345 N.W.2d 607 | Mich. Ct. App. | 1983
PEOPLE
v.
WALLACH (ON REMAND)
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Geoffrey H. Nickol and Robert F. Davisson, Assistants Prosecuting Attorney, for the people.
Cooper, Shifman & Gabe (by Philip H. Seymour), for defendant on appeal.
*540 Amicus Curiae:
Terence R. Flanagan, Assistant State Appellate Defender, for the State Appellate Defender's Office.
Before: CYNAR, P.J., and BRONSON and D.F. WALSH, JJ.
ON REMAND
PER CURIAM.
In an order dated March 29, 1983, the Supreme Court vacated this Court's order affirming defendant's conviction and remanded for reconsideration in light of People v Gonzales, 415 Mich. 615; 329 NW2d 743 (1982). 417 Mich. 937 (1983). In Gonzales, the Court held as follows:
"The process of hypnosis is not a reliable means of accurately restoring forgotten incidents or repressed memory, and to permit posthypnotic testimony would unfairly denigrate the defendant's right to cross-examination. Therefore, we hold that until hypnosis gains general acceptance in the fields of medicine and psychiatry as a method by which memories are accurately improved without undue danger of distortion, delusion, or fantasy, and 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." 415 Mich. 626-627.
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.
*541 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 NW2d 33 (1983). The conviction is reversed and the matter remanded to the lower court for a new trial.
Reversed and remanded.
