*1 1984] v Wilkins
PEOPLE v WILKINS 15, 1983, Docket No. 70349. Submitted at December Detroit. Decided 17, 1984. April appeal applied Leave for. Defendant, Wilkins, Wilkens, G. Otis also known as Otis G. by jury Ingham first-degree convicted a in the Circuit Court of court, Harrison, criminal conduct. sexual The trial G. Michael J., years imprisonment. sentenced defendant to from 6 to 20 appeals alleging Defendant error in the admission by physician which related vitim’s account of the offense perpetrator. identified defendant The victim was nine-year-old daughter of the defendant’s wife. The trial court ruled that the doctor’s was admissible under exception hearsay medical treatment to the rule. Held: Nothing 1. in the record indicates that the victim’s motive in making the statements to the doctor was other than as a patient seeking age patient mitigates treatment. The against finding the statements were not within the exception. traditional rationale for the medical treatment sufficiently victim’s statements to the doctor were reliable to justify bringing them within the rationale of the medical hearsay treatment to the rule. 2. The information elicited from the victim doctor was
reasonably necessary to her and treatment. It was identify in this case doctor source of the victim’s sexual abuse. correctly testimony. 3. The trial court admitted the doctor’s 4. The admission of the doctor’s under the medical hearsay treatment rule did not evade the Supreme prior holding Court’s that the admission proper years only statement child tender if the exceptions foundational criteria one of the are met. excep- The allowance of the use of the medical _5. [1-3, [5, [4] [6] [7] 29 Am Jur 5 Am Jur 65 Am Jur 5, 65 Am Jur 7] Am Jur 29 2d, Appeal 2d, 2d, Rape References 2d, Rape Evidence 2d, § Evidence and Error 599. 94 et § §§ 64. for Points 496, seq. §§ 497. § 496, in Headnotes 683, 686. scope enlarge of such not does the instant case tion in exception. regarding denied that he was defendant’s claim 6. The issue charge was unable adequate because the victim notice *2 preserved for was not testify of the offense to the exact date objection at to infor- trial the made no since defendant review prosecutor’s information. of the amendment mation or to the Affirmed. J., the the record for reason Shepherd, concurred testified, defen- identified the
clearly that the victim indicates dant, performed the acts in some detail the and described Therefore, to cor- was used the doctor’s defendant. testimony. the victim’s roborate
Opinion Court of the Exception — — Hearsay — Medical Treatment 1. Witnesses Rules of Evidence. ex- independent treatment exist for the medical Two rationales first, patient’s ception are hearsay rule: statements to the the strong motivation likely has to be reliable because the large truth, depend diagnosis in a as and treatment to tell the second, physician, patient says part upon to the the what diagnosis enough for medical serve as a basis facts reliable to proscription escape hearsay enough to the also reliable (MRE 803[4]). Exception — Hearsay — — Medical Treatment 2. Witnesses Rules of Evidence. patient’s applied two-part may to determine whether A test be diagnosis necessary reasonably to doctor were statements to a application purposes of medical treat- the and treatment for of first, exception hearsay motive rule: the declarant’s to the ment and, second, it purpose the of rule must be consistent with rely to information the doctor must be reasonable for (MRE 803[4]). Exception — Hearsay — — 3. Witnesses Treatment Medical — of Evidence. as to Fault Rules Statements ordinarily general as to fault do not The is that statements rule purposes of qualify necessary for as for medical treatment hearsay exception application the medical treatment (MRE 803[4]). rule — Hearsay Exceptions — — 4. Witnesses Years. Child of Tender years tender a child of statement admission v Wilkins proper only if the criteria foundational of one exceptions are met. Hearsay Identity — — — 5. Witnesses of Assailant Medical Exception — Treatment Rules of Evidence. identity The disclosure of the of the assailant psychiatric pur- treatment of the victim for poses application of the of the medical treatment hearsay rule; purpose for statements made of treatment seldom, ever, injury require of a surface would if the disclosure identity person injury who caused application medical treatment to such (MRE 803[4]). Appeal — Preserving — 6. Criminal Law Question. preserve A defendant does not for review his claim that he adequate charge against denied notice him because the testify victim was unable to exact date of the offense objection where no defendant made at trial information prosecutor’s or to the amendment of the information. by Shepherd, J.
Concurrence *3 First-Degree — — 7. Witnesses Criminal Law Criminal Sexual Hearsay — — Exception — Conduct Medical Treatment Rules of Evidence. ñrst-degree A trial court does not err in a trial for criminal admitting, pursuant sexual conduct in to the medical treatment rule, testimony physician which related the victim’s account of the offense and identiñed perpetrator the defendant as the where record indicates testiñed, that the victim identiñed the defendant and described performed by and, some detail the acts the defendant there- fore, physician’s testimony was used to corroborate the (MRE 803[4]). victim’s Kelley, Attorney Frank J. General, J. Louis Caruso, General, Solicitor Houk, Peter D. Prose- cuting Attorney, Blough, Appellate Janis L. Chief Attorney, Toy, and Charles R. Assistant Prosecut- ing Attorney, people. Appellate Bennett), (by
State Defender P. E. appeal. defendant on op Opinion the Court Shepherd J. J. Gillis, P.J., H. J.
Before: Kelley,* JJ. jury by a convicted was Curiam. Defendant Per conduct, first-degree MCL sexual criminal 28.788(2)(l)(a), 750.520b(l)(a); and was sen- MSA years. prison to 20 from 6 term of to a
tenced
Defendant
right.
appeals
by
judge
argues
erred
the trial
Defendant
physician
admitting
re-
which
identi-
offense and
the victim’s account
lated
fied the
perpetrator.
defendant as
physician
Scheurer, Director
Dr.
was
Susan
Michigan
Family
State
Clinic at
Assessment
nine-year-old
University.
The victim was
daughter
was re-
The victim
defendant’s wife.
emergency
a doctor from
to the clinic
ferred
Ingham County Medical Center who
room
examined
Department
Ingham County
by the
the victim and
for Children.
of Protective Services
argues
testimony of Dr.
the
the
Defendant
history
Scheurer,
of the sex-
which contained
victim,
was inad-
to her
ual abuse related
hearsay.
ruled,
and the
The trial
missible
prosecutor argues,
admis-
this
exception to the
under the medical treatment
sible
hearsay
provides:
rule. MRE
rule,
following
by the
"The
are not excluded
though
is available as witness:
even
declarant
"(4)
treat-
made for
of medical
Statements
treat-
diagnosis in connection with
ment ór medical
ment. Statements made
*4
treat-
for
of medical
treatment
diagnosis in connection with
ment or medical
and
past
present symp-
describing
history, or
or
medical
sensations,
toms,
general
inception
or
pain, or
or
*
assignment.
sitting
Appeals by
judge,
the Court of
Circuit
People v Wilkins
43
Opinion of the Court
character
the cause or external source thereof inso-
diagnosis
far as
to such
and treat-
(Emphasis supplied.)
ment.”
defendant
does not
that
suggest
the victim’s
statements
to Dr. Scheurer were not made for
or
diagnosis. Rather,
medical
treatment
medical
defendant
asserts
these statements were not
reasonably necessary
to such
and treat-
argues
ment.
defendant
Specifically,
that Dr.
testimony,
Scheurer’s
which identified the defen-
dant
the perpetrator
and described the context
committed,
in which the acts were
was not neces-
sary for
victim’s medical
diag-
treatment
nosis. Defendant
also contends
that admission of
goes
such as Dr.
beyond
Scheurer’s
far
scope
exception
and will
in
result
revival
the tender years
overruled in
Kreiner,
372;
v
415 Mich
Since are no Michigan point, cases on we look to the guid- federal rules and decisions 803(4) 803(4), ance. FRE is identical to MRE except 803(4) that FRE is broader it only restricts to statements "insofar as reasonably pertinent 803(4). to diagnosis or treatment”. FRE (Emphasis supplied.) In Shell, United States v Iron (CA 8, 1980), 77 F2d 1001; cert den US 1709; S Ct 68 L Ed (1981), 2d Eighth Circuit Court of Appeals application discussed the 803(4) of FRE examining an physician which repetition contained nine- year-old description victim’s an assault as re- lated to the physician by the victim. The court stated that there independent are two rationales for the medical exception. The first patient’s likely to be relia- ble because the strong has a motivation to *5 op Opinion the Court depend diagnosis truth, and treatment as tell the patient says upon large part to what ain physician. is that facts relia- second rationale The diagno- enough a basis for medical to serve as ble escape enough to are also reliable sis proscription. and death decisions
Since life physicians by on the facts related in reliance made patient, they by should sufficient trust- have in a court of law. be admissible to worthiness Consequently, in Iron fashioned the court Shell two-part whether test to determine diagnosis pertinent” "reasonably or treat- to were First, consis- the declarant’s motive must be ment. purpose second, it rule; with the tent physician rely to must be reasonable diagnosis Iron and treatment. information pp supra, Shell, of this two- 83-84. On basis part made test, the held that the statements pertinent physician to were supra, pp Shell, 84- Iron and treatment. 85. analysis applied to the
A can be facts similar 803(4). First, MRE there the instant case under nothing that the in the record to indicate victim’s making to Dr. Scheurer motive in the statements seeking treatment. was other than finding age patient mitigates against not the tradi- the statements were within p supra, Shell, 84. tional rationale of the rule. Iron Further, Family with Assessment Clinic deals special problems Therefore, Dr. of children. judge effectively would be able to Scheurer description reliability as- of a sexual of a child’s fact, In Dr. testified that victim sault. Scheurer language” story in that was related the "childlike age. Consequently, the state- with her consistent to Dr. Scheurer were ments made the victim People v Wilkins Opinion of the Court sufficiently justify bringing reliable them within the rationale of the medical rule. the information elicited
Secondly,
from the vic-
tim
Dr.
necessary
Scheurer was
to her
diagno-
however,
argues,
sis
treatment. The defense
it was not
identify the defendant
*6
of
general
treatment. The
rule is that
as to fault do not ordinarily qualify as
Shell,
Iron
supra, p 84;
for treatment.
necessary
Co,
Bradbury
v Ford Motor
179,
123 Mich App
(1983).
187;
However,
case,
Defendant’s that the admission of this v evaded the holding of Kreiner, 372; 415 (1982), Mich 716 NW2d is Opinion of the Court Supreme Kreiner, Court the In merit. without years did not tender the found that Michigan adoption Rules of the survive Evidence. the admission held that The Court years hearsay of tender a child statement proper only criteria one if the foundational exceptions case, In this met. judge was admissi- found trial 803(4). judge Therefore, the trial MRE ble within holding evading of Kreiner. was not allowing argues the use also Defendant exception in the instant medical exception. scope enlarge of such case will argues medical treat- that because Defendant terms limited not its ment potential will be sources doctors virtually such He unlimited. concludes police investigating include could even sources to refer the decision have made officers who disagree with We treatment. victim for medical points prosecutor argument. out, the theAs this scope *7 when narrower much of the rule becomes directly physician to a not made the statement seeking diagnosis or treatment. give police is limited officer can that a finding Much the victim. medical assistance is a when there more information component psychiatric and treat- identity of the assail- ment. While disclosure of psychiatric reasonably necessary for ant be would purpose of treat- treatment, injury ever, seldom, if would ment surface person identity require of the the disclosure of injury. who caused the adequate he denied
Defendant claims that was charge was unable the victim notice of the because testify offense. Since to the exact date v Wilkins by Shepherd, Concurrence J. defendant made no objection at trial to the infor- mation or to prosecutor’s amendment information, defendant preserved has not this is- sue for review. People v Bowyer, 517, 523; 310 lv den 414 Mich (1981), NW2d 445 (1982), and the cases cited therein.
Affirmed. J. (concurring). I concur for the rea
Shepherd, son that the record clearly indicates testified, victim defendant, identified the and de scribed in some detail the acts performed Therefore, defendant. testimony of Dr. Scheurer was used to corroborate the victim’s I testimony. reserve judgment on the issue of whether a doctor’s can be used to con vict a defendant where the victim is unavailable and the doctor’s testimony is the only evidence linking the defendant to the crime.1
This case demonstrates the unsatisfactory meth- ods available for establishing guilt or innocence in parent-child incest cases. The child is frequently so traumatized by the events and by the adversary nature of trial procedure produced evidence at trial is often of questionable reliability. The psychological damage done to a child by requiring in-court testimony can be permanently devastat- ing. hand, On the other allowing a defendant to be convicted, in whole or in part, on the a doctor who has elicited the facts during the course of treatment also leaves much to be desired. problem
This
in
significant
addressed
way
by the Journal of Law Reform of
University
Wyoming,
See
1983),
Goldade v
(Wy,