People v. Pullins, Docket No. 80721

Citation378 N.W.2d 502,145 Mich.App. 414
Decision Date11 December 1985
Docket NumberDocket No. 80721
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Virgil Allen PULLINS, Jr., Defendant-Appellant. 145 Mich.App. 414, 378 N.W.2d 502
CourtCourt of Appeal of Michigan (US)

[145 MICHAPP 415] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Asst. Pros. Atty., and Thomas S. Richards, Asst. Pros. Atty., for the People.

Kenneth M. Mobill, Detroit, for defendant-appellant.

[145 MICHAPP 416] Before ALLEN, P.J., and WAHLS and J.P. O'BRIEN *, JJ.

J.P. O'BRIEN, Judge.

Defendant was convicted by a jury of criminal sexual conduct in the first degree, M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2), and sentenced to a prison term of from 10 to 50 years. He now appeals as of right.

The victim was a six-year-old girl who was cared for at a day care center operated by defendant's mother. Upon arriving home from the day care center on October 24, 1983, at approximately 6:30 p.m., the victim went straight to the kitchen and burst into tears. She was very upset and had blood on her underwear. She told her mother three times that Allen had done it. The victim was taken to the hospital where she was examined by a physician. Based on the examination the physician concluded that there had been vaginal penetration. At trial, the victim stated that she was taking a nap when defendant, who had a big knife, pulled up her dress and pulled down her panties. She stated she screamed when defendant assaulted her but that defendant covered her mouth and threatened to flush her head down the toilet.

The victim's father stated that, since the assault, the victim had been afraid to answer the telephone and had trouble sleeping. A therapist testified that the victim's behavior since the incident was consistent with that of a rape victim.

Defendant denied assaulting the complainant and testified he had been with a friend at the time the assault occurred. This alibi was corroborated by defendant's mother.

Although defendant has raised several allegations of error, we find one dispositive and reverse defendant's conviction and remand for a new trial. [145 MICHAPP 417] At trial, defendant twice moved for short continuances so that two witnesses could be present in person to testify. Both times, the trial court refused. We find it did so erroneously.

The trial court erred in refusing to grant a continuance to permit an alibi witness to testify. Defendant denied committing the assault and claimed he was with Billy Potts at the time the assault was alleged to have occurred. Potts was listed on the notice of alibi and had been interviewed by the police. For unspecified reasons, Potts was unavailable to testify on July 31, 1984, but was scheduled to return home that evening and would be available to testify the next day. There is nothing in the record to indicate that defendant was responsible for Potts's absence or that it was a delay tactic. The defendant moved to adjourn so that Potts's testimony could be secured. The trial court refused.

While the matter of a continuance is within the sound discretion of the trial judge, People v. Charles O. Williams, 386 Mich. 565, 575, 194 N.W.2d 337 (1972); People v. Merritt, 396 Mich. 67, 80-81, 238 N.W.2d 31 (1976), reh. den. 396 Mich. 977 (1976), a defendant also has a right to call witnesses in his defense, and a constitutional right to compulsory process to obtain witnesses in his favor. U.S. Const. Am. VI; Const. 1963, art. 1, Sec. 20. When the inconvenience of defendant's request (a continuance to the next day) is balanced against defendant's rights (to a fair trial and for compulsory process for witnesses in his favor), we can only conclude that the trial court abused its discretion. Potts would have been the only witness unrelated to defendant to testify for the defense. If Potts's testimony corroborated defendant's story, it may have established a reasonable doubt as to defendant's guilt. The interest of the state in complete [145 MICHAPP 418] discovery and a fair trial for the defendant outweighs the minor negative effect such a delay would have had on the trial process here. People v. Merritt, supra. Potts's testimony was imperative to defendant's defense and could not be considered cumulative. We find defendant was denied his rights to a fair trial and to compulsory process.

We also find error in allowing the preliminary examination testimony of a res gestae witness, the examining physician, to be read into the record when the witness could have, in all likelihood, been present at trial to testify in person. Soon after the victim arrived home she was taken to the hospital where she was examined by Dr. Kalavadhy Srinivasan. On July 30, 1984, the first day of trial, the prosecutor revealed that Dr. Srinivasan was on vacation and would not return until August 1, 1984. The prosecutor moved to use the physician's preliminary examination testimony at trial in lieu of her actual presence. Defendant objected, arguing that Dr. Srinivasan was a res gestae witness. The next day, the court ruled that the doctor was not a res gestae witness and allowed her previous testimony to be read to the jury. The examining physician of the victim in a prosecution for sexual misconduct is a res gestae witness. People v. Kirtdoll, 391 Mich. 370, 395, 217 N.W.2d 37 (1974); People v. Hearn, 100 Mich.App. 749, 755, 300 N.W.2d 396 (1980). The court's ruling that Dr. Srinivasan was not a res gestae witness was clearly erroneous.

Testimony taken at a preliminary examination may be used in evidence by the prosecutor whenever the witness who gave the testimony cannot, for any reason, be produced at trial. M.C.L. Sec. 768.26; M.S.A. Sec. 28.1049; People v. Starr, 89 Mich.App. 342, 345, 280 N.W.2d 519 (1979). MRE 804(b)(1) states that prior testimony of a witness unavailable for [145 MICHAPP 419] trial may be read into evidence provided the opposing party had an opportunity and motive to develop the testimony by examining the witness at the prior proceeding. People v. Gross, 123 Mich.App. 467, 470, 332 N.W.2d 576 (1983), lv. den. 417 Mich. 1100.36 (1983). However, M.C.L. Sec. 768.26; M.S.A. Sec. 28.1049 gives way to the defendant's constitutional right of confrontation where the witness's absence from trial stems from the prosecutor's lack of good faith effort or failure to exercise due diligence in attempting to secure the witness's presence. The determination of due diligence is a matter for the trial court and that determination will not be overturned on appeal unless a clear abuse of discretion is shown. People v. Starr, supra. The trial court found that Dr. Srinivasan was not a res gestae witness and therefore never reached the due-diligence question.

In this case, Dr. Srinivasan was scheduled to return from her vacation the day following the court's ruling permitting her preliminary examination testimony to be used at trial. Thus she was not "unavailable" under MRE 804(a). Defendant's right to confront witnesses against him, particularly res gestae witnesses, should not be cast aside so readily in order to save such a short period of time. We find that the trial court abused its discretion in excusing Dr. Srinivasan's presence and in permitting her preliminary examination testimony to be read to the jury. People v. Starr, supra.

We will address other issues raised by defendant because they may occur at retrial.

We find admission of the therapist's testimony concerning "rape trauma syndrome" to be erroneous. The therapist, who had been seeing the victim weekly, testified that the victim's symptoms were consistent with those of a person who had been raped. Rape trauma syndrome refers to a constellation[145 MICHAPP 420] of symptoms experienced by the victims of sexual assault. The term "rape trauma syndrome" was coined in 1974 in an article describing the recurring pattern of emotional distress in rape victims. Burgess & Holmstrom, Rape Trauma Syndrome, 131 Am.J. of Psychiatry 981 (1974). See also Comment, Expert Testimony on Rape Trauma Syndrome: Admissibility and Effective Use in Criminal Rape Prosecution, 33 Am.U.L.Rev. 417 (1984). Michigan adheres to the traditional test governing the admissibility of scientific evidence as originally set forth in Frye v. United States, 54 U.S.App.D.C. 46, 47, 293 F. 1013 (1923):

"[W]hile courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general...

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