People v. Tait
Decision Date | 23 July 1980 |
Docket Number | Docket No. 45064 |
Citation | 99 Mich.App. 19,297 N.W.2d 853 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Richard TAIT, Defendant-Appellant. 99 Mich.App. 19, 297 N.W.2d 853 |
Court | Court of Appeal of Michigan — District of US |
[99 MICHAPP 21] Thomas A. Carlson, Ludington, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Martin Holmes, Mary C. Smith, Pros. Attys. Appellate Service, Detroit, for plaintiff-appellee.
Before HOLBROOK, P. J., and T. M. BURNS and BORRADAILE, * JJ.
This case arises from an incident in Mason County, Michigan, where a deputy sheriff, dispatched to the scene of an automobile accident, claims that defendant approached him, raised a gun, pointed it at the deputy and stated he was going to blow the deputy's head off.
Defendant was charged with the crime of assault with intent to commit murder, 1 bound over by the [99 MICHAPP 22] examining magistrate on the lesser offense of felonious assault 2 and convicted by a jury on the original charge after the trial judge concluded the magistrate had clearly abused his discretion by reducing the charge. This Court denied the pretrial application for leave to appeal filed by defendant in 1978, and he now appeals of right.
Only two questions require our attention: (1) did the trial court err in reversing the magistrate's finding, and (2) was hypnotically refreshed testimony properly admitted in the case.
At a preliminary examination, the prosecution must produce evidence to establish each element of the offense or evidence from which those elements may be inferred. People v. Doss, 406 Mich. 90, 101, 276 N.W.2d 9 (1979); People v. Oster, 67 Mich.App. 490, 495, 241 N.W.2d 260 (1976). The two elements of assault with intent to commit murder are (1) that the defendant assaulted the complainant and (2) that at the time of the assault the defendant intended to murder the complainant. 3
The examining magistrate must conclude at the preliminary examination that a felony has been committed and probable cause exists to find the defendant committed it in order to bind the defendant over for trial. 4
[99 MICHAPP 23] At the preliminary examination in this case, deputy sheriff Kirk Myers testified that defendant approached him, raised a pistol and twice threatened to blow his head off. Myers said that three times he ordered defendant to stop. He did not see defendant fire the gun or attempt to do so. When defendant continued to walk nearer, Myers shot him.
The magistrate concluded there was insufficient evidence produced to bind over on the assault with intent to murder charge and instead bound defendant over on a charge of felonious assault. The prosecution then filed an appeal with the circuit court and also sought an order of superintending control. The circuit judge correctly ruled that abuse of discretion is properly raised by appeal and not by application for an order of superintending control. People v. McCoy, 75 Mich.App. 164, 254 N.W.2d 829 (1977). The circuit judge found a clear abuse of discretion, holding that the threat to "blow your head off" was sufficient to indicate intent to kill, which is enough to distinguish assault with intent to murder as opposed to felonious assault.
The judge ruled that the magistrate relied solely on conjecture in presuming that defendant did not intend to kill the deputy when he had the opportunity to shoot but did not. The court said the question of intent under the circumstances should properly be left to the jury.
The question of whether a defendant should be bound over is a matter to be determined by the examining magistrate, People v. Dellabonda, 265 Mich. 486, 491, 251 N.W. 594 (1933), and a reviewing court should only substitute its judgment in a case of clear abuse of discretion, People v. Doss, supra, People v. Flint Municipal Judge, 41 Mich.App.[99 MICHAPP 24] 766, 770, 201 N.W.2d 111 (1972). The magistrate should not, however, refuse to bind over when the evidence raises a reasonable doubt as to a defendant's guilt, that question properly being one for the jury to determine. People v. Doss, supra, Wayne County Prosecutor v. Recorder's Court Judge, 92 Mich.App.119, 123, 284 N.W.2d 507 (1979). Where credible evidence is presented to both support and negate a necessary element, the question of fact should be left for the jury to decide. Wayne County Prosecutor v. Recorder's Court Judge, supra.
In an earlier case, where a defendant was intoxicated and his intent to kill was at issue, the Supreme Court in People v. Medley, 339 Mich. 486, 64 N.W.2d 708 (1954), found intent established where a shooting victim testified that the defendant could see him when the shot was fired, and the victim called out to the defendant.
The circuit court properly found a clear abuse of discretion in this case.
The problem of hypnotically refreshed testimony raises a more difficult question.
The deputy testified at the preliminary examination that he had been too far from defendant to see if defendant pulled the trigger of his gun. At trial, however, he testified that, just before he fired at defendant, he saw defendant move his hand to the top of the gun.
Defense counsel impeached the deputy's testimony both from a written statement made a few days after the incident and with the preliminary examination transcript, where the officer had not [99 MICHAPP 25] mentioned observing defendant's hand move to the top of the gun.
At the conclusion of the first day's testimony counsel for defendant moved for a mistrial, stating he had not learned of the hypnotic refreshing of the deputy sheriff's memory until after his testimony, and the deputy, on being recalled, said no one told him what to say at the hypnotic session and that his trial testimony was from his own recollection of the incident.
The trial record fails to disclose who the hypnotist was, although at oral argument this Court was informed that the prosecuting attorney is an amateur hypnotist and conducted the session with the deputy, allegedly taping the entire session.
The trial judge took the motion under advisement but denied the motion the next day. The jury was never informed that the witness's memory had been refreshed through hypnosis, although defense counsel sought to examine the witness in the presence of the jury. The trial court ordered both counsel not to refer to hypnosis in the jury's presence and refused to give defendant's requested instructions on the unreliability of hypnosis and the capability of a witness to fantasize while under hypnosis.
The only case in Michigan which seems to have dealt with the admissibility of evidence obtained while under hypnosis is People v. Hangsleben, 86 Mich.App. 718, 273 N.W.2d 539 (1978). In that case the defendant sought to introduce a psychiatrist's testimony where hypnosis had been used on defendant. Defendant wanted to utilize the statements obtained while under hypnosis to establish the truth of the statements he made while in a hypnotic trance and also to bolster the credibility of his story at trial by claiming the hypnosis had a mind-[99 MICHAPP 26] joggling effect to explain his earlier inconsistent admissions to the police. It was held that evidence of a subject's responses under hypnosis was inadmissible for either purpose. Hangsleben, supra, 728, 273 N.W.2d 539.
Although hypnosis has been a source of interest in the psychological and psychiatric communities for a number of years, the courts which have dealt with admissibility of hypnotically induced testimony are hopelessly split. More often where its use was permitted, it was introduced to bolster a physician's conclusions when testing a defendant rather than to usurp a jury's factfinding prerogatives. See Anno.: Admissibility of Hypnotic Evidence at Criminal Trial, 92 A.L.R.3d 442, and Anno.: Admissibility of Physiological or Psychological Truth and Deception Test or Its Results to Support Physician's Testimony, 41 A.L.R.3d 1369. Also see Anno.: Physiological or Psychological Truth and Deception Tests, 23 A.L.R.2d 1306 and footnote 1 therein on the many articles and writings discussing the subject. 5
The prosecutor in the instant case argues that the test required by People v. Tobey, 401 Mich. 141, 257 N.W.2d 537 (1977), reaffirming People v. Barbara, 400 Mich. 352, 255 N.W.2d 171 (1977), is not applicable in this case because the deputy's memory was merely refreshed consistent with the provisions[99 MICHAPP 27] of MRE 612(b) relative to using an object to refresh memory. If such circumstances were applicable here, notice should have been given in advance of trial and not kept as a surprise to spring the day of trial.
Even in those jurisdictions where testimony refreshed by hypnosis has been allowed in evidence, reversal has been predicated on failure to disclose the fact of hypnosis. United States v. Miller, 411 F.2d 825 (C.A. 2, 1969), Emmett v. Ricketts, 397 F.Supp. 1025 (N.D.Ga., 1975). 6
Investigatory use of hypnosis on persons who are later called on to testify in court carries a dangerous potential for abuse. The United States Court of Appeals for the Ninth Circuit in United States v. Adams, 581 F.2d 193 (C.A. 9, 1978), noting that the Ninth Circuit accepts such testimony both in criminal and civil cases, said its concern about the possibility of abuse requires at a minimum that complete stenographic records of interviews of hypnotized persons who later testify should be maintained and the judge, jury and the opponent know who was present, the questions that were asked and the witness's responses. The court further suggested that an audio or video recording of the interview would be helpful. 7
Another jurisdiction which has...
To continue reading
Request your trial-
People v. Shirley
...were allegedly recalled without the aid of hypnosis. The latter question was soon answered, again in the negative. In People v. Tait (1980) 99 Mich.App. 19, 297 N.W.2d 853, the defendant was charged with assaulting Deputy Sheriff Myers with intent to commit murder. At the preliminary hearin......
-
State v. Iwakiri
...testimony inadmissible because of lack of reliability as measured by lack of acceptance in the scientific community. People v. Tait, 99 Mich.App. 19, 279 N.W.2d 853 (1980). People v. Gonzales, 108 Mich.App. 145, 310 N.W.2d 306 (1981) held testimony about incidents recalled only under hypnos......
-
State v. Beachum
...investigation. Defendant, urging a flat prohibition of the use of hypnotically induced testimony, cites as precedent People v. Tait, 99 Mich.App. 19, 297 N.W.2d 853 (1980); State v. Mack, 292 N.W.2d 764 (Minn.1980), where such testimony was excluded as a matter of law. Defendant further urg......
-
People v. Smith
...States v. Miller, 411 F.2d 825, 830-831 (2d Cir.1969); Emmett v. Ricketts, 397 F.Supp. 1025 (N.D.Ga.1975); see, also, People v. Tait, 99 Mich.App. 19, 297 N.W.2d 853 (1980); Lawson v. State, 280 N.W.2d 400 (Iowa, 1979) ]. The prosecutor has fulfilled that The court makes the following factu......