People v. Rosengren , 159 Mich. App. 492 ( 1987 )

159 Mich. App. 492 (1987) 407 N.W.2d 391

PEOPLE
v.
ROSENGREN

Docket No. 83369.

Michigan Court of Appeals.

Decided April 21, 1987.

Before: HOOD, P.J., and D.E. HOLBROOK, JR., and W.R. PETERSON,^[*] JJ.

W.R. PETERSON, J.

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 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 NW2d 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.

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 NW2d 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 reserved until raised on an adequate record in an appropriate case. [415 Mich. 627.]^[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 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 posttrial hearing thereon in the event his client should be convicted, and waived the presence of 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 NW2d 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 NW2d 292 (1976), and People v Woods, 416 Mich. 581; 331 NW2d 707 (1982), apparently running 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 upon request of defense counsel. [397 Mich. 173.]

Subsequently, in Woods, the Court, citing that language, added the requirement that the consideration given should be made a matter of proof as distinguished from a statement thereof by the prosecuting attorney. 416 Mich. 602.

One of the difficulties imposed on bench and bar by this language lies in its apparent limitation of disclosure to cases where it is requested by defense counsel, a condition repeated in People v Standifer, 425 Mich. 543; 390 NW2d 632 (1986). The problem arises because the quoted language, repeated in Woods and Standifer, may not be that of a majority of the Atkins Court. Atkins was a five-justice decision and the appearance of three other signatures with that of the author of the quoted language would seem to clearly establish the ruling. The rub is that two of the signers of the FITZGERALD opinion, Justices WILLIAMS and KAVANAGH, also signed the concurring opinion of Justice LEVIN which does not condition such disclosure on the demand of defense counsel. Thus, three of the five justices seemingly state an affirmative obligation on the prosecution to disclose without regard to a request from the defense.

Subsequently, People v Lytal said that it was error to introduce evidence at trial of the conviction of an accomplice and said vis-a-vis the disclosure requirement of Atkins:

The prosecutor is only obliged to disclose any consideration offered to or received by the witness. That can be done without adverting to whether the witness was, if charged, convicted. [415 Mich. 612.]

When it is the plea itself which is the consideration, how it can be disclosed without adverting to it is something of a dilemma to the trial bench and bar.^[11] The statement, although only dictum given the facts of the case, has been a matter of frequent concern,^[12] particularly since it appeared to be an overbroad statement based on distinguishable precedents.^[13]

In People v Standifer, supra, six members of the Court addressed the issue, again with less than decisive result. Justice BOYLE, joined by Justices WILLIAMS and BRICKLEY, sought to construe Lytal narrowly to a holding that conviction of an accomplice by trial was inadmissible where the accomplice was thereafter a witness and had been given no inducement by the prosecution to testify. Justice LEVIN, joined by Justice KAVANAGH, proposed to give the dictum of Lytal full application, a view seemingly endorsed by Justice RILEY, who concurred with the opinion of Justice BOYLE solely on the ground that no manifest injustice resulted to the defendant. "``Would you tell me please,' said Alice, ``what that means?'"^[14]

We adhere to the view expressed by the opinion of Justice BOYLE in Standifer that it is not error to put into evidence a plea given by a testifying accomplice pursuant to a bargain with the prosecution. And, in any event, given the testimony of both the victim and Gray as to Gray's involvement, we cannot conceive of any way in which defendant could have been prejudiced by the jury's learning that Gray had entered a guilty plea because of his complicity in the case. In Standifer, the Court said that, if proof of such a plea was error, it would, absent objection below, be reviewed by the manifest injustice test. Even if we disagreed with the view taken by Justice BOYLE in Standifer as to the application of Lytal, we could find no manifest injustice here.^[15]

Defendant also argues that the prosecuting attorney was guilty of misconduct by making an inflammatory closing argument which deprived defendant of a fair trial. He points to a single incident wherein the prosecutor politely referred to defendant's testimony as horse manure. He did so in the course of telling the jury that it was for the jury to decide who was telling the truth, and he then went on to compare the testimony of defendant to the other evidence in the case. There is absolutely no reason why a prosecuting attorney may not, in advocating his cause, point out the incredibility of a defendant's testimony when analyzing the evidence and describe that incredibility in the terminology customarily employed for that purpose. People v Cowell, 44 Mich. App. 623; 205 NW2d 600 (1973); People v Couch, 49 Mich. App. 69; 211 NW2d 250 (1973). As the Court said in Couch: "In essence the prosecutor translated into layman's terms many of the concepts [of credibility] just discussed." 49 Mich. App. 73. Here the translation was crude but not improper. That the prosecutor apologized to the jury was not an admission of misconduct; his apology was for the simile employed and not for the logic of his argument.

Defendant also contends that his constitutional right to a speedy trial under US Const, Am VI, and Mich Const 1963, art 1, § 20, was violated by the delay in bringing him to trial. The length of the delay, more than forty-three months from arrest to trial, is presumptively prejudicial. People v Den Uyl, 320 Mich. 477; 31 NW2d 699 (1948); People v Grimmett, 388 Mich. 590; 202 NW2d 278 (1972); People v Collins, 388 Mich. 680; 202 NW2d 769 (1972); Barker v Wingo, 407 U.S. 514; 92 S. Ct. 2182; 33 L. Ed. 2d 101 (1972). Under Barker, that presumptively prejudicial delay triggers inquiry into other factors to be considered in the balancing of the competing interests to determine whether the accused has been deprived of his right to a speedy trial. 407 U.S. 531; People v Missouri, 100 Mich. App. 310, 320; 299 NW2d 346 (1980); People v Ross, 145 Mich. App. 483, 490; 378 NW2d 517 (1985); People v Chism, 390 Mich. 104; 211 NW2d 193 (1973).

The progression of defendant's case included these significant events:

March 12, 1981          Defendant arrested.
June 8, 1981            Defendant's bond reduced,
enabling release.
November 25, 1981       The parties stipulated to
adjourn the matter
pending interlocutory
appeal of hypnosis issue.
November 24, 1982       Defendant having failed to
pursue an appeal, the
parties again stipulated to
adjourn pending such
appeal and defendant
waived speedy trial claim.
December 23, 1982        Opinion filed in People v
Gonzales, 415 Mich. 615.
February 1, 1983         The order quashing the
information based on
Gonzales is filed.
(Note: Defendant's brief
concedes that he is
responsible for the period
of delay from November
25, 1981, until February 1,
1983.)
July 18, 1983            Prosecutor moved for
reconsideration.
August 23, 1983          Order granting
prosecutor's motion is
filed.
November 2, 1983         Defendant moved to
dismiss, claiming denial of
speedy trial.
January 23, 1984         Defendant's motion to
dismiss denied.
February 6, 1984         Pretrial conference at
which defendant
represented that an

interlocutory appeal
would be pursued.
April 13, 1984           Defendant having failed to
pursue an interlocutory
appeal, a trial date was
scheduled for June 4,
1984.
June 4, 1984             Defendant filed
application for delayed
leave to appeal.
July 12, 1984            Application for leave to
appeal denied.
(Note: Defendant's brief
concedes that he is
responsible for the delay
from February 6, 1984,
until July 12, 1984.)
August 3, 1984           Pretrial conference, with
trial date of October 29,
scheduled.
October 29, 1984         Trial commenced.

As noted, defendant concedes that he is responsible for almost twenty months of the delay by reason of his own conduct. While he contends that the delay during the period of time between the quashing of the information and the subsequent reversal of that order should be attributed to the prosecution, we do not believe that the delay during that period should be attributed to either side, since there was, in effect, no charge pending against defendant during those seven months.^[16]

Looking, then, to the 8 1/2-month period in 1981 between defendant's arrest and the stipulation to adjourn the matter pending appeal, we find no unusual delay for which either party may be faulted. After defendant was bound over, a number of pretrial conferences were held and a number of motions were made by each side as they prepared for trial of the multiple charges in one venue. Such delay was inherent in the complexity of the matter and the orderly resolution thereof; it is given a neutral tint and is assigned only minimal weight in determining whether defendant was denied a speedy trial. People v Goode, 106 Mich. App. 129; 308 NW2d 448 (1981), lv den 413 Mich. 866 (1982).

After the reinstatement of the matter on August 23, 1983, fourteen months elapsed until trial. The record seems to indicate that defendant did not want a speedy trial and that his motion to dismiss because of a claimed denial of speedy trial was another dilatory tactic to put off the day of reckoning.^[17] Having been responsible for much of the delay prior to the order quashing the information, his speedy trial motion, filed shortly after the order reinstating the charges, seems patently frivolous.^[18] Only the 2 1/2-month delay of the trial court in ruling on the motion was inexplicable. After the trial court denied the motion, defendant was responsible for the next delay (as conceded in his brief herein) from February 6 until July 12, 1984. Thereafter, the matter pursued a timely course to trial 3 1/2-months later, another neutral period to be given only minimal weight.

The forty-three months from arrest to trial, while appearing on its face to be an intolerable delay, is thus seen as a relatively reasonable period given the delays attributable to defendant.

We have already touched on another factor to be considered, the defendant's assertion of the right to a speedy trial, our comments making it clear that we do not find it to be a significant factor herein. We add to those comments only this brief observation: If the failure to assert the right to a speedy trial is weighed heavily against a subsequent claim of denial thereof,^[19] so too must the conduct of an accused inconsistent with and evidencing the insincerity of the claim which he has made. Defendant cannot have it both ways.

Neither do we find that defendant has suffered any prejudice from the delay herein. It may be that he suffered some anxiety from the pending charges, but that is of minimal importance in the scale of things when weighed against the offenses charged. We note that defendant was not subjected to an oppressive pretrial incarceration, having been released on bond early on in the proceedings. Thus, as noted in Barker v Wingo, supra, 407 U.S. 532, the most serious inquiry is whether the delay has impaired defendant's defense. Defendant has made the bald assertion of such prejudice but has been unable to suggest any way in which his ability to challenge the prosecution's case or to marshal his own defense of consent has been harmed.

We conclude that the factors to be considered under Barker v Wingo, supra, indicate no denial of defendant's right to a speedy trial.

Defendant also claims that there are res gestae witnesses who were not endorsed or called at trial. The question was not raised in the trial court and, while defendant may yet raise that question in the trial court by motion for new trial, it is not properly before us on this appeal. People v Robinson, 390 Mich. 629; 213 NW2d 106 (1973); People v Pearson, 404 Mich. 698; 273 NW2d 856 (1979).

Affirmed.

D.E. HOLBROOK, JR., J., concurred in the result only.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] She recalled the lettering on the plate as including XY and the number as 540.

[2] The victim was interviewed by police on March 1, 2, 5, and 6, during which interviews she gave descriptions of her assailants and descriptions of places, drove with officers to various places and took a polygraph examination successfully. Her story was consistent, but she never could give the complete lettering on the license plate.

[3] At that date, Gray's application for leave to file a delayed appeal had neither been accepted nor rejected by the Court of Appeals.

[4] It appears from the file that the order was so drafted in contemplation of remand to the district court for further preliminary examination to determine if probable cause could be established without the testimony of the victim.

[5] The question so reserved was decided in People v Nixon, 421 Mich. 79; 364 NW2d 593 (1984), allowing the admission of such testimony.

[6] Gonzales did not involve two separate decisions, nor even a rehearing. Rather, the Court merely took pains by its addendum to make clear the scope of its decision on the facts of the case.

[7] Assuming that a witness is found competent to testify, the second stage is merely the opportunity, available as to any kind of evidence, of one litigant to challenge, by whatever means might be appropriate, the quality of an opponent's evidence.

If the witness is held to be competent to testify, the defendant, of course, has the option at trial of introducing proof with respect to hypnotic procedures followed as well as expert testimony concerning the potential effect of the hypnosis on the witness's recollections. [People v Hughes, 59 NY2d 547-548.]

[8] Competency is a preliminary question for the court. MRE 104.

[9] Defendant seems to have made a tactical choice to keep the fact of hypnosis from the jury. If so, that strategy, even in hindsight, does not seem unreasonable. It was a choice made after defense counsel had been furnished with the prehypnotic interviews with the victim and a transcript of the hypnotic session and was not an uninformed choice. Evidence that the victim had been hypnotized, and, particularly, evidence that the victim had been consistent in her prehypnotic statements might well have impressed the jury favorably about her testimony.

[10] Indeed, defendant subsequently offered into evidence the letter by which the prosecutor extended the offer of the agreement to Gray.

[11] In Woods, supra, the Court did not address the question although the record shows that the consideration given by the prosecution was a plea to a lesser charge.

[12] See People v Buschard (On Remand), 129 Mich. App. 160; 341 NW2d 260 (1983), lv den 419 Mich. 895 (1984); People v Horsfield, 132 Mich. App. 56; 347 NW2d 6 (1984); People v Allen, 424 Mich. 109; 378 NW2d 481 (1985).

[13] Thus the author of Lytal cites as authority his concurring opinion in People v Crawl, 401 Mich. 1; 257 NW2d 86 (1977), a case in which all of the other members of the Court, in two opinions, said there was no merit to that issue. And see the discussion in People v Standifer, supra.

[14] Lewis Carroll, Through the Looking-Glass and What Alice Found There. The question by Alice arises in response to Humpty Dumpty's explanation of the nature of words and his mastery of those words.

[15] We also note that defendant made no objection to the prosecutor's offer of the evidence in question and, indeed, expanded thereon by introducing the prosecutor's correspondence regarding the plea agreement as an exhibit. "Counsel cannot sit back and harbor error to be used as an appellate parachute in the event of jury failure." People v Brocato, 17 Mich. App. 277, 305; 169 NW2d 483 (1969).

[16] A formal charge against, or restraint of, the accused is necessary to call the right to speedy trial into play. United States v Marion, 404 U.S. 307; 92 S. Ct. 455; 30 L. Ed. 2d 468 (1971).

[17] See People v Collins, 388 Mich. 680, 693-694; 202 NW2d 769 (1976); People v Ovegian, 106 Mich. App. 279, 284; 307 NW2d 472 (1981).

[18] The record shows that codefendant Gray promptly took steps to appeal the reinstatement and it appears that defendant was content to do nothing and try for a free ride with Gray's efforts.

[19] People v Hammond, 84 Mich. App. 60; 269 NW2d 488 (1978); People v Bailey, 101 Mich. App. 144; 300 NW2d 474 (1980).