People v. Nixon

114 Mich. App. 233 (1982) 318 N.W.2d 655

PEOPLE
v.
NIXON

Docket No. 52685.

Michigan Court of Appeals.

Decided March 17, 1982.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Ward S. Hamlin, Jr., Prosecuting Attorney, and Mary C. Smith, Assistant Attorney General, for the people.

P.E. Bennett, Assistant State Appellate Defender, for defendant on appeal.

Before: T.M. BURNS, P.J., and R.B. BURNS and M.J. KELLY, JJ.

M.J. KELLY, J.

Defendant, Richard M. Nixon, was found guilty of two counts of first-degree murder, MCL 750.316; MSA 28.548, and received two concurrent sentences of life imprisonment. Defendant appeals as of right, GCR 1963, 806.1.

Defendant was arrested for the shooting deaths of James and Sandra Frank. At defendant's trial, Diane Downer, defendant's girlfriend and accomplice, testified that she and defendant had planned to take $30,000 from James Frank when he came to their home to complete a prearranged deal to buy $30,000 worth of marijuana. When Frank arrived, Downer let him in and led him to the dining room. As Frank entered the room, defendant hit him over the head with a champagne bottle, but failed to render him unconscious. A struggle ensued which ended when defendant shot Frank in the shoulder.

Downer testified that to protect their reputations as "honest" drug dealers, she and defendant decided to kill Frank. While transporting Frank to a secluded spot, he escaped from the pick-up truck and ran to a nearby home. As Downer and defendant were struggling to get Frank back into the truck, Donald VerHage came to the door of the house. As Nixon placed Frank in the truck, Downer informed VerHage that Frank had been in an accident and they were taking him to the hospital. After this incident, they drove Frank to a secluded spot behind his house where defendant shot him in the head. The pair then went to Frank's house where they convinced his wife to accompany them to the same spot where they had killed her husband. As she stepped off the truck, defendant shot her in the head.

During defendant's trial, the prosecution called VerHage to testify. Defendant objected to VerHage's testimony claiming it was the product of hypnotic suggestion. VerHage testified that he recognized Downer as the woman he saw on his lawn. He also testified that he only had a side view of the man involved in the incident but thought defendant looked like the man. The jury was informed that VerHage's testimony had been assisted by hypnosis, and, on defendant's motion, tapes of VerHage's prehypnotic and posthypnotic testimony were played.

Defendant presented an alibi defense and rested his case. The jury returned a verdict of guilty on each count.

I

On appeal, defendant argues that the admission of posthypnotic testimony is grounds for reversible error per se. Recently, this Court examined the use of hypnotically refreshed testimony in People v Gonzales, 108 Mich. App. 145; 310 NW2d 306 (1981), lv gtd 412 Mich. 870 (1981). In Gonzales, the Court held that a witness whose memory had been restored through hypnosis could not testify about those incidents only recalled under hypnosis. Id., 160-161. In People v Wallach, 110 Mich. App. 37; 312 NW2d 387 (1981), a companion case of Gonzales, the same panel noted that a witness who had been hypnotized would not necessarily be precluded from testifying. The witness could testify about those aspects of the case remembered prior to undergoing the hypnosis. Id., 72. Finally, in Wallach, supra, the Court refused to reverse that defendant's conviction even though the hypnotically refreshed testimony was introduced because any error which did occur was harmless. Id., 75.

While we accept the principles announced in Gonzales, supra, and Wallach, supra, we do not feel that the allowance of the hypnotically refreshed testimony in this case warrants reversal. In his testimony at trial, VerHage stated that he had a clear view of Downer but could only see a side view of defendant. While he stated that defendant looked like the man, he was unable to state that defendant was the man he saw putting Frank in the truck. Furthermore, defense counsel was allowed to play tapes of VerHage's testimony before hypnosis and after hypnosis to the jury. This enabled the jury to judge the credibility of VerHage's posthypnotic testimony.^[1] Finally, the most damaging evidence against defendant was given by Downer, whose testimony was not enhanced by hypnosis. Under the circumstances in this case, any error which did occur from the hypnotically refreshed testimony was harmless beyond a reasonable doubt. People v Swan, 56 Mich. App. 22, 31; 223 NW2d 346 (1974), lv den 395 Mich. 810 (1975).

II

Defendant also objected to the testimony of David Metzger, a state police laboratory scientist. Metzger compared certain blood samples taken from VerHage's front porch and from defendant's home. He found that both samples were B type blood containing haptoglobin. According to Metzger, the combination of Type B and haptoglobin type 1 occurs in less than 1.6 percent of the caucasian population and approximately 5.7 percent of the black population. Metzger opined that the blood samples could have had a common origin. Defense counsel objected stating, "my only problem is, your Honor, we are going to be talking about 20 million people that have it". His objection was overruled.

On appeal, defendant argues that the method employed by Metzger to compare the blood samples was not generally recognized as reliable by the scientific community. However, defendant failed to object to the evidence on this ground at trial and has waived review of this issue on appeal. MRE 103(a)(1), People v Rojem, 99 Mich. App. 452, 457-458; 297 NW2d 698 (1980). Furthermore, because defendant offered no evidence that the technique used to compare the blood samples was scientifically inaccurate and because defendant has not convinced us that the accuracy of the technique is seriously disputed, the trial court did not abuse its discretion in admitting Metzger's testimony. People v Young, 106 Mich. App. 323, 329; 308 NW2d 194 (1981).

Defendant also objected to the testimony on the grounds that it was more prejudicial than probative. Defendant cites People v Sturdivant, 91 Mich. App. 128, 134; 283 NW2d 669 (1979), where this writer found that blood test evidence indicating that the complainant's attacker was a nonsecretor, that the attacker thus possessed a trait found in 20 percent of the general population and that defendant was a nonsecretor was inadmissible. The holding in Sturdivant has since come under attack. People v Horton, 99 Mich. App. 40, 50-51; 297 NW2d 857 (1980), vacated on other grounds, 410 Mich. 865 (1980). In a concurring opinion in People v White, 102 Mich. App. 156; 301 NW2d 837 (1980), this writer clarified his holding in Sturdivant. The reason behind the rule announced in Sturdivant is that blood sample evidence which places defendant in a large group is more prejudical than probative. If the blood test evidence places defendant in a small enough group, it might become more probative than prejudicial. In White, this writer suggested that establishing the proper proportional dimension should be left to the trial court's discretion. Id., 165.

In this case, the blood test evidence placed defendant in a group consisting of 1.6 percent of the Caucasian population and 5.7 percent of the black population. Because the group is small, the question of whether this was too large a group to make the evidence more prejudicial than probative was a decision which should be left to the trial court's discretion. Furthermore, even if the trial court erred in admitting the evidence, the error was harmless in light of the other evidence presented at trial. Id., 165. We will not reverse defendant's conviction on this issue.

III

Defendant's final claim of error concerns the trial court's refusal to grant defendant's motion for change of venue because of alleged pretrial publicity.

The denial of a motion for a change of venue is within the trial court's discretion, and its decision will not be reversed unless there has been an abuse of discretion. People v Swift, 172 Mich. 473, 479-480; 138 N.W. 662 (1912), People v Clay, 95 Mich. App. 152, 160; 289 NW2d 888 (1980). An abuse of discretion has been defined in different ways. Whether it is tested by Spalding v Spalding, 355 Mich. 382, 384-385; 94 NW2d 810 (1959),^[2] or by the often alluded to stricter standard of People v Charles O Williams, 386 Mich. 565, 573; 194 NW2d 337 (1972), in criminal cases, it is nevertheless clear that an abuse of discretion is not implicated where a trial court elects to defer determination on a request for change of venue until jury selection has been attempted in the original county. Swift, supra, 481-482, People v Collins, 43 Mich App 259, 262; 204 NW2d 290 (1972), lv den 391 Mich. 798 (1974).

The existence of pretrial publicity does not by itself require a change of venue. Murphy v Florida, 421 U.S. 794; 95 S. Ct. 2031; 44 L. Ed. 2d 589 (1975). If jurors can lay aside their impressions or opinions and render a verdict based on the evidence presented in court, a change of venue is not necessary. Irvin v Dowd, 366 U.S. 717, 722-723; 81 S. Ct. 1639; 6 L. Ed. 2d 751 (1961), Swift, supra, 481-482, People v Dixon, 84 Mich. App. 675, 679; 270 NW2d 488 (1978). For a change of venue to be granted the defendant must demonstrate that there is a pattern of strong community feeling or bitter prejudice against him, and the publicity must be so extensive and inflammatory that jurors could not remain impartial when exposed to it. Clay, supra, 160, Collins, supra, 263.

In this case, there was extensive pretrial publicity concerning defendant's case. Of the 65 veniremen, only 4 had not heard of the case. The trial judge had to excuse 18 potential jurors for cause. However, each of the jurors who were seated stated that they had no preconceived notions concerning defendant's guilt or innocence and could render an impartial verdict. While a large number of prospective jurors did have an expressed opinion, we do not feel that defendant has demonstrated a pattern of strong community feeling or bitter prejudice against him. Defendant's conviction is affirmed.

Affirmed.

NOTES

[1] While the playing of the prehypnotic testimony and posthypnotic testimony is relevant to show that the error of allowing VerHage to testify about his hypnotically refreshed testimony is not prejudicial, we do not hold that this procedure will justify the use of hypnotically enhanced testimony. In the future, trial courts should not allow such testimony.

[2] In Spalding, supra, 384, the Supreme Court gave the following definition:

"Where, as here, the exercise of discretion turns upon a factual determination made by the trier of the facts, an abuse of discretion involves far more than a difference in judicial opinion between the trial and appellate courts. The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an `abuse' in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias."

However, Justice LEVIN in a concurring opinion has criticized the use of this test claiming the Spalding "hyperbolic standard" leads judges and lawyers to believe that discretionary decisions are immune from review. People v Talley, 410 Mich. 378, 396; 301 NW2d 809 (1981).