People v. Hyland
Decision Date | 18 August 1995 |
Docket Number | Docket Nos. 163659,163758 |
Citation | 212 Mich.App. 701,538 N.W.2d 465 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Vincent HYLAND, Jr., Defendant-Appellant. |
Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Dennis Murphy, Prosecuting Attorney, and J. Ronald Kaplansky, Assistant Attorney General, for the People.
Benson & Tacket, P.C. by Timothy L. Tacket and Charles F. Boekeloo, Grand Rapids, for John V. Hyland, Jr.
John V. Hyland, Jr., Grand Rapids, in pro. per.
Before DOCTOROFF, C.J., and NEFF and CONNOR, JJ.
In Docket No. 163659, a jury convicted defendant of first-degree criminal sexual conduct, M.C.L. § 750.520b(1)(a); M.S.A. 28.788(2)(1)(a), involving his eight-year-old daughter. In Docket No. 163758, another jury convicted defendant of first-degree criminal sexual conduct involving his other daughter, who was nine years old at the time of the crime. In both cases, defendant presented no defense witnesses. The two cases were consolidated for sentencing and the trial court sentenced defendant to concurrent terms of 18 to 27 1/2 years. Defendant appealed as of right from each case, and we consolidated the appeals. We affirm in part and reverse in part.
Defendant's nine-year-old daughter testified that defendant touched her "private parts" while applying ointment to a rash on her inner thighs. This daughter testified that her mother and grandmother had also applied the ointment, but had never put their fingers in her vagina. The nine-year-old's physician, Dr. Karen Koby-Olson, testified that she examined the child and that, although the physical evidence was not conclusive, sexual abuse probably had occurred.
First, defendant argues that the trial court erred in allowing Dr. Koby-Olson to testify about her opinion that defendant probably abused his nine-year-old daughter. Because defendant did not object to the introduction of this evidence at trial, this issue is not preserved for review. People v. Grant, 445 Mich. 535, 546, 520 N.W.2d 123 (1994).
Second, defendant claims that the trial court improperly applied the medical treatment hearsay exception, MRE 803(4), when it admitted the statement of the nine-year-old daughter to Dr. Koby-Olson. We disagree.
In People v. Meeboer (After Remand), 439 Mich. 310, 484 N.W.2d 621 (1992), our Supreme Court recognized that complainants of "tender years" may not understand the need to tell the truth to medical professionals as adults do. 1 The Supreme Court therefore adopted a ten-factor test for establishing the trustworthiness of the young declarant's statement. Id. at 324-325, 484 N.W.2d 621.
The first factor is the age and maturity of the declarant. Id. This daughter was nine years old at the time that she told Dr. Koby-Olson of the abuse. Children over the age of ten are presumed to be reliable. People v. Van Tassel (On Remand), 197 Mich.App. 653, 662, 496 N.W.2d 388 (1992). Lacking any evidence that the nine-year-old was immature, we will weigh her age and maturity in her favor.
The second factor is the manner in which the statements were elicited. Meeboer, supra at 324-325, 484 N.W.2d 621. In the evidentiary hearing regarding whether the daughter's statement could be admitted, Dr. Koby-Olson testified that she asked the nine-year-old if she had any problems. The nine-year-old responded, "You mean about that?" When the doctor asked the girl to clarify, defendant's daughter said, "About my dad touching me down there?" We find that this statement was not elicited in a manner that would undermine its credibility.
The third and fourth factors for the trial court to consider are the manner in which the statements are phrased and the use of terminology unexpected in a child of similar years. Id. at 325, 484 N.W.2d 621. References to touching "down there" are not scientifically complex and do not indicate that the child's statements were influenced by an adult.
The fifth factor involves the reason for the examination. If the prosecutor scheduled the medical examination, it might indicate that the examination was not for the purposes of medical treatment. Id. However, in this case, the grandmother of defendant's daughters testified that she took both girls to see the doctor. She requested that the doctor perform a vaginal examination and told the doctor that the girls had told their psychologist that they had been abused by defendant. Because a grandmother would not be in a position to consider the admissibility of evidence when requesting medical treatment, we find that the nine-year-old was examined only for medical reasons.
The sixth and seventh factors involve the timing of the examination in relation to the abuse and the trial. If the examination is close in time to the abuse, the child may still be suffering from pain and distress. An examination close to trial might indicate a nonmedical motive for the examination. Id. The medical examination at issue was scheduled before any knowledge of the alleged sexual abuse. Originally, the examination involved just a routine physical. After becoming aware of the potential abuse, the girls' grandmother asked Dr. Koby-Olson to do a vaginal examination. The nine-year-old testified that she did not inform anyone of the abuse until long after the incident because defendant had threatened her. We find that the timing of the examination did not indicate either that it was too close to the abuse to be trustworthy or that its proximity to the trial date indicated a nonmedical motive for the examination.
The eighth factor is the type of examination. Statements made in the course of treatment for psychological disorders may not be reliable. Id. The child made the allegations of abuse during a routine physical examination by the pediatrician who had cared for her since birth. A routine physical provides no indicia of untrustworthiness.
The ninth factor involves the relation of the declarants to the person identified. This factor is meant to ensure that the child did not misidentify her assailant. Id. The nine-year-old testified that her father "touched her down there." Because the child knows her own father, we assume that no misidentification occurred.
The tenth factor is the existence of a motive to fabricate. Id. Defendant has not provided any evidence of a motive to fabricate.
We hold that the trial court properly applied the Meeboer factors and correctly ruled that the nine-year-old daughter's statement to her doctor was inherently trustworthy. The trial court did not err in admitting this statement pursuant to MRE 803(4).
Next, defendant argues that the admission of the nine-year-old's statements to her psychologist constituted hearsay. The children's grandmother learned of the alleged abuse because the children initially revealed it to their psychologist, Deborah Gibson. The trial court ruled that Gibson could not testify regarding the children's allegations of abuse. Defendant now objects to the following testimony of the nine-year-old daughter:
Q. Do you remember the first time that you told anybody that this was happening to you?
A. Yes.
Q. You do remember that? Who did you tell?
The trial court sustained the objection. Hearsay is a statement, other than the one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted. MRE 801(c). Because the nine-year-old was the declarant testifying at the trial or hearing, her statement was not hearsay.
Defendant's eight-year-old daughter testified at trial. She stated that defendant threatened her if she told anyone about "something he did" to her "privates." In the midst of her testimony, defendant interrupted her twice. The first time, he asked if she could get some Kleenex. The second time, he screamed, "That's my daughter you're punishing." After the second outburst, the child was unable to continue. The trial court ordered defendant, the media, and the public to leave the courtroom and watch the testimony on closed-circuit television. The jury also retired to the jury room to watch the eight-year-old testify on closed-circuit television. The prosecution and defense counsel remained in the courtroom during the remainder of the testimony. Pursuant to M.C.L. § 600.2163a(4); M.S.A. § 27A.2163(1)(4), the eight-year-old's aunt was allowed to sit in the courtroom and act as a support person. The child finished her testimony over closed-circuit television. The eight-year-old also stated that defendant had digitally penetrated her.
Dr. Koby-Olson also testified regarding the eight-year-old. She stated that her examination revealed some redness and vaginal discharge due to a yeast infection, but no abnormalities existed.
Defendant first contends that the trial court violated the statutory provisions for providing a support person. Defendant maintains that the trial court appointed a support person without forcing the prosecution to comply with the statutory notice provisions, allowed a biased party to act as support person, and allowed the support person to sit in the jury box as if the eight-year-old were testifying to her.
Because defendant failed to object to these procedures at trial, this issue is not preserved for review. People v. Rollins, 207 Mich.App. 465, 468, 525 N.W.2d 484 (1994). The purpose of the appellate preservation requirements is to induce litigants to do everything they can in the trial court to prevent error, eliminate prejudice, or at least create a record of the error and its prejudice. People v. Taylor, 195 Mich.App. 57, 60, 489 N.W.2d 99 (1992). Had de...
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