Opinion
Docket No. 70124.
Decided May 18, 1983. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and A. George Best, II, Assistant Prosecuting Attorney, for the people.
Carl Ziemba, for defendant.
Before: DANHOF, C.J., and J.H. GILLIS and BRONSON, JJ.
ON REMAND
By order of the Supreme Court dated March 9, 1983, we are required to reconsider this case in light of People v Gonzales, 415 Mich. 615; 329 N.W.2d 743 (1982).
In our earlier decision in this case, People v Perry, 115 Mich. App. 533; 321 N.W.2d 719 (1982), we did not directly address the issue concerning whether the introduction of testimony of a witness whose memory had been hypnotically refreshed constituted reversible error. Instead, we noted that the issue had been addressed in her codefendant's appeal which we had decided earlier. People v Jackson, 114 Mich. App. 649; 319 N.W.2d 613 (1982). In Perry, we indicated that we reached the same result with respect to this issue as we did in Jackson, supra.
In Jackson, supra, we recognized that another panel of this Court had ruled such evidence inadmissible. People v Gonzales, 108 Mich. App. 145; 310 N.W.2d 306 (1981). However, we held that a witness who had been hypnotized was not automatically barred from testifying. We stated that such a witness could still be permitted to testify as to those facts remembered prior to undergoing hypnosis.
In Gonzales, supra, the Supreme Court initially ruled that, once a witness has undergone hypnosis, he or she thereafter becomes "unavailable as a witness". 415 Mich. 627. However, in a supplemental order issued April 25, 1983, the Supreme Court indicated the following with respect to its opinion in Gonzales, supra:
"On order of the Court, the Court on its own motion has reconsidered its opinion in this matter. On reconsideration, it is ordered that the following language be added thereto:
"`This opinion should not be read as determining the question of the admissibility of this witness' 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.'" 417 Mich. 968 (1983).
In the present case, since the witness indicated at trial that all of the statements she made at trial were those which she made prior to the hypnotic session, we do not believe that Gonzales, supra, requires reversal of defendant's conviction.
Affirmed.