People v. Izzo , 90 Mich. App. 727 ( 1979 )

90 Mich. App. 727 (1979) 282 N.W.2d 10

PEOPLE
v.
IZZO

Docket No. 77-4486.

Michigan Court of Appeals.

Decided June 19, 1979.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert G. Foster, Prosecuting Attorney (by Keith D. Roberts, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.

Derrick Carter, Assistant State Appellate Defender, for defendant on appeal.

Before: M.J. KELLY, P.J., and M.F. CAVANAGH and MacKENZIE, JJ.

M.J. KELLY, P.J.

Defendant appeals as of right his jury conviction for first-degree criminal sexual conduct, contrary to MCL 750.520b(1)(f); MSA 28.788(2)(1)(f).

Defendant raises three issues on appeal, the first two of which have no merit and do not require discussion. The third issue is framed as follows:

"Did the trial court commit reversible error by allowing, over defense objection, a psychiatrist to deliberately invade the province of the jury and testify, upon insufficient foundation, that he believed the complainant's story?"

We find that the trial court erred and reverse for the reason that the testimony in question violates the rule established in People v McGillen #2, 392 Mich. 278, 285; 220 NW2d 689 (1974). There the rule was stated as follows:

"It is also noted that in no event is the doctor permitted to lend his expert opinion testimony as to the crucial issue of whether or not the prosecutrix was actually raped at a specific time and place." (Footnote omitted.)

The incident out of which this prosecution arose took place on June 9, 1977. The testifying psychiatrist, David R. Wall, M.D., of Marquette, Michigan, was called into the case by State Trooper Lemke, who arranged an examination of the complaining witness on July 11, 1977, at the doctor's office. The doctor testified that he took a history from the complaining witness in which she related a "forcible intercourse in June". She was given certain psychological tests, and an examination was conducted. On direct examination the doctor was asked to characterize the truth of the complaining witness's hearsay statements:

"Q. Excuse me, if somebody was faking those responses, would the inventory pick that up?

"A. Yes."

At this point the defense objected, and the court ruled that the doctor could state his opinion. The doctor responded: "My opinion was that she was answering quite honestly."

The import of this testimony was directly contrary to the prosecutor's earlier statement, on a motion to suppress Dr. Wall's testimony, that this expert witness was being produced solely to establish mental anguish, that that was the people's "total and only objective in that testimony". The prosecutor had stated:

"Your Honor, I'm going to ask this expert, as in any other case, a hypothetical question — assuming certain facts, and based on his examination, does he have an opinion as to whether this woman experienced mental anguish."

It is our conclusion that the testimonial reenactment of the psychiatric examination went beyond the bounds of expert testimony establishing mental anguish and amounted to unwarranted reinforcement of the complaining witness's testimony. The people were allowed to, in effect, produce a human lie detector in the person of Dr. Wall, who gave a stamp of scientific legitimacy to the truth of the complaining witness's factual testimony concerning the rape.

Reversed.

MacKENZIE, J., concurred.

M.F. CAVANAGH, J. (dissenting).

I dissent from the majority's determination that reversible error was committed. I am persuaded that mental anguish, as that term is utilized in MCL 750.520b(1)(f); MSA 28.788(2)(1)(f), takes on a much greater significance than just ordinary or normal after effects or upsets. To establish that this type of injury in fact occurred, psychiatric testimony might be appropriate.

The real question here was the probative value of the psychiatrist's testimony. That was a matter of weight for the jury. It is true that the psychiatrist, by testifying to the victim's veracity, buttressed her testimony that a rape in fact occurred. However, any such expert testimony would have to be premised upon the presumption of veracity. By this same token, that testimony would always invade the province of the jury to some extent.

I think the specific questions asked by the prosecutor in this instance were unnecessary and improper. The error, however, in my view, does not rise to a level warranting reversal. I would affirm.