Opinion
Docket No. 45831.
Decided December 16, 1980. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Linda Berns Wright, Appellate Prosecuting Attorney, for the people.
James Krogsrud, Assistant State Appellate Defender, for defendant on appeal.
Before: V.J. BRENNAN, P.J., and ALLEN and BEASLEY, JJ.
On March 22, 1979, defendant was convicted by a jury in Saginaw County Circuit Court of first-degree criminal sexual conduct in violation of MCL 750.520b(1)(d)(ii); MSA 28.788(2)(1)(d)(ii). Defendant appeals as of right, raising six issues.
First, defendant claims reversible error occurred when Dr. Adler, the examining physician, testified at trial that he felt "this was a legitimate case of sexual assault". Defendant relies on People v McGillen #2, 392 Mich. 278, 285; 220 N.W.2d 689 (1974), which states:
"that in no event is the doctor permitted to lend his expert testimony as to the crucial issue of whether or not the prosecutrix was actually `raped' at a specific time and place." (Emphasis added.)
Defendant contends that Dr. Adler's statement falls within the McGillen #2 prohibition and, although unobjected to, constitutes reversible error. However, defendant is mistaken. McGillen #2 is distinguishable from the present case.
In McGillen #2, the defendant was charged with statutory rape. Therefore, the prosecution did not need to prove that the act took place against the will of the victim as the law presumes that fact if the victim is below the statutory age of consent. All that need be proven on a charge of statutory rape is penetration by the defendant. Additionally, in McGillen #2, the prosecutrix admitted that a second rape had occurred subsequent to the charged offense and prior to her being examined by the doctor. The prosecutrix testified at trial as to her version of the alleged statutory rape. The examining doctor then testified that he accepted as fact the prosecutrix's version of what happened and that, in his expert opinion, his medical examination supported and was consistent with the prosecutrix's version. The McGillen #2 Court held this to be reversible error. The Court noted that in that factual situation the doctor was lending his expert opinion to support the claim made by the prosecutrix which is beyond the realm of his medical capabilities and expertise.
"The doctor in this case could not testify as to whether or not the prosecutrix had intercourse on the date in question. Medical science has not yet advanced to this point under these circumstances." Id.
The circumstances alluded to are that when only the element of penetration is relevant and the prosecutrix admits a subsequent rape prior to medical examination, the examining physician is not a qualified expert on the question of whether or not the prosecutrix was raped by the defendant on the alleged date.
The defendant in the present case has overlooked the instructive language in McGillen #2 which holds:
"[T]he examining physician in a rape case is a proper witness as long as his testimony may assist the jury in their determination of the existence of either of two crucial elements of the offense charged, (1) penetration itself and (2) penetration against the will of the victim." Id., 284.
In the present case, the defendant admitted having sexual intercourse with the complainant. Therefore, the only element to which the examining physician could testify is penetration against the will of the victim. This is exactly what occurred. Dr. Adler testified that based upon his physical findings in examining the victim, the history received from the patient, the emotional condition of the patient, and his many years of experience and many cases of examining victims of alleged sexual assaults, it was his opinion that this was a legitimate case of sexual assault. Dr. Adler did not act as a human lie detector who gave a stamp of scientific legitimacy to the truth of the complainant's factual testimony concerning the alleged rape. People v Izzo, 90 Mich. App. 727, 730; 282 N.W.2d 10 (1979). Dr. Adler did not testify that he believed that the defendant raped the complainant at a specific time and/or place or that he believed the complainant's claim. Dr. Adler merely stated that in his expert opinion there had been penetration against the will of the victim. Thus, even had defendant entered a timely objection to Dr. Adler's statement, the trial court would not have erred by allowing the statement.
Defendant's second claim of error attacks the constitutionality of MCL 750.520; MSA 28.788(10), which bars evidence of a complainant's past sexual conduct and reputation concerning sexual conduct. It is well settled in Michigan case law that MCL 750.520j; MSA 28.788(10) is constitutional and does not abridge a defendant's right to confrontation. People v Arenda, 97 Mich. App. 678; 296 N.W.2d 143 (1980), People v Kahn, 80 Mich. App. 605; 264 N.W.2d 360 (1978), People v Thompson, 76 Mich. App. 705; 257 N.W.2d 268 (1977).
The defendant is incorrect in his assertion that the trial court abused its discretion in denying defendant's motion for a court-ordered psychological examination of the complainant. Defendant claims the sexual intercourse was consensual and that a psychological examination of the complainant would bear directly on the assertion of consent. However,
"introduction of a general psychological profile as to one's sexual propensities would have little bearing on the issue of consent in any particular case. Such a procedure would be analogous to the introduction of opinion evidence of a defendant's general criminal tendencies in order to prove commission of a certain crime. The practice of psychiatry has not as yet advanced to such an exact science whereby the probative value of such opinion testimony would exceed the prejudicial impact on the trier of fact." People v Davis, 91 Mich. App. 434, 441; 283 N.W.2d 768 (1979).
See also People v Freeman (After Remand), 406 Mich. 514; 280 N.W.2d 446 (1979). Davis, supra, 442, and Freeman, supra, 516, also support the lower court's ruling upholding the physician-patient and social worker-client privilege concerning the complainant since defendant has not shown the privileged information to be "demonstrably relevant" to the defendant's theory of consent.
Defendant's fourth contention of error involves the propriety of the prosecution's questioning of a police officer concerning the substance of the defendant's statement given to the police after defendant's arrest. Defendant does not dispute the voluntariness or admissibility of his statement to the police. Rather, defendant contends his constitutional right to silence was violated when the prosecutor asked the police officer if the defendant indicated in his statement that the complainant had consented to sexual intercourse. The police officer answered in the negative. Defendant's reliance on People v Bobo, 390 Mich. 355; 212 N.W.2d 190 (1973), is misplaced. Bobo, supra, 359, holds that, "We will not condone conduct which directly or indirectly restricts the exercise of the constitutional right to remain silent in the face of accusation". Bobo and its successor cases hold that if a defendant chooses to exercise his or her right to remain silent, this silence cannot be used against the defendant at trial.
In the present case, defendant did not choose to exercise his right to remain silent. Defendant, after being given his Miranda warnings, expressly waived his right to remain silent and chose to give a statement to the police. The statement was given to Detective Juras. A verbatim transcription was not recorded. Detective Juras testified at trial regarding the substance of defendant's statement. Detective Juras's testimony included statements by the defendant that after he and John LaPorte drove the complainant around Saginaw looking for her boyfriend (whom they failed to find), John whispered to him, "Let's rape her [the complainant]", and that the complainant cried when they told her they were going to rape her. The defendant stopped the car and John made the complainant get out of the vehicle and made her take her clothes off. Defendant further indicated that after John had ripped off the complainant's brassiere, they made her lie down on the front seat and that he [defendant] was the first one to have intercourse with the complainant.
Miranda v Arizona, 384 U.S. 436; 86 S.Ct. 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).
The prosecution's unobjected-to question concerning consent was designed to elicit the full extent of the defendant's statement and did not restrict the defendant's constitutional right to remain silent. The defense counsel also asked many questions of the police detective designed to elicit the full extent of the defendant's statement. These questions included whether the defendant ever specifically indicated that he raped the complainant, that he used force on the complainant, that the complainant resisted, or that he restrained the complainant. To each question Detective Juras answered that the defendant never specifically indicated that in his statement. The questioning of Detective Juras did not fall within the prohibition of Bobo and successor cases. There was no restriction of defendant's right to remain silent but rather a defendant who expressly waived his right to remain silent and a complete disclosure of the defendant's subsequent statement to the police. No error occurred.
An exception to the Bobo prohibition exists in cases where the defendant does make a statement and the questions concerning defendant's silence relate to omissions from the statement. People v Whitty, 96 Mich. App. 403, 420; 292 N.W.2d 214 (1980), People v Richendollar, 85 Mich. App. 74, 82; 270 N.W.2d 530 (1978), lv den 405 Mich. 820 (1979). This was the situation in the instant case.
Defendant's remaining claim, ineffective assistance of counsel, is also without merit. The defense counsel performed at least as well as a lawyer with ordinary training and skill in the criminal law and conscientiously protected his client's interest, undeflected by conflicting considerations. Beasley v United States, 491 F.2d 687, 696 (CA 6, 1974), People v Garcia, 398 Mich. 250, 264; 247 N.W.2d 547 (1976).
Because we find no reversible error, defendant's conviction is affirmed.