People v. Baker , 94 Mich. App. 365 ( 1979 )

94 Mich. App. 365 (1979) 288 N.W.2d 430

PEOPLE
v.
BAKER
PEOPLE
v.
RICHARDSON

Docket Nos. 78-1677, 44531.

Michigan Court of Appeals.

Decided December 18, 1979.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy Scallen and Michael D. Lehto, Assistant Prosecuting Attorneys, for the people.

Bruce T. Leitman, P.C., for defendant Baker.

Robert E. Slameka, for defendant Richardson.

Before: DANHOF, C.J., and J.H. GILLIS and D.C. RILEY, JJ.

PER CURIAM.

Defendant Baker was convicted by a jury of first-degree murder in the death of Jay Baker, contrary to MCL 750.316; MSA 28.548, second-degree murder in the death of John Moore, contrary to MCL 750.317; MSA 28.549, and conspiracy to commit murder in the first degree, contrary to MCL 750.157a; MSA 28.354(1) and MCL 750.316; MSA 28.548. She was sentenced to serve two natural life sentences and 40 to 60 years on the second-degree murder count. Defendant Richardson was convicted by the same jury of two counts of first-degree murder in connection with the deaths of Jay Baker and John Moore, conspiracy to commit first-degree murder, and felony-firearm, contrary to MCL 750.227b; MSA 28.424(2). He was sentenced to three life sentences and the mandatory two years on the felony-firearm count. They appeal as of right.

Defendants raise numerous issues on this appeal, two of which we find meritorious.

Defendants argue that the trial court erred in excluding the testimony of an eye witness's optometrist on the basis of an optometrist-patient privilege. Robert Baughman was the only eye witness who identified Norman Richardson as the gunman at the May 12, 1977, shootings. Defendants planned on calling the optometrist to testify as to Baughman's inability to see based on an eye examination two months after the shootings.

In holding that the optometrist's information was privileged the trial court relied on 1956 AACS, R 338.291 which provides ethical standards for optometrists, including a requirement that all information concerning a patient shall be held in confidence.

We hold that the trial court erred in applying this ethical standard as an evidentiary privilege. The fact that disclosing information concerning a patient is unethical does not mean that such testimony is privileged. There is no common law optometrist-patient privilege. Nor does the statutorily created physician-patient privilege apply; that privilege applies to persons duly authorized to practice medicine or surgery. MCL 600.2157; MSA 27A.2157. An optometrist is not duly authorized to practice medicine or surgery. The trial court should not have excluded this testimony.

Defendants also argue that the trial court erred in allowing the prosecution to read the extrajudicial statement of a dead witness into the record. Late in the people's case in chief, Ronald Schigur, the assistant Wayne County prosecuting attorney who originally handled the case, was called to testify as to why one Pete Simpson was promised he would not be prosecuted if he would agree to testify at trial. After cross-examination, Schigur was permitted, over objection, to read a written statement taken from William Suggs by the police on August 9, 1977. This statement strongly implicated both defendants in the killings. The trial judge admitted this statement because she felt defense counsel had "opened the door" by implying that the people had relied solely on the testimony of Pete Simpson in electing to prosecute defendants.

We hold that the trial court erred in admitting this highly prejudicial evidence. A careful reading of the cross-examination reveals no questioning of the prosecutor's justifications for bringing the case to trial. Defendants sought to show that Simpson was granted "immunity" because he had friends in authority, not because his story was necessarily true. It was also suggested that Simpson, being involved in the killings, had a motive to lie. While the trial judge instructed the jury that Suggs' statement was not to be considered to prove that defendants had committed the murders, there is a substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statement in determining defendants' guilt. See Bruton v United States, 391 U.S. 123, 126; 88 S. Ct. 1260; 20 L. Ed. 2d 476 (1968).

The rights of confrontation in cross-examination are fundamental requirements of a fair trial. See People v Hollingsworth, 22 Mich. App. 545, 547; 177 NW2d 687 (1970), Const 1963, art 1, § 20.

The primary goal of the confrontation clause is to prevent the use of ex parte affidavits or depositions against the accused in lieu of personal examination and cross-examination of witnesses in the presence of the trier of fact. People v Triplett, 68 Mich. App. 531, 539; 243 NW2d 665 (1976). These rights were placed in jeopardy by the admission of Suggs' statement, without serving any legitimate purpose.

Defendants' convictions must be reversed and defendants remanded for a new trial.

Reversed and remanded.