People v. Kirtdoll

• Decision Date: 16 April 1974
• Docket Number: No. 16,16
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Willie KIRTDOLL, Defendant-Appellee. 391 Mich. 370, 217 N.W.2d 37, 69 A.L.R.3d 1
• Court: Michigan Supreme Court

Page 37

217 N.W.2d 37

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Willie KIRTDOLL, Defendant-Appellee.

No. 16.

391 Mich. 370, 217 N.W.2d 37, 69 A.L.R.3d 1

Supreme Court of Michigan.

April 16, 1974.

William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Dept., Robert A. Reuther, Asst. Pros. Atty., Detroit, for plaintiff-appellant.

Sidney Kraizman, Detroit, for defendant-appellee.

Before the Entire Bench.

WILLIAMS, Justice.

Whether the Michigan business entry statute ¹ authorizes the admission into evidence of a hospital record in a criminal trial is the jurisprudentially significant issue in this case. The issue was first raised almost 35 years ago by this Court in People v. Lewis, 294 Mich. 684, 293 N.W. 907 (1940). There we held that admission of such records in a criminal case 'without calling the maker thereof' would deny the accused his constitutional right to confront his accusers. U.S.Const. Amend. VI; Const.1963, art. 1, § 20.

In its 35 year long history, Lewis has been cited a number of times in this Court and in the Court of Appeals, but it has never been relied upon to actually deny admission into evidence of a business entry record in a criminal case. ² As a matter of fact, the Court of Appeals has insistently requested this Court to review our holding in Lewis. ³ We granted leave in this case to do so.

This case also raises an ancillary issue. Even if the records are admissible, does the defendant have the right to demand production of the physician contemporaneously examining the rape victim?

I--FACTS

On the evening of April 28, 1967 while complainant was returning home after work, she was robbed and raped near her apartment. After the attack complainant entered the apartment where she told her mother that she had just been raped. The police were called and conveyed complainant to Detroit Receiving Hospital where she was examined because of the rape.

At trial, a Dr. Wardell gave testimony as to the time and date of the admission to the emergency room of the hospital, the admission number and age of complainant at the time of the examination, apparently reading from the hospital record although the record itself was never introduced into evidence.

The counsel for the People continued:

'Q. (By Mr. Stevens, continuing): Doctor, will you continue where we left off? What do the records show? What is your evaluation of the record?

'A. That patient, Jeanette Taylor Ray, was examined for an alleged rape by a stranger. There were no injuries at that time but she complained of pain in her lower abdomen. Physical examination at that time revealed no injury except for lower abdominal tendons. There was a moderate vaginal Mucoid (sic) discharge and we usually do slide smears looking for sperms after a rape case is brought in. The slide revealed two to five sperms per high power field under the microscope. That means that the sperms are illuminated 10 times greater than the normal eye.

'Q. . . . And was she in fact treated at that hospital?

'A. Yes.

'Q. And what procedure is usually done as it relates to treatment, and in this case what was done?

'A. We always do a VDRL.

'Mr. Horwitz: Well, I will object to what is usually done. What was done?

'A. This is always done.

'This Court: What,--was this done in this case?

'A. Yes.

'The Court: Very well.

'Q. (By Mr. Stevens, continuing): And other than sur,--was a surology test--

'A. We test.

'Q.--for blood?

'A. Yes, for syphilis. And we always clean the vaginal tract out with a syphilin douche, so if any sperms in there we wash them out, preventing pregnancy.

'Q. That was done in this case?

'A. Yes. Then we always give penecillin (sic), 2.5 mill units, if the patient is not allergic to penecillin (sic), which she was not. This is also to prevent any veneral disease if the individual (109) accused of the alleged rape did have syphilis. And then we always give them stilbestrol, which will flush anything out of the vaginal area and not allow implantation of the sperm.

'Q. This was done in this case?

'A. Yes.

'Q. Anything further that your records indicate, doctor?

'A. No.

'Q. Those are the official records of the hospital, is that right, doctor?

'A. That is right.

'Q. And these are the findings shown on those records?

'A. True.

'Q. One more question. How long was this young lady in the hospital during the time that the examination and those procedures were performed on her? How long did that take?

'A. Records show that she came in about 1:53 and the time out was 2:00 A.M.

'Q. All right. Are these slides and the high power field examination done in the hospital there?

'A. Yes.

'Q. Those are not sent outside?

'A. No.

'Q. Done there?

'A. In the laboratory.' (Joint Appendices, pp. 67a--70a)

Defendant was charged on July 26, 1967 with having on April 28, 1967 committed the crimes of rape and armed robbery. Endorsed on the Information filed August 24, 1967 is the name 'Milton G. Tarver' who examined and treated complainant at Receiving Hospital the night she was raped. Dr. Tarver's name also appears on the list of witnesses submitted by the Police Department dated August 11, 1967.

The trial was adjourned four times until it commenced on August 26, 1968. On this date, the prosecution called Dr. James Wardell to substitute for Dr. Tarver. The prosecution stated that the substitution was sought since Dr. Tarver was 'unavailable, transferred out of the State' and 'The last we heard he was in Ohio.' The defense counsel objected on the ground that Dr. Tarver was the doctor indorsed on the information. The trial judge gave defense counsel 48 hours to try to determine the whereabouts of Dr. Tarver. The defendant, himself, continued to insist that Dr. Tarver be present even though his counsel felt that any competent member of the hospital staff was proper to come over and give testimony from the record.

On Wednesday, August 28, James Wardell was recalled as a witness. Defense counsel stated:

'Your Honor, earlier I objected to this witness giving testimony, because, as I understand it, he was not the examining physician at the Detroit General Hospital. I would still raise that objection.' (Joint Appendices, p. 65a)

The objection was duly noted and Dr. Wardell began his testimony.

Defendant was found guilty of rape, M.C.L.A. § 750.520; M.S.A. § 28.788, and armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797, and sentenced to a term of 15 to 30 years on each charge to run concurrently. The Court of Appeals reversed the conviction on both counts and remanded for a new trial on the basis of Lewis that the introduction of the doctor's testimony was error and was not harmless beyond a reasonable doubt. 44 Mich.App. 237, 205 N.W.2d 44 (1972). We granted prosecution's application for leave to appeal on April 20, 1973. 389 Mich. 784.

II. HISTORY OF LEWIS

This Court has not had occasion to directly consider Lewis since the opinion was originally filed nearly 35 years ago. It has been twice cited in footnotes and once in the text of our Court for the proposition that in a criminal case the accused has a right to be confronted by the witnesses against him. In none of the cases was it dispositive and in none of the cases was the issue related to the business entry statute. See People v. Hobson, 369 Mich. 189, 196, 119 N.W.2d 581 (1963); People v. Shirk, 383 Mich. 180, 189, 174 N.W.2d 772 (1970); People v. Mobley, 390 Mich. 57, 64--65, 210 N.W.2d 327 (1973).

The Court of Appeals has recognized Lewis but has not actually excluded any business records from evidence on its authority. In two criminal cases, People v. Wolke, 10 Mich.App. 582, 159 N.W.2d 882 (1968) and People v. Parm, 15 Mich.App. 303, 166 N.W.2d 536 (1968) it was held that while it was technical error, in light of Lewis, that business records were admitted into evidence, the error was not prejudicial since it was corroborated by other competent evidence and did not require reversal of the conviction. In two other criminal cases, People v. Herrera, 12 Mich.App. 67, 162 N.W.2d 330 (1968) reversed on other grounds 383 Mich. 49, 173 N.W.2d 202 (1970) and People v. Dickerson, 30 Mich.App. 447, 186 N.W.2d 850 (1971) it was found that Lewis did not apply in cases where the defendant had sought to introduce the record, as in these cases the accused would not be concerned with confronting the maker of the record. A last pair of Court of Appeals criminal cases, People v. Flansburgh, 24 Mich.App. 470, 180 N.W.2d 373 (1970) and People v. Lester, 50 Mich.App. 725, 213 N.W.2d 793 (1973) distinguished Lewis in that the record did not directly prove that defendant had committed a crime. (This was also part of the rationale in Parm, supra). All of the above cases shared one common precept in interpreting Lewis regardless of how they distinguished it. 'We believe that the limitations of the Lewis Case were intended to apply to the particular facts of that case . . .' Herrera, supra, 12 Mich.App. 75, 162 N.W.2d 333.

The first Court of Appeals case to make a frontal attack on Lewis, as opposed to factually distinguishing it, was People v. Gauthier, 28 Mich.App. 318, 184 N.W.2d 488 (1970). The question in Gauthier was the admissibility of a handwritten message on a long-distance telephone call voucher. Such vouchers were ordinarily kept at a hotel's front desk in order that the clerk on duty might record the calls of the hotel's guests for appropriate billing. The importance of the voucher and the message written on it in this case was that it placed defendant at the scene of the murder of the hotel night clerk.

The Court of Appeals per presiding Judge Gillis noted at the outset that Lewis stood firmly against the admission of business record hearsay in criminal cases. While noting the cases of Wolke, supra, and Parm, supra which actually distinguished Lewis, Judge Gillis stated:

'We proceed here on the assumption that Justice Wiest's declaration is decisionally binding on this Court and that ...