Opinion
Docket No. 7626.
Decided February 16, 1971. Leave to appeal denied May 18, 1971, 384 Mich. 841.
Appeal from Recorder's Court of Detroit, Robert E. DeMascio, J. Submitted Division 1 December 9, 1970, at Detroit. (Docket No. 7626.) Decided February 16, 1971. Leave to appeal denied May 18, 1971, 384 Mich. 841.
Alvin Dickerson was convicted of second-degree murder. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Luvenia D. Dockett, Assistant Prosecuting Attorney, for the people.
Arthur J. Tarnow, State Appellate Defender, for defendant on appeal.
The defendant was charged with second-degree murder, MCLA § 750.317 (Stat Ann 1954 Rev § 28.549). He was convicted of that crime after a trial by jury.
On appeal he alleges first that the trial court erred in not instructing the jury that they could consider the testimony of the prosecution's rebuttal witness only for impeachment purposes and not as substantive evidence. No objection on this basis was made at the time the witness was testifying. However, a request for such an instruction was made at the conclusion of the trial. The request was denied. Ordinarily, this would constitute reversible error. People v. Budary (1970), 22 Mich. App. 485, 497. In the present case it does not, because the rebuttal witness's testimony only went to the credibility of the defendant. The defendant had stated on the stand that he was not involved in a certain automobile accident on June 20, 1965. The rebuttal witness stated that the defendant told her that he was in an accident in June 1965. The deceased, with whom the defendant was living, died of a stab wound to the left chest inflicted on September 5, 1966. If taken as true, the testimony was not substantive evidence that the defendant committed the crime charged, but only that he was in an accident in June 1965. We find no reversible error.
Next it is argued that the trial court erred in allowing portions of the decedent's hospital records into evidence under the "business records" exception to the hearsay rule. The "business records" statute MCLA § 600.2146 (Stat Ann 1962 Rev § 27A.2146), is not considered applicable in criminal cases because of an accused's constitutional right to be confronted with the witnesses against him. People v. Lewis (1940), 294 Mich. 684; People v. Gauthier (1970), 28 Mich. App. 318. However, in this case the defense counsel was the first to use the deceased's hospital records. On direct examination, a pyschiatrist for the defense testified from the records as to matters contained therein, some of which were in his own handwriting and some of which were not. Upon cross-examination, defense counsel objected to the doctor testifying relative to any entry in the file that he had not personally made. On direct examination the defense counsel opened the door and under those circumstances we find no reversible error in the trial court's allowing the prosecutor to cross-examine the witness about entries in the record that were made by another doctor.
It is also contended that it was reversible error for a police officer to testify, referring to the defendant, that "He refused to make a statement". Defense counsel made no objection to the testimony. The law is settled that a timely objection at trial is a prerequisite to appellate review of this alleged error. People v. Webb (1968), 13 Mich. App. 625; People v. Lamson (1970), 22 Mich. App. 365.
Finally, the defendant argues that it was reversible error for the trial court to refuse his requested charge of self-defense. The theory of the defense was that the deceased committed suicide after stabbing the defendant who lost consciousness from the wound. The defendant stated in his testimony that he was positive that he did not knife or cut the deceased. We hold that the trial court properly refused to give the requested charge on self-defense because of the lack of evidence to support that theory. People v. Ware (1968), 12 Mich. App. 512.
Affirmed.
All concurred.