PEOPLE
v.
DIXON
Docket No. 92940.
Michigan Court of Appeals.
Decided July 7, 1987.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief, Appellate Division, and Margaret G. Horenstein, Assistant Prosecuting Attorney, for the people.
Lizza & Mulcahy, P.C. (by David M. Lawson), for defendant.
Before: HOOD, P.J., and MacKENZIE and R.M. PAJTAS,[*] JJ.
MacKENZIE, J.
Following a jury trial, defendant was convicted of first-degree criminal sexual conduct, MCL 750.520b(1); MSA 28.788(2)(1), second-degree criminal sexual conduct, MCL 750.520c(1); MSA 28.788(3)(1), breaking and entering an occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305, and unlawfully driving away a motor vehicle, MCL 750.413; MSA 28.645. He was sentenced to imprisonment for from 25 to 150 years, from 10 to 15 years, from 10 to 15 years, and from 3 to 5 years for the respective convictions. Defendant now appeals as of right and we affirm.
Defendant's convictions arose out of an October 19, 1983, incident at the residence of complainant. The victim testified that she stopped home on her way to a business appointment at approximately 5:20 P.M. Defendant was standing in her living room. A struggle ensued and defendant put a knife up to her throat. Defendant asked what time the victim's husband, "Ron," got home and then placed a jacket over her face. He proceeded to place his finger or fingers in her vagina and to attempt, unsuccessfully, to insert his penis into her vagina. Defendant then took the keys to the car the victim had been driving and drove away.
*391 The Oak Park police inspected the victim's home, inventoried missing objects and collected fingerprint evidence. The first-floor nursery window, where defendant had apparently entered, was damaged. The cords of both telephones in the house had been removed. A camera and flash, the victim's briefcase and wallet, her eyeglasses, a gold chain and a tan pair of her husband's shoes were missing. A latent print taken from a metal box in the den matched defendant's palm print.
Defendant's mother, Winnie Dixon, was called as a prosecution witness. She testified that she found a pair of tan shoes, a briefcase and a set of keys in defendant's room. These items were turned over to the police and were identified as objects missing from the victim's house. According to Mrs. Dixon, defendant told her that he had purchased the shoes from a friend. He also told her that a second person was involved in the incident.
On appeal, defendant urges this Court to recognize a parent-child testimonial privilege and hold that Winnie Dixon was barred from testifying against defendant at his trial. The issue is one of first impression in this state.
In recent years, the subject of establishing a parent-child testimonial privilege has received considerable scholarly attention. See Coburn, Child-parent communications: Spare the privilege and spoil the child, 74 Dick L R 599 (1969); Stanton, Child-parent privilege for confidential communications: An examination and proposal, 16 Fam L Q 1 (1982); Comment, From the mouths of babes: Does the constitutional right of privacy mandate a parent-child privilege?, 1978 BYU L R 1002 (1978); Comment, The child-parent privilege: A proposal, 47 Fordham L R 771 (1979); Comment, Confidential communication between parent and child: A constitutional right, 16 San Diego L R 811 (1979); *392 Note, Recognition of a parent-child testimonial privilege, 23 St Louis U L J 676 (1979); Note, Questioning the recognition of a parent-child testimonial privilege, 45 Albany L R 142 (1980); Note, Parent-child loyalty and testimonial privilege, 100 Harv L R 910 (1987); Comment, Parent-child testimonial privilege: An absolute right or an absolute privilege?, 11 U Dayton L R 709 (1986); Comment, A parent-child testimonial privilege: Its present existence, whether it should exist, and to what extent, 13 Cap U L R 555 (1984); Kraft, The parent-child testimonial privilege: Who's minding the kids?, 18 Fam L Q 505 (1985); Note, The judicial development of the parent-child testimonial privilege: Too big for its britches?, 26 Wm & Mary L R 145 (1984); Comment, Underprivileged communications: The rationale for a parent-child privilege, 36 Southwestern L J 1175 (1983); Kandoian, The parent-child privilege and the parent-child crime: Observations on State v Delong and In re Agosto, 36 Me L R 59 (1984); Note, Parent-child testimonial privilege: Preserving and protecting the fundamental right to family privacy, 52 Cinn L R 901 (1983).
The parent-child testimonial privilege is currently recognized by the federal district court of Nevada and by certain state courts in New York. In Nevada, the privilege was recognized in In re Agosto, 553 F Supp 1298, 1325 (D Nev, 1983), holding the privilege encompasses not only confidential communications, but bars any testimony by a parent against a child, or vice versa, unless the witness waives the privilege. In New York, the privilege is less extensive, barring only confidential communications made by a child of any age to his parent, or vice versa. See People v Fitzgerald, 101 Misc. 2d 712; 422 NYS2d 309 (1979), and In re A & M, 61 AD2d 426; 403 NYS2d 375 (1978). But see also In the Matter of Harry R, 134 Misc 2d *393 404; 510 NYS2d 792 (1986). At least two jurisdictions have enacted some form of parent-child privilege by statute. See Idaho Code § 9-203(7) (Supp 1987) and Minnesota Statutes § 595.02(1)(i)
The vast majority of jurisdictions have rejected the adoption of the parent-child testimonial privilege, however. See In re Terry W, 59 Cal App 3d 745; 130 Cal Rptr 913 (1976); Marshall v Anderson, 459 So 2d 384 (Fla App, 1984); People v Sanders, 99 Ill 2d 262; 457 NE2d 1241 (1983); Cissna v State, 170 Ind App 437; 352 NE2d 793 (1976); State v Gilroy, 313 NW2d 513 (Iowa, 1981); State v Delong, 456 A2d 877 (Me, 1983); Three Juveniles v Commonwealth, 390 Mass 357; 455 NE2d 1203 (1983), cert den 465 U.S. 1068; 104 S. Ct. 1421; 79 L. Ed. 2d 746 (1984); Cabello v State, 471 So 2d 332 (Miss, 1985); Missouri v Bruce, 655 S.W.2d 66 (Mo App, 1983); In the Matter of Gibson, 79 Ore App 154; 718 P2d 759 (1986); In re Frances J, 456 A2d 1174 (RI, 1983); DeLeon v State, 684 S.W.2d 778 (Tex App, 1984); In re Grand Jury Subpoena of Santarelli, 740 F2d 816 (CA 11, 1984); United States v Jones, 683 F2d 817 (CA 4, 1982); In re Grand Jury Proceedings (Starr), 647 F2d 511 (CA 5, 1981); United States v Penn, 647 F2d 876 (CA 9, 1980); United States v Davies, 768 F2d 893 (CA 7, 1985), cert den ___ US ___; 106 S. Ct. 533; 88 L. Ed. 2d 464 (1985).
We similarly decline to adopt a parent-child testimonial privilege. Initially, we note that the exclusion of evidence by evidentiary privileges is largely governed by statute. See MRE 101, Committee Note. Accordingly, we believe that recognition of a new privilege is best deferred to the Legislature.
Perhaps more fundamentally, however, we premise our decision on the notion that "all privileges ... are exceptional, and are therefore to be *394 [discouraged].... The investigation of truth and the enforcement of testimonial duty demand the restriction, not the expansion, of these privileges." 8 Wigmore, Evidence (McNaughton rev, 1961), § 2192, p 73. As privileges do not further the ascertainment of truth but, rather, permit the concealment of relevant, reliable information, courts have been reluctant to expand or create new privileges in the absence of compelling reasons. In re Dinnan, 661 F2d 426, 429-430 (CA 5, 1981), cert den 457 U.S. 1106 (1982). In addressing the issue of the judicial establishment of new privileges, the United States Supreme Court has stated that "exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth." United States v Nixon, 418 U.S. 683, 710; 94 S. Ct. 3090; 41 L. Ed. 2d 1039 (1974). The exclusion of relevant evidence by the creation of a privilege is warranted only if the resulting public good transcends the normally predominant principle of using all rational means for ascertaining truth. Trammel v United States, 445 U.S. 40, 50; 100 S. Ct. 906; 63 L. Ed. 2d 186 (1980). Applying these principles, we are not persuaded that the exclusion of a parent's or child's testimony would promote "sufficiently important interests" so as "to outweigh the need for probative evidence in the administration of criminal justice." Trammel, supra, 445 U.S. 50-51. In the circumstances of this case, the state's interest in obtaining all relevant information concerning the sexual assault and robbery of a woman in her own home must predominate over generalizations favoring the preservation of the American family through barring the testimony of a parent or child. See Three Juveniles, supra, 390 Mass 364.
Defendant's remaining arguments require only *395 brief discussion. Defendant claims that Mrs. Dixon's testimony concerning her identification to police officer Mary Timmons of the items found in defendant's room constituted inadmissible hearsay. Assuming without deciding that the testimony constituted hearsay evidence, its admission constituted harmless error. The substance of the testimony was cumulative of that given by Officer Timmons. See People v Prophet, 101 Mich. App. 618, 624; 300 NW2d 652 (1980).
We also reject defendant's claim that the trial court erred when it allowed Officer Timmons to testify about the victim's identification of defendant at a corporeal lineup. Defendant claims that this testimony constituted inadmissible hearsay under MRE 801(d)(1). To the extent that Timmons testified that the victim made her identification "immediately," defendant's hearsay challenge clearly fails; that testimony did not repeat an out-of-court statement. As regards the officer's repeating the actual words of the victim or reporting her assertive conduct, there is a split of authority in this Court. Some panels have held that while MRE 801(d)(1) allows the declarant (in this case, the victim) to testify as to his or her prior identification of a defendant, it does not allow a third party to testify about the declarant's identification of defendant; however, it does allow the third party to testify about the facts and circumstances surrounding that prior identification. People v Turner, 120 Mich. App. 23, 38; 328 NW2d 5 (1982), lv den 417 Mich. 1064 (1983); People v Price, 112 Mich. App. 791, 801-803; 317 NW2d 249 (1982), lv den 414 Mich. 946 (1982); People v Mock, 108 Mich. App. 384, 387-388; 310 NW2d 390 (1981); People v Prophet, supra, pp 620-624; People v Horton, 98 Mich. App. 62, 71; 296 NW2d 184 (1980); People v Hoerl, 88 Mich. App. 693, 701-702, n 5; 278 NW2d *396 721 (1979); People v Washington, 84 Mich. App. 750, 755-756; 270 NW2d 511 (1978). Other panels have held that MRE 801(d)(1) allows a third party to testify concerning an identification of a defendant at a lineup. People v Beam, 125 Mich. App. 289; 335 NW2d 684 (1983), lv den 418 Mich. 858 (1983), reh den 418 Mich. 858 (1984); People v McConnell, 124 Mich. App. 672, 679-680; 335 NW2d 226 (1983); People v Turner, 116 Mich. App. 421; 323 NW2d 425 (1982); People v Adams, 92 Mich. App. 619; 285 NW2d 392 (1979), lv den 408 Mich. 890 (1980). Assuming, arguendo, that defendant correctly argues that the former line of cases is correct, we find that the officer's testimony was cumulative of the declarant's testimony. Therefore, its admission was harmless. Turner, supra; Price, supra; Mock, supra; Prophet, supra; Washington, supra.
Defendant contends that the trial court erred in instructing the jury concerning impeachment by a prior inconsistent statement. The court instructed the jury in pertinent part:
During the course of this trial there has been some evidence tending to show that one of the witnesses [the victim] made an earlier statement that was inconsistent with testimony made during the course of the trial. The prior inconsistent statement was regarding who removed her panty hose. This statement is not evidence which you can consider to satisfy or prove any of the elements of the crime charged since it was not made under oath during the course of this trial.
Defendant maintains that this instruction prejudicially removed from the jury's consideration the question whether there was an inconsistency in the victim's trial testimony and her preliminary examination testimony concerning defendant's attempt to insert his penis into her vagina. Defendant's *397 argument fails for the reason that the record does not support a finding of the existence of a prior inconsistent statement on this point. The victim was unequivocal at both the preliminary examination and at trial that it was defendant's penis which she felt him try to insert into her vagina. The instruction was proper as given.
Defendant contends that the trial court erred by refusing to give a requested instruction on the cognate lesser included offense of receiving and concealing stolen property worth more than $100, as it applied to Count III of the information, charging breaking and entering an occupied dwelling with intent to commit larceny. Where the evidence at trial supports a conviction of a cognate lesser offense, and the defendant requests an instruction on the lesser offense, failure to honor the request constitutes error requiring reversal. People v Chamblis, 395 Mich. 408; 236 NW2d 473 (1975), reh den 396 Mich. 976 (1976). Defendant maintains that because there was evidence to support a conviction for the lesser offense of receiving and concealing stolen property worth more than $100 his breaking and entering conviction must be reversed. We disagree. The record is silent as to the value of the shoes, briefcase, camera, wallet or keys. Thus, only the stolen automobile could support an instruction on receiving and concealing. As plaintiff correctly points out, however, only if the automobile was inside the victim's home could the charge of breaking and entering include the car. The instruction was properly denied.
Finally, defendant challenges his sentence of from 25 to 150 years for first-degree CSC. Defendant argues that the sentence imposed exceeded the sentencing guidelines and should shock the conscience of this Court. The guidelines range for defendant's CSC conviction was apparently from 8 *398 to 15 years. In appropriate cases, however, it is within the sentencing judge's discretion to exceed the guidelines, People v Kenneth Johnson, 144 Mich. App. 125, 136-137; 373 NW2d 263 (1985), lv den 424 Mich. 854 (1985); People v Butts, 144 Mich. App. 637; 376 NW2d 176 (1985), lv den 424 Mich. 860 (1985). The trial judge's discretion is limited by the standard set forth in People v Coles, 417 Mich. 523; 339 NW2d 440 (1983), that the sentence imposed must not shock the conscience of this Court.
Defendant's sentence does not shock our conscience. The victim was sexually assaulted and robbed in her home. The trial court properly observed the serious nature of this crime and the fact that the victim suffered a great deal of emotional upheaval as a result. We summarily reject defendant's suggestions that the assault was somehow less abhorrent because it was accomplished by penetration with his fingers rather than his sexual organ, because it "lasted for only a period of three to four minutes," or because her clothing was not cut. We also reject defendant's contention that the court relied on allegations in the presentence report of a prior rape for which defendant was never formally charged. Defendant did not object to the information in the report at sentencing, and there is no indication in the record that the court relied on the challenged information in rendering his sentence. We find no abuse of discretion.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.