People v. Kirtdoll

205 N.W.2d 44, 44 Mich. App. 237, 1972 Mich. App. LEXIS 1123

• Court: Michigan Court of Appeals
• Decided: December 7, 1972
• Docket: Docket 12437
• Status: Published

Opinions

Per Curiam.

The defendant, Willie Kirtdoll, appeals his convictions of the crimes of rape (MCLA 750.520; MSA 28.788) and robbery armed (MCLA 750.529; MSA 28.797).

At the trial a physician other than the treating physician was permitted to testify, over objection, from a hospital record that the victim was seen at the emergency room of the hospital at 10:53 p.m. on April 18, 1967, a little over an hour after the crime was alleged to have been committed, and that the results of the examination showed sperm.

In People v Lewis, 294 Mich 684, 688 (1940), the Michigan Supreme Court held that the business record exception (now MCLA 600.2146; MSA 27A.2146) to the hearsay rule is inapplicable in criminal cases on the ground that a contrary rule would violate the constitutional right of confrontation guaranteed persons accused of crime.

In People v Gauthier, 28 Mich App 318, 321-322 (1970), Judge Gillis of this Court examined the Lewis rule and stated:

"We proceed here on the assumption that Justice Wiest’s declaration is decisionally binding on this Court and that the Supreme Court did not intend its holding in Lewis to be limited to the facts of the case. However, on this appeal the people contend, and we agree, that Lewis was incorrectly decided. Our research leads us to the view that Lewis’ general prohibition against the use of business record hearsay in criminal cases rests upon an unsound—if indeed any—analysis of the scope of the confrontation clause. We write in the hope that the Lewis rule will, on an appropriate record, be re-examined by its creating tribunal.”

The Michigan Supreme Court did not, however, accept the invitation extended to it to reconsider Lewis. Leave to appeal was denied in People v Gauthier, 384 Mich 812 (1971).

In Gauthier, we concluded that the error was harmless beyond a reasonable doubt. In this case we could not properly affirm the defendant’s conviction on that basis.

The only evidence implicating the defendant was the testimony of the victim. The defendant took the stand and denied that he had committed the crimes charged against him. The evidence that shortly after the victim returned to her home she complained that she had been raped, and that a medical examination showed evidence of sexual intercourse tended to strengthen her testimony.

The issue of guilt or innocence turned entirely on the credibility of the witnesses. Especially where, as here, the only testimony establishing the commission of the crime is the testimony of the victim, we could not properly declare a belief beyond a reasonable doubt that the inadmissible evidence here introduced did not affect the result. See People v Moore, 39 Mich App 329, 336 (1972).

Although the inadmissible evidence did not bear on the issue of the defendant’s guilt or innocence of the charge of armed robbery, the crucial question was the credibility of the complaining witness —whether her testimony identifying the defendant as her assailant was to be believed. The introduction of the inadmissible evidence, which tended to strengthen her testimony, tainted the conviction of armed robbery as well as the conviction of rape.

Without intimating an opinion whether Gau-thier expresses a sound view of the matter, this panel again wishes to highlight the importance of the question dealt with in Lewis and Gauthier. The question recurs with considerable frequency and, therefore, it is a matter of importance to the jurisprudence. Reconsideration of Lewis by the Supreme Court in an appropriate case would be desirable.

Reversed and remanded for a new trial.

Levin and Borradaile, JJ., concurred.