People v. Rosengren

• Decision Date: 18 June 1987
• Docket Number: Docket No. 83369
• Citation: 159 Mich.App. 492,407 N.W.2d 391
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary Leigh ROSENGREN, Defendant-Appellant. 159 Mich.App. 492, 407 N.W.2d 391
• Court: Court of Appeal of Michigan — District of US

Page 391

407 N.W.2d 391

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary Leigh ROSENGREN, Defendant-Appellant.

Docket No. 83369.

159 Mich.App. 492, 407 N.W.2d 391

Court of Appeals of Michigan.

Submitted Aug. 5, 1986.

Decided April 21, 1987.

Released for Publication June 18, 1987.

[159 MICHAPP 494] James R. Neuhard, State Appellate Defender by Susan M. Meinberg, Detroit, for defendant-appellant.

[159 MICHAPP 495] Before HOOD, P.J., and HOLBROOK and PETERSON, ^* JJ.

PETERSON, Judge.

Defendant was charged with kidnapping and with multiple counts of first-degree criminal sexual conduct in Iron and Marquette Counties. The matters having arisen from the same event, they were consolidated for trial. Defendant appeals his jury conviction of two counts of CSC I, one in each county.

On February 28, 1981, the victim was abducted in the City of Marquette when defendant seized her as she was leaving a grocery store and forced her into the back of an automobile driven by Kenneth Gray. The automobile was driven for some time, during which the victim was sexually abused and raped by both defendant and Gray. They arrived at another city, which proved to be Iron River. There the victim was blindfolded and led into a house where she was kept overnight and subjected to further rapes by defendant.

On the following morning, the victim was led blindfolded to a different car (Gray's) and driven some distance. During that drive defendant again forced the victim to have intercourse. The victim was then released along the road and hitchhiked back to Marquette where she went to the hospital.

Defendant's testimony was that the victim had joined him and Gray voluntarily, that she spent the night with him voluntarily, and that the various sexual events were all consensual.

Gray, who was originally charged with defendant, was sentenced in January, 1982, to a term of fifteen to fifty years in an unrelated case. He then accepted an offer from the prosecuting attorney to be allowed to plead guilty to a kidnapping count with a sentence recommendation of seven to thirty [159 MICHAPP 496] years in return for his testimony in the trial of defendant. His testimony corroborated that of the victim.

The victim was able to describe Gray's car accurately to the police. She had also seen the license plate, but could not say what all the letters were. ¹ On March 11 ², in the hope that hypnosis might help the victim recall the complete lettering of the license plate, she was hypnotized and reinterviewed. The effort was not successful.

Defendant was arrested on March 12, 1981, and the matter progressed through pretrial conferences, various motions, the release of defendant on a reduced bond, the consolidation of the Iron County charges with those in Marquette, and severance of the cases of defendant and Gray. Defendant's trial was scheduled for November 30, 1981. In the interim, on July 28, 1981, People v. Gonzales, 108 Mich.App. 145, 310 N.W.2d 306 (1981), involving hypnosis of a witness, was decided. On November 25, 1981, at an in-chambers conference, defense counsel raised the Gonzales question. Various agreements were reached, namely that the trial date would be postponed, that defendant would move to suppress the testimony of the victim under the authority of Gonzales, that a record would be made of the facts surrounding the hypnosis of the victim, that the court would certify the matter to the Court of Appeals if the motion to suppress was denied, and that defendant and Gray would then seek interlocutory appeals on the issue.

[159 MICHAPP 497] The court did deny the motion to suppress on December 14, 1981, but then things hastened to a halt. Gray eventually did file an application for leave to file a delayed appeal of the suppression order in his case, but defendant never undertook the interlocutory appeal. Almost a year later, on November 24, 1982, a memorandum order was filed by the Court of Appeals which indicated that the assistant prosecuting attorney and defense counsel agreed that the case would be adjourned pending Court of Appeals action on Gray's application, ³ and that defendant would waive any speedy trial claim as to delay attributable to the resolution of the hypnosis issue.

With somewhat greater dispatch, Gonzales had made its way to the Supreme Court, which held on December 23, 1982, "the testimony of witnesses which has been tainted by hypnosis must be excluded in criminal cases." 415 Mich. 615, 627, 329 N.W.2d 743 (1982). Based thereon, on January 25, 1983, the trial court granted the defendant's motion to quash and suppressed the testimony of the victim in future proceedings in the matter. ⁴

On April 25, 1983, the Supreme Court on its own motion amended its opinion in Gonzales to add this 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 [159 MICHAPP 498] reserved until raised on an adequate record in an appropriate case." 415 Mich. 627, 329 N.W.2d 743. ⁵

The prosecutor eventually became aware of this addendum to Gonzales and, on July 18, 1983, filed a motion for reconsideration of the trial court's January 25 order. On July 29, 1983, the trial court vacated its January 25 order, denied the motion to quash, and ordered that the victim be allowed to testify "to the extent of her memory of the event prior to any hypnotic session."

Defendant first contends that it was error for the trial court to reconsider its earlier order quashing the information, arguing that such was an improper retroactive application of the "second" Gonzales opinion (April 25, 1983) and that defendant was entitled to trust and rely on the first Gonzales opinion (December 23, 1982) citing People v. Nixon, 421 Mich 79, 88, 364 NW2d 593 (1984), in which the Court held that Gonzales was applicable to "cases tried after the date of that decision and those cases pending on appeal which raised the issue." The fallacy, of course, is to speak of a Gonzales I and Gonzales II, for there are not two separate decisions but only one in Gonzales. ⁶

In Nixon, the Court also resolved the question left open in Gonzales, holding that a witness could testify about matters recalled prior to hypnosis, but added:

"In order to ensure that the witness' trial testimony is based solely on facts recalled and related prior to hypnosis, we hold that the party offering the testimony must establish its reliability by clear and convincing evidence. In this regard, we [159 MICHAPP 499] commend for examination the standards articulated in Collins [State v Collins, 132 Ariz 180; 644 P2d 1266 (1982) ], and Hughes [People v Hughes, 59 NY2d 523, 546-548; 466 NYS2d 255; 453 NE2d 484 (1983) ]."

Citing Nixon, defendant contends that even if it was appropriate for the trial court to reinstate the charges against defendant, the court nonetheless erred in allowing the victim to testify without a pretrial hearing to determine whether the victim's prehypnosis testimony was reliable.

People v. Hughes, cited in Nixon, discussed two different stages for testing prehypnotic recollection of the witness, one as to competency, and one as to weight. ⁷ The first step according to Hughes is the determination of the competency of the witness to give testimony ⁸, in which determination the proponent of the testimony has the burden of proving its reliability by clear and convincing evidence.

Here, going to trial before Nixon was decided, neither court nor counsel could know that this test would be adopted; they only knew that Gonzales had left open the question of the admissibility of the testimony of a hypnotized witness as to facts recalled and related prior to hypnotism. Defendant elected to reserve that question by asking for a post-trial hearing thereon in the event his client should be convicted, and waived the presence of [159 MICHAPP 500] the hypnotist at trial. ⁹ We find no abuse of discretion on the part of the trial judge as to the timing of the consideration of the admissibility of the victim's testimony when he followed the procedure requested by defense counsel. Neither can we say that the trial judge abused his discretion as to the conclusion reached in denying the motion to suppress. Here, as in Nixon, the hypnotic session was not suggestive, and defense counsel had been furnished with the prehypnotic interviews with the victim and a transcript of the hypnotic session. The hypnotic session was held before the police had any suspects and the focus of the hypnotic session was as to the letters on the license plate of the car from which the victim was released, in which regard the hypnosis failed to develop further recollection on the part of the victim.

Defendant also claims that error occurred when the prosecution improperly introduced evidence that the accomplice, Gray, entered a guilty plea in the case, citing People v. Lytal, 415 Mich. 603, 329 N.W.2d 738 (1982). In the course of direct examination, the prosecuting attorney elicited from Gray the terms of the plea bargain noted above, to which testimony defendant made no objection. ¹⁰

Once again we see an effort by the prosecution to comply with People v. Atkins, 397 Mich. 163, 243 N.W.2d 292 (1976), and People v. Woods, 416 Mich. 581, 331 N.W.2d 707 (1982), apparently running [159 MICHAPP 501] afoul of Lytal. In Atkins, the Court dealt with the problems of making the jury aware of the inducements given to obtain the testimony of an accomplice so that the jury could intelligently consider the credibility of the accomplice. The opinion of Justice Fitzgerald, joined by Justices Coleman, Williams and Kavanagh, said:

"Where an accomplice or co-conspirator has been granted immunity or other leniency to secure his testimony, it is incumbent upon the prosecutor and the trial judge, if the fact comes to the court's attention, to disclose such fact to the jury...