People v. DePlanche

• Citation: 183 Mich.App. 685,455 N.W.2d 395
• Decision Date: 01 June 1990
• Docket Number: Docket No. 113329
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roger DePLANCHE, Defendant-Appellant. 183 Mich.App. 685, 455 N.W.2d 395
• Court: Court of Appeal of Michigan — District of US

Page 395

455 N.W.2d 395

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roger DePLANCHE, Defendant-Appellant.

Docket No. 113329.

183 Mich.App. 685, 455 N.W.2d 395

Court of Appeals of Michigan.

Submitted March 8, 1990.

Decided May 8, 1990.

Released for Publication June 1, 1990.

[183 MICHAPP 686] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Conrad J. Sindt, Pros. Atty., and Ronald S. Pichlik, Asst. Pros. Atty., for the People.

Lannen & Trusock by Patrick J. Lannen, for defendant-appellant on appeal.

Before SHEPHERD, P.J., and SULLIVAN and NEFF, JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of first-degree criminal sexual conduct for engaging in sexual penetration of his daughter when she was less than thirteen years old, M.C.L. Sec. 750.520b(1)(a); M.S.A. Sec. 28.788(2)(1)(a). Defendant was sentenced to six to fifteen years of imprisonment. Defendant now appeals as of right, and we reverse.

I

At trial, the prosecutor presented the testimony of Dr. David Hickok, a pediatrician, who examined the child approximately six months after the alleged incident. Dr. Hickok gave the child a complete physical examination which revealed several symptoms indicative of sexual penetration.

Dr. Hickok testified that, as part of the examination, the patient's history was also taken. In this case, the history was taken before the physical [183 MICHAPP 687] examination by the doctor's assistant, Patty McNees, who is a nurse with extensive training in interviewing children. The child was interviewed by McNees for thirty to forty minutes while Dr. Hickok was in another room monitoring the interview on closed-circuit television.

Dr. Hickok testified that the interview was conducted to determine what the child had experienced. He also stated that there is a psychological component to treatment in that, if positive indications of sexual abuse are found, he refers the child for counseling and psychological evaluation. He said that it is important for the treating physician to know who the perpetrator was so as to be able to formulate a treatment plan including placement of the child in a safe place.

Over defense objections, Dr. Hickok testified that, during the interview, the child was asked who had given her "bad touches," and she responded that defendant had. The doctor also testified that, according to McNees' written summary of the interview, the child had stated that defendant had put his finger and his penis in her "private spot" and that he had put Vaseline in her anal opening.

II

Defendant first contends that the trial court committed error requiring reversal when it permitted Dr. Hickok to testify to statements made by the child regarding the identity of the perpetrator because the statements were not taken for the purpose of medical treatment or diagnosis and were, thus, inadmissible hearsay. We agree.

In a recent Michigan Supreme Court decision, a defendant convicted of first-degree criminal sexual conduct challenged the trial court's admission of [183 MICHAPP 688] testimony in which an examining psychologist testified that her patient, the fourteen-year-old victim in the case, had identified the defendant as the person who had sexually abused her. People v. LaLone, 432 Mich. 103, 108-109, 437 N.W.2d 611 (1989). Our Supreme Court held that the hearsay testimony did not fall within either the literal or intended purpose of MRE 803(4) and, therefore, was erroneously admitted. LaLone, supra, p. 116, 437 N.W.2d 611. The Court reversed the defendant's conviction and remanded for a new trial in which the challenged testimony could not be admitted. LaLone, supra, p. 117, 437 N.W.2d 611.

In affirming a defendant's conviction, a panel of this Court in People v. Meeboer (On Remand), 181 Mich.App. 365, 449 N.W.2d 124 (1989), distinguished its case from LaLone on four grounds. First, the panel noted that LaLone involved hearsay statements to a psychologist, and not to a medical physician as in Meeboer. Meeboer, supra, p. 371, 449 N.W.2d 124. Second, the statements in LaLone were made in conjunction with psychological evaluation, while those in Meeboer were made in connection with medical care and treatment. Meeboer, supra. Third, in LaLone, our Supreme Court questioned whether the identity of the perpetrator was reasonably necessary for the psychological evaluation. In Meeboer, the Court stated that, in a case of rape, the identity of the perpetrator is necessary for medical treatment and care. Meeboer, supra, p. 372, 449 N.W.2d 124.

The panel in Meeboer also concluded that the victim's statement in that case was reliable. In distinguishing its case from LaLone, the Court stated that, while our Supreme Court in LaLone doubted the reliability of the victim's statement to the psychologist, the Court recognized that statements [183 MICHAPP 689] made by patients to their physicians are inherently reliable. Meeboer, supra, p. 372, 449 N.W.2d 124.

In People v. Conn (On Remand), 182 Mich.App. 13, 451 N.W.2d 555 (1990), this Court also considered the admissibility of a sexual abuse victim's statements to an attending medical physician where the defendant was identified as the assailant. The Conn panel distinguished its case from LaLone on two bases. First, the statement in Conn was made to a physician rather than to a psychologist. The panel stated, however, that, because the victim in Conn was a seven-year-old child, the psychologist/physician distinction for purposes of reliability was irrelevant. Second, the statement in LaLone, unlike that in Conn, was made after the accusations had been brought and the investigation had begun. Conn, supra, p. 15, 451 N.W.2d 555. The Conn panel opined that the timing of the statement was not a dispositive factor in LaLone, however, and also concluded that the reasoning in LaLone regarding the giving of consistent statements is less applicable when dealing with a seven-year-old victim, as in Conn. The Conn panel concluded that, despite those two distinctions, LaLone compelled reversal of the defendant's conviction. Conn, supra, p. 16, 451 N.W.2d 555.

III

We believe that LaLone also compels the reversal of defendant's conviction in this case. The exception to the hearsay rule at issue...