People v. King

• Decision Date: 14 May 1987
• Docket Number: Docket No. 82360
• Citation: 405 N.W.2d 116,158 Mich.App. 672
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Noah George KING, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 116

405 N.W.2d 116

158 Mich.App. 672

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Noah George KING, Defendant-Appellant.

Docket No. 82360.

Court of Appeals of Michigan.

Submitted Feb. 13, 1986.

Decided Jan. 2, 1987.

Released for Publication May 14, 1987.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Harold F. Closz, III, Pros. Atty., and Judith K. Simonson, Sr. Asst. Pros. Atty., for the People.

Justian & Veurink by David R. Justian, Muskegon, for defendant-appellant.

Before HOLBROOK, P.J., and SHEPHERD and ROBERSON ^*, JJ.

PER CURIAM.

Defendant, Noah George King, appeals from his conviction for first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1)(b); M.S.A. Sec. 28.788(2)(1)(b). He raises six evidentiary issues, which he asserts entitle him to a new trial, and also argues that he was improperly sentenced to from thirty to one-hundred years incarceration. We affirm the conviction, but remand for resentencing.

The defendant first challenges the admission of scientific evidence of the chemical content of a substance found in the victim's vagina. Two tests, one manually administered and one conducted by a machine known as the automatic chemical analyzer (ACA), showed the presence of acid phosphotase in the substance. Experts testified that the acid phosphotase disclosed the presence of semen, although no sperm were found in the samples. Other witnesses testified that the defendant had had a vasectomy.

The defendant argues that the use of the ACA to test for acid phosphotase constitutes a novel scientific test that must be shown to be reliable under the standards announced in People v. Davis, 343 Mich. 348, 72 N.W.2d 269 (1955), and Frye v. United States, 54 U.S.App.D.C. 46, 293 F. 1013 (1923). Under the Davis-Frye rule, novel scientific evidence must be shown to have gained general acceptance in the scientific community to be admissible at trial. People v. Young, 418 Mich. 1, 17-18, 340 N.W.2d 805 (1983). The purpose of the rule "is to prevent the jury from relying on unproven and ultimately unsound scientific methods." People v. Gonzales, 415 Mich. 615, 623, 329 N.W.2d 743 (1982). Proof of the general acceptability of scientific evidence must be established by disinterested and impartial experts. People v. Barbara, 400 Mich. 352, 358, 255 N.W.2d 171 (1977).

Three experts testified regarding the chemical process of the ACA, its reliability and the procedure used to test the sample in the instant case. Dr. Gilleland, a physician, related the widespread use of the ACA in hospitals throughout the country, and testified that physicians routinely relied upon its accuracy. Mr. Dobry, Chief Technician at the Muskegon Hospital, testified similarly. None of the expert witnesses proffered by the prosecution were affiliated with a law enforcement agency or financially interested in the use of the ACA and were, therefore, competent to establish the test's reliability. People v. Bunting, 145 Mich.App. 210, 212-213, 377 N.W.2d 307 (1985). In addition, the procedural propriety of the particular test given was properly shown by direct as well as circumstantial evidence. Zyskowski v. Habelmann, 150 Mich.App. 230, 244, 388 N.W.2d 315 (1986).

Significantly, there was no testimony to refute the reliability of the ACA. Cf., People v. Young (After Remand), 425 Mich. 470, 391 N.W.2d 270 (1986) (accuracy of electrophoresis of evidentiary bloodstains disputed among experts so results not admissible). The defendant's own expert testified that the acid phosphotase in the samples showed semen, and the test results were also corroborated by the independent manual test, the accuracy of which the defendant does not challenge. The testimony was sufficient to meet the Davis-Frye standard. It was at most harmless error that some of the testimony was propounded at a post-trial hearing. People v. Haggart, 142 Mich.App. 330, 344-345, 370 N.W.2d 345 (1985).

The defendant next argues that the trial court erred in admitting the testimony of Dr. deYoung, an expert in the dynamics of incestuous families. Dr. deYoung's testimony, concerning the psychological profiles of members of such families, was admitted ostensibly to assist the jury in understanding the evidence of incest. People v. Draper, 150 Mich.App. 481, 487-488, 389 N.W.2d 89 (1986). Even if, as defendant argues, the prejudicial effect of this testimony outweighed its probative value, any error in its admission must be considered harmless in light of the compelling evidence of defendant's guilt, especially the evidence that defendant had had a vasectomy and that the semen taken from the victim was aspermic. See People v. Wallach (On Second Remand), 143 Mich.App. 537, 372 N.W.2d 609 (1985).

The defendant also asserts that the trial court erred in excluding a book review article which he sought to use to impeach Dr. deYoung pursuant to MRE 707. We agree with the trial court that this article is not the type of work contemplated by MRE 707. Defendant proffered the article as a critique on the scientific subject of psychology, but the article was a book review more properly viewed as a discussion of literary value. We also note that the criticism contained in the article was brought out by defense counsel in his cross-examination of Dr. deYoung. There is no basis for reversal here.

The defendant's argument that hearsay evidence was improperly admitted is also without merit. The hearsay statements were purposely elicited by his own lawyer and, upon questioning by the trial court, it was specified that the hearsay was sought "for trial strategy." By the defense's own injection of the hearsay and failure to object, the evidentiary issue has been waived. People v. McKeever, 123 Mich.App. 533, 538, 332 N.W.2d 596 (1983), lv. den. 417 Mich. 1100.9 (1983); People v. Stanton, 97 Mich.App. 453, 460, 296 N.W.2d 70 (1980), lv. den. 417 Mich. 941 (1982). Nor did defense counsel's trial strategy deny defendant effective assistance of counsel. People v. Garcia, 398 Mich. 250, 266, 247 N.W.2d 547 (1976), reh. den. 399 Mich. 1041 (1977); People v. Simmons, 140 Mich.App. 681, 685, 364 N.W.2d 783 (1985), lv. den. 422 Mich. 963 (1985).

We also conclude that the trial court did not abuse its discretion in excluding testimony from the defendant regarding what might have been said to his daughters by their aunt. While we agree that the statements were not hearsay because not offered for the truth of the matter asserted, People v. Eggleston, 148 Mich.App. 494, 502, 384 N.W.2d 811 (1986), the testimony sought to be admitted was raised at a time and under circumstances that would only serve to mislead, confuse and unduly prejudice the jury. MRE 403. The burden of controlling the introduction of such evidence is on the trial court, whose decision will not be reversed absent an abuse of discretion. People v. Holliday, 144 Mich.App. 560, 573-574, 376 N.W.2d 154 (1985), lv. den. 424 Mich. 902 (1986). There was no abuse here.

Defendant's final evidentiary argument is that the trial court erred in excluding testimony to the effect that he was a good man. Evidence of a person's character, including his truthfulness and veracity, is limited to testimony regarding the person's reputation for that character trait. MRE 405(a); MRE 803(21); People v. McWilson, 104 Mich.App. 550, 558, 305 N.W.2d 536 (1981). Thus, testimony regarding a person's character can only relate what the witness has heard others say about the person's reputation, People v. Morrin, 31 Mich.App. 301, 336, 187 N.W.2d 434 (1971), lv. den. 385 Mich. 775 (1971), and cannot relate specific instances of the person's conduct or the witness's personal opinion as to the person's...