People v. Whitfield

• Decision Date: 29 May 1986
• Docket Number: Docket No. 72630,No. 7,7
• Citation: 388 N.W.2d 206,425 Mich. 116
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David WHITFIELD, Defendant-Appellant. Calendar425 Mich. 116, 388 N.W.2d 206
• Court: Michigan Supreme Court

Page 206

388 N.W.2d 206

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David WHITFIELD, Defendant-Appellant.

Docket No. 72630.

Calendar No. 7

425 Mich. 116, 388 N.W.2d 206

Supreme Court of Michigan.

Argued Dec. 17, 1985.

Decided May 29, 1986.

John D. O'Hair, Pros. Atty., Wayne County, Timothy A. Baughman, Deputy Chief, Civil and Appeals, Thomas M. Chambers, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

Sheldon Halpern, Detroit, for defendant-appellant.

BOYLE, Justice.

David Whitfield was charged and ultimately convicted of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1)(a); M.S.A. Sec. 28.788(2)(1)(a). Mr. Whitfield's first trial ended in a mistrial because the jury could not agree on a verdict. A second trial resulted in the conviction challenged in the instant appeal. A divided Court of Appeals panel affirmed the conviction in a per curiam opinion. This appeal followed. Because we agree that prejudicial error occurred in Mr. Whitfield's second trial, we reverse the conviction.

I Facts

The basic facts are ably set out in Judge Wahl's partial dissent to the Court of Appeals opinion:

"[A.M.], a 3-year-old girl, lived with her mother, [C.M.], and defendant. On July 28, 1978, [A.M.'s grandmother] picked up the child for a weekend visit. When bathing the child, her grandmother observed bruises on her thighs and buttocks, and sores and redness on her genitalia. The victim was taken to the hospital where doctors determined she had gonorrhea. Subsequent examination of defendant and [C.M.] revealed both also had the disease.

"At trial the emergency room pediatrician at Children's Hospital testified that, in her opinion, the bruises on the child's genitalia were due to a sexual assault. On cross-examination, she indicated other trauma could have caused the injuries, such as a fall while standing on the toilet. The doctor also testified that the child was infected with gonorrhea at least three but not more than 30 days prior to examination, and that such infection could occur only upon contact with the genitalia of an individual who had the disease.

"Defendant was examined by Dr. Thomas Chapel, a dermatologist and Director of the Social Hygiene Clinic in Detroit, and determined to have gonorrhea. The doctor testified that a few articles on the subject imply that gonorrhea may be transmitted non-sexually, but that it has never been proven. He indicated that it was highly unlikely but not totally impossible, for gonorrhea to be transmitted by two people using the same washcloth.

"Dr. Adnan Dajani, author of two papers on gonorrhea in children, testified that non-venereal transmission of gonorrhea has been postulated but never proven; he knew of no case where gonorrhea was transmitted in a pre-pubertal child by means other than sexual contact.

"It was defendant's contention at trial that the child contracted the disease either by physical contact with her mother on occasions when she and the child slept unclothed together or bathed together, or contact with a washcloth the mother had also used. Defendant contended the child suffered the bruising when straddling a chair or similar object when falling."

At both trials, the defendant offered the expert testimony of Dr. Samuel Lerman on the question whether gonorrhea can be transmitted in a nonsexual manner. At defendant's first trial, Dr. Lerman testified that gonorrhea can be transmitted without sexual contact, although such transmission is uncommon. Dr. Lerman also said that gonorrhea could be transmitted by a wet towel or washcloth or by one person sitting on a damp surface that an infected person had just sat on. At defendant's second trial, the trial court ruled that Dr. Lerman lacked the expertise needed to qualify as an expert on the transmission of gonorrhea.

II Qualification of Expert Witnesses

On appeal, appellant asserts that the trial court erred in refusing to allow Dr. Lerman's testimony and that the error cannot be considered harmless. We agree.

Michigan Rule of Evidence 702 provides:

"If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."

Under MRE 702, the trial court determines whether expert testimony will assist the trier of fact. The trial court also determines whether the proffered witness is "qualified as an expert by knowledge, skill, experience, training, or education." MRE 702; MRE 104(a). The determination of whether a witness is an "expert" is within the discretion of the trial court, Siirila v. Barrios, 398 Mich. 576, 591, 248 N.W.2d 171 (1976), and the decision generally is not reversed on appeal absent an abuse of discretion.

In this case, expert testimony concerning the transmission of gonorrhea was clearly of potential assistance in understanding the evidence. Several physicians called by the prosecution testified, on direct and cross-examination, concerning the transmission of gonorrhea. Thus, the initial issue here is whether the trial court erred in the decision that defendant's witness, Dr. Lerman, could not testify concerning the transmission of gonorrhea.

Dr. Lerman's qualifications are summarized in Judge Wahl's dissent:

"Dr. Lerman was a board certified family practitioner. From 1974 to 1977, he was an assistant professor of family medicine. At the time of trial he maintained a private practice and worked part-time as a general practitioner with the Detroit Health Department. As a family practitioner he had treated cases of gonorrhea. Dr. Lerman had read at least 20 journal articles, plus the usual text, with regard to gonorrhea and its transmission, and had attended seminars in which the subject was discussed. He had examined one three-year old with gonorrhea, and had read material on about 20 such cases."

Under MRE 702, a witness can be an "expert" due to "knowledge, skill, experience, training, or education." The federal advisory committee note to Federal Rule of Evidence 702, upon which MRE 702 was modeled, observes:

"The rule is broadly phrased. The fields of knowledge which may be drawn upon are not limited merely to the 'scientific' and 'technical' but extend to all 'specialized' knowledge. Similarly, the expert is viewed, not in a narrow sense, but as a person qualified by 'knowledge, skill, experience, training or education.' Thus within the scope of the rule are not only experts in the strictest sense of the word, e.g. physicians, physicists, and architects, but also the large group sometimes called 'skilled' witnesses, such as bankers or landowners testifying to land values."

Commenting on FRE 702, the Sixth Circuit Court of Appeals observed that "a proposed expert witness 'should not be required to satisfy an overly narrow test of his own qualifications.' " United States v. Barker, 553 F.2d 1013, 1024 (C.A. 6, 1977) (citations omitted).

The same is true of expert witnesses under MRE 702. While the trial court has considerable discretion in determining whether an individual may testify as an expert, United States v. Crosby, 713 F.2d 1066 (C.A. 5, 1983), a proposed expert should not be scrutinized by an overly narrow test of qualifications. Dr. Lerman was clearly qualified by knowledge, experience, and training to testify concerning the transmission of gonorrhea. He had treated patients with gonorrhea, including one three-year-old child, and he was familiar with the literature on the subject. While Dr. Lerman's expertise might not have been as great as the prosecutor's experts, such a consideration goes to the weight of the evidence rather than the admissibility. It is for the jury to decide what weight to give to the evidence. People v. Goodrode, 132 Mich. 542, 548, 94 N.W. 14 (1903). As Judge McCree noted in Barker, supra,

"Nor need [the expert] be, as the trial court apparently required, an outstanding practitioner in the field in which he professes expertise. Comparisons between his professional stature and the stature of witnesses for an opposing party may be made by the jury, if it becomes necessary to decide which of the conflicting opinions to believe. But the only question for the trial judge who must decide whether or not to allow the jury to consider a proffered expert's opinion is, 'whether his knowledge of the subject matter is such that his opinion will most likely assist the trier of fact in arriving at the truth.' " Id. at 1024 (citations omitted).

Dr. Lerman's testimony concerning the transmission of gonorrhea should have been admitted under MRE 702.

Because of the circumstances of this case and the nature of the testimony excluded, we cannot say that this error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). ¹ In the context of a Confrontation Clause violation, consisting of improper limitation of cross-examination of a prosecution witness for bias, the United States Supreme Court recently reaffirmed its rejection of automatic reversal for error of constitutional magnitude and reviewed some of the factors a reviewing court should consider in determining whether a constitutional error can be considered harmless:

"The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the...