Opinion
Docket Nos. 78-4347, 78-4349.
Decided July 23, 1979. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Michael R. Mueller, Assistant Prosecuting Attorney, Director, Prosecutor's Repeat Offenders Bureau, and Larry L. Roberts, Assistant Prosecuting Attorney, for the people.
Sheldon Halpern and Eileen Scheff, for defendant.
Before: D.C. RILEY, P.J., and V.J. BRENNAN and N.J. KAUFMAN, JJ.
The people appeal by leave the lower court's granting of three pretrial motions brought by defendant.
On May 26, 1978, defendant Perry Allen Davis and four others were charged with various crimes under a 16-count information. Specifically defendant was charged with three counts of criminal sexual conduct in the first degree, MCL 750.520b; MSA 28.788(2); one count of kidnapping, MCL 750.349; MSA 28.581; two counts of assault with intent to do great bodily harm less than the crime of murder, MCL 750.84; MSA 28.279; one count of conspiracy, MCL 750.157a; MSA 28.354(1); and one count of committing an abominable and detestable crime against nature with an animal, MCL 750.158; MSA 28.355.
On June 21, 1978, following preliminary examination before visiting Recorder's Court Judge Harvey F. Tennen, defendant was bound over for trial on all of the aforementioned charges. The case was subsequently assigned to Recorder's Court Judge George W. Crockett, III, who granted the three defense motions which formed the basis for the present appeal.
We first direct our attention to the lower court's order directing the complainant to submit to a psychiatric examination. As authority for his ruling Judge Crockett relied on Dean Wigmore's treatise on evidence and upon Ballard v Superior Court of San Diego County, 64 Cal.2d 159; 49 Cal.Rptr. 302; 410 P.2d 838 (1966). In his treatise Dean Wigmore places a female complainant in a sex offense case in a separate class. He warns of a dangerous abnormality consisting of a disposition to fabricate sex charges against innocent men. Professor Wigmore suggests "only an inquiry into the social and mental history will reveal [her] degree of credibility" and advises that:
"[n]o judge should ever let a sex offense charge go to the jury unless the female complainant's social history and mental makeup has been examined and testified to by a qualified physician." 3 Wigmore on Evidence, p 460, § 924a. See Anno: Requiring complaining witness in prosecution for sex crime to submit to psychiatric examination, 18 ALR3d 1433.
Although Dean Wigmore's theory has been cited in Michigan, see People v Smallwood, 306 Mich. 49; 10 N.W.2d 303 (1943), it has never been adopted by a Michigan court nor are we disposed to now do so. Credibility is an issue in every case, and there is no showing beyond Dean Wigmore's outmoded psychological theories that sex offenses warrant greater scrutiny of the complainant. Moreover, such an absolute requirement as that espoused by Dean Wigmore would operate to deter victims of sex crimes from disclosing such offenses and would thus violate this state's enunciated public policy.
As to Ballard, supra, even if we were to adopt the California court's holding it would be inapplicable to the case at bar. In Ballard the Court ruled that court ordered psychiatric examination of the complainant is appropriate only under very limited circumstances. "Such necessity would generally arise only if little or no corroboration supported the charge and if the defense raised the issue of the effect of the complaining witness's mental or emotional condition upon her veracity." Ballard, 64 Cal.2d 159, 177. The ruling thus contemplates a defense theory of fabrication where the complainant's version is not supported by corroborating evidence. The present case falls outside the ambit of Ballard since the complainant's version is supported by medical testimony and photographic evidence.
Our determination of the propriety of the lower court's ruling therefore requires an extrapolation of Michigan law on the subject taking into account the interests of the defendant, the state and the victim.
The Michigan Legislature has specifically addressed the question of admissibility of evidence relating to victims of sex offenses by the enactment of the following:
"(1) Evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct, and reputation evidence of the victim's sexual conduct shall not be admitted under sections 520b to 520g unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:
"(a) Evidence of the victim's past sexual conduct with the actor.
"(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease." MCL 750.520j; MSA 28.788(10). (Emphasis added.)
Defendant seeks the psychological examination in order to advance his theory of consent. Defendant asserts that "because of the victim's psychological makeup * * * she voluntarily participated in the sexual activities she now claims were forced upon her". Thus the opinion evidence sought to be advanced relates to the victim's sexual conduct and falls within the proscription emphasized in the above statute.
We must next address whether the application of the statute's prohibition in the case at bar limits defendant's Sixth Amendment right to confrontation. Initially we point out that the above provision:
"* * * represents an explicit legislative decision to eliminate trial practices under former law which had effectually frustrated society's vital interests in the prosecution of sexual crimes. In the past, countless victims, already scarred by the emotional (and often physical) trauma of rape, refused to report the crime or testify for fear that the trial proceedings would veer from an impartial examination of the accused's conduct on the date in question and instead take on aspects of an inquisition in which complainant would be required to acknowledge and justify her sexual past." People v Khan, 80 Mich. App. 605, 613; 264 N.W.2d 360 (1978).
However, even this worthy purpose does not insulate the statute from a constitutional attack. People v Dawsey, 76 Mich. App. 741; 257 N.W.2d 236 (1977).
The right of confrontation protects the introduction of evidence relevant to the matter being tried. "Evidence is relevant when it is sufficiently probative of a fact in issue to offset the prejudice its admission produces." People v Thompson, 76 Mich. App. 705, 711-712; 257 N.W.2d 268 (1977), see also MRE 401-403.
Here, due to the bizarre nature of the sexual activities involved, the issue of relevancy presents a perplexing question. The defendant claims that the acts were consensual and that a psychological profile of the complainant would bear directly on the assertion of consent. Although this writer would have difficulty characterizing as normal a person who voluntarily engages in the activities involved herein, 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. Accordingly, the legislative enactment which excludes such testimony is not violative of a criminal defendant's Sixth Amendment rights since there is no right to introduce irrelevant evidence. Thus the trial court improperly ordered the psychiatric examination, and the order is set aside.
At the preliminary examination the complainant testified that she was held captive for 13 days, forced to engage with various persons in sexual intercourse, fellatio, cunnilingus, was sodomized and was forced to commit an act of bestiality. The complainant was bound each night, was ordered to sleep in a doghouse and was subjected to physical abuse including humiliating and degrading acts.
We next address the propriety of the lower court's order allowing discovery of the complainant's medical records regarding her treatment for alcoholism. Both parties on appeal direct attention to the question of physician-patient privilege. Upon review of the record it is noted that the privilege has not been waived by the complainant who has the sole right to do so. People v Sam Williams, 39 Mich. App. 91; 197 N.W.2d 336 (1972). Assuming the privilege is not waived our inquiry focuses on whether the privilege must yield to the interest of the defendant in this case.
Where the privilege is asserted to withhold evidence that is "demonstrably relevant" to a criminal trial, the guarantee of due process of law is impaired. United States v Nixon, 418 U.S. 683; 94 S Ct 3090; 41 L Ed 2d 1039 (1974). In Nixon, supra, at 713, the court balanced the competing interests of the parties and held that a "generalized assertion of privilege must yield to the demonstrated specific need for evidence in a pending criminal trial". (Emphasis added.)
In applying the above to the present case we can in no way comprehend how the complainant's prior treatment for alcoholism has any bearing on the defendant's theory of consent. There is no evidence of any continued intoxication on the part of the complainant during her alleged captivity. The only evidence regarding alcohol is the complainant's testimony that she had one drink before the incident began. There is no basis in the record for the defendant's rather bald assertion that "because of the complainant's * * * dependency on alcohol, she voluntarily participated" in the activities which formed the basis of this suit.
The fact that the complainant has in the past undergone treatment for alcoholism is in no way material to the question of consent. The defendant has therefore not demonstrated a need for any privileged material and the trial court's order allowing discovery of medical records is set aside.
We find the lower court's ruling allowing the additional deposition of the complainant by defendant's retained counsel to be improper. A careful reading of the preliminary examination transcript indicates that substitute counsel vigorously cross-examined the complainant after ample preparation. He strenuously contested each count under which defendant was charged and some of his arguments were adopted by counsel for other defendants. Under these circumstances there is no need to inject an additional statement of the complainant into this case. Defendant has extensive preliminary examination testimony from which to prepare his defense.
The lower court orders compelling psychiatric examination of the complainant, allowing discovery of complainant's medical records and allowing deposition of the complainant by defendant's retained counsel are vacated.