PEOPLE v. IVORY THOMAS
Docket No. 2,301
Michigan Court of Appeals
Decided December 2, 1968
14 Mich. App. 642
- CRIMINAL LAW-EVIDENCE-RES GESTAE STATEMENTS.
Statements are admissible in evidence as a res gestae exception to the hearsay rule when there is an occasion startling enough to produce nervous excitement and render the statement spontaneous and unreflecting, when there was not time to contrive and misrepresent, and when the statement relates to the circumstances of the occurrence preceding it.
- SAME-EVIDENCE-RES GESTAE STATEMENTS-ADMISSIBILITY.
Testimony of police officer that declarant responded to the officer‘s questions as to whether he had been stabbed in a fight, robbery, “or what,” by saying he had been robbed of a wallet containing $6 held, properly admissible as res gestae utterances where the length of time between the stabbing and statement did not exceed 40 minutes, during which time declarant was in great pain and at times unconscious, justifying the conclusion that such utterances were spontaneous, unreflecting, and made before there was time to contrive and misrepresent.
- SAME-EVIDENCE-LEADING QUESTION.
Testimony of police officer that declarant, in response to the question as to whether declarant had been stabbed in a fight, robbed or what, said that he had been robbed is not objectionable on the ground that the question is leading since it requires more than a simple yes or no, or election between alternatives.
REFERENCES FOR POINTS IN HEADNOTES
[1, 6] 29 Am Jur 2d, Evidence § 708.
[2] 29 Am Jur 2d, Evidence §§ 708, 713, 716, 717.
[3, 7, 8] 29 Am Jur 2d, Evidence § 708.
58 Am Jur, Witnesses §§ 568-570.
[4, 5, 9] 29 Am Jur 2d, Evidence § 715.
TRIAL-JUDGE‘S DISCRETION-RES GESTAE STATEMENTS. A trial judge is given considerable discretion in passing upon whether a statement is admissible in evidence as a res gestae exception to the hearsay rule.
- SAME-RES GESTAE STATEMENTS-CREDIBILITY OF WITNESSES-PROVINCE OF JURY.
The credibility of a witness testifying to declarations as res gestae utterances and the weight to be given his testimony are within the province of the trier of fact.
CONCURRING OPINION
LEVIN, J.
- EVIDENCE-SPONTANEOUS EXCLAMATION.
A statement to be admissible as a spontaneous exclamation must relate to a startling occurrence, the occurrence must be startling enough to produce nervous excitement, and the statement must be made while the nervous excitement may be supposed still to dominate and the reflective process to be yet in abeyance, so that it may be concluded that the utterance was made before there was time to contrive and misrepresent.
- SAME-SPONTANEOUS EXCLAMATION-LEADING QUESTION-ADMISSIBILITY.
A spontaneous exclamation is not to be excluded from evidence solely because it was given in response to a leading question; this is merely another factor which must be considered in determining if there is circumstantial probability of trustworthiness in the situation as a whole, whether the statement was the product of reflection and deliberation, or whether the reflective powers were still in abeyance.
- CRIMINAL LAW-EVIDENCE-SPONTANEOUS EXCLAMATION-LEADING QUESTIONS.
Testimony of police officer that declarant responded to officer‘s questions as to whether he had been stabbed in a fight, robbery, or what, of what he had been robbed, and what his assailant looked like, by saying that he had been robbed of a wallet containing $6, by describing the assailant, and by stating that he had been stabbed as he was pulling out a cigarette, and it appearing that such statements were made within 40 minutes of the stabbing during which time declarant was in great pain and at times unconscious held, properly admitted on the grounds that without the stimulus of the questions declarant would not
have spoken at all, and, in view of the stress of the moment with the declarant‘s being near death, the form of the questions is of little significance. - TRIAL-RES GESTAE STATEMENTS-INCONSISTENT TESTIMONY-EFFECT ON ADMISSIBILITY-PROVINCE OF JURY.
Credibility of police officer testifying as to declarations as res gestae utterances, even though impaired by inconsistencies between his testimony and statements made at the preliminary examination and at the trial, is for the trial judge to consider in the first instance as a factor to be weighed with other known facts and circumstances in reaching a decision as to admissibility, and then for the jury to consider in reaching a verdict.
Appeal from Recorder‘s Court of Detroit, Scallen (John P.), J. Submitted Division 1 February 6, 1968, at Detroit. (Docket No. 2,301.) Decided December 2, 1968.
Ivory Thomas was convicted of murder in the first degree. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Angelo A. Pentolino, Assistant Prosecuting Attorney, for the people.
Manning Hathaway, for defendant on appeal.
LESINSKI, C. J. Michael Railsbach, age 18, was found with a stab wound in the chest March 30, 1965 at about 7:40 p.m. near Dueweke Park. He was taken to a nearby flat where he collapsed. In response to a radio call, police officers rushed Railsbach to Receiving Hospital where he arrived at 8:08 p.m. He died on the operating table at 9:25 p.m.
At the trial of the defendant, officer Studzinski testified as follows:
“We received the call at 7:45 p.m., and approximately five minutes later we were there, about 7:50 p.m. We went to that address, 4739 Field Avenue and we went upstairs and-to an upstairs flat and saw-we saw the deceased lying on the floor; his shirt was open and he had a chest wound and I made conversation with him; asked him first of all his name and he was able to get out and I was able to understand, ‘Michael,’ and the rest was incoherent. I asked for an address, which was furnished to me on paper by the occupants of the house. I asked him then what happened and he stated he was stabbed and I asked him if he knew by whom and he said he did not. This is information I received at the scene as the deceased was rolling from side to side clutching his chest, and then became unconscious. We hurriedly rushed him to Receiving Hospital where, at the hospital, he regained consciousness and we again asked him what happened and he said he was stabbed. I said, ‘Was that the result of a fight or a robbery or what,’ and he said he had been robbed and I asked him of what and he says his wallet was taken containing $6.00. I said, ‘What did the man look like,’ and he described the man as colored, approximately 17 years of age, 5 feet 10 inches tall, medium build and wearing a green jacket. He related that the assailant had asked him for a cigarette and as he was pulling the cigarette out he was stabbed. That was all.”
At the trial this testimony was allowed in evidence over the objection of defense counsel, either as dying declarations or as res gestae utterances. On appeal the admission of this testimony is sought to
The defense contends that the statements attributed to the deceased, Railsbach, were not spontaneous and were the result of leading questions put to him by officer Studzinski.
In Rice v. Jackson (1965), 1 Mich App 105, 111, the admissibility of res gestae statements was reviewed exhaustively by this Court. Under the standards of Rice, supra, which have applicability in this criminal action, statements are admissible in evidence under the following conditions:
“(1) that there is a startling occasion, startling enough to produce nervous excitement, and render the utterance spontaneous and unreflecting; (2) that the statement must have been made before there has been time to contrive and misrepresent; and (3) the statement must relate to the circumstances of the occurrence preceding it.”
Testing the facts of this case against these standards, we find the objected-to testimony properly admissible in evidence.
The occurrence involving the deceased, beyond a question, was such as would give rise to spontaneous and unreflecting answers. The lapse of time between the stabbing and the making of the statement did not exceed 40 minutes.1 Of this time the deceased was unconscious part of the time and at others in great pain.2 The statement related directly to circumstances surrounding the stabbing.
The most serious challenge to the admissibility of the contested testimony is made on the basis that the reason for the stabbing was established by the
“Was that the result of a fight or a robbery or what?”
The deceased responded that he had been robbed and in response to “of what” he said his wallet containing $6.
The testimony which also related to the deceased‘s description of his assailant and some of the circumstances of the attack upon him were very damaging to the defense as it tied in other circumstantial evidence which was introduced in the trial.
The testimony is challenged on the basis that the questions suggested the answer. Under the circumstances of this case we do not find this objection valid. The answer to the question “Was that the result of a fight or a robbery or what” requires an answer beyond that of a simple “yes” or “no,” or the election between alternatives. The response to this question had to originate in the mind of the deceased. The question then is, was the response spontaneous and unreflecting, and made before there was time to contrive and misrepresent. In passing upon the answer to this question, the trial judge is given considerable discretion. See White v. City of Marquette (1905), 140 Mich 310.
We find no abuse of discretion on the part of the trial judge in allowing the testimony into evidence.
The credibility of the officer giving this testimony and the weight to be given it is within the province of the trier of fact.
Affirmed.
McGREGOR, J., concurred with LESINSKI, C. J.
LEVIN, J. (concurring). On this appeal from his conviction by a jury of the crime of first-degree
On March 30, 1965, at about 7:40 p.m., Michael Railsbach, 18 years of age, staggered out of Dueweke Park in the City of Detroit with a stab wound in the chest, calling for help. He was taken to the flat of a nearby resident, where he collapsed on the floor. He was able to give his name and address and say that he was stabbed. Two police officers responded to a radio call and rushed Michael to Receiving Hospital, arriving at 8:08 p.m., where, according to the police officer whose testimony is in issue, he regained consciousness and was able to answer certain questions put to him by the officer. He was then taken into surgery, and died on the operating table at 9:25 p.m.
The testimony in issue was that of police officer Leon Studzinski:
“We received the call at 7:45 p.m., and approximately five minutes later we were there, about 7:50 p.m. We went to that address, 4739 Field Avenue and we went upstairs and to an upstairs flat and saw-we saw the deceased lying on the floor; his shirt was open and he had a chest wound and I made conversation with him; asked him first of all his name and he was able to get out and I was able to understand, ‘Michael‘, and the rest was incoherent. I asked for an address, which was furnished to me on paper by the occupants of the house. I asked him then what happened and he stated he was stabbed and I asked him if he knew by whom and he said he did not. This is information I received at the scene as the deceased was rolling from side to side clutching his chest, and then became unconscious. We hurriedly rushed him to Receiving Hospital where, at the hospital, he regained
consciousness and we again asked him what happened and he said he was stabbed. I said, ‘Was that the result of a fight or a robbery or what,’ and he said he had been robbed and I asked him of what and he says his wallet was taken containing $6.00. I said, ‘What did the man look like,’ and he described the man as colored, approximately 17 years of age, 5 feet 10 inches tall, medium build and wearing a green jacket. He related that the assailant had asked him for a cigarette and as he was pulling the cigarette out he was stabbed. That was all.”
The people contend that Michael‘s alleged statements were spontaneous, res gestae utterances and no longer defend the admission of officer Studzinski‘s testimony under the dying declaration exception to the hearsay rule. Without officer Studzinski‘s testimony showing robbery, the defendant‘s conviction of first degree murder might not have been justified by the evidence.
“Spontaneous exclamation” as a specific exception to the hearsay rule was identified and differentiated by Professor Wigmore from the general res gestae exception from which it grew. The essential validating element for Wigmore was the emotional impact of a startling event, “which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock.” 6 Wigmore on Evidence (3d ed), § 1747, p 135. (Emphasis supplied.) Psychological research generally tends to bear out this belief that shock inhibits the ability to falsify,1 and the Wigmorean principle has been widely accepted by the courts.2
The emotional impact, said Wigmore, tends to create a circumstantial probability of trustworthiness (Wigmore, supra, § 1749, p 139) when 3 conditions are met:
(1) the utterance relates to a startling occurrence, (2) the occurrence is startling enough to produce nervous excitement which would render the utterance spontaneous and unreflecting, and (3) the utterance was made before there has been time to contrive and misrepresent, i.e., “while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance.” Wigmore, supra, § 1750, pp 142, 155. (Emphasis supplied.)
Of the 3 criteria just enumerated, the requirement that the statement relate to the startling occurrence is virtually always satisfied, as is the requirement that the principal event be startling enough to produce nervous excitement. The majority of cases are concerned with whether the statement was made “while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance,” Wigmore, supra, § 1750, p 142, “before the declarant has had time or opportunity to reflect or contrive.” McCormick on Evidence, § 272, p 578.
The courts have struggled in innumerable cases to make these criteria more definite, with small success.3 There is, however, a clear trend in favor of
There can be no doubt that Michael Railsbach received a severe shock when a knife was plunged 4 inches into his chest and through his heart, or that the shock continued until his death. There was testimony that as he lay on the floor at the flat to which he was first taken he rolled from side to side, apparently in great pain, and that at the hospital he looked “critical.” After staggering from the park and collapsing, he was able to state only his name and address and that he had been stabbed before lapsing into unconsciousness. In view of the severity of the wound and the fact that he was unconscious part of the time, we think entirely justified a conclusion that Michael Railsbach had no opportunity to reflect or fabricate even though there was a time lapse of approximately 30 to 40 minutes between the stabbing and his statement at the hospital.
The amount of time elapsed between the startling occurrence and the utterance is an important factor
“When the statement follows the event, the length of the interval between the startling event and the declaration is often crucial. Whether this period affords opportunity for contrivement will be much affected by the declarant‘s physical condition during the interval, and shock, pain, unconsciousness and like stresses will tend to postpone that opportunity.” (Emphasis supplied.)
The difficult aspect of this case is that Michael Railsbach‘s statements were made in response to a
It appears settled, in Michigan as in the country as a whole, that while a statement is not necessarily to be excluded because made in answer to a question, the injection of a question is a factor which should weigh against admissibility. Holtz v. L. J. Beal & Son, Inc. (1954), 339 Mich 235.7 That the question was leading rather than a simple open-ended query such as “what happened” or “who did it,” must make it weigh even more heavily against admissibility, since it to some extent may provide the declarant with material for fabrication or direct his statement in ways it would not have gone “spontaneously.”
“No hard and fast rule can be laid down which will apply to every case, but each case must be considered in connection with the circumstances surrounding it.” White v. City of Marquette, supra, p 314.
In the case-by-case application of this exception the term “spontaneous,” taken at its literal meaning of completely self-generated, can be the source of almost as much difficulty as the term res gestae. See Rice v. Jackson (1965), 1 Mich App 105, 110.9 A more neutral, and for that reason more accurate, rubric than either ”res gestae” or “spontaneous exclamation” is the one adopted by Professor McCor-
Freed of the difficulty that can be caused by use of the terms ”res gestae” and “spontaneous,” this exception, the “excited utterance” exception, stands clear as the simple principle which Wigmore originally enunciated, i.e., when a person participates in a startling or shocking experience, the emotional excitement generated in him may render him unable or unlikely to fabricate concerning his experience. Like so much else which seeks to explain human conduct, this cannot be stated as a certainty, but it can create a circumstantial probability of trustworthiness. Wigmore, supra § 1749, p 139.
The critical question asked of Michael Railsbach on the issue of the degree of guilt, if guilty at all, was stated in the alternative (“Was it a fight or robbery or what?“), which does not make it any less suggestive; one of the two suggested answers was false. But that question and its answer do not stand alone. “Of what” assumes that something was taken, but does not suggest what was taken, so that it is only slightly leading; the response that his wallet had been taken with $6.00 was not suggested by the question. The question “what did he look like” does not suggest its answer. Michael Railsbach‘s statement that he was stabbed as he was pulling out a cigarette was apparently volunteered. There were thus statements by Michael, not in response to questions that suggested their answers, which bear out the statement attributed to him that he had been robbed.
In summary, it seems clear that the declarant‘s serious and painful condition, which was uninterrupted and probably growing worse with loss of blood, negatives any likelihood that his responses to officer Studzinski were the product of reflection and fabrication even though somewhat leading questions were asked, including an important one that suggested its answer. Such questions might well invalidate statements by a less seriously injured person, but on these facts we do not think we would be warranted in reaching a conclusion contrary to that of the trial judge.
Officer Studzinski‘s credibility, although slightly impaired by certain inconsistencies between his testimony at the preliminary examination and at the trial, was for the trial judge to consider in the first instance as a factor to be weighed together with the other known facts and circumstances in reaching his decision on admissibility and, then, for the jury to consider in reaching its verdict. Compare People v. Walker (1965), 374 Mich 331, 337, 338.
Affirmed.