PEOPLE v GURSKY
Docket No. 137251
Supreme Court of Michigan
Decided July 22, 2010.
486 MICH 596
Argued March 9, 2010 (Calendar No. 3).
In an opinion by Justice YOUNG, joined by Justices WEAVER, CORRIGAN, MARKMAN, and HATHAWAY, the Supreme Court held:
The complainant‘s statements were not spontaneous and therefore should not have been admitted under the “tender years” hearsay exception, MRE 803A. However, because the statements were not used substantively to prove guilt, the statements were cumulative, and other evidence corroborated defendant‘s guilt, the error was harmless.
- MRE 803A provides an exception to the rule against admitting hearsay for statements of children regarding sexual assault under certain circumstances if the statements were spontaneous.
Although the Michigan Rules of Evidence do not define “spontaneous,” the dictionary definition of that term and caselaw from Michigan and other jurisdictions indicate that spontaneous statements fall into three general categories: those that result from pure impulse; those that result from a prompt, plan, or questioning but are atypical, unexpected, or do not logically follow from the prompt; and those that result from open-ended questions that include information outside the scope of those questions. For a statement to be considered spontaneous under MRE 803A, the complainant must have initiated the subject of sexual abuse, and any questioning from adults in relation to the statement must have been nonleading or open-ended. Making this determination requires a court to review the totality of the circumstances surrounding the statement. Before the statement may be admitted, the court must also determine that it meets the other requirements of MRE 803A, including that the statement was the creation of the child. The complainant‘s statements in this case, under the totality of the circumstances, were not spontaneous because they were prompted by an adult‘s questions that specifically concerned sexual abuse, and the trial court abused its discretion by allowing Morgan to testify about those statements. - Admission of the testimony regarding the complainant‘s statements, while erroneous, was not sufficiently prejudicial to warrant reversal of defendant‘s convictions. First, the prosecution offered Morgan‘s testimony to corroborate the complainant‘s testimony and to establish that the complainant‘s account of events had not changed over time, not as substantive proof of defendant‘s guilt. Second, Morgan‘s testimony was cumulative to that of the complainant, which indicates that the error was not highly prejudicial, particularly given the corroborating evidence from the complainant‘s mother and the examining nurse. Third, Morgan‘s testimony included accounts of how the complainant reacted emotionally to the conversation, which was not hearsay but nonassertive conduct. Under these circumstances, defendant cannot meet his burden of showing that a different outcome would probably have resulted absent Morgan‘s testimony.
Court of Appeals decision vacated; defendant‘s conviction affirmed on other grounds.
Justice CAVANAGH, joined by Chief Justice KELLY, concurring in part and dissenting in part, agreed that the complainant‘s statements to Morgan were not spontaneous under MRE 803A, but dissented from the majority‘s conclusion that allowing Morgan to
EVIDENCE — HEARSAY — TENDER YEARS EXCEPTION — SPONTANEOUS STATEMENTS.
For the statement of a child to be considered spontaneous under the tender-years exception to the rule against hearsay in sexual abuse cases, the child must have broached the subject of sexual abuse, any questioning or prompts from adults must have been nonleading and open-ended, and the statement must have been the child‘s creation (MRE 803A).
Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, Eric J. Smith, Prosecuting Attorney, Robert Berlin, Chief Appellate Lawyer, and Joshua D. Abbott, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Peter Jon Van Hoek) for defendant.
Amicus Curiae:
Jeffrey L. Sauter and William M. Worden for the Prosecuting Attorneys Association of Michigan.
YOUNG, J. Defendant was charged with and convicted of four counts of first-degree criminal sexual conduct for sexually abusing his girlfriend‘s child. At trial, the child‘s hearsay statements to a third party were admitted over defendant‘s objection. Those statements, which were made when the child first revealed the allegations of abuse, contained all the details of the alleged assaults and were used at trial to corroborate the child‘s testimony. Defendant appealed, arguing that the statements should not have been admitted because they were not spontaneously given as required by Michigan Rule of Evidence 803A.
We agree that the child‘s statements were not “spontaneous” and therefore hold that the statements should not have been admitted under the limited “tender
Accordingly, we affirm the judgment of the Court of Appeals, but do so on alternative grounds.
I. FACTS AND PROCEDURAL HISTORY
Defendant Jason Gursky was tried on and convicted of four counts of criminal sexual conduct in the first degree (CSC-I) for sexual penetration of a person under the age of 13.1 The victim in this case, GA, was the daughter of Gursky‘s girlfriend, Lori.2
The charges against Gursky arose out of two alleged incidents of sexual contact with GA: one in September 2005, when GA was six, and the second around April 30, 2006, when GA was seven. On May 4, 2006, during a visit to the home of Stacy Morgan, a close friend of Lori, GA first alleged that Gursky had improperly touched her.
The focus of this appeal is the proper characterization of GA‘s statements when she first discussed the sexual abuse. Those statements are thus provided here in detail, as relayed by Morgan during her testimony at Gursky‘s trial.
Morgan noted that GA was “kind of hesitant” so she hugged GA and said to her, “Miss Stacy is your safe
The following day Lori went to the police and prepared a written statement describing GA‘s allegations. A detective subsequently asked Gursky to come to the police station, where he questioned Gursky for approximately two hours. Gursky answered all the detective‘s questions, denied the accusations, and never requested a lawyer. During these interviews, the detective noted that Gursky‘s fingernails were “jagged.”
That same day GA was examined by a nurse, which is
Defendant was charged with four counts of CSC-I. Pursuant to MRE 803A, the prosecution provided notice that it would call Stacy Morgan to testify regarding what GA told her when GA first relayed the details of sexual abuse. MRE 803A provides a hearsay exception to allow the admission of statements by victims of child abuse under the age of 10 that would otherwise be excluded.6
Before trial, defendant objected to the admission of
The trial commenced, and GA testified that she had awakened on two separate occasions when defendant had touched her “private” with “his finger” and “tongue.”7 She also testified that she first told this to
On appeal, the Court of Appeals affirmed the admission of Morgan‘s testimony regarding GA‘s statements.9 The panel concluded that although the trial court had abused its discretion by failing to address defendant‘s objection that GA‘s out-of-court statements were not spontaneously made, reversal was not required because
The victim responded emotionally to the first mention of the subject matter, crying and sucking her thumb. She willingly gave details that exceeded the scope of Morgan‘s inquiry. She pointed to her vaginal area and reported that the touching had occurred “down there,” volunteered that the touching was with a finger and a tongue, denied that defendant touched her with his penis, and volunteered that the conduct had occurred over a greater span of time than suspected by Morgan. Taken as a whole, the victim‘s statements were primarily spontaneous, despite being prompted by Morgan‘s questions. Thus, the testimony would have been admissible had the trial court considered this objection and, therefore, the court‘s erroneous legal conclusion had no effect on the outcome of the trial.11
On the basis of this reasoning and finding the statements to be “primarily spontaneous,”12 the Court affirmed defendant‘s conviction.
Defendant sought leave to appeal in this Court. We granted his application for leave to appeal and directed the parties to address specifically
(1) whether the statements made by the complainant to Stacy Morgan on or about May 4, 2006, were “shown to have been spontaneous and without indication of manufacture” within the meaning of MRE 803A(2), and (2) whether it was more probable than not that any error in this regard was outcome determinative.13
The decision whether to admit evidence is within the trial court‘s discretion, which will be reversed only where there is an abuse of discretion.14 However, decisions regarding the admission of evidence frequently involve preliminary questions of law, such as whether a rule of evidence or statute precludes admitting of the evidence. This Court reviews questions of law de novo.15 Accordingly, “when such preliminary questions of law are at issue, it must be borne in mind that it is an abuse of discretion to admit evidence that is inadmissible as a matter of law.”16
III. ANALYSIS
A. THE “SPONTANEITY” REQUIREMENT OF MRE 803A
1. PRINCIPLES OF LAW
Hearsay is “a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”17 Hearsay is generally prohibited and may only be admitted at trial if provided for in an exception to the hearsay rule.18 MRE 803A provides just such an exception for a child‘s statement regarding sexual assault in certain circumstances. The rule provides:
A statement describing an incident that included a sexual act performed with or on the declarant by the
defendant or an accomplice is admissible to the extent that it corroborates testimony given by the declarant during the same proceeding, provided:
(1) the declarant was under the age of ten when the statement was made;
(2) the statement is shown to have been spontaneous and without indication of manufacture;
(3) either the declarant made the statement immediately after the incident or any delay is excusable as having been caused by fear or other equally effective circumstance; and
(4) the statement is introduced through the testimony of someone other than the declarant.
If the declarant made more than one corroborative statement about the incident, only the first is admissible under this rule.
A statement may not be admitted under this rule unless the proponent of the statement makes known to the adverse party the intent to offer the statement, and the particulars of the statement, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet the statement.19
MRE 803A, which codified the common-law “tender years exception,” is also an exception to the prohibition against the use of hearsay testimony to bolster the credibility of a witness.20 Relevant to this appeal, MRE
The Michigan Rules of Evidence do not define “spontaneous.” As when construing statutes, in the absence of a specific definition of a common term used in an evidentiary rule, it is appropriate to look to the dictionary definition to discern the term‘s ordinary and generally accepted meaning.21 “Spontaneous” is defined as: “(1) coming or resulting from natural impulse or tendency; without effort or premeditation; natural and unconstrained; unplanned; (2) of a person: giving to acting on sudden impulse.”22
The standards for spontaneity have been well litigated. The leading case on this issue in Michigan is People v Dunham, a decision of the Court of Appeals holding that statements made in response to customary, open-ended questions may be considered spontaneous.23 In Dunham, a child was asked questions by an adult mediator during the child‘s parents’ divorce. The questions were generally innocuous and customarily asked of all children participating in divorce mediation, yet the child in Dunham responded with allegations of
Other states’ courts and the federal courts have addressed the issue of spontaneity as well; their decisions may be classified into separate groups for our
Statements that are made as a result of prompt, plan, or questioning by a third party, yet are in some manner atypical, unexpected, or do not logically follow from the prompt are also widely considered spontaneous. This type of “non sequitur” statement is generally considered spontaneous because it shows that the declarant
A third category that poses closer questions involves cases where statements are given as a result of open-ended and nonleading questions that include answers or information outside the scope of the questions themselves. Often, this type of unplanned yet responsive statement may be considered “spontaneous” because the information that results is based on knowledge independent of that provided in the question. For example, in State v Shafer, the Washington Supreme Court held that where the child “without prompting” told her mother about encounters with the defendant and the child‘s mother then inquired further, while the child‘s “statements in response to her mother‘s questioning were not entirely spontaneous, they were not the result of leading questions or a structured interro-
Statements falling within this last category, however, are also the type that are most likely to be nonspontaneous, and thus deserve extra scrutiny by trial courts before they may be admitted. When examining statements that have some of the same characteristics as GA‘s statements here, many courts have found a lack of spontaneity. The analysis they employed is informative for our purposes here. For example, the New Jersey Supreme Court‘s decision in State v DG provides a useful comparison.34 There, the court concluded that
2. APPLICATION
Having examined these principles of hearsay and the requirement of “spontaneity” generally, we must determine the parameters of this requirement in Michigan for the purposes of MRE 803A.
We hold that MRE 803A generally requires the declarant-victim to initiate the subject of sexual abuse. The question of spontaneity, at its essence, asks whether the statement is the creation of the child or another. There is certainly no doubt that the types of
This case, on the other hand, requires that we address the closer question: whether prompts from adults render a child‘s responsive statement inadmissible. This type of statement most often arises in the context of questioning by an adult. We hold that the mere fact that questioning occurred is not incompatible with a ruling that the child produced a spontaneous statement. However, for such statements to be admissible, the child must broach the subject of sexual abuse, and any questioning or prompts from adults must be nonleading or open-ended in order for the statement to be considered the creation of the child.
To be clear, we do not hold that any questioning by an adult automatically renders a statement “nonspontaneous” and thus inadmissible under MRE 803A. Open-ended, nonleading questions that do not specifically suggest sexual abuse do not pose a problem with eliciting potentially false claims of sexual abuse.36 But where
This approach requires that trial courts review the totality of the circumstances surrounding the statement in order to determine the issue of spontaneity. Even though courts should look at the surrounding circumstances and larger context in order to understand whether the statement was spontaneously made, we note that this review is not solely determinative of the question of admissibility. As MRE 803A requires, the statement must be “shown to have been spontaneous and without indication of manufacture.”37 The language of MRE 803A(2) clearly demonstrates that spontaneity is an independent requirement of admissibility rather than one factor that weighs in favor of reliability or admissibility.38 Thus, even if, considering the totality
Turning to the facts of this case, we do not conclude that GA‘s statements were spontaneously given. Morgan directed GA to sit on Lori‘s lap, whereupon Morgan, Lori, or both questioned GA about sexual abuse. Morgan testified that she specifically broached the subject of sexual abuse on her initiative, questioning and otherwise probing GA for details. According to her trial testimony, Morgan asked GA numerous questions, including whether “anyone had been touching her,” “Has anyone ever touched your private places?” “Where have you been touched? Who touched you?” and, after identifying defendant, “How did he touch you? What did he touch you with?” There is simply no indication in this case that GA would have made the statements she made or even broached the subject of sexual abuse if not otherwise prompted and, indeed, directly questioned by Morgan. Moreover, the testimony indicates that GA hesitated for “quite a while” before making the first statement; this tends to suggest that GA did not come forth with her statements on her own initiative, and thus that the statements were not necessarily products of her creation. More troubling, Morgan specifically
Although there were concededly spontaneous elements in GA‘s statements, this is insufficient to establish the general kind of spontaneity the rule requires. The Court of Appeals below concluded that “on balance” the statements were “primarily spontaneous” by focusing not on who broached the subject of sexual abuse, but instead on the nature of some of the questions that were open-ended, the degree of voluntariness GA displayed in answering questions and providing details not necessarily evident by the nature of the questions, and the physical reactions that GA exhibited as a result of the questioning. In this sense, the statements had spontaneous elements inasmuch as the answers were “given without premeditation,” some answers seemed “unplanned,” and some of her responses were “natural” and impulsive—and this is true even if GA‘s statements were given in response to direct questions. Nevertheless, when considering the questions in their entirety, we cannot conclude that GA‘s responses were, on the whole, spontaneous. As noted, because spontaneity is an independent requirement under
In deciding that GA‘s statements are inadmissible, we must be clear that we do not expect a parent or other concerned adult not trained in the delicate nature of questioning a child regarding sexual abuse to recognize the danger of influencing a child‘s responses with the
In sum, we hold that a statement prompted by an adult‘s question specifically concerning sexual abuse is not spontaneous. This is true even if other indicia of reliability exist, such as an emotional response or details provided by the child that exceed the scope of the adult‘s inquiry. The Court of Appeals thereby erred by focusing on these other indicia of reliability rather than who broached the subject of sexual abuse, the specific questions asked by the adult during the conversation, and how some of the questioning suggested or implied answers. Viewing GA‘s statements in light of the totality of the circumstances in this case, these critical factors render her statements nonspontaneous. In future cases, though, we emphasize that a statement made in response to an adult‘s question or comment that does not concern abuse, or where the child brings up the subject of abuse, may be spontaneous, and for the purposes of
Having determined that the trial court in this case abused its discretion by impermissibly allowing Stacy Morgan to testify regarding GA‘s out-of-court statements concerning alleged sexual abuse, we must next determine whether this error was sufficiently prejudicial to warrant reversal of defendant‘s convictions. We hold that it was not.
Defendant‘s claim of error in this case involves preserved, non-constitutional error. The standard we must apply here is governed by statute.
No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.40
In making this determination for preserved, non-constitutional error, this Court asks whether, absent the error, it is “more probable than not” that a different outcome would have resulted.41 The burden is on the defendant to show that the error resulted in a miscarriage of justice.42 Where the error did not result in a miscarriage of justice and a defendant cannot meet this burden, we have deemed the error “harmless” and thus not meriting reversal of the conviction.43
On the basis of this harmless error framework, we are not convinced that defendant has met the burden of showing that, but for the fact that Morgan testified regarding GA‘s original statements of abuse, it is more probable than not that a different outcome would have occurred.
First, the prosecutor relied on Morgan‘s testimony only as corroboration for GA‘s direct testimony, and did not admit the testimony for its substantive value. The prosecutor‘s opening sentence when discussing Morgan‘s testimony during closing arguments explicitly indicated the limited purpose for which this testimony was offered: “Stacy Morgan‘s testimony corroborates everything that [GA] said on the stand last Friday.” The prosecutor then proceeded to describe precisely how Morgan‘s testimony confirmed that GA‘s statements at trial and when talking to Morgan were the same. In essence, Morgan‘s statement
Moreover, reviewing the entire record, we do not agree with defendant‘s characterization of Morgan‘s testimony as outcome-determinative in the trial. In support, defendant argues that the prosecutor devoted pages of the record to discussing Morgan‘s testimony. While true that the prosecutor discussed Morgan‘s testimony in her closing statement, it was the prosecutor‘s “fifth reason” for conviction out of seven reasons total. Moreover, the prosecutor‘s discussion of Morgan‘s testimony accounts for less than 2 1/2 transcript pages, which likely amounted to no more than a few minutes time during the prosecutor‘s closing statement. Despite defendant‘s characterization to the contrary, we do not believe that this represents the type of overwhelming reliance that would lead to the conclusion that Morgan‘s testimony was highly prejudicial.
Defendant contends that this case largely rested on GA‘s credibility and believability, which Morgan undoubtedly bolstered. However, there was additional
Third, to the degree that Morgan‘s testimony prejudiced defendant when she described how GA reacted
On the basis of this analysis, we hold that although Morgan‘s testimony was erroneously admitted, the error does not require reversal. Morgan‘s testimony was cumulative to and corroborated GA‘s testimony, which was further buttressed by other evidence. On this record, defendant cannot meet his burden of showing that a different outcome would have been the more probable result without Morgan‘s testimony.57
We hold that the child‘s statements in this case were not “spontaneous” and therefore should not have been admitted under the limited hearsay exception created by
Although the trial court abused its discretion by admitting hearsay testimony in this case, we nonetheless affirm defendant‘s convictions because the improper admission was harmless error. Defendant has not been able to show that the error is so prejudicial as to require reversal. Here, the hearsay statements were not used substantively at trial to prove guilt (but rather only to show consistency in the child‘s testimony), the statement was cumulative to other trial evidence, and there was other corroborating evidence of defendant‘s guilt.
The decision of the Court of Appeals is thus vacated, and defendant‘s conviction is affirmed on other grounds.
CAVANAGH, J. (concurring in part and dissenting in part). I agree with the majority that the testimony at issue in this case did not involve statements that satisfy the “spontaneous” requirement of
The majority‘s harmless-error analysis goes astray in several places. First, the majority glosses over the key details regarding the important facts in this case. Second, the majority gives insufficient weight to this Court‘s caselaw regarding the importance of improperly admitted hearsay. Finally, I disagree with the majority‘s attempt to minimize the importance of the hearsay testimony to the prosecution‘s case.
To begin with, the majority ignores several key details regarding the facts that it relies on to argue that
First, the majority states that “the most damaging of this [corroborative] evidence” was Lori‘s testimony “that she walked in to GA‘s room at 3:30 a.m. and found defendant kneeling at GA‘s bed, with the bedcovers pushed down, touching GA in the leg area.” Ante at 624 (emphasis added). The majority mischaracterizes Lori‘s testimony and overlooks a potentially innocent explanation for the evidence that it finds so damning. A full review of the record indicates that Lori testified that defendant stayed up late playing video games with her son on the night that she saw defendant in GA‘s room. She also testified that she had told defendant previously that she preferred that GA sleep in her pajamas, but, on that night, she had put GA to bed in her street clothes because GA had fallen asleep in the living room. When Lori confronted defendant about what he was doing in GA‘s room, he explained that he had changed GA into her pajamas. Further, while the majority states that Lori saw defendant “touching GA in the leg area,” the record indicates that what Lori actually testified is that she saw defendant‘s hand “between [GA‘s] knee and feet,” which has much less sinister implications. In light of these details, the corroborative nature of this particular evidence is substantially weakened, along with the majority‘s harmless-error conclusion.
Second, the majority also ignores several important details surrounding the nurse‘s and investigating detective‘s testimony. As the majority notes, the nurse testified that GA had a scratch on her labia minora, and the investigating detective testified that defendant‘s fingernails were jagged or sharp when he interviewed defendant. Although the majority acknowledges that the nurse testified that the scratch likely occurred in the 24
The majority also gives insufficient weight to this Court‘s caselaw when it concludes that the prejudicial nature of the error was limited because GA testified at trial and was subject to cross-examination, making Morgan‘s testimony merely corroborative and cumulative. In making these generalizations, the majority pays lip service to this Court‘s warnings that “the fact that the statement was cumulative, standing alone, does not automatically result in a finding of harmless error,” People v Smith, 456 Mich 543, 554; 581 NW2d 654 (1998), and that hearsay evidence may tip the scales against a defendant when a case presents a credibility contest, especially when the declarant is a young child. People v Straight, 430 Mich 418, 427-428; 424 NW2d 257 (1988); Smith, 456 Mich at 555 n 5. Unfortunately, however, the majority largely fails to heed those warnings in reaching its conclusion.
To start with, the utility of cross-examining a seven-year-old girl is debatable. In order to avoid the appearance of bullying a child before the jury, “no defense lawyer will subject a small child to an unnecessarily
Also, the majority‘s reliance on
Furthermore, there are several problems with the majority‘s reference to GA‘s credibility. First, it inaccurately states that GA‘s statements were “consistent over time.” This ignores that several days after Morgan‘s conversation with her, GA made a seemingly inconsistent statement when she asked Lori, “Mommy, what if it was a bad dream?”
Second, the majority‘s statement that it is not commenting on GA‘s credibility is incorrect and irrelevant. The majority does comment on the credibility of GA‘s testimony when it notes that GA‘s statement “remained consistent over time.” Ante at 623 n 52. Because the majority must rely on GA‘s admittedly inadmissible statement to Morgan to label her statements “consistent,” the majority only compounds the harm and proves that Morgan‘s testimony was critical to the prosecution‘s case.
Third, the majority‘s commentary on the credibility of GA‘s statements is irrelevant. The question is not whether this Court finds GA credible but whether the inadmissible hearsay unfairly influenced the jury‘s ability to determine GA‘s credibility. Because it is more probable than not that the hearsay influenced the jury and affected the trial‘s outcome, the error was not harmless.
Contrary to the majority‘s claim, I do not discredit GA‘s testimony “in toto.” Rather, I merely note that
Finally, the majority‘s attempt to minimize the importance of Morgan‘s hearsay testimony to the prosecution‘s case is also misleading. Ante at 622 n 50. Simply because the prosecution listed Morgan‘s testimony as the “fifth reason” supporting conviction in her closing argument is not evidence that the testimony was not important. The order in which the prosecution presented the supporting evidence in her closing argument is not an indication of the weight that the prosecution or, more importantly, the jury gave the evidence. And, even if the order of presentation did somehow relate to the testimony‘s importance, it should be noted that in the first paragraphs of its closing argument, the prosecution stressed that GA‘s believability was key to the case. Furthermore, the first sentence of the prosecution‘s discussion of Morgan‘s testimony during closing argument stressed that Morgan‘s testimony “corroborated everything that [GA] said on the stand. . . .” Similarly, it is irrelevant that “the prosecutor‘s discussion of Morgan‘s testimony accounts for less than 2 1/2 transcript pages,” given that this is no indication of the weight that the jury gave Morgan‘s testimony. Indeed, in People v Snyder, 462 Mich 38; 609 NW2d 831 (2000), we remanded for a new trial under the Lukity standard because of an erroneous evidentiary ruling by the trial court that affected the complainant‘s credibility. We reasoned that, much like this case, “the prosecution‘s case rested almost entirely on the testimony of the
In summary, defendant‘s convictions largely rested on GA‘s credibility, and, as the prosecution stressed, Morgan‘s corroborating testimony bolstering her credibility was an essential piece of evidence in this case.2 Furthermore, much of the admissible “corroborating” evidence cited by the majority is less convincing when viewed in context, and the majority‘s conclusion that this case was not merely a credibility contest is called into question. Finally, as the majority acknowledges, this Court has held that hearsay evidence is more harmful in credibility contests, particularly when the declarant is a young child. Accordingly, I do not agree with the majority that the trial court‘s abuse of discretion was harmless error, and I would remand for a new trial.
KELLY, C.J., concurred with CAVANAGH, J.
Notes
A statement describing an incident that included a sexual act performed with or on the declarant by the defendant or an accomplice is admissible to the extent that it corroborates testimony given by the declarant during the same proceeding, provided:
(1) the declarant was under the age of ten when the statement was made;
(2) the statement is shown to have been spontaneous and without indication of manufacture;
(3) either the declarant made the statement immediately after the incident or any delay is excusable as having been caused by fear or other equally effective circumstance; and
(4) the statement is introduced through the testimony of someone other than the declarant. [MRE 803A (emphasis added).]
Additionally, the evidence did not support a finding that the victim spontaneously made her statement to [the victim‘s sister,] Marquayla. Both Marquayla and the mother testified that the victim‘s report to Marquayla was not spontaneous, but was made in response to questioning. Marquayla‘s testimony reflects that the questioning included threats about “lying” and “getting into trouble.” The victim did not supply any other information regarding the circumstances of the statement she claimed to have made to Marquayla. The absence of a showing of spontaneity reinforces the need, in this case, for a pretrial determination as to the admissibility of the hearsay evidence pursuant to MRE 104. [George, unpub op at 4 (GLEICHER, J., dissenting).]
Dona[, the victim‘s mother,] admitted asking the victim a few questions after the victim initially told her that “Uncle Brad touched me down there,” gestured toward her private area, and said that defendant did other stuff, too. Dona then asked what other stuff defendant did and when the victim stated that defendant had a “vibrating handlebar machine,” Dona asked what he did with it. Dona also asked the victim if defendant said anything to her. The questions were not so specific and leading [as] to taint the spontaneity of the victim‘s statements. Dona‘s questions were fairly general given the context of the victim‘s statements.
[W]hether . . . the error was harmless beyond a reasonable doubt . . . in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution‘s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, . . . and, of course, the overall strength of the prosecution‘s case. [Delaware v Van Arsdall, 475 US 673, 684; 106 S Ct 1431; 89 L Ed 2d 674 (1986).]
The hearsay testimony of the parents was not offered merely to corroborate the child‘s testimony, but rather was offered and argued for its substantive worth as the prosecution‘s closing argument clearly reveals:
“And ladies and gentlemen, I would suggest to you that that was what was happening on that night in question that the statements made by [the child] at the hospital can be considered by you and even if she hasn‘t said on the stand what happened as she did yesterday, she just clammed up and said, ‘I don‘t remember,’ or, ‘I don‘t want to say anything,’ you can still find that the defendant is guilty merely from the testimony that the mother gave as to the information given to her and to the father as to what she said in the hospital.”
These comments establish that the parents’ testimony was presented to the jury without limitation as substantive proof of defendant‘s guilt. [Straight, 430 Mich at 426-427 (emphasis added).]
[s]tatements made for purposes of medical treatment or medical diagnosis in connection 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 diagnosis and treatment.