People v. Wallach, Docket No. 84502

• Decision Date: 29 August 1985
• Docket Number: Docket No. 84502
• Citation: 143 Mich.App. 537,372 N.W.2d 609
• Court: Court of Appeal of Michigan — District of US
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John D. WALLACH, Defendant-Appellant.

Page 609

372 N.W.2d 609

143 Mich.App. 537

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John D. WALLACH, Defendant-Appellant.

Docket No. 84502.

Court of Appeals of Michigan.

Submitted April 25, 1985.

Decided June 4, 1985.

Released for Publication Aug. 29, 1985.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Asst. Pros. Atty., and Geoffrey H. Nickol and Robert F. Davisson, Asst. Pros. Attys., for the people.

Cooper, Shifman & Gabe by Philip H. Seymour, Royal Oak, for defendant-appellant on appeal.

Terence R. Flanagan, Asst. State Appellate Defender, for amicus curiae the State Appellate Defender's Office.

Before CYNAR, P.J., and BRONSON and WALSH, JJ.

PER CURIAM (On Second Remand).

In our original opinion, People v. Wallach, 110 Mich.App. 37, 312 N.W.2d 387 (1981), we held that, while certain post-hypnotic statements of defendant's girlfriend should not have been admitted into evidence, the witness could testify about those aspects of the case remembered prior to undergoing hypnosis. We further held that, given the very compelling evidence which was properly admitted, the introduction of the witness's post-hypnotic testimony was harmless error.

In an order dated March 29, 1983, the Supreme Court vacated our opinion affirming defendant's conviction and remanded for reconsideration in light of People v. Gonzales, 415 Mich. 615, 329 N.W.2d 743 (1982). 417 Mich. 937, 331 N.W.2d 730 (1983). On remand, we stated:

"The present appeal cannot be distinguished from Gonzales, supra. This is a companion case to Gonzales, which involves not only the same witness, but in fact the very same hypnosis-induced testimony that was found to have improperly contributed to the conviction in Gonzales.

"Accordingly, upon reconsideration in light of Gonzales, we conclude that the admission of witness Rhonna Burns's post-hypnotic testimony could not have been harmless beyond a reasonable doubt. Accord, People v. Nixon (On Rem), 125 Mich.App. 807; 337 N.W.2d 33 (1983). The conviction is reversed and the matter remanded to the lower court for a new trial." People v. Wallach (On Remand), 131 Mich.App. 539, 540-541, 345 N.W.2d 607 (1983).

Our reconsideration on remand concerned whether the admission of post-hypnotic testimony could ever be considered harmless error. Apparently, although not explicit in our opinion, we believed that the admission of post-hypnotic testimony could not constitute harmless error. Our conclusion was bolstered by this Court's opinion in People v. Nixon (On Remand), supra, where Judge Kelly stated:

"The Supreme Court, however, subsequently determined that 'to permit posthypnotic testimony would unfairly denigrate the defendant's right to cross-examination'. Gonzales, 415 Mich. 627, . The Court concluded that 'until the barriers which hypnosis raises to effective cross-examination are somehow overcome, the testimony of witnesses which has been tainted by hypnosis must be excluded in criminal cases'. Gonzales, supra, p. 627 .

"This holding by the Supreme Court undercuts any possible conclusion that the admission of posthypnotic testimony in the instant case was harmless beyond a reasonable doubt. * * *

"In light of the Supreme Court's opinion in Gonzales, supra, we now find that the erroneous admission of testimony of a previously hypnotized witness was not harmless beyond a reasonable doubt. The inability of defendant to cross-examine the witness due to the lasting effects of hypnosis denied defendant a fair trial. We therefore reverse defendant's two first-degree murder convictions and remand this case for a new trial."

In an order dated April 23, 1985, the Supreme Court again vacated our opinion and remanded for reconsideration, this time in light of People v. Nixon, 421 Mich. 79, 364 N.W.2d 593 (1984). 422 Mich. 875, 366 N.W.2d 8 (1985).

Addressing the question which it had expressly reserved in Gonzal...