People v. Herrera

• Decision Date: 26 June 1968
• Docket Number: Docket No. 2848,No. 3,3
• Citation: 162 N.W.2d 330,12 Mich.App. 67
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lupe Ruth HERRERA, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 330

162 N.W.2d 330

12 Mich.App. 67

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lupe Ruth HERRERA, Defendant-Appellant.

Docket No. 2848.

Court of Appeals of Michigan, Division No. 3.

June 26, 1968.

Released for Publication Nov. 22, 1968.

Vincent A. Scorsone, Doozan, Scorsone & Trogan, Saginaw, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Robert B. Currie, Pros. Atty., Saginaw County, Saginaw, for plaintiff-appellee.

Before KAVANAGH, P.J., and FITZGERALD and McGREGOR, JJ.

FITZGERALD, Judge.

Defendant was convicted by a jury in the Saginaw county circuit court of the manslaughter ¹ of her husband in the Wonder Bar in the city of Saginaw on the night of July 13, 1963. She appeals. The facts relevant to the case will be outlined within the framework of our discussion of the several issues of error alleged by defendant to have occurred during the course of her trial.

A preliminary hearing was held pursuant to C.L.1948, § 766.4 (Stat.Ann.1954 Rev. § 28.922). Defendant alleges that error occurred at this time when the people did not produce testimony of a medical expert as to an unnatural cause of the husband's death, resulting in a failure to establish the Corpus delicti of the offense of murder in the second degree. ² A medical pathologist had performed an autopsy but he was not called to testify. The death certificate was introduced pursuant to C.L.1948, § 326.6, as amended by P.A.1962, No. 202 (Stat.Ann.1965 Cum.Supp. § 14.226), to show the identity, occurrence, time and death, but not the cause of death, although an opinion as to the cause is included. More testimony was adduced. The nonmedical coroner was called and he described a small wound found in the husband's chest. Several witnesses were called and they gave testimony concerning profuse bleeding of deceased, statements made by deceased following his wounding, and actions taken by one of them to stop the bleeding. In the case of People v. Jackson (1965), 1 Mich.App. 207, 211, 135 N.W.2d 557, 559, it is stated:

'In homicide cases the Corpus delicti is sufficiently shown by testimony of the finding of the dead body and evidence of an unnatural cause of death.'

A preliminary hearing is held to establish to the satisfaction of the examining magistrate that a crime has been committed and that there is probable cause to believe that the accused committed the crime. People v. Jackson, supra.

The testimony of a medical expert is indeed preferable in a situation where the crime charged involved physical injury, but we do not find that error existed in this preliminary hearing when there is other competent and substantial evidence of an unnatural cause of death or injury. Laymen are not necessarily incapable of testifying competently as to observable surrounding circumstances of an incident so that the examining magistrate would err in believing that a crime had been committed based on their testimony. All facts and incidents which plainly relate to the offense are admissible. See 1 Gillespie, Michigan Criminal Law and Procedure (2d ed.), § 303, p. 361.

Defendant's counsel requested the names of the people's expert witnesses who would testify to rebut the defense of temporary insanity, but his motion was denied by the trial court. Two police officers did testify that defendant appeared sane to them at the time she was being interrogated shortly after her husband was stabbed, and their names appeared on the information. They were not expert witnesses and the trial court did not abuse its discretion nor prejudice defendant by denying the motion.

Rosia Flores, the sister of defendant, was at the Wonder Bar when deceased was injured. She was indorsed on the information by the prosecutor and she testified on direct examination, but the trial court refused to permit defendant's counsel to cross-examine her on the issue of the alleged insanity of defendant. This refusal constitutes error as the right to cross-examine as to facts in issue or relevant facts is broadly granted in Michigan subject generally to the discretion of the trial court as to the credibility of the witness. Schwartz v. Triff (1966), 2 Mich.App. 379, 139 N.W.2d 907. However, the people allege that this error is not prejudicial to defendant as she later called Rosia Flores as her own witness and substantial testimony was given on the issue of insanity at that time. We agree with the observation made at 3 Am.Jur. Appeal and Error, § 1132, p. 651:

'And where a party has been denied by the trial court the right to cross-examine a witness relative to facts and circumstances connected with the matters brought out on the direct examination, the error may be rendered harmless if such party examines the witness during the subsequent progress of the cause relative to the matters concerning which he was erroneously denied the right to cross-examine.'

Defendant was fully given the opportunity to develop the testimony of Mrs. Flores concerning the issue of insanity and we hold this error of the trial court to be nonprejudicial to defendant. See Harrington v. Los Angeles R. Company (1903), 140 Cal. 514, 74 P. 15, 63 L.R.A. 238.

Defendant attempted to offer into evidence 2 exhibits of emergency room records of St. Mary's Hospital to show her alleged insanity; these records described her admission to the hospital on 2 occasions, 4 months prior to the death of her husband, because of her consumption of an unknown amount of phenobarbital, with a contemporaneous diagnosis of her condition. The court refused to admit these exhibits at any time for any purpose during the course of the trial, being of the opinion that such records are not admissible to prove diagnosis or history of the case.

The people cite the case of People v. Lewis (1940), 294 Mich. 684, 293 N.W. 907, for the proposition that hospital records are never admissible under the business entry statute, C.L.S.1961, § 600.2146 (Stat.Ann.1962 Rev. § 27A.2146), in a criminal case, because the accused will be denied his constitutional right to be confronted by the witnesses against him, i.e., the maker of the hospital record who is not present in the courtroom. However, we believe that the desire to obtain the best evidence possible concerning the accused's plea of insanity would require that she be able to introduce a portion of such hospital records following the preparation of a proper foundation. We agree with the statement in Weihofen, Mental Disorder as a Criminal Defense, ch. 6, § 3, p. 327:

'Data obtained in the regular course of medical practice and entered on such (hospital) records are regularly relied upon by the medical profession in matters no less important than those involved in lawsuits, and their exclusion in court leads to error rather than to truth.'

We believe that the limitations of the Lewis Case were intended to apply to the particular facts of that case wherein the defendant was accused of practicing medicine without a license in an abortion case, where the hospital records showed that the complaining witness was previously treated in connection with a pregnancy. In cases such as the present, concerning physical condition, hospital records are generally held to be admissible to show facts relating to the medical treatment and history of patients in criminal as well as in civil cases. See 23 C.J.S. Criminal Law § 851, p. 332.

The objection of the people is that they 'can't cross-examine the record', but this is not the reason given by the Court in the Lewis Case for excluding such evidence. Rather, the objection is that the accused is unable to confront the witnesses against him when such records are admitted, so this objection must be qualified where the accused himself seeks to admit the records as an essential part of a defense of insanity. A number of safeguards have evolved to remove the hearsay objection by insuring the regularity of the entries made in the ordinary course of business by persons whose duty it is to make them, the records being duly authenticated and having been made by a person having knowledge of the facts set forth therein. The Michigan business entries statute, supra, is interpreted as follows:

'Under the statute authorizing the admission of records made in regular course of business, a hospital record made in writing and in the regular course of business is admissible in evidence, as regards acts, events, occurrences or transactions incident to the hospital care or treatment, when it was the regular course of business to make such record.' 5 Callaghan, Michigan Pleading and Practice (2d ed.), § 36.572, p. 216.

Defendant would have this Court extend the statute to include a diagnosis contained in the hospital record as admissible in evidence. See Shinabarger v. Phillips (1963), 370 Mich. 135, 121 N.W.2d 693. We do not support this contention in a criminal case such as the present one. The diagnostician is unavailable for cross examination and we believe that the admission of his unsupported diagnosis would not be in keeping with sound criminal trial procedures. Two exhibits were refused admission by the trial judge. We find error in his refusal to admit exhibit #11 concerning her admission to the hospital on March 10, 1963, her apparent physical condition, and her consumption of an unknown amount of phenobarbital, but not as to the diagnosis made at that time. The doctor who treated defendant on her re-admission 2 days lafter testified at the trial, referring to the hospital record (exhibit #12) made at that time. We find that defendant suffered no prejudice by the initial exclusion of exhibit #12 as the diagnostician fully testified as to her condition later in the trial.

Defendant called a psychiatrist to testify on the issue of her insanity. She alleges error in that the trial court did not permit the psychiatrist to testify as to the history given him by defendant when he examined her; that he was not allowed to...