People v. Nixon

• Decision Date: 04 May 1982
• Docket Number: Docket No. 52685
• Citation: 318 N.W.2d 655,114 Mich.App. 233
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Michael NIXON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 655

318 N.W.2d 655

114 Mich.App. 233

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

Docket No. 52685.

Court of Appeals of Michigan.

Submitted December 8, 1981.

Decided March 17, 1982.

Released for Publication May 4, 1982.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Ward S. Hamlin, Jr., Pros. Atty., and Mary C. Smith, Asst. Atty. Gen., for the People.

P. E. Bennett, Asst. State Appellate Defender, Detroit, for defendant on appeal.

Before T. M. BURNS, P. J., and R. B. BURNS and KELLY, JJ.

KELLY, Judge.

Defendant Richard M. Nixon, was found guilty of two counts of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and received two concurrent sentences of life imprisonment. Defendant appeals as of right, GCR 1963, 806.1.

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.

During defendant's trial, the prosecution called VerHage to testify. Defendant objected to VerHage's testimony claiming it was the product of hypnotic suggestion. VerHage testified that he recognized Downer as the woman he saw on his lawn. He also testified that he only had a side view of the man involved in the incident but thought defendant looked like the man. The jury was informed that VerHage's testimony had been assisted by hypnosis, and on defendant's motion, tapes of VerHage's prehypnotic and posthypnotic testimony were played.

Defendant presented an alibi defense and rested his case. The jury returned a verdict of guilty on each count.

I

On appeal, defendant argues that the admission of posthypnotic testimony is grounds for reversible error per se. Recently, this Court examined the use of hypnotically refreshed testimony in People v. Gonzales, 108 Mich.App. 145, 310 N.W.2d 306 (1981), lv. gtd. 412 Mich. 870 (1981). In Gonzales, the Court held that a witness whose memory had been restored through hypnosis could not testify about those incidents only recalled under hypnosis. Id., 160-161, 310 N.W.2d 306. In People v. Wallach, 110 Mich.App. 37, 312 N.W.2d 387, 389 (1981), a companion case of Gonzales, the same panel noted that a witness who had been hypnotized would not necessarily be precluded from testifying. The witness could testify about those aspects of the case remembered prior to undergoing the hypnosis. Id., 72, 312 N.W.2d 389. Finally, in Wallach, supra, the Court refused to reverse the defendant's conviction even though the hypnotically refreshed testimony was introduced because any error which did occur was harmless. Id., 75, 312 N.W.2d 389.

While we accept the principles announced in Gonzales, supra, and Wallach, supra, we do not feel that the allowance of the hypnotically refreshed testimony in this case warrants reversal. In his testimony at trial, VerHage stated that he had a clear view of Downer but could only see a side view of defendant. While he stated that defendant looked like the man, he was unable to state that defendant was the man he saw putting Frank in the truck. Furthermore, defense counsel was allowed to play tapes of VerHage's testimony before hypnosis and after hypnosis to the jury. This enabled the jury to judge the credibility of VerHage's posthypnotic testimony. ¹ Finally, the most damaging evidence against defendant was given by Downer, whose testimony was not enhanced by hypnosis. Under the circumstances in this case, any error which did occur from the hypnotically refreshed testimony was harmless beyond a reasonable doubt. People v. Swan, 56 Mich.App. 22, 31, 223 N.W.2d 346 (1974), lv. den. 395 Mich. 810 (1975).

II

Defendant also objected to the testimony of David Metzger, a state police laboratory scientist. Metzger compared certain blood samples taken from VerHage's front porch and from defendant's home. He found that both samples were B type blood containing haptoglobin. According to Metzger, the combination of Type B and haptoglobin 1 occurs in less than 1.6 percent of the caucasian population and approximately 5.7 percent of the black population. Metzger opined that the blood samples could have had a common origin. Defense counsel objected stating, "my only problem is, Your Honor, we are going to be talking about 20 million people that have it". His objection was overruled.

On appeal, defendant argues that the method employed by Metzger to compare the blood samples was not generally recognized as reliable by the scientific community. However, defendant failed to object to the evidence on this ground at trial and has waived review of this issue on appeal. MRE 103(a)(1), People v. Rojem, 99 Mich.App. 452, 457-458, 297 N.W.2d 698 (1980). Furthermore, because defendant offered no evidence that the technique used to compare the blood samples was scientifically inaccurate and because defendant has not convinced us that the accuracy of the technique is seriously disputed, the trial court did not abuse its discretion in admitting Metzger's testimony. People v. Young, 106 Mich.App. 323, 329, 308 N.W.2d 194 (1981).

Defendant also objected to the testimony on the grounds that it was more prejudicial than probative. Defendant cites People v. Sturdivant, 91 Mich.App. 128, 134, 283 N.W.2d 669 (1979), where this writer found that blood test evidence indicating that the complainant's attacker was a nonsecretor, that the attacker thus possessed a trait found in 20 percent of the general population and that defendant was a nonsecretor was inadmissible. The holding in Sturdivant has since come under attack. People v. Horton, 99 Mich.App. 40, 50-51, 297 N.W.2d 857 (1980), vacated on other grounds, 410 Mich. 865 (1980). In a concurring opinion in People v. White, 102 Mich.App. 156, 301 N.W.2d 837 (1980), this writer clarified his holding in Sturdivant. The reason behind the rule announced in Sturdivant is that blood sample evidence which places defendant in a large group is more prejudicial than probative. If the blood test evidence places defendant in a small enough group, it might become more probative than prejudicial. In White, this writer suggested that establishing the proper proportional dimension should be left to the trial court's discretion. Id., 165, 301 N.W.2d 837.

In this case, the blood test evidence placed defendant in a group consisting of 1.6 percent of the caucasian population and 5.7 percent of the black population. Because the group is small, the question of whether this was too large a group to make the evidence more prejudicial than probative was a decision which should be left to the trial court's discretion. Furthermore, even if the trial court erred in admitting the evidence, the error was harmless in light of the other evidence presented at trial. Id., 165, 301 N.W.2d 837. We will not reverse defendant's conviction on this issue.

III

Defendant's final claim of error concerns the trial court's refusal to grant defendant's motion for change of venue because of alleged pretrial publicity.

The denial of a motion for a change of venue is within the trial court...