People v. James, Docket No. 104234
| Decision Date | 07 March 1990 |
| Docket Number | Docket No. 104234 |
| Citation | 451 N.W.2d 611,182 Mich.App. 295 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Patrick William JAMES, Defendant-Appellant. 182 Mich.App. 295, 451 N.W.2d 611 |
| Court | Court of Appeal of Michigan — District of US |
[182 MICHAPP 296] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., G. Michael Hocking, Pros. Atty., and William M. Worden, Asst. Pros. Atty., for the People.
Robert F. Davisson, Troy, for defendant-appellant on appeal.
Before DANHOF, C.J., and MacKENZIE and ROBINSON, * JJ.
Following a jury trial, defendant [182 MICHAPP 297] was found guilty of second-degree criminal sexual conduct, M.C.L. Sec. 750.520c(1)(a); M.S.A. Sec. 28.788(3)(1)(a), and was sentenced to from ten to fifteen years of imprisonment, the statutory maximum, M.C.L. Sec. 750.520c(2); M.S.A. Sec. 28.788(3)(2). In this appeal, brought as of right, defendant raises a number of issues challenging both his conviction and the sentence imposed. We affirm.
In April of 1986, the three-year-old victim went to visit her grandmother and, while being bathed, complained of discomfort in her vaginal area. The victim was examined by a pediatrician and the examination revealed substantial physical evidence of sexual abuse. The victim was then interviewed by an expert in child sexual abuse and the expert testified at trial that it appeared to her that the victim was not relating incidents that were implanted or suggested by anyone. In fact, the expert felt that the victim's consistency indicated that she was telling the truth. When defendant objected to this testimony, the court instructed the jury that, if there was any suggestion that the witness was vouching for the victim's veracity, the suggestion would have to be disregarded. The testimony resumed and the expert stated that, after conducting three interviews with the victim, she was reasonably certain that sexual abuse had occurred. Defendant claims that the expert's testimony was inadmissible hearsay, invaded the province of the factfinder and impermissibly vouched for the veracity of the victim.
The defendant's argument that the expert's testimony should have been excluded as hearsay is without merit because the statements were made by the victim to the expert as part of her diagnosis and treatment. In re Freiburger, 153 Mich.App. 251, 257, 395 N.W.2d 300 (1986); MRE 803(4). Secondly, although the expert did vouch for the victim's[182 MICHAPP 298] veracity, we consider this error harmless in light of the very thorough and repeated curative instruction given to the jury.
As to the ultimate decision reserved for the factfinder, the expert gave her professional opinion as to whether sexual abuse had occurred but did not testify that the abuse took place at a specific time or place. People v. Wells, 102 Mich.App. 558, 562, 302 N.W.2d 232 (1980), lv. den. 417 Mich. 916 (1983). Although a witness is not permitted "to lend his expert opinion testimony as to the crucial issue of whether or not [the victim] was actually [abused] at a specific time and place," People v. McGillen # 2, 392 Mich. 278, 285, 220 N.W.2d 689 (1974), the expert may testify that he "saw nothing in complainant which was inconsistent with the profile of a ... victim [of sexual abuse]." People v. Stull, 127 Mich.App. 14, 19, 338 N.W.2d 403 (1983). Furthermore, it is "well-established that expert opinion testimony will not be excluded simply because it concerns the ultimate issue...." People v. Smith, 425 Mich. 98, 106, 387 N.W.2d 814 (1986); MRE 704.
At trial, the victim, then four years old, was called to the stand. When she appeared reluctant to testify, the trial judge asked a series of questions and the victim's answers and her demeanor led the judge to conclude that she was afraid to testify. The judge then ruled that the victim's testimony would be taken in a separate room where she would be isolated from the defendant and presented to the jury through videotape. Defendant contends that the judge's questioning of the witness and his decision to allow her to testify by videotape violated his right to confront his accusers and his due process right to a fair trial. We disagree.
In Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 2800, [182 MICHAPP 299] 101 L.Ed.2d 857 (1988), the majority held "that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact." Although characterized as an absolute right, the Coy opinion suggests that exceptions may exist when necessary to further an important public policy. 108 S.Ct. at 2803. However, any possible exception, when not firmly rooted in the state's jurisprudence, must be based on an individualized finding of need. Id.
In the present case, the trial judge was diligent enough to base his decision on an individualized finding of need. The exchange of questions and answers between the trial judge and the victim...
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