People v. Conn

451 N.W.2d 555, 182 Mich. App. 13

• Court: Michigan Court of Appeals
• Decided: January 16, 1990
• Docket: Docket 118777
• Status: Published

Opinions

ON REMAND

Before: Sawyer, P.J., and Michael J. Kelly and Doctoroff, JJ.

Doctoroff, J.

Following a jury trial, defendant was convicted of criminal sexual conduct in the first degree, MCL 750.520b; MSA 28.788(2). He thereafter pled guilty to being an habitual offender, second offense, MCL 769.10; MSA 28.1082. He was sentenced to serve twenty-five to eighty years in prison. Defendant appealed and we affirmed. People v Conn, 171 Mich App 55; 429 NW2d 839 (1988). Defendant thereafter applied for leave to appeal to the Supreme Court which, in lieu of granting leave, 432 Mich 914 (1989), remanded the matter to this Court for reconsideration in light of People v LaLone, 432 Mich 103; 437 NW2d 611 (1989).

In the original opinion we held, inter alia, that testimony by an attending physician concerning statements made by the victim to him during his examination of the victim were admissible under MRE 803(4). It is this issue which we must reconsider in light of LaLone.

In LaLone, the Court concluded that statements made to a psychologist during the course of a psychological examination following allegations of sexual abuse were not admissible under MRE 803(4). The Court’s rationale was that the drafters of the court rule did not intend that the victim’s naming of her assailant should be considered a description of the general character of the cause or external source of an injury. LaLone, p 111. In reversing LaLone, the Court stated:

The outcome of a child sexual abuse case is often decided by a credibility contest. The narrow and specific wording of MRE 803(4) represents an effort to balance the desire for additional evidence with the need to protect the accused from damaging hearsay. If indeed that balance needs to be shifted to allow nonmedical testimony describing statements of specific fault made after police investigations have begun, then it can best be done by amendment of the current rule. [432 Mich 117.]

LaLone is distinguishable from this case on two bases. First, the statement in LaLone was made to a psychologist rather than to a physician, a factor which, according to the Court, suggested that the statement may he less reliable. However, since complainant in this case is a seven-year-old child, the psychologist/physician distinction, for purposes of reliability, is irrelevant.

Second, in LaLone, the statement was made after the accusations had been brought and the investigation begun, and the Court reasoned that complainant would offer consistent statements to a psychologist. Complainant in LaLone was the defendant’s fourteen-year-old stepdaughter. In La-Lone, the timing was, thus, a factor in the Court’s decision. However, it was not dispositive. Further, we find that the Court’s reasoning that complainant would offer consistent statements to a psychologist after the accusations were made is less applicable when the complainant is, as in this case, only seven years old.

We conclude that, even though this case deals with a physician and with statements made before accusations had been made, LaLone compels our conclusion that defendant’s conviction must be reversed. We note our deep regret that this child will have to endure a replay of defendant’s trial. Indeed, that approaches a kind of abuse to which we are unwilling participants. However, we are bound by the Supreme Court’s decision.

Reversed.

Michael J. Kelly, J., concurred.