Petition for Writ of Certiorari — Hetzner v. Michigan

92 -1326 sre Cour, UAL |

ED

No. Fis 1995 ’

IN THE SUPREME COURT OF THE UNI Bhd OF he GLERR

or

OCTOBER TERM 1992 —

MARK HETZNER,

Petitioner

vs

THE PEOPLE OF THE STATE OF MICHIGAN,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

OF THE STATE OF MICHIGAN

Michigan Court of Appeals No 124 959

PETITION FOR A WRIT OF CERTIORARI

Carl Ziemba

Attorney for Petitioner

Counsel of Record

703 W Hancock

Detroit, Michigan 48201

(313) 833 5145

QUESTION PRESENTED

DID THE ADMISSION INTO EVIDENCE OF RANK

HEARSAY BY A MEDICAL DOCTOR OF WHAT THE

CHILD VICTIM OF A SEXUAL ASSAULT TOLD HIM

IN ORDER TO BOLSTER THE TESTIMONY OF THE

CHILD VICTIM RENDER PETITIONER'S TRIAL

FUNDAMENTALLY UNFAIR SO AS TO VIOLATE DUE

PROCESS?

ii

TABLE OF CONTENTS

QUESTION PRESENTED

AUTHORITIES CITED

OPINION AND ORDER BELOW

STATEMENT OF JURISDICTION

CONSTITUTIONAL PROVISION INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

APPENDIX

Opinion and Judgment of Michigan

Court of Appeals

Order of Michigan Supreme Court

Denying Leave to Appeal

25

la

lla

iii

AUTHORITIES CITED

CASES: Page

California v Green, 399 US 149 (1970) ... 7

Lisenba v California, 314 US 219 (1941) .. 8

People v Beckley, 434 Mich 691 (1990) ... ll

People v LaLone, 432 Mich 103 (1989) ... 12

People v Purman, 216 Mich 430 (1921) ... 23

United States v Bays, 448 F2d 977 (CA5 1971) 23

United States v Iron Shell, 633 F2d 77 (CA8

1980) 7 - +. . eo 7 — > . . . - - - . . - . * 12

Wood v Lockhart, 809 F2d 457 (CA8 1987) .. 8

OTHER :

14th Amendment to the United States Constitu-

De ££ ios) se 6 + + © + es ew ew ee CS

rr CPP CME 6 «© © ¢ 6 6 «© «© © ew eo 6 2

Pourteenth Amendment ....++++ee« « 2

Michigan Rules of Evidence 803(4) .... 5

et -< tek 6 6 6 © ts ts ew eee el

1

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1992

MARK HETZNER,

Petitioner

vs

THE PEOPLE OF THE STATE OF MICHIGAN,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

OF THE STATE OF MICHIGAN

Michigan Court of Appeals No 124 959

PETITION FOR A WRIT OF CERTIORARI

Mark Hetzner, by his attorney, Carl Ziemba,

prays that a writ of certiorari issue to review

the judgment of the Michigan Court of Appeals

entered in this cause on July 29, 1992, leave to

appeal denied by the Michigan Supreme Court by

Order dated December 30, 1992, Docket No 94465.

OPINION AND ORDER BELOW

The Opinion of the Michigan Court of Appeal

is unpublished. It is set forth in full below as

Appendix, la, as is the Order of the Michigan

Supreme Court denying leave to appeal.

STATEMENT OF JURISDICTION

The judgment and opinion of the Michigan

court of Appeals was entered July 29, 1992.

Timely application for leave to appeal was

denied by Order of the Michigan Supreme Court on

December 30, 1992.

This Court's jurisdiction is invoked under 28

usc {1257(3).

CONSTITUTIONAL PROVISION INVOLVED

The Fourteenth Amendment provides, in per-

tinent part:

-

*., . . No state shall make or enforce any law

which shall abridge the privileges or im-

munities of citizens of the United States;

nor shall any State deprive any person of

life, liberty, or property, without due

process of law; nor deny any person within

its jurisdiction the equal protection of the

laws.'

STATEMENT OF THE CASE

Petitioner was convicted by jury of three

counts of criminal sexual conduct of the first

degree and one count of criminal sexual conduct

of the second degree [Michigan Compiled Laws

750.520b(1) (a); 750.520c(1) (a). He was sentenced

to three concurrent terms of 15 to 30 years and

to a concurrent term of 10 to 15 years.

The complainant, a five and a half year old

girl, testified that on a day certain, petition-

er inserted his finger into her vagina but not

4

into her anus and that on the following day, he

inserted his finger into her vagina and into her

anus.

After the second alleged assault, the child

was taken to a hospital where she was examined

by a medical doctor. This doctor was called by

the prosecution as part of its case in chief. He

testified that prior to his examination of the

child, he had a ‘chart’ upon which was stamped

"Possible sexual assault’ and nothing else. He

stated his ‘purpose there at that time was to

examine the young lady for possible sexual

assault’. Petitioner's counsel objected, stating

that ‘my objection goes to any statements that

he relates from this young lady as being strict-

ly hearsay and not in the furtherance of any

treatment’.

The trial court overruled the objection and

admitted the following testimony of the doctor

under Michigan Rules of Evidence 803(4):

‘Since I copied several of her statements

word for word, I wonder if I might refer to

those -- if you would want me to say what it

is she said.’

* + x

‘"He put his finger up both my privates.”

Another time: "He twisted his finger up my

butt. He wanted me to give him a hug."'

x x x

"After a short discussion about trying to

understand whether she understood it, what it

was she was telling me, I asked her if -- if

he did anything additionally to her, besides

that that I have just quoted her as saying;

and she said no. "He was just playing with my

privates." Asked if that was painful, she

said it hurt when he did it.’

* * x

6

‘She said that he hugged her while he had his

finger in her rectum and I do not believe

that that would result in any observable

change in the rectum.'

The doctor also testified as follows:

‘I found three abnormalities. There was a

generalized redness of the external genita-

lia. There was a swelling of the area between

the bladder opening and the vaginal area

enough that I was not able to see the urinary

opening. And there was a small tear in the

hymenal ring.'

Petitioner testified in his own behalf and

stated that he had been present in the lath

house on both days and that the child had also

been present, but petitioner denied having

sexually molested the child.

— —— tO

7

REASONS FOR GRANTING THE WRIT

Petitioner is not claiming a confrontation

deprivation. After all, the child was a witness

and was subject to cross-examination concerning

what she had said to the medical doctor. Calico

fornia v Green, 399 US 149, 158 (1970).

Petitioner's position here is rather stra-

ight-forward: The testimony of the medical

doctor as to what the child had told him about

the alleged incidents was hearsay and it did not

fall within the exception spelled out under the

terms of MRE 803(4) for the reason that the

statements were not ‘reasonably necessary to

[the] diagnosis and treatment’ for which the

child was presented to the medical doctor. The

case boiled down to a contest of credibility

between the child and petitioner. The admission

of that portion of the medical doctor's tes~

timony concerning what the child had told him

was prejudicial to the petitioner because it

tended to corroborate her testimony and stood as

a vouch for her credibility and served no other

purpose in the lawsuit. The admission of this

evidence constituted a severe privation of

petitioner's right to due process and to a fair

trial under the 14th Amendment to the United

States Constitution. Although the individual

states are free to adopt whatever rules of

evidence they deem proper, such rules and ap-

plications must not ‘fail[] to observe that

fundamental fairness essential to the very

concept of justice’; in this case, it should be

found that ‘the absence of fairness fatally

infected the trial' and that the acts here

complained of ‘necessarily prevent[ed]) a fair

trial’. Lisenba v California, 314 US 219, 236

(1941). See also: Wood v Lockhart, 809 F2d 457,

461 (CA8 1987).

It is a fair inference from the testimony of

the child's mother, that the mother took the

9

child to the hospital to be examined:

{by prosecutor) Where did you go?

We went to the hospital.

What did you do at the hospital?

ry Oo FY ODO

Went to the emergency room, and had

Sara examined. (T186)

And the medical doctor testified that the

child ‘was brought to the emergency department

for an evaluation’. And the medical doctor was

candid enough to testify in response to an

inquiry whether the child ‘was here asking for

your help' as follows:

A The five-year-old was there asking

for my help? No, I don't believe a

five-year-old comes to the emergency

room asking for help.’ (T237)

10

Hence, the question is: What needed the

medical doctor to learn from the child who had

been brought to the hospital for an examination

and whose chart had been stamped ‘Possible

sexual assault’? No treatment of the child was

asked of the medical doctor, nor at the point

that the child was brought to him did he con-

template administering any treatment to the

child.

And still MRE 803(4) clearly provides that

statements made by a person to a doctor can

escape exclusion from evidence by the hearsay

rule only ‘insofar as reasonably necessary to

such diagnosis and treatment’. The entire

subsection of the Rule reads as follows:

‘The following are not excluded by the

hearsay rule, even though the declarant

is available as a witness:

1l

‘(4) Statements made for purposes of

medical treatment or medical diagnosis

in connection with treatment. State-

ments made for purposes of medical

treatment or medical diagnosis in con-

nection 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 diag-

nosis and treatment. '

The rationale behind MRE 803(4) was expli-

cated by the Court in People v Beckley, 434 Mich

691, 728 (1990):

‘Evidence is admissible under MRE 804(3)

because of its reliability, i.e., pa-

12

tients normally do not fabricate with

regard to the cause of an injury or when

they may have pain. The statements made

to a doctor are cloaked with a sense of

reliability because accuracy is neces-

sary for diagnosis and treatment.'

From the comments of the Court in People v

LaLone, 432 Mich 103, 110 (1989), it is clear

that the interpretation of MRE 803(4) by the

Court was based in part upon the case of United

States v Iron Shell, 633 F2d 77, 84 (CA8 1980)-

where the Court with seeming approval stated:

‘In admitting this testimony, the Iron

Shell panel defined a two-pronged test

for admission of hearsay evidence pur-

Suant to FRE 803(4). First, the declar-

ant's motive in making the statement

must be consistent with the purposes

13

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.’

And examination of the language of the Court

in United States v Iron Shell, supra, reveals a

dimension to the rationale behind the rule which

is not evident in the language of the Michigan

Supreme Court:

‘The rationale behind the rule has often

been stated. It focuses upon the pa-

tient and relies upon the patient's

strong motive to tell the truth because

diagnosis or treatment will depend in

part upon what the patient says. It is

thought that the declarant’s motive

guarantees trustworthiness sufficiently

14

to allow an exception to the hearsay

rule.' Id, at 83-84. [emphasis added]

Surely the rationale above expressed was

developed on the basis of the ‘normal’ medical

situation, that is, a situation wherein an adult

or a person of the age of reason and ordinary

knowledge experiences a trauma or a feeling of

sickness or some physical pain or mental dis-

tress and voluntarily goes to a medical doctor

with only one purpose in mind - to have his

condition diagnosed and his symptoms or condi-

tion treated. Under these hypothetical cir-

cumstances, it is reasonable to assume that the

person will recount truthfully the circumstances

circumjacent to his condition, especially so

because he knows that what he tells the doctor

will be held in confidence.

ae ee ee) ee ee ——* a

15

But, the same cannot be said of a child of

five years. As the medical doctor himself tes-

tified, ‘I don't believe a five-year-old comes

to the emergency room asking for help’. A five

year old child does not know what illness is and

that there are people, medical doctors, who have

been trained to diagnose and treat illness and

injuries and a five year old child does not know

that it is advisable if not imperative for the

child to tell the doctor truthfully the cir-

cumstances which brought about the condition

which made necessary a visit to the doctor.

Thus, it is clear that the assumption under-

pinning the reliability of the statements made

by an adult or a person of reason and knowledge

contemplated by MRE 803(4) does not obtain in

the case of a five year old child, and it must

follow that the statements made by the five or

six year old child in the case at bench to the

medical doctor do not meet the criteria of MRE

16

803(4) for non-exclusion of the hearsay state-

ments from evidence.

Further, it is clear that the child was not

brought to the emergency room for treatment or

Giagnoses; she was brought simply for ‘an

examination’. It is clear from the testimony of

the mother of the child that she did not believe

that the child had been hurt or injured or that

she needed medical treatment. The mother

testified that after the defendant had left the

premises of the nursery, she took the child to

a friend's because ‘I didn't know what to do.

So I asked her what she thought I should do’ and

that ‘eventually’ she left the friend's house

and ‘We went to the hospital’, ‘Went to the

emergency room, and had Sara examined’. If the

mother had thought that the child had been

injured and needed medical treatment, surely the

mother would have ‘known’ what to do; she would

have taken the child to the hospital or to some

17

medical doctor without hesitation. But, it is

fair to infer that the mother did not think that

the child had been injured and did not think

that the child needed medical treatment but

decided to take the child to the hospital for an

examination to determine perhaps whether what

the child was saying was true.

And it is clear from the medical doctor's

testimony that he administered no medical

treatment to the child; the record is entirely

devoid of any testimony by the medical doctor

concerning any treatment that he administered to

the child.

Thus, it is clear that the only purpose for

which the child was presented to the medical

doctor - an examination - could have been ac~

complished without the doctor's having to ask

the child any questions whatever. The doctor had

obtained permission from the mother to examine

18

the child [or had assumed that the mother had

given such permission], the child's chart had

been stamped ‘Possible sexual abuse’ and there

was nothing which the doctor needed more to

learn from the child at that stage of the

proceedings. It is conceivable that upon making

a physical examination of the child and findings

unmistakable clinical evidence of sexual abuse

or assault, the doctor might have needed some

information from the child in order to properly

treat the condition the doctor encountered.

But, there was no testimony in the case that in

fact this was the situation which obtained and

which led to the elicitation by the doctor of

the statements in question from the child. The

medical doctor found no evidence of any injury

to the anus; he found a general ‘redness’ of the

external genitalia and a swelling of the area

between the bladder opening and the vaginal area

and a tear in the hymenal ring. By the doctor's

own testimony, there was nothing that could

Tee =e

19

restore the hymen to its virginal condition; and

the other conditions needed only time to heal,

it may be reasonably assumed.

As a result, there is nothing in the case at

bench which remotely satisfies the ‘two-pronged

test for admission of hearsay evidence pursuant

to’ MRE 803(4) adverted to by the Court in

People v LaLone, supra; ‘First, the declarant'’s

motive in making the statement must be consis-~

tent with the purposes of the rule, i.e., the

promotion of treatment. Second, the content of

the statement must have been of the type reason~

ably relied upon by a physician in diagnosis or

treatment’, id, at 112.

Thus, it is clear that the testimony of the

medical doctor here complained of to which the

petitioner objected on trial should not have

been admitted on trial, and its admission into

evidence was clearly prejudicial to petitioner.

20

The only purpose of the prosecutor in adduc-

ing the hearsay testimony of the doctor was to

bolster the credibility of the child and her

testimony. This is evident from what the prose-

cutor argued to the jury:

‘She [complainant] goes into the lath house

on July llth in the afternoon and while she

is in there, she tells you what happened to

her. . . . She told you that and she said it

happened again the next day. .. . But she

also told Dr. Love what happened to her. Not

four months after it happened but within

hours of the second day and Dr. Love indi-

cated for you -- he wrote what she said down

verbatim. “He put his finger up both my

privates". “Another time he twice had his

finger up my butt". Within hours of the

second day.'

21

. . tk

‘Exact words to Dr. Love: “He twice had his

finger up my butt.” That is descriptive. He

didn't put it, he didn't touch it, he twisted

it -- within hours of the last time it hap-

pened, she is telling a doctor, she's not

telling a police officer, she is not telling

anyone but a doctor.'

The prosecutor conceded in his argument that

if the jury did not believe the testimony of the

child, they should acquit petitioner, and then

went on to say:

‘But you have got to answer some questions.

And one question that you have to answer

which nobody has answered to this point is

why would Sara lie? Mr. Hetzner testified

Sara was in the lath house, he was in the

lath house, he was trimming bushes, she was

hoeing. she was there that July llth in the

22

afternoon. She was there the following after-

noon. He said everything Sara said. Except

what he did to her. Sara has to tell you

that. So Mr. Hetzner wants to say: yes, she

was being truthful about everything except

she lied about that. Why? Why would she do

that?'

One of the oldest and most fundamental rules

in the trial of criminal. cases is that one

cannot show that a witness made the same state-

ments that he made in court at an earlier time

out of court in order to show or prove that the

in-court testimony of the witness is truthful.

The fact, for example, that the complainant

testified in court that the defendant had robbed

him at gun point is not established as the truth

simply because the complainant told a dozen

people before trial that the defendant had

robbed him at gun point. The rule has been put

23

as follows by the Court in United States v Bays,

448 F2da 977, 979 (CAS 1971):

‘The general rule appears to be that

testimony of a witness may not be bolst-

ered by showing that he has previously

told the same story out of court.’

The Court in People v_ Purman, 216 Mich 430,

437 (1921) approved the following legal prin-

ciple as set forth in 40 Cyc 2787:

‘As a general rule a witness cannot be

corroborated by proofs that on previous

occasions he has made the same state~-

ments as those made in his testimony;

and the rule is the same whether the

previous statements were made verbally

or in writing, and applies equally to

statements under oath and unsworn state-

ments.'

24

Unfortunately, the Michigan appellate courts

regard MRE 803(4) as a rule creating carte

blanche for the prosecutor to circumvent the

rule against the use of prior consistent state-

ments simply because the Rule states that

statements made to a medical doctor for purposes

of diagnosis and treatment are not hearsay. The

Michigan appellate courts have not carefully

examined into the intent and purpose behind the

adoption of MRE 803(4). It is to be highly

doubted that MRE 803(4) was adopted in order

that prosecutors might be able to bolster the

credibility of victims of sexual assault or

abuse by the use of prior consistent statements

of the victims made to a medical doctor.

25

CONCLUSION

Petitioner prays this Court issue a Writ of

Certiorari to the Michigan court of Appeals.

Respectfully submitted,

Carl Ziemba

Attorney for Petitioner

Attorney of Record

703 W Hancock

Detroit, Michigan 48201

(313) 833 5145

Detroit, Michigan

February 3, 1993

APPENDIX

la

OPINION of Michigan Court of Appeals

Entered July 29, 1992

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

July 29, 1992

Plaintiff-Appellee,

Vv No.124959

MARK HETZNER,

Defendant-Appellant

Before: Holbrook, Jr., P.J., and Griffin and

Marilyn Kelly,JJ.

PER CURIAM.

Following a jury trial, defendant was con-

victed of three counts of first-degree criminal

sexual conduct and one count of second-degree

criminal sexual conduct. MCL 750.520b(1) (a); MSA

28.788 (2) (a); MCL 750.520c(1) (a); MSA 28.788(3)-

(1) (a). The judge sentenced him to concurrent

terms of fifteen to thirty years' imprisonment

for each first-degree CSC conviction and ten to

2a

fifteen years for the second-degree CSC convic-

tion.

Defendant argues on appeal that he was denied

due process and a fair trial by the admission of

a physician's recitation of statements made by

the victim. He argues also that the trial judge

abused his discretion in: (1) declaring the

victim competent to testify; (2) denying the

motion for a new trial arising from charged jury

misconduct; and, (3) allowing the testimony of

the victim to be read back to the jury. He

argues that the prosecutor's closing argument

denied him due process and a fair trial. Final-

ly, he asserts, the judge erred by allowing the

physician to read from his medical report

without a proper foundation having been laid. We

affirm.

Defendant was convicted of sexually assault-

ing his employer's five-year-old daughter. The

3a

victim testified at trial that defendant put his

finger in her rectum and vagina on two consecu-

tive days. The second day, the victim's mother

took her to a hospital where Dr. Neil Love

examined her.

Dr. Love testified that he recorded verbatim

what the victim told him. After a hearsay

objection by defense counsel, the court allowed

Dr. Love to state what the victim had said. MRE

803(4). Reading from his medical report, he

repeated her words: “He put his finger up both

of my privates . . « «

The physical examination of the victim revea-

led three abnormalities in the genital area:

generalized redness of the external genitalia,

swelling of the area between the bladder opening

and vaginal area and a small tear in the hymenal

ring.

4a

After the jury verdict, defendant filed a

motion for a new trial alleging jury misconduct.

The trial judge conducted a hearing and denied

the motion, finding no credible evidence to

support it.

On appeal, defendant argues that Dr. Love's

repetition of a verbatim statement made to him

by the victim was inadmissible hearsay. State-

ments made for purposes of medical treatment or

medical diagnosis in connection with treatment

are a recognized exception to the hearsay rule.

MRE 803(4). Not excluded by the hearsay rule

are:

Statements made for purposes of

medical treatment or medical diagnosis in

connection with treatment and describing

medical history, or past or present symp-

toms, pain, or sensations, or the inception

of general character of the cause or

external source thereof insofar as reason

5 a

ably necessary to such diagnosis and treat-

ment [MRE 803(4)]).

The Michigan Supreme Court recently explained

the rationale for the medical treatment hearsay

exception. People v Meerboer, 439 Mich 310;

NWw2d (1992). In Meerboer, the Court

indicated that supporting rationale for MRE

803(4) is the existence of (1) the self-interest

motivation to speak the truth to treating

physicians in order to receive proper medical

care and (2) the reasonable necessity of the

statement to the diagnosis and treatment of the

patient.

In Meerboer, the Court indicated that trust-

worthiness of a child's statement to a physician

can be determined by looking at the totality of

circumstances surrounding the making of the

statement. Relevant facts are the age and

maturity of the declarant, the person eliciting

6a

the medical examination, the timing of -the

declaration, and the existence or lack of motive

to fabricate. Id. The trustworthiness of the

child's statement is strengthened when supported

by other evidence. Id.

In Meerboer, the Court recognized that, to

ensure reliability of the our-of-court iden-

tification of the assailant, the statement must

be reasonably necessary to diagnosis and treat-

ment. Identification of the assailant can be as

important to the health of the child as treat-

ment of the physical injuries that are apparent

to the physician. Such information also allows

physicians to structure the examination and may

be necessary to prescribe the manner of treat-

ment.

In this case, we find that the statement made

by the victim to Dr. Love was trustworthy. The

medical examination took place the same day as

7a

the second assault and before any formal inves-

tigation. The victim's mother, not the police or

the Department of Social Services, requested the

examination. There was no evidence that the

victim was fabricating her story. Further, there

was corroborating evidence of the assault; the

victim identified defendant as the assailant,

and there was physical evidence consistent with

sexual penetration.

The child's statement to her physician was

also reasonably necessary for her medical

treatment and diagnosis. Here there is a stron-

ger case than in Meerboer for its admissibility.

Dr. Love did not identify the assailant at

trial. He indicated that the victim's statement

about the item used for penetration and the

circumstances surrounding the assault were

important for his diagnosis and treatment. We

agree. We conclude that sufficient evidence was

presented to support admission of the statement

made by the victim to Dr. Love under MRE 803(4).

Defendant next asserts that the trial court

abused it discretion in declaring the five-year-

old victim competent to testify. Whenever

someone under ten years of age is produced as a

witness, the judge must determine whether the

child has sufficient intelligence and sense of

obligation to tell the truth. People v_ Cod-

dington, 188 Mich App 584; 470 NW2d 478 (1991);

MCL 600.2163; MSA 27A.2163. Absent an abuse of

discretion, we will not reverse a judge's

decision to allow a child to testify. Codding-

ton, supra. After reviewing the record in this

case, we are convinced that the judge did not

abuse his discretion in allowing the child to

testify.

Next, defendant argues that the judge abused

his discretion in denying the motion for new

trial based on alleged jury misconduct. Defen

9a

dant contended that the jurors were bribed by

the assistant prosecutor or by the victim's

parents. He requested a new trial. The judge

held a hearing to determine the validity of the

alleged instances of misconduct. After testimony

from approximately twenty witnesses, he ruled

there was no credible evidence to support the

motion for a new trial. We find nothing in the

record to suggest that the trial judge abused

his discretion in denying the motion.

In addition, defendant argues that the prose-

cutor improperly shifted the burden of proof

Guring closing argument. The prosecutor had

asked the jury why the victim would lie. There

was no objection. Even if the question was

inappropriate, any prejudice could have been

cured by an instruction. People v Duncan, 402

Mich 1, 15-16; 260 NW2d 58 (1977); People v

Foster, 175 Mich App 311, 317; 437 NW2d 395

(1989).

10a

Defendant also argues that the court erred in

allowing Dr. Love to read from his medical

report, although it had not been qualified as a

past recollection recorded. MRE 803(5). Defen-

dant made no objection, so a proper foundation

was never laid. We consider the issue eaives.

People v Furman, 158 Mich App 302, 329-330; 404

NW2d 246 (1987).

Likewise, defendant's argument that the trial

judge erred in allowing the testimony of the

victim to be read back to the jury was waived,

as defendant failed to object at trial.

Affirmed.

/s/ Donald E. Holbrook, Jr.

/s/ Richard Allen Griffin

/s/ Marilyn Kelly

lla

ORDER of Michigan 8upreme denying leave

to Appeal. ENTEKED: December 30, 1992

Michigan Supreme Court

Lansing, Michigan

Michael F. Cavanagh

Chief Justice

Charles L. Levin

James H. Brickley

Patricia J. Boyle

Dorothy Comstock Riley

Robert P. Griffin

Conrad L. Mallett, Jr.

Associate Justices

ORDER

Entered: December 30, 1992

94465

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

SC: 94465

Vv COA: 1249959

LC: 89-02753

MARK HETZNER,

Defendant-Appellant

FC

12a

On order of the Court, the application for

leave to appeal is considered, and it is

DENIED, because we are not persuaded that the

questions presented should be reviewed by

this Court.

21222

[Seal] I, Corbin R. Davis, Clerk of the

Michigan Supreme Court,certify that the forego-

ing is a true and complete copy of the order

entered at the direction of Court.

December 30, 1992. /s/ Jacqueline B. McKinnon

Deputy Clerk