified at trial that he was not able to get a full face view of the man who helped James Frank into the truck. However, he did notice that the man was white, had straight collar-length hair which covered his ears, had no discernible facial hair, was about as tall as the female, and wore a blue nylon windbreaker. This description was substantially identical to the witness' statements given both before and during hypnosis. The only discrepancy was that VerHage had described the male as "stocky" while under hypnosis.

VerHage further testified that defendant looked like the man he saw at his home, although defendant's hair was shorter. On cross-examination, VerHage admitted that defendant was not "stocky," nor did he resemble the police sketch made by Detective Powell immediately after VerHage underwent hypnosis. He also admitted telling police several days after the incident that he probably would be unable to identify the man. Nevertheless, VerHage identified defendant six months later in a lineup.

Porter merely testified at trial that defendant was present at the Franks' home shortly before their disappearance. The tapes, which were played at defendant's request, contained considerably more information, however; e.g., James Frank told Porter that he was going to meet defendant later that evening concerning a marijuana deal, and Sandra Frank stated that she was "scared to death" of defendant because he was violent. Porter's statements both before and during hypnosis were substantially identical. ¹

Detective Powell testified that he had been an investigative hypnotist for less than a year. His formal training consisted of a 32-hour police seminar. He was also a police artist and had worked for three years with a state police psychologist who practiced investigative hypnosis. Powell further testified that he had asked open-ended questions during hypnosis to avoid suggesting answers to the subject. He also explained that hypnosis is not a truth-seeking device and that it is possible to lie while under hypnosis or to recall facts inaccurately. Defendant presented no expert testimony concerning hypnosis.

The trial court carefully instructed the jury several times that the tapes could be used only to evaluate the credibility of the witnesses, rather than to establish the truth of the matters asserted therein. The jury was also instructed on the credibility of expert witnesses.

The Court of Appeals affirmed defendant's convictions, holding that a witness can testify about those aspects of a case remembered prior to hypnosis. Furthermore, any error in admitting the post-hypnotic testimony was harmless beyond a reasonable doubt because 1) VerHage never positively identified defendant, 2) the pre- and post-hypnotic tapes were played for the jury, thus enabling them to evaluate VerHage's trial testimony, and 3) the most damaging evidence against defendant was given by Downer. 114 Mich.App. at 237-238, 318 N.W.2d 655. In lieu of granting leave to appeal, this Court remanded the case to the Court of Appeals for reconsideration in light of Gonzales. 417 Mich. 932, 330 N.W.2d 855 (1983). On remand, defendant's convictions were reversed because his right to cross-examine VerHage and Porter had been unduly infringed by the lasting effects of the hypnosis. 125 Mich.App. 807, 809-810, 337 N.W.2d 33 (1983). We granted plaintiff's application for leave to appeal. 418 Mich. 897 (1983).

II

In Gonzales, this Court joined a growing number of jurisdictions which have refused to admit hypnotically induced testimony. Plaintiff does not challenge this holding, nor has it presented evidence that hypnosis is now a generally accepted method of accurately improving a witness' memory. Instead, plaintiff maintains that defendant's convictions should be reinstated because 1) Gonzales should not be applied retroactively to the instant case, 2) a previously hypnotized witness may testify at trial to facts which were recalled and related prior to hypnosis, and 3) any error in admitting the testimony does not require reversal.

A

In determining whether a judicially created rule of law should be applied retroactively, a court must consider the purpose of the new rule, the general reliance on the old rule, and the effect on the administration of justice. Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967); People v. Hampton, 384 Mich. 669, 674, 187 N.W.2d 404 (1971).

Prior to Gonzales, this Court had not addressed the problem of hypnotically induced testimony. ² Other jurisdictions had split on whether such testimony was always admissible, admissible only if certain safeguards were met, or completely inadmissible. See Gonzales, supra, 415 Mich. at 624-626, 329 N.W.2d 743, and cases cited therein. Those jurisdictions which have refused to admit hypnotically induced testimony have generally refused to give their decisions full retroactive effect. See, e.g. State v. Collins, 132 Ariz. 180, 189-191, 644 P.2d 1266 (1982); People v. Shirley, 31 Cal.3d 18, 181 Cal.Rptr. 243, 641 P.2d 775 (1982), cert. den. 459 U.S. 860, 103 S.Ct. 133, 74 L.Ed.2d 114 (1982); People v. Adams, 137 Cal.App.3d 346, 350-353, 187 Cal.Rptr. 505 (1982); People v. Williams, 132 Cal.App.3d 920, 923-926, 183 Cal.Rptr. 498 (1982); Commonwealth v. Kater, 388 Mass. 519, 447 N.E.2d 1190, 1198 (1983); State v. Peoples, 311 N.C. 515, 319 S.E.2d 177, 188-189 (1984). Cf. State v. Koehler, 312 N.W.2d 108, 110 (Minn.1981).

The Arizona Supreme Court, in determining that the exclusionary rule enunciated in State v. Mena, 128 Ariz. 226, 624 P.2d 1274 (1981), should be applied only to cases tried or pending on appeal after Mena was decided, evaluated the aforementioned three-factor test as follows:

"The purpose of the holding in Mena and the present case is to exclude from a criminal trial posthypnotic testimony because of its basic unreliability. 'The extent to which a condemned practice infects the integrity of the truth-determining process at trial is a "question of probabilities." ' [Citations omitted.] The purpose of the Mena rule does not warrant the reexamination of unknown numbers of jury verdicts. Not every refinement of the law should result in the rejuvenation of post-conviction appeals. Additional safeguards present during trial minimize the possibility of the miscarriage of justice. The purpose of the...