People v. Barrett

People 125 v Barrett PEOPLE v BARRETT 14, April Decided 2008. No. 133128. Docket with charged 53rd District Court in the Barrett was David C. offense, assault, assault. In and with felonious second domestic (1989), Mich 268 the district accordance with J., court, Hegarty, statements to ruled that the victim’s Michael K. police not admis- operator, a officer were neighbor, and her a 911 rule, exception to the the excited utterance sible under startling a event no evidence of because there was court dis- independent The district of the victim’s statements. Court, Livingston David charges, and the Circuit missed granted, appealed Reader, J., prosecution leave The affirmed. Fitzgerald EJ., Appeals, and the Court Servitto, opinion, JJ., unpublished memorandum in an affirmed Talbot, 261382). (Docket Supreme The No. issued December grant prosecu- argument whether to oral on Court ordered peremptory appeal or take other application for leave to tion’s Burton should parties to address whether action and directed (2007). 478 Mich 875 be overruled. joined by Justices opinion Justice Taylor, In an Chief held,-. Supreme Court and Markman, Corrigan, Young, 803(2) require a language does not plain of MRE solely with or condition be established event the out-of-court independent statement before of an out-of-court Rather, MRE utterance. admitted as an excited be 1101(b)(1) making a determination allow a court and MRE event or the existence of under MRE about itself, along with out-of-court statement to consider the condition evidence, concluding in whether other by apply- Burton Court erred been established. The condition has understanding requirements of MRE ing of the an incorrect that it held that to the extent Burton must be overruled along itself with evidence the statement court could not consider admissibility. The victim’s statement to decide as excited utterances. case were admissible statements in this 480 Mich 125 concurring, agreed Justice Weaver, with the result of the majority opinion part opinion for the reasons stated V of that and those stated in Justice Boyle’s dissent Burton. Reversed and remanded trial court. joined by Justice dissenting, Justice would Cavanagh, Kelly, not prudent overrule Burton because it ais decision that defends integrity of the evidence admitted in courts. Burton was not incorrectly, properly sought decided but to effectuate the intent of body applying that formulated MRE a reasonable promoted provision’s purpose, construction that using inter- pretations predecessor analogous of its common-law and common- hearsay provisions. law The foundational elements of the excited exception

utterance are that the startling statement related to the event or condition and that the same event or condition to which the statement related caused the declarant’s excitement. The requirement independent proof of startling of the event or condi- tion ensures that these foundational elements are met and that admission of the statement exception’s furthers underlying rationale. If no evidence startling of the nature of the event or itself, condition exists other than the impossible statement it is prove requirements. these inconsistency There is no between the independent-proof requirement 104(a), and MRE because MRE 803(2) fundamentally requires independent proof. A court could still consider other deciding inadmissible evidence when whether to admit a statement under MRE The content of the only statement itself would be excluded from the court’s determi- concerning nation independent proof need for startling majority’s event or approach condition. The permit will a state- bootstrap ment itself permit into the admis- carry sion of statements that do not the inherent trustworthiness sought by exception. Furthermore, only Burton bars admission in the most extreme cases: those in independent which insufficient underlying startling evidence of the event or condition exists. The judgment Appeals of the Court of should be affirmed. — — Hearsay — Exception Independent Evidence Excited Utterance Proof Startling Event or Condition. exception The excited hearsay utterance require to the rule does startling that a event or solely condition be established with of an out-of-court statement before the out-of-court statement that relates to the event or may admitted, condition be and court consider the state- itself, along evidence, ment with other determining whether the (MRE 104[a], condition has been established 1101[b][l]). 803[2], Barrett Opinion of the Court General, L. Cox, Casey, Thomas Attorney Michael A. Morse, Prosecuting Attor- General, L. David Solicitor Vailliencourt, Jr., Pros- Assistant ney, and William people. for the ecuting Attorney, for the defendant. K. Ehlmann Patrick Curiae: Amicus A. Timothy Kym Worthy, L. Koop,

Charles H. Attorneys Association Prosecuting for the Baughman Michigan. in this case is whether C.J. At issue

Taylor, to the 803(2),1 exception the excited utterance of an rule, to the admission requires prerequisite as that a event or condi- out-of-court statement the out-of-court considering established without tion be plain language conclude that the itself. We MRE rule, by as instructed applied when 1101(b)(1)2 104(a),3 to con- and MRE allows the court

1 803(2) provides: MRE hearsay rule, following by excluded even The are not

though the declarant is available as a witness: (2) relating to a event Excited Utterance. A statement under the stress of or condition made while the declarant was or excitement caused the event condition. 2 1101(b)(1)provides: MRE (b) inapplicable. evidence] than those [of The rules other Rules following privileges apply situations respect in the

with do proceedings: and (1) ques Questions Preliminary of Fact. determination when the preliminary to of evidence tions of fact 104(a). under Rule is to be determined the court issue 104(a) provides: 480 MICH 125 Opinion op the Court sider the statement along with other evidence to prove the existence of a startling event or condition. Accord- ingly, Burton, we overrule 268; 433 Mich (1989), NW2d 133 to the extent it held that itself could not be considered along with the independent evidence to decide admissibility. This ex- clusion any consideration of the statement was an incorrect understanding of the requirements of MRE 803(2). For reason, this we reverse judgment Court of Appeals and the order of the trial court that relied on and we remand this case to the trial court for further proceedings consistent with opin- ion.

I. FACTUALBACKGROUNDAND PROCEDURALPOSTURE 17, On May Bartel, Suzanne defendant’s long- time, live-in girlfriend, pounded on neighbors’ her door, said that defendant was chasing her ax, with an asked to use their phone. She hysterical was and crying. Her hysteria continued as she reported to the 911 operator that defendant had in, kicked the door beaten her, tried to strangle her, and brandished a hatchet. At one point, the 911 operator advised her to calm down gain control of her breathing. Bartel informed the 911 operator that defendant had told her never to call police or he would kill her.

When the first responding arrived, officer Bartel similarly told him that defendant had punched a hole in door, bedroom pinned her bed, to the and begun admissibility generally. Preliminary Questions questions concerning qualification person witness, of a to be a privilege, existence of a or the of evidence shall be by court, subject

determined provisions to the of subdivision (b). making its determination it is not bound the Rules of except respect Evidence privileges. those with to v Barrett Opinion op the Court had afterward, defendant face; shortly her hitting neck, hatchet, her around the grabbed picked up kill her. The going he hatchet, and said was raised she agitated so that that Bartel was officer observed Bartel it was that apparent and that could not sit down officers searched he and other crying. When had been in the house and house, found the hatchet they Bartel’s officers observed in one of the doors. The 12-inch hole and a cut on and one arm on Bartel’s shoulders marks her mouth. the inside of (sec- domestic assault charged with

Defendant was offense) At the preliminary felonious assault. ond Faced with the examination, testify. Bartel refused to of insuf- charges of the because of a dismissal prospect attorney attempted the prosecuting proofs, ficient hearsay4 under the admitted, as excited utterances have 803(2), in MRE the statements exception provided neighbors, one of the operator, made to the Bartel that The defense countered officer. police event be established requires Burton utterance from an excited solely apart by evidence can be admitted and the excited utterance before had been offered evidence independent insufficient defen- magistrate agreed with examining The this case. evi- independent for requirements that Burton’s dant been met and thus dis- had not dence of the assault in the appealed prosecution charges. missed the written, MRE as court, asserting that circuit established event be require does not the statement itself only with unwarrantedly read the had the Burton Court and that court affirmed on the rule. The circuit into requirement made someone statement is an out-of-court A prove the truth and offered in evidence a declarant at trial other than 801(c). matter asserted.

130 480 MICH125

Opinion op the Court basis of prosecution sought then leave file an in appeal the Court Appeals, of again arguing that Burton had been incorrectly decided. The Court of Appeals heard the case and that, concluded whatever the merits of prosecution’s argument, had no authority to revise or alter in any fashion a decision of the Supreme Court.5 prosecution sought leave to in appeal Court, and we ordered argument oral on grant whether to application and directed parties to address whether Burton should be overruled. v People Barrett, 478 Mich (2007). 875

II. STANDARD OP REVIEW Whether MRE contains a requirement the startling event or condition be established without consideration of the statement itself is a question law, which is reviewed de novo. Waknin v Chamberlain, 467 329, 332; (2002) Mich 653 NW2d 176 (stating that the meaning of a Michigan rule of evidence is examined in the same manner as a court rule or statute is examined: they all present questions law, which are reviewed de novo).

III. ANALYSIS Evidentiary rulings Michigan courts are controlled by the Michigan Rules Evidence, which this Court adopted 1978. When we adopted the rules of evi- dence, they closely were patterned after the Federal Evidence, Rules of People Kreiner, v 372, 415 378; Mich (1982), NW2d 716 but we did not adopt all the federal rules verbatim. One that we adopted verbatim Appeals, ^[5] People Barrett, issued December unpublished memorandum (Docket No. 261382). opinion of the Court of v Barrett Opinion of the Court issue in utterance rule at the excited was of the rule federal and state versions Both the this case. a statement will that, although hearsay, simply state state- “[a] rule if it is excluded not be made event or condition relating ment excitement the stress of was under the declarant while event or condition.” caused be a star that there Thus, require rules while both do not condition, pre they indisputably tling for the itself of the statement consideration clude condition. establishing the purpose Court, over the Nevertheless, the Burton the invoking BOYLE and without of Justice dissent a proffered concluded that process,6 rules-amendment satisfy the not be used to utterance could excited 1.201, provides: process, in MCR as outlined The amendment (A) amending Proposed the Amendment. Before Notice of jurisdiction, its Michigan Rules or other sets of rules within Court notify secretary Supreme of the State Bar of will the Court proposed of the Michigan the state court administrator submitting amendment, comments. and the manner and date for website, www.supre posted on the Court’s The notice also will be mecourt.state.mi.us. (B) secretary notify the The state bar shall Notice to Bar. proposed appropriate bar committees or sections of state submitting amendment, comments. manner and date for and the Court, proposed amendment directed

Unless otherwise Michigan published in the Bar Journal. shall be (C) notify Judges. court administrator shall Notice to The state Association, Michigan Michigan Judges presidents Association, Michigan Judges Probate and Juve and the District amendment, Judges proposed and the Association of the nile Court submitting date for comments. manner and (D) modify dispense Exceptions. or with The Court there is a requirements rule if it determines that of this notice proposed amendment would or if the for immediate action need justice. delivery significantly affect 480 Mich 125 Opinion of the Court conditions for its own admissibility. Burton, at supra 294. In reaching conclusion, the Burton Court initially focused on the notion that there must be evidence independent of the statement itself to estab lish the existence of a event or condition before the statement could be admitted as an excited utte e.7 ranc We deal with a situation in this case for which

there clearly was independent evidence to corroborate the existence of the startling event or condition.8 There fore, we do not need to reach the question whether the statement standing alone could supply the evidence of the startling event.9 (E) Hearings. Administrative Public The Court will conduct a public hearing pursuant Supreme Court Administrative Order acting proposed 1997-11 before on a requires amendment that notice, action, unless there is a need for immediate in which event the amendment public hearing will be following considered at a adoption. hearing agendas Public posted will be on the Court’s

website. passage The Burton Rogers Court relied on a Saginaw-Bay City Co, 490, 494-495; R 187 Mich (1915), 153 NW 784 Rogers in which the Court held that a decedent’s statement could not be used to establish its spontaneity own yet because the statement had not been admitted. Burton, supra Rogers at 280-281. Because was decided before MRE 104(a) 104(a) adopted, was effectively and MRE superseded Rogers the decision, 104(a) adoption this essentially rejected Court’s MRE of reasoning Rogers. Thus, the Burton Rogers Court’s reliance on years adoption after the of MRE was in error. plethora There was of indicating evidence that Bartel exposed had been startling condition, to a namely, neighbor’s testimony pounded frantically that Bartel neighbors’ door, on the Bar- panicked speaking tel’s operator, state when to the 911 responding hysterical officer’s observation that Bartel was so when he arrived that down, she could house, not sit the hatchet inside the the 12-inch hole in doors, one of the arm, the marks on Bartel’s shoulders and and the cut inside her mouth. 9 Concerning question, advisory the 1972 committee’s notes to FRE part indicated in proof “[wlhether relevant of startling may event be largely made the statement itself is an academic Barrett Opinion of the Court preclusion Burton’s wholesale Instead, focus on we existence to establish the the statement of the use of Court, The Burton event or condition. of the and, fact, ignor- authority citation to any without we rules of evidence of the other significance ing excited utterance here, “[T]he stated: cited have the event from to substantiate not be used must arisen. must be shown to have the utterance which we must ‘bootstrapping,’ guard against order evi- the nonexcited-utterance determine whether underly- proof furnishes independently dence at 295. ing event.” Id. subject of notion that is unsupported

It is this notion case, and it is with this in the instant controversy Burton Court’s because of the precisely that we take issue evi- established rules of recognize and follow failure of determin- guided prevailing practice had dence that years preceding the 11 evidentiary admissibility for ing in the importance Of particular the Burton decision. 1101(b)(1) are MRE of excited utterances context 1101(b)(1) 104(a). provides: MRE (b) inapplicable. [of evidence] The rules other Rules apply respect privileges do not in the those than with following proceedings: situations

(1) Questions Preliminary Fact. The determination of preliminary to of evidence questions of fact by the court under Rule is to be determined when issue 104(a). event or condition the existence of a Clearly, court must decide before fact that a trial question is a 803(2) as an under MRE admit a statement 1101(b)(1) directs the Thus, MRE utterance. excited present circumstantial there is at least question, since in most cases something must have occurred.” nature original.) (Emphasis in 134 480 Mich op

Opinion the Court 104(a) court to comply with MRE when deciding whether a event or condition exists. And MRE 104(a), which, 803(2), like MRE is identical to its federal 104(a), FRE counterpart, provides: Questions admissibility generally. of Preliminary ques- concerning qualification person tions of a to be a witness, privilege, the existence of a or the court, subject evidence shall be determined (b). provisions of making subdivision its determination it is not bound except Rules Evidence those with respect privileges. [Emphasis added.] 1101(b)(1) Had the Burton Court read MRE 104(a) together and applied those rules to its interpretation of MRE itas was constrained to do, the Court would have come to the inescapable conclusion, now, as we do that a trial court consider any evidence regardless of that evidence’s admissibility trial, at long as as the evidence is privileged, determining whether the proffered evidence for admis- sion at trial is admissible. In the context of an excited utterance, then, this means that though even an out- of-court statement may not be admitted at trial without adequate indicia of reliability, i.e., the existence of a condition, the trial court can consider the statement when determining whether the indicia of reliability met, i.e., have been that the startling event or condition has been established.

Although the Burton Court referred to MRE when it stated that “a trial judge ruling on the admis sibility of evidence need not confine his review to admissible only” rule, Burton, under at supra the Court inexplicably declined to allow the consideration of an excited utterance itself on the ground that to do so would allow a “ £ be lifted “by its bootstraps to the level of competent People v Barrett Opinion Court ’ ” 281-282, evidence,” quoting id. at People Vega, (1982), 773, 780; quoting 321 675 Glasser v Mich NW2d States, 60, 75; 457; L 315 US 62 S Ct 86 Ed 680 United (1942), permissible even such a result was though 104(a).10 MRE under problem relying Vega,

The with on which relied on that an inadmissible state- proposition Glasser for way admissibility, its into is bootstrap ment Co, that as R 187 Mich just Rogers Saginaw-Bay City 490; (1915), 153 784 was decided before the Michi- NW Rules Evidence were Glasser was de- gan adopted, of cided before the Federal Rules of Evidence were changed And the of these rules adopted. adoption governing a trial court’s determi- process nations. States, 171, 178;

In Bourjaily v United 483 US 107 S 2775; (1987), Ct 97 L Ed 2d 144 the United States viability the continued Supreme Court considered in the enact- bootstrapping analysis light Glasser’s Evidence and concluded ment of the Federal Rules of to the extent that inconsistent Glasser was with 10 acknowledges “[t]he [is] The dissent court free under MRE 104(a) deciding to consider other inadmissible evidence when whether 803(2),” admit statement under MRE but states that the court However, may not consider the statement itself. Post at 145. 104(a) explain why MRE dissent does not allows the court to consider any evidence, evidence, including inadmissible but not the statement sought Similarly, the to be admitted. dissent contends that “while 104(a) provides by MRE court is not bound the rules of making concerning admissibility, determinations evidence while disregard permit does not the court to the criteria for admis sibility under at inherent the rule evidence consideration.” Post 104(a) provides 145 . This statement makes no sense: MRE that the making admissibility court bound the rules of evidence while is not determinations, by MRE Either the but the court is bound making admissibility court is bound the rules of evidence when ways. cannot have it both determinations or is not. dissent 480 Mich 125 Opinion op the Court 104, FRE which is identical to MRE Glasser was court, held that “a specifically overruled. The Court factual determination under making preliminary 801(d)(2)(E), state- may examine [FRE] sought Bourjaily, ments be admitted.” at 181. supra conclusion, reaching the Court reasoned that FRE on the trial “consider permits its face court to whatsoever, any only by bound the rules of Nevertheless, though Id. at 178. even Bour- privilege.” overruled the same that Burton jaily very proposition on, though relied and even Burton was decided two years after Bourjaily, Burton Court chose to follow precedent guidance overruled rather than follow provided by the United States Court.11 Supreme Glasser, Vega, Bourjaily all involved the admission of a cocon spirator’s against Bourjaily statement a defendant. At the time was 801(d)(2)(E) 801(d)(2)(E) decided, did, provide, FRE did not as MRE conspiracy independent proof. the must be established with 801(d)(2)(E) years Bourjaily decision, after the FRE was amended provide “[t]he of the contents statement shall be considered but are conspiracy not alone sufficient to establish ... the existence of the participation According portion therein ....” to the relevant of the notes, advisory committee’s 801(d)(2) respond [FRE] has been amended in order to to three First, by [Bourjaily].

issues raised the amendment codifies the holding Bourjaily by stating expressly in that a court shall coconspirator’s consider the a contents of in determin- ing conspiracy participation “the existence of the and the therein party against of the declarant and the whom the statement is 104(a) According Bourjaily, requires offered.” [FRE] these preliminary questions by preponderance to be established a of the evidence. Second, the amendment an resolves issue on which the Court provides has reserved It decision. the contents of the conspiracy declarant’s statement alone do not suffice to establish participated. in which the declarant and the defendant The court surrounding must consider in addition circumstances statement, identity speaker, such as the context which made, corroborating the statement was or evidence the contents of People v Barrett Opinion op the Court then, understood MRE Properly permits evidence, trial court to consider any implicates unless it a privilege, making preliminary when determinations evidence, concerning admissibility proffered applied when accordance with MRE 104(a), premise does not of an excited proponent’s ability utterance on the to establish the existence of a event or condition without considering case, the utterance itself. In the instant neighbor Bartel’s statement to her that defendant was chasing ax; her with an her statements to the 911 that defendant operator down, had kicked the door her, her, beaten tried to strangle and threatened her hatchet; with a and her similar statements to the officer, responding police as corroborated by neigh- bor’s observation hysterical that Bartel was and crying, the transcript of the 911 call in operator which the advised Bartel to calm gain down and control of her breathing, the first responding officer’s observation making preliminary

the statement in its determination as to each question. This existing practice. amendment is in accordance with Every appeals requires court of that has resolved this issue some evidence in addition to the [Citations contents of the statement. omitted.] The dissent prevailing “[t]he claims that amendment... indicated a policy against allowing type bootstrapping majority’s that the 803(2).” approach permit will in the context of MRE at Post 148. This is clearly incorrect, 801(d)(2) given that the amended version of FRE expressly that “[t]he states contents of the statement shall be consid- suggests permitting ered ....” dissent also that we are a statement only proof as the serve of a event or condition. Post at 146. In so, doing provides protection the dissent asserts that “Burton a modest against admitting unsupported hearsay statements when there is no independent establishing underlying other that the event oc- (emphasis original). explained p curred.” Post at 150 in the As on 132 of opinion, given plethora case, evidence in this “we question standing do not need to reach the whether the statement alone supply could the evidence of the event.” 480 Mich

Opinion of the Court that she could not sit agitated Bartel was so the hatchet in the crying, that she had been down and doors, the marks house, 12-inch hole one of the arm, the cut on the inside of on her shoulders and mouth, that hers excited utter- support her all were or condition. ances to a event pertaining admissible Thus, the out-of-court statements were to the rule exception under the excited utterance against hearsay.

IV STARE DECISIS decision, assessing prior to overrule a whether the earlier decision was we must consider whether the deci- incorrectly overruling decided and whether work undue because of reli- hardship sion would an expectations ance interests or that have arisen. Rob- Detroit, 439, 465-466; Mich inson v 613 NW2d 307 (2000). discussed, For the reasons we previously to incorrectly conclude that Burton was decided. “As interest, the reliance the Court must ask whether the embedded, so ac- previous decision has become so fundamental, everyone’s so cepted, expectations change produce just readjust- it would ments, at practical but real-world dislocations.” Id. 466. The decision in Burton has not become so overruling any fundamental will interfere with legitimate expectation “[T]o reliance or interests. knowledge have reliance the must be of the sort that a person entity attempt causes or to conform his triggering conduct to a certain norm before the Burton can- event.” Id. at 467. The Court’s decision to alter their people not be said to have caused Therefore, Burton any way. overruling conduct will “practical create no real-world dislocations.” v Barrett 139 JJ. Opinions by Cavanagh, Weaver

V CONCLUSION The plain language 803(2), of MRE the excited utter- ance exception hearsay rule, to the does require not that a startling event or condition be solely established with evidence independent of an out-of-court statement before the out-of-court Rather, be admitted. MRE 1101(b)(1) 104(a) and MRE instruct that when a trial court makes a determination under MRE about the existence of a startling condition, the court may consider the out-of-court statement itself in concluding whether the startling event or condition has been estab- 1101(b)(1) lished. Because Burton failed to consider MRE and MRE when interpreting reached the wrong result and must be overruled with respect to this issue. Because the lower courts this case Burton, relied on we reverse the judgment of the Court of Appeals and the order of court, the trial and we remand this case to the trial court for further proceedings consis- tent with this opinion.

Reversed and remanded to the trial court. Corrigan, Young, Markman, JJ., concurred with Taylor, C.J.

Weaver, J. I (concurring). concur in the result of the majority opinion for the reasons stated in part V of the opinion and for the reasons stated in Justice BOYLE’s dissent in People v 433 Mich 305; 445 (1989). NW2d 133

Cavanagh, J. I (dissenting). respectfully I dissent. would not overrule People Burton, 433 268; Mich 445 (1989), NW2d 133 because it prudent is a decision that defends the integrity of the evidence we admit in our courts. 125 480 Mich

Dissenting Opinion Cavanagh, that should measure grave is Overruling precedent this Court Before consideration. only after serious occur decision, it should be deliberately made overrules incorrectly de- the case was only convinced injury cause less overruling it will cided, also that but Marie, Mich McEvoy v Sault Ste following than it. (1904). deciding whether 172, 178; 98 NW must exam- this Court precedent, established overrule (1) decided, incorrectly earlier case was ine whether (3) (2) workability, practical case defies the earlier if the hardship an undue interests would work reliance (4) overruled, changes the law earlier case were decision. Robinson the earlier longer justify facts no or (2000). 464-465; Detroit, 613 NW2d 307 462 Mich v factors, I am convinced that Burton these light In I that the In believe particular, be overruled. should not against overruling weighs strongly factor first Robinson event or condition rule that a Burton and its proof before by independent must be established may or condition emanating from the event exception the excited utterance admitted under be hearsay rule. codified a number of The Rules of Evidence Federal hearsay recognized rule that had been to the exceptions FRE notes to advisory The committee’s at common law. synthesis rule as a of common-law 803 described the modern devel- where hearsay exceptions, “with revision make that are believed to opments and conditions 1978, Michigan adopted the appropriate.” course rule, to the exception excited utterance FRE At that it was identical with stating Evidence, Michigan Rules of adopted the time we 803(2) 803(2) required indepen- and FRE whether MRE an unsettled event was dent proof to FRE advisory committee’s notes question. “[wjhether 803(2) proof of to resolve the issue declined v Barrett Dissenting Opinion Cavanagh, J. may event be made by the statement itself,” dismissing “largely as an academic ques- ____” tion Burton,

Accordingly, when this issue arose in Court was an addressing unsettled question of law that was a matter of impression first in Michigan.1 We stated that “the specific question this case—whether [a proffered excited utterance] establish the underly- ing startling event —has not been considered Michi- gan supra at 280. The Burton courts.. . .” Court properly sought to effectuate the intent of the formulating body by applying a reasonable construction that promoted the purpose of the provision. In discern- ing intent of the formulating body, we appropriately interpreted MRE consistently with Michigan cases that had applied its common-law predecessor.

In particular, Burton consulted Rogers Saginaw- Co,R Bay City 490; 187 Mich (1915), 153 NW 784 a case predated the Michigan Rules of Evidence but addressed the spontaneous common-law exclamation exception to hearsay rule, which analogous was Statements were admissible under the spontaneous exclamation exception if they met three conditions:

(1) that there startling occasion, is a startling enough to produce excitement, nervous and render the utterance 1 impression Because the Michigan issue was one of first in and the advisory committee’s notes to the Federal Rules of Evidence indicated conclusions, that courts had come to different this Court was well within authority 803(2) adopt position its requires that MRE independent proof underlying startling of the disagree event or condition. I with the majority’s required assertion that this Court was to invoke the amend process 803(2) holding ment rather than required Burton that MRE independent proof independent- event or condition. The proof requirement language is consistent with the of MRE and departure previous Michigan was not a from law. Mich 125 480 Opinion Dissenting Cavanagh, (2) must unreflecting; that the statement spontaneous and time to contrive and there has been made before have been (3) relate to the must the statement misrepresent; and [Rogers, preceding it. the occurrence circumstances Evidence, seg.][2] § Wigmore, 1750 et citing 3 supra at in which the action wrongful-death involved Rogers opera- negligent injured allegedly decedent was only 491. The at Rogers, supra car. of a street tion the decedent incident was the apparent witness the admission of hinged on himself, so the case his The son witnessed to his son. decedent’s statements face, his so he asked a drawn home with limping father prof- The son Id. at 492. was the matter. father what “ him that ‘while decedent told testimony that the fered one was from the car foot alighting act of he was nearly on and the other foot was running board on the him to the and threw and the car started ground, ” The issue Id. at 492-493. right hip.’ on his pavement fit decedent’s statement was whether presented the admis- permitted hearsay exception within Id. at 493. exclamations. spontaneous sion failed to proffered held that the This Court must the statement condition —that meet the second to contrive has been time made before there have been asked, can the second “[H]ow misrepresent. Rogers evi- direct and be met without condition refer- startling occasion with time of the dence of the virtually identical to the criteria for admissibil are These conditions are derived from the text of ity under MRE which of statements exception: exception to the the excited utterance To come within (1)

rule, it must arise out of meet three criteria: a statement must (2) occasion; has been time be made before there it must (3) misrepresent; it must relate to the to contrive and Gee, [People 406 Mich occasion. circumstances of the omitted).] (1979) (citations 279, 282; NW2d 304 People v Barrett Dissenting Opinion by Cavanagh, the Id. at 494. In making ence to the statement?” words, excla- spontaneous other the foundation evidence of the exception required independent mation event to temporal relationship statement’s to the show that the statement arose from the event. spontaneously rejecting the notion that a statement alone could for the of this spontaneity purpose establish its own hearsay exception, Rogers pro- illustrates our historical hibition of the admission of evidence and permit practice relying disinclination to the circular the content of the statement solely on establish its admissibility. Notably, for Rogers actually foundation required that the event and the independent proof closely statement were so related in time as to establish spontaneous statement was reaction to Rogers recognized independent-proof event. necessary was to meet the foundational requirement elements of the The foundational elements of exception. hearsay exception ensure that admission of state- ment would fulfill the fundamental rationale of the exception. Burton determined that

Using reasoning, same the first and third conditions of the excited utterance a statement of a exception arose out —that event or condition and related to the circumstances of require proof independent occasion — in Rogers, the content of the statement itself. Just as independent-proof requirement Burton ensures exception that the foundational elements of the are met the un- admission of furthers derlying exception. rationale of the

The foundational elements of the excited utterance embody underlying its rationale —the reason exception why, although hearsay, it is a statement is deemed enough widely accepted for admission. It is trustworthy 480 Mich

Dissenting by Opinion Cavanagh, J. for excited underlying exception that the “premise is that a under the influence of person utterances startling event precipitated by excitement an external capacity not have the reflective essential for fabri- will Thus, made under circum- any cation. utterance such trustworthy.” be 5 Wein- spontaneous stances will (2d stein, ed), 803.04[1], § pp Federal Evidence 803-18.1 on exception to 803-19. The excited utterance is based are suffi- principle only statements ciently they reliable are reactions to spontaneous when But the startling exception event or condition. does encompass any arising any startling statement from Only “relating startling occasion. a statement to a event or condition” is exception. admissible under the MRE 803(2) added). (emphasis “The statement need not explain elucidate or the occurrence in order to as qualify must, however, an excited utterance. It relate to the Weinstein, 803.04[5], § p event some manner.” 5 addition, made, 803-29. at the time the statement is the declarant must be “under the stress of excitement caused the event or condition.” MRE (empha- added). The exception, therefore, sis excited utterance specifically requires that the statement related to the event startling or condition and that the same event or condition to which the statement related caused the declarant’s excitement. These two foundational ele- ments are precisely why independent-proof Burton’s is requirement proponent invoked. The of the evidence must show that the statement satisfies the foundational elements of the If exception. excited utterance there is no evidence of the nature of the condition, event or it is impossible adequately prove starting related to the event or condition or to establish that the occasion caused the declarant’s excitement. v Barrett Dissenting Opinion Cavanagh, that Burton’s independent-proof majority

The claims 104(a). I is inconsistent with MRE dis- requirement requirement ap- can be agree. independent-proof along independently with MRE because plied establishing the existence of the elements condition is fundamental in Burton This Court determined integral is to the foun- independent-proof requirement thus, the relevant exception; dational elements of factual for of determin- preliminary question purposes out of ing admissibility is whether a statement arose for which there is and related to a occasion such, independent evidence. As there is no inconsis- tency requirement between the independent-proof 104(a) gives the latitude that MRE a trial court to in resolving preliminary consider inadmissible evidence the The questions concerning admissibility of evidence. 104(a) court would still be free under MRE to consider deciding other inadmissible evidence when whether to 803(2); admit a statement under MRE the content of the statement itself would be excluded from the only court’s determination of whether proof sum, event or condition exists. In while 104(a) provides by MRE that the court is not bound making rules of evidence while determinations concern- 104(a) ing admissibility, permit MRE does not the court disregard admissibility to the criteria for inherent the rule of evidence under consideration. 104(a)

The majority’s approach elevates MRE over by rules of MRE concluding other 104(a) authority unfettered to consider grants the court evidence, evidence, any privileged aside from while of the rule ignoring requirements foundational under consideration can direct what evidence the court in making concerning consider determinations admissibility. majority trying The accuses me of 480 Mich

Dissenting by Opinion Cavanagh, that the court is not ways” by asserting “have it both making the rules of evidence while admissi- by bound 803(2). bility determinations, but is bound MRE majority recognize Ante at 135 n 10. But the fails to 104(a) duty that MRE entails is deter- the fundamental under the rules evidence. MRE mining admissibility 104(a) inadmissible evi- permits court consider making concerning dence in determinations admissibil- that, ity, ensuring but it does not excuse the court from admissibility for are met. In ultimately, conditions case, the content of the statement is not excluded from consideration it is because inadmissible evidence; under the rules of it is excluded because independent proof event or condition is fundamentally required admissibility to establish under MRE majority suggestion opin- dismisses that its

ion will a statement permit bootstrap itself into the statement allowing alone to estab- lish a event or condition. Though declining to reach the question, majority cannot conceal that the 104(a) natural extension of its construction of MRE 803(2) MRE would allow such ma- bootstrapping. The jority suggests that if this Court interpreted had and MRE properly would States, Bourjaily 171; have followed v United 483 US 2775; (1987), L 107 S Ct 97 Ed 2d which held that the of adoption abrogated the Federal Rules of Evidence prohibition against the in the bootstrapping context of by admissions Ante at coconspirators. 135-136. Given majority that the endorses opinion applying Bourjaily majority is notable that both the and Bourjaily shy away addressing disturbing from consequence rulings. majority of their The that states “we do not need to reach the question whether standing alone could supply v Barrett Dissenting Opinion by Cavanagh, Similarly, Ante at 132. in Bourjaily, event.” the United States Court concluded that a Supreme alleged coconspirator’s court consider an state- in determining ments whether the statements are ad- 801(d)(2)(E). missible as a admission under FRE party However, at de- Bourjaily, supra 178-179. Court alleged coconspirator’s clined to resolve whether an could, themselves, satisfy statements the propo- burden, nent’s need not decide in this stating “[w]e solely case whether the courts below could have relied upon [the declarant’s] statements to determine that a had been established conspiracy preponder- Thus, ance of the evidence.” Id. at 181. the Court left open independent proof the issue whether some conspiracy required. was

But it is from their reaction to apparent Bourjaily Conference, Court, Judicial United States Congress ruling understood that would Bourjaily’s 801(d)(2)(E). under FRE logically permit bootstrapping Significantly, response Bourjaily, these bodies an amendment of FRE proposed approved 801(d)(2)(E).3 The rule provide was amended to that the “contents of the statement shall be considered but are not alone to establish .. . the existence of the sufficient conspiracy participation and the therein party against declarant and the whom the statement is added.) (Emphasis advisory offered .. ..” The commit- tee’s notes observed that the amendment accorded with because court existing practice, every appeals required had addressed the issue some evidence in addition to the contents of the statement. The amend- 801(d)(2)(E) ment of FRE response Bourjaily advisory committee’s notes to the 1997 amendment of FRE 801(d)(2) 801(d)(2)(E) in order to stated: “Rule has been amended States, respond by Bourjaily to three issues raised v. United 483 U.S. (1987).” 480 Mich 125 Dissenting Opinion by Cavanagh, J.

reflected recognition Bourjaily’s reasoning —on majority’s opinion which the the door opened to relies— otherwise, it bootstrapping; would not have been neces- sary add explicit protection against an bootstrapping 801(d)(2). FRE The amendment also indicated prevail- ing policy against allowing the of type bootstrapping that the majority’s approach will in the context of MRE permit

Moreover, the amendment makes clear that FRE 104(a) permit does not the court to overlook the foun- requirements dational of the particular rule of evidence under words, consideration. In other if the foundational elements of a rule of prohibit evidence the court from 104(a) on a relying particular piece evidence, FRE does not override the rule and grant the court authority rely prohibited on the evidence. Accordingly, there is no contradiction between MRE and Burton’s rule independent-proof because MRE fundamen- tally requires independent proof event or condition.

The majority’s rule will undoubtedly permit admission of statements under this exception that do and, not meet its criteria consequently, do carry inherent trustworthiness sought by the exception. independent Without

condition, there will be inadequate proof that the state- ment related to event or condition and that the declarant’s excitement was caused by the same event or condition referred to the statement.

Burton illustrates the peril operating without event, proof of the thereby neglecting Burton, these criteria. In a police officer encountered a woman “running down the wearing street a twisted shoes, dress and no looking over her shoulder as if someone might be her.” pursuing at 272. supra People v Barrett Dissenting Opinion Cavanagh, car, squad and let her into his where stopped The officer sexually she had been assaulted reported she gone acquain- when she had with an defendant Burton house. Id. at 272-273. She stated that tance to Burton’s the bath- by asking to use escaped permission she had her dress on room, using opportunity pull then the to trial run of the house. Id. at 274. woman’s and out account of entirely an different testimony provided an accompanied She testified that she had events. house, expected to Burton’s where she acquaintance disrobed, for sex with Burton. After she paid having be money from but he refused and requested she They taken him. having money got accused her of from argument, prompting slap into a heated Burton to her. cried, out, got angry, expecting She and ran Burton to try come after her and to talk to her. Id. She testified police raped that she decided to tell the that Burton had her in back at him for her. get having slapped order trial, objected Id. at 275. At Burton to the admission of the original police woman’s statements officer exception. under the excited utterance We held that the independent statements were inadmissible without startling event —a sexual proof purported place. assault —took Id. at 294. We found that demeanor, physi- evidence —the woman’s independent condition, appearance cal and at the time of the state- ment; attempt Burton’s to remove the woman’s shoes house; discovery of the wom- panties and from his house; testimony and the an’s brassiere eyewitness only other established at most a stressful — sexual overtones. Id. at 297-298. event with an excellent illustration of the ne- provides Burton the exist- cessity proving independent with presented ence of a event or condition. Burton according to two differ- potentially startling two events a sexual assault or an act of ent versions of facts: either 480 Mich 125 Dissenting Opinion by Cavanagh, turned assault. Either event could prostitution explain demeanor, disarray, presence declarant’s and at the defen- home, only supported dant’s but one version of events content of the declarant’s statements. The concern ad- by might wholly dressed Burton was not that a declarant invent a feign agitation; event it was that a had legitimately agitated by declarant who been an event reflecting could make a statement an different entirely event. underlying Without evidence of the event, the statement could not adequately prove two of the conditions for under the excited utter- exception: ance that the statement related to the event and that the declarant’s excitement was caused very event. The agitation declarant’s could have been startling event, caused an actual if but the declarant’s event, statement reflected a different the state- did event, ment not “relate to” the actual startling thus failed a necessary admissibility. condition for Fur- ther, case, in such a the declarant’s excitement would not have been by caused the same event that was reflected in statement, the which is a admissibility. also condition for rarely It is that kind disputed some event or condition has occurred cases like Burton and the instant case. Independent evidence of some startling usually condition will be apparent from the declarant’s demeanor. But the criteria for the excited utterance demand exception just any more than they require the statement had a certain occasion— relationship with the particular event or condition that caused given the excitement. And that the hearsay state- ment is presumptively unreliable before it the meets criteria, it cannot alone establish the other criteria.

In practice, Burton a provides protection modest against admitting hearsay unsupported statements when there is no other independent evidence establish- ing underlying the event occurred. Burton bars People v Barrett Dissenting Opinion Cavanagh, cases, there only in the most extreme when admission underlying evidence of is insufficient cases, In or condition. such these startling event be considered might particu- statements proffered evidence, they as larly perhaps comprise valuable act; but, reason, a criminal for the same only proof of if they evidence are they dangerous are the most their foundation for admissi- supply allowed to own against the admission of bility. guards As a rule that cases, in rare Burton should untrustworthy not be overruled. sum, incorrectly not decided. Burton’s Burton was compelled by is

independent-proof requirement of MRE and the rationale plain language our exception. excited utterance It was consistent with analogous spontaneous treatment of the common-law Moreover, exclamation to the rule. exception does not contradict independent-proof requirement 104(a); it a court to abide simply requires of MRE foundational elements overruled, given I believe that Burton should not be factor: Burton was strength first Robinson not decided. To the Robinson incorrectly complete does analysis, independent-proof requirement Burton’s trial defy workability; simply requires practical evidentiary finding. Reliance specific court to make here, involved appear significantly interests do not be overruling precedent as established except inasmuch I also disrupts certainty argue of the law. would that would change there has been no the law or facts It to me a squandering vitiate Burton’s rule. seems a decision rearguing resources to be the intricacies of excludes the years ago, made a debate that nearly all the members of the Court original parties nearly at the time. 480 Mich 125 Dissenting Opinion by Cavanagh, J. presented challenge

This case a direct on Burton prosecution facts similar to those in that case. The did appeal ground not evidentiary ruling on the the district court’s discretion,

was an abuse of but asked this Court to overrule Burton. Because I would not judgment overrule I affirm would Appeals. Court of

KELLY, J., CAVANAGH, concurred with

Case Details

Case Name: People v. Barrett

Court Name: Michigan Supreme Court

Date Published: Apr 14, 2008

Citation: 747 N.W.2d 797

Docket Number: Docket 133128

Court Abbreviation: Mich.