People v. Traylor

145 Mich. App. 148 (1985) 377 N.W.2d 371

PEOPLE
v.
TRAYLOR

Docket No. 76954.

Michigan Court of Appeals.

Decided August 20, 1985.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Conrad J. Sindt, Prosecuting Attorney, and Richard M.C. Adams, Assistant Prosecuting Attorney, for the people.

Sam Friia, for defendant on appeal.

Before: GRIBBS, P.J., and CYNAR and P.J. DUGGAN,^[*] JJ.

PER CURIAM.

Defendant was convicted of two counts of armed robbery, MCL 750.529; MSA 28.797, after a jury trial in Novembver, 1983. He was sentenced to two concurrent prison terms of from 20 to 40 years. Defendant appeals his convictions to this Court as of right.

A robbery was committed at the Orchard Park Food Market in Leroy Township in Calhoun County, Michigan, on December 12, 1982. At about 8:30 p.m., three or four masked persons entered the market. At least one person was armed, carrying a shotgun. One robber ordered the cashier to open the cash register. The cashier and several customers were then ordered to lie down on the floor.

The office manager, Marilyn Ylioff, testified that two of the robbers forced their way into the market's office. They took $15,000 from the safe, Ylioff's purse, and two rings she was wearing.

Ylioff and several other witnesses testified that one shot was fired, followed by an expletive uttered emphatically by one of the robbers. A great deal of blood was found near the front door. Harry Zimmerman, an evidence technician, took blood samples from the pool of blood for analysis. He also recovered Ylioff's purse from the scene.

A police report, admitted into evidence by stipulation, indicated that defendant sought treatment for a gunshot wound to the right hand on December 13, 1982, at 11:46 a.m. at Henry Ford Hospital in Detroit, Michigan. Defendant left the hospital, against medical advice, after being treated.

Timothy Lindquist, M.D., testified that he treated defendant at Leila Hospital in Battle Creek on December 14, 1982, for a gunshot wound to the right hand. He testified that the wound appeared to be two or three days old at that time. The wound showed signs of prior treatment.

Frank Schehr, a supervisor at the Michigan State Police crime laboratory, testified that he compared blood samples found at the scene to blood samples taken from defendant under the authority of a court order. Schehr testified that defendant's blood type was shared by .02 percent of the black population in Michigan.

Defendant testified on his own behalf. He claimed that he was robbed and shot while visiting a nightclub in Detroit. His testimony was supported, without much detail, by Shannon Brown, defendant's purported date that evening.

The jury found defendant guilty as charged.

Defendant's first claim is that Dr. Lindquist's testimony was privileged and not admissible at trial. The issue was preserved by a specific timely objection.

The physician-patient privilege is created by statute. MCL 600.2157; MSA 27A.2157. Defendant claims that Dr. Lindquist's observations of defendant's gunshot wound during his treatment of defendant was information subject to the privilege. The issue presented is whether the privilege must give way to MCL 750.411; MSA 28.643, which requires that any wound inflicted by a deadly weapon must be reported to the local police authorities.

A reading of the two statutes indicates that the privilege in MCL 600.2157; MSA 27A.2157 is qualified by MCL 750.411; MSA 28.643. This qualification is limited to the matters which a physician is required to report under MCL 750.411; MSA 28.643. When a general statute, such as the one creating the privilege, conflicts with a specific statute, such as the reporting statute, the specific statute is considered to be an exception to the general statute. First Bank of Cadillac v Miller, 131 Mich. App. 764; 347 NW2d 715 (1984). Furthermore, it will not be presumed that the Legislature intended a conflict when it reenacted the privilege statute as 1961 PA 236, § 2157, effective January 1, 1963, while the reporting statute was still in existence. Reed v Secretary of State, 327 Mich. 108; 41 NW2d 491 (1950). We cannot presume the privilege statute repealed the reporting statute by implication; implied repeal is generally not presumed. People v Waterman, 137 Mich. App. 429; 358 NW2d 602 (1984). Our conclusion is that the privilege is qualified by the reporting statute. Dr. Lindquist could testify about the matters he was required to report by the reporting statute.

Defendant's next claim is that the blood-type evidence was inadmissible. We disagree. The blood-type evidence was relevant under MRE 401 because it tended to prove (or disprove) a connection between the defendant and the robbery. The question of whether the blood on the market floor was defendant's was a fact of consequence to the determination of the case. The evidence was not admitted in a void; there was other evidence linking defendant to the crime. The manager's general description matched that of the defendant in height, weight, race and age. Defendant was driving an automobile matching a description of an automobile which was observed by a witness at the scene. Furthermore, the report from Henry Ford Hospital showed that defendant was treated for a gunshot wound on the morning following the robbery which occurred near Battle Creek.

Finally, there was no unfair prejudice. There is no indication that the probative value was artificially inflated by the prestige of the witnesses. People v Goree, 132 Mich. App. 693, 703; 349 NW2d 220 (1983). The trial court did not abuse its discretion. The evidence was properly admitted. Goree, supra; People v Thorin, 126 Mich. App. 293; 336 NW2d 913 (1983).

Defendant's final claim is that the trial court erred by not giving CJI 4:2:01 on pure circumstantial evidence. The issue was preserved by a timely objection. There was no error. The trial court instructed the jury on direct and circumstantial evidence, including the cautionary instruction on the use of circumstantial evidence contained in CJI 4:2:02. When the instructions are read in their entirety, it is clear that the jury was properly instructed on the proper uses of the evidence produced at trial. People v Fordham, 132 Mich. 70, 76; 346 NW2d 899 (1984), rev'd on other grounds 419 Mich. 874 (1984).

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.