People v. McGILLEN 2 , 392 Mich. 278 ( 1974 )

T. M. Kavanagh, C. J.

Defendant was arrested on June 6, 1970 and subsequently charged with the rape of his daughter, Barbara McGillen, on two separate occasions. He was separately tried and convicted of both offenses and appealed his successive convictions. The Court of Appeals consolidated both cases for hearing on the merits and subsequently affirmed both convictions in an unpublished opinion, Docket Nos 11802, 13077, July 27, 1972. This Court granted leave to appeal in both cases, 388 Mich 801 (1972).

For decisional purposes, this Court again severed these two cases. In People v McGillen #1, 392 Mich 251; 220 NW2d 677 (1974), also released this date, this Court ruled that the statements given by the defendant to the arresting officer at the time of his arrest, and introduced against him at trial, were obtained in violation of Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966) and were involuntarily given within the confines of People v Walker, (on rehearing), 374 Mich 331; 132 NW2d 87 (1965). Since the same statements were also introduced against the defendant at trial in this case, involving the crime allegedly committed by him on May 23, 1970, and were the result of the same questioning procedure held illegal by this Court in McGillen #1, supra, a new trial is also mandated in this case.

Defendant raises several other issues, not the least of which concerns the sufficiency of the evidence to convict in this case, which need not now be decided by this Court as these alleged errors may be eliminated upon retrial of this matter.

However, in the interest of justice, we feel compelled to caution the prosecution on a point which we feel may be repeated on retrial and which this Court views as reversible error.

A time table is helpful to fully appreciate the peculiar facts in this case.

May 23, 1970 rape occurs.

May 31, 1970 rape occurs.

June 8, 1970 — prosecutrix is examined by Dr. Racine in connection with the May 31, 1970 rape.

February 26, 1971 — Defendant is convicted of the May 31, 1970 offense.

July 13, 1970 — Dr. Racine testifies at trial on the May 23, 1970 offense.

As noted above, Dr. Racine examined the prosecutrix over two weeks after the alleged incident occurred. Within this two week interval the prosecutrix was, by her testimony, again raped. The defendant at trial objected that any testimony by this doctor in this trial would be irrelevant, immaterial and inadmissible.

At trial, the doctor testified as follows:

Cross-Examination:

”Q. How about blood?

”A. There was no blood.

"Q. Wouldn’t a finding of blood be consistent with intercourse?

”A. Not in a marital vagina.

"Q. How about bruises?

"A. There were no bruises.

”Q. Black and blue marks?

"A. No, sir.

"Q. Doctor, this either would not be consistent with intercourse or an accident I suppose too?

"A. Again sir, not in a marital vagina.

”Q. Not in a marital vagina?

"A. No, sir.

"BY MR. FROST [chief assistant prosecuting attorney] —REDIRECT EXAMINATION:

"Q. Doctor, is the finding of a broken or ruptured hymen the only thing you based your findings on of a marital vagina?

"A. No, sir.

"Q. Did you take a history from Barbara?

"A. Yes, sir.

"Q. Were your findings consistent or inconsistent with the history given you?

"A. They were consistent. As I stated before, in practicing medicine you depend upon the physical, laboratory and history as the most important part to the physician in the examination and I found nothing that would contradict the history that was given.

"Mr. Frost: No further questions.

"The Court: Further recross?

"BY MR. ORFORD [attorney for defendant] — RECROSS EXAMINATION:

"Q. By history, you are taking what Barbara told you as a fact?

"A. Yes, sir.

"Q. What you are saying is what you found is consistent with what she told you?

"A. Yes, sir.

"Q. That doesn’t make it inconsistent to some other explanation, does it?

"A. No, sir.”

In People v Kirtdoll, 391 Mich 370, 394-395; 217 NW2d 37 (1974) this Court stated:

"Dr. Taver was an appropriately indorsed witness as the attending physician in a rape case. Proof of rape requires the showing of penetration. People v Inman, 315 Mich 456; 24 NW2d 176 (1946). And in addition, proof of rape requires the showing of use of force where the woman is past the age of consent. Don Moran v People, 25 Mich 356; 12 Am Rep 283 (1872). The attending physician just after the commission of the rape is normally the best witness to these facts. In fact attending physicians have even been designated as res gestae witnesses. People v Dickinson, 2 Mich App 646; 141 NW2d 360 (1966); People v Kelly, 30 Mich App 154; 186 NW2d 72 (1971); People v Crable, 33 Mich App 254; 189 NW2d 740 (1971).

"The physician attending the victim immediately after a rape case is in a position to testify to the victim’s condition beyond what the record may show or beyond what is admissible under the business entry statute. Certainly the physician’s posture in the case is. quite different from a bookkeeper, for example, who may only be entering credits and debits in the normal course of business.” (Emphasis added.)

As stated above, the examining physician in a rape case is a proper witness as long as his testimony may assist the jury in their determination of the existence of either of two crucial elements of the offense charged, (1) penetration itself and (2) penetration against the will of the victim.

In this case, the crime charged was statutory rape. The prosecution need not prove that the act took place against the will of the victim in this type of prosecution as the law presumes that fact if the victim is below the statutory age of consent. An expert opinion¹ of the examining physician on this element is then generally beyond the scope of admissible expert testimony.

Thus the remaining question in this case is whether or not the doctor should be permitted to testify as to the remaining essential element, penetration. The defendant argued that since the prosecutrix admits that a second rape occurred subsequent to the charged offense, any testimony the doctor may give is irrelevant and immaterial especially in view of the length of time that intervened between the alleged act and the physical examination.

We generally agree. The doctor in this case could not testify as to whether or not the prosecutrix had intercourse on the date in question. Medical science has not yet advanced to this point under these circumstances. His testimony should, under the facts of this case, be limited to the question of whether or not the complaining witness still had an intact hymen at the time of his examination. This fact itself is only relevant and material if the prosecutrix claims to have had an intact hymen prior to the alleged act.² Such is not the instant case. Accordingly, this Court feels that the defendant’s objection to the doctor’s testimony should have been sustained in this case.

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 raped³ at a specific time and place.

By accepting as fact the prosecutrix’s factual history and then testifying that in his expert opinion the medical examination supported and was consistent with that history, he is lending his medical opinion to support a claim made by the prosecutrix that is beyond the realm of his medical capabilities and expertise. The doctor is not a qualified expert on the question of whether or not the prosecutrix was raped by the defendant on the alleged date.

The evils of permitting such testimony is shown by the prosecutor’s closing argument to the jury in this case. He argued:

"Dr. Racine testified he examined Barbara, he took a history from her, examined her and based on his training, experience and examination, he came to the conclusion that Barbara has, what he would call, a marital introitus which he said, would mean, there had been sexual intercourse.”

It is obvious from the testimony elicited from the doctor and the prosecutor’s closing argument that, in reality, the prosecutor is arguing to the jury that Barbara told the doctor she was raped on this date, the doctor testified that the examination supports this, and that, therefore, you have a medical expert who has testified that Barbara is telling the truth when she says the defendant raped her on May 23, 1970.

The error in this type of testimony and argument is obvious.

For the reasons stated in People v McGillen #1, supra, and the reasons set forth above, we reverse and remand for a new trial.

T. G. Kavanagh, Swainson, Williams, and Levin, JJ., concurred with T. M. Kavanagh, C. J.

1 It would be only the doctor’s opinion that would be inadmissible. He could still testify as to any physical conditions (i.e., bruises, bleeding, lacerations, etc.) which he found upon examination.

2 Such testimony would obviously be irrelevant where a married woman was the victim.

3 Rape is a crime, defined by law, with specific elements comprising the offense. Most crucial of them is lack of consent of the victim. To this element the doctor could not testify.