People v. LaLone

• Decision Date: 30 March 1989
• Docket Number: Docket No. 79221
• Citation: 432 Mich. 103,437 N.W.2d 611
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel James LaLONE, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 611

437 N.W.2d 611

432 Mich. 103

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel James LaLONE, Defendant-Appellant.

Docket No. 79221.

Supreme Court of Michigan.

Argued March 8, 1988.

Decided March 30, 1989.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Jon Newman, Pros. Atty. by Mary C. Pino, St. Johns, for plaintiff-appellee.

Herb Jordan, Asst. Defender, Detroit, for defendant-appellant.

OPINION

BRICKLEY, Justice.

Defendant was convicted of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1)(b); M.S.A. Sec. 28.788(2)(1)(b). The Court of Appeals affirmed his conviction in an unpublished per curiam opinion. ¹ Defendant appealed in this Court, and we granted leave ² to consider the following issues: 1) whether the proposed testimony and cross-examination concerning the complainant's sexual contact with a third person were properly excluded under the rape-shield statute, M.C.L. Sec. 750.520j(1); M.S.A. Sec. 28.788(10)(1); 2) whether the proposed testimony and cross-examination concerning the complainant's sexual contact with a third person were properly excluded under MRE 404(a)(3) and whether MRE 404(a)(3) supersedes the rape-shield statute; and 3) whether the trial court erred by admitting, under MRE 803(4), the medical diagnosis and treatment exception to the hearsay rule, a psychologist's hearsay testimony that complainant named the defendant as her assailant.

I

The facts of this case are set forth in Justice Archer's opinion.

II

We conclude, for the reasons set forth in sections I(A) and I(B) of Justice Archer's opinion, that the exclusion of evidence of complainant's sexual history did not violate either the rape-shield statute or the defendant's Sixth Amendment right of confrontation.

We do not, however, address whether MRE 404(a)(3) supersedes the statute or whether the exclusion of the evidence of complainant's sexual history violates that rule. Rather, we determine that leave was improvidently granted as to those issues. At trial, defense counsel did not argue that admission was proper under the rule, and the trial judge did not base his rulings in limine on such a conflict. Moreover, the Court of Appeals did not address the claim, having not been asked to do so. While the issues are of significance, we conclude that we should not address them without a full record having been developed below.

III

The trial court admitted testimony of Dr. Joan Jackson Johnson, the substance of which was the complainant's hearsay statements that she had been sexually abused by the defendant, her stepfather.

Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted" ³ and may only be admitted if provided for in an exception to the hearsay rule. People v. Eady, 409 Mich. 356, 294 N.W.2d 202 (1980). MRE 803(4) provides for admission of

"[s]tatements made for purposes of medical treatment or medical diagnosis in connection with treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably necessary to such diagnosis and treatment."

This Court has never had occasion to consider whether MRE 803(4) may serve as a basis for the admission of hearsay statements as to the identity of the perpetrator of a crime. Further, we have not considered its use where the witness is a psychologist.

A psychologist treats mental and emotional disorders rather than physical ones. ⁴ Lying to one's health care provider about symptoms and their general causes would be detrimental to the patient, and it is, in part, for this reason that we permit the introduction of such hearsay statements. It is therefore fair to say that, while medical patients may fabricate descriptions of their complaints and the general character of the causes of these complaints, we would think it less likely that they will do so than psychological patients. In addition, although there are psychological tests, fabrications of physical complaints would seem to be far easier to discover through empirical tests than are fabrications which might be heard by an examining psychologist. Indeed, statements which are untrue, and which are examining psychologist knows to be untrue, may nevertheless serve as a basis for accurate diagnosis and treatment. ⁵ Thus, statements made in the course of the treatment of psychological disorders may not always be as reliable as those made in the course of the treatment of physical disorders.

The introduction of hearsay statements such as those admitted in the instant case is of concern for a second reason. Not only are we less able to ascertain their reliability than those made to a medical doctor, but they identify the person who caused the declarant's pain. It has long been the rule that the declarant's naming of the person responsible for his condition may not be admitted pursuant to the hearsay exception described in MRE 803(4). ⁶ Indeed, the common-law predecessor of MRE 803(4) was of an even more limiting nature. In an early case discussing that rule, this Court stated:

"[Statements of pain and its locality] are admitted only upon the ground that they are the natural and ordinary accompaniments and expressions of suffering. It would be impossible in most cases to know of the existence or extent or character of pain without them. They are received therefore as acts rather than declarations, and admitted from necessity. The rule ... has never been extended so as to include declarations ... of the causes in the past of such suffering, so as to make such statements proof of the facts. Declarations concerning the past are narratives and not acts." Grand Rapids & I.R. Co. v. Huntley, 38 Mich. 537, 543 (1878).

We do not suggest that the bounds of MRE 803 should be defined by its precodification common-law parallels. In fact, the exception defined in MRE 803(4) inarguably goes beyond that defined in common law because it permits the introduction of statements describing "past ... symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof...." See also the Committee note to MRE 803(4). However, while the drafters of the rule clearly intended to go beyond the common law, we do not believe that they intended that the victim's naming of her assailant should be considered a description of the "general character of the cause or external source" of an injury. To read the exception to provide for such hearsay, particularly in the context of psychological treatment, would clearly broaden the nature of the exception beyond the scope intended by its drafters.

The recent trend to broaden this hearsay exception rests primarily on two decisions of the United States Court of Appeals for the Eighth Circuit. In United States v. Iron Shell, 633 F.2d 77 (CA 8, 1980), the court held that the testimony of a physician who examined a nine-year-old victim of a sexual assault could be admitted even though it contained a repetition of the complainant's description of the general cause of her injury, i.e., a sexual assault. The testimony did not include the complainant's naming of the defendant as her assailant. In admitting this testimony, the Iron Shell panel defined a two-pronged test for admission of hearsay evidence pursuant to FRE 803(4). First, the declarant's motive in making the statement must be consistent with the purposes of the rule, i.e., the promotion of treatment. Second, the content of the statement must have been of the type reasonably relied upon by a physician in diagnosis or treatment. Id., p. 84. In Iron Shell, the admitted hearsay involved only the occurrence and nature of the attack. No attempt was made to introduce the identity of the assailant. Indeed, the Iron Shell court, supra at 85, cited United States v. Nick, 604 F.2d 1199, 1201-1202 (CA 9, 1979), and noted that in Nick

"the examining physician was allowed under rule 803(4) to repeat the child's description of the assault including the victim's statements concerning the cause of the injury while omitting any comments about the identity of the assailant." (Emphasis supplied.)

In addition, the complainant was treated by a physician immediately after the rape, and the fact that she had been raped was physically confirmed.

While Iron Shell kept within the bounds of the language of the rule by admitting hearsay testimony describing only the general nature of the cause of complainant's injury, the Eighth Circuit later used the Iron Shell test to significantly expand the scope of the hearsay exception in United States v. Renville, 779 F.2d 430 (CA 8, 1985). In Renville, the eleven-year-old complainant was examined by a physician who testified that the complainant had told him that she had been subjected to repeated acts of sexual abuse by the defendant. In affirming the admission of the testimony, the panel held that cases of child sexual abuse fell outside the rule that the identity of the individual allegedly responsible for a declarant's injuries may not be revealed pursuant to FRE 803(4), since the knowledge that the assailant is a member of the same household is pertinent to the treatment required. The panel noted that child abuse involves more than physical injury and that proper psychological treatment requires knowledge of which member of the household was the abuser. The court also noted that a physician must take protective actions such as removing the child from the home upon learning that intrafamily child sexual abuse is occurring and that therefore the identity of the perpetrator is a fact "relied on" by the physician.

As we have just discussed, the identity of an assailant cannot fairly be characterized as the "general cause" of an injury. The Renville court did not address this difficulty in its analysis. ⁷ Further, as we have...