People v. Izzo, Docket No. 77-4486

• Decision Date: 19 June 1979
• Docket Number: Docket No. 77-4486
• Citation: 282 N.W.2d 10,90 Mich.App. 727
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Domenic F. IZZO, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 10

282 N.W.2d 10

90 Mich.App. 727

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Domenic F. IZZO, Defendant-Appellant.

Docket No. 77-4486.

Court of Appeals of Michigan.

June 19, 1979.

Released for Publication Aug. 22, 1979.

James R. Neuhard, State Appellate Defender, Derrick A. Carter, Deputy State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Richard J. Celello, Pros. Atty., Iron Mountain, Thomas Nelson, Pros. Atty. Appellate Service, Lansing, for plaintiff-appellee.

Before KELLY, P. J., and CAVANAGH and MacKENZIE, JJ.

KELLY, Presiding Judge.

Defendant appeals as of right his jury conviction for first-degree criminal sexual conduct, contrary to M.C.L. § 750.520b(1)(f); M.S.A. § 28.788(2)(1)(f).

Defendant raises three issues on appeal, the first two of which have no merit and do not require discussion. The third issue is framed as follows:

"Did the trial court commit reversible error by allowing, over defense objection, a psychiatrist to deliberately invade the province of the jury and testify, upon insufficient foundation, that he believed the complainant's story?"

We find that the trial erred and reverse for the reason that the testimony in question violates the rule established in People v. McGillen # 2, 392 Mich. 278, 285, 220 N.W.2d 689, 693 (1974). There the rule was stated as follows:

"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 Raped at a specific time and place." (Footnote omitted.)

The incident out of which this prosecution arose took place on June 9, 1977. The testifying psychiatrist, David R. Wall, M.D., of Marquette, Michigan, was called into the case by State Trooper Lemke, who arranged an examination of the complaining witness on July 11, 1977, at the doctor's office. The doctor testified that he took a history from the complaining witness in which she related a "forcible intercourse in June". She was given certain psychological tests, and an examination was conducted. On direct examination the doctor was asked to characterize the truth of the complaining witness's hearsay statements:

"Q. Excuse me, if somebody was faking those responses, would the inventory pick that up?

"A. Yes."

At this point the defense objected, and the court ruled that the doctor could state his opinion. The doctor responded: "My opinion was that she was answering quite honestly."

The import of this testimony was directly contrary to the prosecutor's earlier statement, on a motion to suppress Dr. Wall's testimony, that this expert witness was being produced solely to establish mental anguish, that that was the people's "total and only objective in that testimony". The prosecutor had stated:

"Your Honor, I'm going to ask this expert, as in any other case, a hypothetical question assuming certain facts, and based on his examination, does he have an opinion as to whether this woman experienced mental anguish."

It is our conclusion that the testimonial reenactment of the psychiatric examination went beyond the bounds of expert testimony establishing mental...