People v. Simonds, Docket No. 70772

• Decision Date: 02 August 1984
• Docket Number: Docket No. 70772
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth Wayne SIMONDS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 483

353 N.W.2d 483

135 Mich.App. 214

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth Wayne SIMONDS, Defendant-Appellant.

Docket No. 70772.

Court of Appeals of Michigan.

Submitted April 5, 1984.

Decided June 5, 1984.

Released for Publication Aug. 2, 1984.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty. and Carolyn Schmidt, Asst. Pros. Atty., for the people.

Neil H. Fink, Detroit, for defendant-appellant.

Before J.H. GILLIS, P.J., and T.M. BURNS and KAUFMAN, ^* JJ.

PER CURIAM.

Defendant was convicted, following a jury trial, of first-degree murder, contrary to M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and assault with intent to commit murder, contrary to M.C.L. Sec. 750.83; M.S.A. Sec. 28.278. He now appeals by right.

Defendant's conviction stems from a bizarre and tragic incident which occurred at a Revco Drug Store in Redford Township on March 17, 1982. At about 9 p.m. that night, defendant, who was employed as a security guard for Revco, attacked pharmacist Elise Rouhier, causing her death, and cashier Ann Ceane, leaving her seriously injured. The only contested issue at defendant's trial, where he presented an insanity defense, was his mental state at the time of the attack.

Ann Ceane testified that defendant arrived at the store shortly before closing time that evening, which was not unusual. He asked both women to come with him to the back of the store, and told Ms. Ceane to go into the women's restroom; believing this was part of some security procedure, she complied. After a few minutes, defendant asked her to come out of the restroom and had Ms. Rouhier go in. Defendant then reached towards Ms. Ceane; she got scared and knocked his hand away. Defendant then began stabbing her with a knife. From this point forward, defendant alternated between viciously attacking the women and apologizing to them for his actions. He told the women to call an ambulance, but when Elise Rouhier began to dial, he hung up the receiver and then yanked the cord off the phone. He grabbed Ms. Ceane, trying to suffocate her; then he began smashing bottles over her head and resumed attacking Ms. Rouhier with a knife. Finally, when the phone began ringing and someone was heard at the door, defendant fled from the store.

Elise Rouhier died as a result of five stab wounds in her chest and six stab wounds in her back, all inflicted by defendant.

Defendant appeared at his parents' home shortly after the incident. Defendant's mother, wife, and aunt testified to defendant's odd behavior at that time. He laid on the floor, curled up, then began running through the house and into walls, mumbling incoherently.

Members of defendant's family, and some of his co-workers, testified generally to the effect that defendant had never before exhibited bizarre behavior, and always acted normally.

Although defendant did not testify at trial, it became clear through expert testimony that defendant claimed to have no recollection whatsoever of the incident. Two psychiatrists and a psychologist all testified for the defense that defendant was mentally ill or psychotic at the time of incident, that he had not been dealing with his anger, that he had a repressed hypercritical personality, and that the incident was totally unlike anything defendant had ever done before. Defense counsel asked two of these experts whether their opinion would change if they heard testimony from defendant's neighbors that suggested that defendant abused his wife. Both responded that it would not change their opinion. In rebuttal, the prosecutor called Steven and Kathleen Cicotte, defendant's next-door neighbors. Both testified that they frequently heard yelling and crying coming from defendant's house. They would hear a woman say things like, "Stop, you're hurting me", and then would hear a male laughing, presumably defendant.

Defendant now contends that reversible error occurred when the prosecutor elicited this testimony from the next-door neighbors, as it was inadmissible a) under MRE 404(b) because it was evidence of similar bad acts, b) under MRE 405 because it was evidence of specific instances of conduct to rebut the inference that defendant was nonviolent, and c) because it was irrelevant to the issue of sanity since the prosecutor's expert witness did not rely on the testimony.

We disagree. First of all, the concerns which underlie MRE 404(b) and the Supreme Court's decision in People v. Golochowicz, 413 Mich. 298, 319 N.W.2d 518 (1982), interpreting that rule, are not here implicated. The evidence was not introduced in an attempt to have the jury convict defendant of the crime charged on the basis of past misconduct; rather, the evidence was clearly introduced on the issue of defendant's sanity. As defendant recognizes, general similar acts evidence analysis is inappropriate in an insanity defense setting. The Supreme Court in People v. Woody, 380 Mich. 332, 157 N.W.2d 201 (1968), ruled that testimony of prior antisocial conduct, ordinarily completely inadmissible, becomes material and admissible as bearing on the issue of defendant's sanity. In an effort to discharge its burden of proving defendant's sanity, the prosecution is entitled to all rights of cross-examination of defense witnesses and to introduce rebuttal testimony by witnesses of its own. Id., p. 338, 157 N.W.2d 201. More recently, this Court faced a similar question and reiterated that evidence of a defendant's past conduct, not normally admissible, is admissible on the issue of sanity. People v. Cramer, 97 Mich.App. 148, 161, 293 N.W.2d 744 (1980), lv. den. 411 Mich. 862 (1981), and cases cited therein.

While recognizing the insanity exception to MRE 404(b), defendant suggests the exception be limited so that otherwise inadmissible similar-acts evidence is only admissible on the issue of insanity where a party's expert witness has relied on the testimony.

We do not find the limitation defendant advocates to be supported by the case law. The cases on which defendant relies, People v. Morris, 92 Mich.App. 747, 285 N.W.2d 446 (1979), lv. den. 408 Mich. 919 (1980), People v. Hammack, 63 Mich.App. 87, 234 N.W.2d 415 (1975), and People v. Dimitris, 115 Mich.App. 228, 320 N.W.2d 226 (1981), do not compel the conclusion he urges. Moreover, to the extent that the defense's expert witnesses considered defendant's past nonviolence as a factor in rendering an opinion as to defendant's sanity, evidence that defendant in fact exhibited violence in the past would be relevant to the trier of fact in determining whether to give credence to the testimony; it was admissible because it directly refuted one of the facts on which defendant's experts relied.

Finally, whether similar acts evidence is admitted rests within the discretion of the trial court, and we do not find any abuse of discretion here. People v. Golochowicz, supra; People v. Claybon, 124 Mich.App. 385, 335 N.W.2d 493 (1983).

In the course of testimony by the prosecution's expert witness, Dr. Banks, Dr. Banks volunteered that, in an effort to aid defendant's recall, Dr. Banks wanted defendant to undergo hypnosis or an interview under the influence of Amytol (a "truth drug"), but that defendant's attorney refused to let him participate in such a session. Defense counsel immediately moved for a mistrial on the basis of this reference by Dr. Banks. The court denied the motion. Defendant requested a curative instruction; the trial court agreed to give it but gave it at the end of trial rather than immediately as requested by defendant. Defendant now argues that the reference by Dr. Banks so prejudiced him that it warrants reversal of his conviction.

We fail to see how this reference in any way prejudiced defendant. Testimony based on hypnosis or "truth serum" sessions is inadmissible because it is unreliable and has not gained general acceptance in the scientific community. People v. Gonzales, 108 Mich.App. 145, 310 N.W.2d 306 (1981), aff'd, 415 Mich. 615, 329 N.W.2d 743 (1982); People v. Cox, 85 Mich.App. 314, 271 N.W.2d 216 (1978). See also People v. Young, 418 Mich. 1, 340 N.W.2d 805 (1983), and cases cited therein. The trial judge clearly indicated this to the jury in an instruction at the end of the trial:

"During the course of the trial you've heard mention of hypnosis. You should know that hypnosis is not a reliable means of accurately restoring forgotten incidents or repressed memory, and has not gained general acceptance in the field of medicine and psychiatry. As a result, any mention of hypnosis is improper, and must be totally disregarded by you jurors in your deliberations."

Defendant argues that the mention that he had refused to undergo hypnosis suggested that he was suppressing the truth.

To the contrary, since courts do not hold hypnosis useful in discovering the truth, refusal to undergo hypnosis could not prejudice defendant in this manner. Moreover, if the reference to hypnosis left any doubts in the minds of the jury, the trial court's very good curative instruction should have removed any chance for prejudice to the defendant. That the instruction was not given until the end of trial would not necessarily prejudice defendant; if anything, it may have helped. Defendant misreads People v. Alvin Johnson, 396 Mich. 424, 240 N.W.2d 729 (1976), if he is implying that the Supreme Court there held that cautionary instructions can never cure a reference to polygraph. The Supreme Court in Johnson also cited People v. Paffhousen, 20 Mich.App. 346, 174 N.W.2d 69 (1969), lv. den. 383 Mich. 825 (1970), where this Court suggested that a trial court can take curative action rather than granting a mistrial where improper reference to polygraph is made.

In People v. Rocha, 110 Mich.App. 1, 312 N.W.2d 657 (1981), lv. den. 411 Mich. 915 (1981), this Court set forth a test to be utilized in determining whether a...