PEOPLE V JONES (ON REHEARING AFTER REMAND)
Docket No. 152860
Court of Appeals of Michigan
Submitted December 20, 1995. Decided March 1, 1996.
Decided on rehearing February 20, 1998
228 Mich. App. 191
Alphonzo R. Jones was convicted by a jury in the Oakland Circuit Court, Alice L. Gilbert, J., of assault with intent to commit murder and possession of a firearm during the commission of a felony and, thereafter, pleaded guilty of being an habitual offender, third offense. During the course of the trial, Christine Berry, a former domestic companion of the defendant and a neighbor of the victim of the assault, testified that a short time before the assault, the defendant arrived at her home in a vehicle driven by Alicia Love. Ms. Berry testified that Ms. Love shouted vulgarities and profanities for five minutes. Over a hearsay objection, Ms. Berry was permitted to testify that Ms. Love had shouted: “Bitch come out, I‘m going to kick your ass. And Alphonzo don‘t want you, Alphonzo don‘t love you.” The assault took place a short while later when the complainant confronted the defendant and Ms. Love concerning their behavior. The defendant appealed, raising a number of claims of error, including the claims that the prosecution had failed to bring the defendant to trial within 180 days in accordance with the requirement of
On rehearing after remand, the Court of Appeals held:
1. The trial court properly concluded that despite the fact that the trial of the defendant in this matter did not commence until the 186th day after the state acquired jurisdiction over the defendant for the purpose of 180-day rule, the prosecution nevertheless satisfied the requirement of the 180-day rule. The trial court properly held that neither a seven-day adjournment at the request of the defense counsel nor the three-day period during which the defendant was being tried on an unrelated criminal charge was chargeable to the prosecution and that those periods could not be counted against the 180-day period.
2. The defendant‘s claim of denial of a speedy trial, which was based on the assertion that the prosecution‘s delay in bringing the case to trial resulted in the unavailability of a defense witness who would have testified that he rather than the defendant had shot the victim, is without merit in view of the defendant‘s trial testimony that he shot the victim but without the requisite intent to kill.
3. The prosecution‘s repeated reference to the defendant‘s prior conviction for breaking and entering with intent to commit larceny as evidence of the defendant‘s propensity to commit crime was error because it was a use of that evidence for the purpose expressly prohibited by
4. Because a retrial will be required, the question of the admissibility of the testimony of Ms. Berry concerning the remarks made by Ms. Love must be addressed. The objection imposed by the defense was that Ms. Berry‘s testimony concerning Ms. Love‘s remarks was inadmissible as hearsay. Pursuant to
5. The first clause of the challenged declaration is a command rather than an assertion, and, accordingly, it is not a statement within the meaning of
6. Michigan does not include within its definition of hearsay the doctrine of an implied assertion. Under the definition of hearsay set forth in
Reversed and remanded.
O‘CONNELL, P.J., concurring in part and dissenting in part, stated that the testimony of Christine Berry concerning the statements made by Alicia Love shortly before the assault was inadmissible because, to the extent that only the literal denotation of those statements is considered, the statements are not relevant to any fact at issue with respect to the defendant‘s guilt and, to the extent that the statements were intended to demonstrate that the defendant was agitated immediately before the assault, the statements contained an implied assertion that Love, and by association defendant, was angry, they were offered to prove the truth of that implied assertion, and, accordingly, they were inadmissible hearsay unless they were shown to fall within one of the exceptions to the hearsay rule.
- CRIMINAL LAW — SPEEDY TRIAL.
A defendant may be denied the right to a speedy trial where the prosecution‘s delay in bringing the case to trial results in the unavailability of a defense witness who would have testified that the witness rather than the defendant had committed the crime; such a claim of denial of the right to a speedy trial is without merit, however, where the defendant testifies at trial that the defendant committed the crime.
- CRIMINAL LAW — EVIDENCE — IMPEACHMENT — PRIOR CONVICTIONS.
Evidence of prior felony convictions may be used to impeach a criminal defendant where the probative value of the evidence outweighs the prejudicial effect; however, evidence of prior felony convictions may not be used to prove that a defendant acted with a criminal intent in the charged offense.
- CRIMINAL LAW — EVIDENCE — HEARSAY — IMPLIED ASSERTION.
Michigan does not include within its definition of hearsay the doctrine of an implied assertion; under the definition of hearsay set forth in
Michigan Rules of Evidence, an implied assertion is a contradiction in terms and a euphemism for declining to apply the rules relating to hearsay as they are written ( MRE 801 ).
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, David Gorcyca, Prosecuting Attorney, and Marilyn J. Day, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Ronald E. Steinberg), for the defendant on appeal.
ON REHEARING AFTER REMAND
Before: O‘CONNELL, P.J., and SAAD and W. J. GIOVAN*, JJ.
W. J. GIOVAN, J. Defendant was convicted by jury of assault with intent to commit murder,
Defendant appealed as of right to this Court, raising numerous allegations of error. In an opinion dated March 1, 1996, we remanded this matter to the circuit court for an evidentiary hearing addressing defendant‘s contention that the 180-day rule,
Defendant moved for rehearing on the issue of retention of jurisdiction, and in an order dated June 12, 1996, we held the request in abeyance pending the outcome of the evidentiary hearing. The evidentiary hearing was held in the circuit court in October 1996, the court concluding that there had been no violation of the 180-day rule. Defendant then renewed his request for rehearing in this Court. We granted the motion and now address the substance of defendant‘s appeal.
We agree with the circuit court that the prosecution carried its burden of demonstrating that there had been no violation of the 180-day rule. We reverse, however, on other grounds.
I. THE 180-DAY RULE
As set forth in
Consistent with the Supreme Court‘s interpretation of the statute in People v Hendershot, 357 Mich 300; 98 NW2d 568 (1959),
The statute does not require the action to be commenced so early within the 180-day period as to insure trial or completion of trial within that period. If, as here, apparent good-faith action is taken well within the period and the people proceed promptly and with dispatch thereafter toward readying the case for trial, the condition of the statute for the court‘s retention of jurisdiction is met. [Id., 304.]
To start with, we should not expect the people to have a formidable task to produce evidence of good-faith efforts toward trial within the 180-day period when the trial has in fact occurred on the 186th day. In any event, the evidentiary hearing held on remand established what the defendant had expressly denied at the hearing before trial, i.e., that on the original trial date of February 23, 1990, well within the 180-day period, defense counsel asked for and was granted a seven-day adjournment to complete preparation for trial. Ten days later, another charge pending against the defendant was tried from March 5 through March 7.
On remand the trial court correctly concluded that the seven-day period representing the adjournment granted to the defendant should not be charged against the prosecutor and that there was, accordingly, no violation of the 180-day statute. Hendershot, supra. Nor is the time consumed in trying the defendant‘s other charge counted against the 180-day period. People v Hill, 402 Mich 272, 282-283; 262 NW2d 641 (1978).
The defendant contends that his request for an adjournment should be irrelevant because the record
While we can suppose anything, there is something less than a certainty that the prosecutor would not have gone to trial on February 23 if the defendant had not requested an adjournment and had instead insisted on going to trial. One of the witnesses already endorsed on February 23 was the victim, whose account of the events was not materially contradicted at trial and whose testimony by itself would have supported the charges against the defendant. For all we know, the absence of any announcement by the prosecutor that he was prepared to go to trial is explained by his unwillingness to press an advantage against a defendant who has announced that he is not prepared to proceed to trial or, just as likely, by his recognition of the futility of attempting to do so. In any event, like the trial court, we decline to attribute greater weight to one of several possible hypotheses concerning a circumstance that never occurred than to the plain reality that the defendant requested an adjournment and the prosecutor did not. The trial court correctly determined that there was no violation of the 180-day rule.
II. DENIAL OF SPEEDY TRIAL
The defendant claims that he lost the opportunity to present a witness favorable to him because of a combination of unreasonable delay by the prosecutor in bringing the case to trial and the trial court‘s refusal to grant the defendant a continuance until such time as the witness could be located. The prejudice claimed by the defendant is that the proposed witness, Robert Anderson, who had escaped from Maxey Boy‘s Training School by the time of trial, would have testified that it was he, not the defendant, who shot at the victim.
This claim of error is made, of course, after the trial, at which the defendant readily admitted that he shot at the victim, his sole defense being that he had not intended to kill him. The defendant now makes the argument that if he had had the opportunity to call Anderson as a witness, his strategy at trial might have been different. Accordingly, the defendant bases the present claim of error on the premise that he was deprived of the opportunity to present perjury in the trial court. Besides being meritless, the argument goes beyond the limits of legitimate advocacy.
III. CHARACTER EVIDENCE
Consistent with
During cross-examination of the defendant the prosecutor inquired about the breaking and entering conviction and the following exchange occurred:
Prosecutor: You understood, did you not, sir, at the time that you broke into this home that was against the law, didn‘t you?
Defense counsel: Objection, your Honor. Objection, your Honor, please. Your Honor, it‘s irrelevant. It‘s irrelevant.
The Court: I will sustain the objection to that last question.
Prosecutor: If I could respond, your Honor. It goes to character, your Honor. It‘s a clearly permissible form. I want to establish that this individual has no regard for the law. He knowingly broke and entered a home.
After the Court repeated that the objection was sustained, and after a few intervening questions, the prosecutor continued:
Q. So you committed this B & E anyway, even though you knew it was against the law, correct?
A. Yes.
Q. And you want the jury here today to believe that even though you‘ve been convicted of a prior larceny—
Defense counsel: Objection, your Honor, please.
The Court: Sustained.
During closing argument the prosecutor returned to his theme that the defendant‘s prior conviction demonstrated disregard for the law:
I‘m not even going to speculate about who was screaming, but the defendant was not happy, and again this defendant completely disregarded the law as he did in the breaking and entering, which I‘ll get to in a moment. He disregarded the law.
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*
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I want to point out one other thing and that is impeachment. The reason I brought it up is this impeachment, his prior conviction is very consistent with this act. It‘s an absolute disregard—
Defense counsel: Objection, your Honor. Can we approach the bench, please?
After the jury was taken from the courtroom following final argument, defendant moved for a mistrial on the basis of repeated misuse of the prior conviction. The prosecutor responded that his approach had been proper:
Your Honor, it is my opinion, and I haven‘t heard any authority from Mr. Cleary [defense counsel] to support his position, but it‘s my opinion that I properly argued the prior conviction under 609 as it relates to truth, veracity as well as form of character. I utilized the same theme I started with in my opening. I relied on this act as well as attached to the other act, and I think it‘s permissible as to a form of impeachment and a form of character.
The Court denied the motion for a mistrial without comment.
The behavior of the prosecutor in the cited instances demonstrated, at a minimum, a void of awareness of one of the most frequently invoked common-law evidentiary rules of exclusion, applicable in civil and criminal cases alike, embodied in the Michigan Rules of Evidence in
A jury should not be allowed to consider the defendant‘s guilt of the crime before it on the basis of evidence of his propensity for crime. Finding a person guilty of a crime is not a pleasant or easy assignment for a representative group of twelve people. It is much easier to conclude that a person is bad than that he did something bad. Hence the appetite for more knowledge of the defendant‘s background and the slippery slope toward general “bad man” evidence.
This appetite presents three types of impropriety. First, that jurors may determine that although defendant‘s guilt in the case before them is in doubt, he is a bad man and should therefore be punished. Second, the character evidence may lead the jury to lower the burden of proof against the defendant, since, even if the guilty verdict is incorrect, no “innocent” man will be forced to endure punishment. Third, the jury may determine that on the basis of his prior actions, the defendant has a propensity to commit
Impeachment by Evidence of Conviction of Crime
(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall not be admitted unless the evidence has been elicited from the witness or established by public record during cross examination, and
(1) the crime contained an element of dishonesty or false statement, or
(2) the crime contained an element of theft, and
(A) the crime was punishable by imprisonment in excess of one year or death under the law under which the witness was convicted, and
(B) the court determines that the evidence has significant probative value on the issue of credibility and, if the witness is the defendant in a criminal trial, the court further determines that the probative value of the evidence outweighs its prejudicial effect.
In the case at bar the prosecutor seemed to believe that he was entitled to use the defendant‘s prior conviction for its forbidden purpose, and he was not deterred from that view in spite of several rulings by the trial judge. While we do not conclude that the prosecutor‘s transgressions in this regard were intentional, see People v Dawson, 431 Mich 234; 427 NW2d 886 (1988), we believe that the repeated emphasis of defendant‘s conviction for the expressly forbidden purpose cannot be regarded as harmless and that the defendant is therefore entitled to a new trial on the charges against him.
This inappropriate attack against character by the prosecutor was aggravated by the needless introduction into evidence of a police photograph of the defendant. People v Heller, 47 Mich App 408; 209 NW2d 439 (1973). The victim testified that while in the hospital he identified the defendant from a series of photographs, and, over objection, the court admitted into evidence a folder containing six photographs, including the defendant‘s, on the basis that “identity is always an issue.”
It is true that the potential for prejudice might have been mitigated in this instance because of the earlier decision of the court to admit evidence of the defendant‘s breaking and entering conviction for impeachment purposes. Here, however, neither the in-court nor the out-of-court identification of the defendant by the witness had been challenged; nor had the identifications of prior witnesses been attacked. Had the identification been challenged, moreover, there would have been ample opportunity to introduce the photo-
IV. HEARSAY
Because a retrial will be required, we address defendant‘s claim that the trial court committed error by admitting hearsay evidence. We conclude that the questioned evidence involved no hearsay.
The proofs at trial showed that Christine Berry had lived with the defendant, Alphonzo Jones, for several months in mid-1989. On September 11 of that year, a woman later identified as Alicia Love, drove a white automobile into the driveway of the house where Ms. Berry was living, carrying the defendant as a passenger and playing loud music. Ms. Berry testified without objection that she heard the woman shouting at her over a loudspeaker to come outside so that she could “kick my butt.” The woman shouted vulgarities and profanities for five minutes. The hearsay objection was interposed to Ms. Berry‘s testimony that the woman shouted: “Bitch come out, I‘m gonna kick your ass. And Alphonzo don‘t want you, Alphonzo don‘t love you.”
Two neighbors emerged from their homes and, angered by the loud noise and the obscenities,
To start with, the first sentence of the declarant‘s out-of-court speech (“Bitch, come out“) does not fit the first element of hearsay because it is not a “statement.”
“Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. [
MRE 801(c) (emphasis supplied).]
As used in the definition of hearsay, the term “statement” means an assertion:
A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person if it is intended by the person as an assertion. [
MRE 801(a) .]
The remainder of the challenged declaration consists of two sentences that are assertions. (“I‘m gonna kick your ass. And Alphonzo don‘t want you, Alphonzo don‘t love you.“) Those statements were not offered, however, to prove the truth of the matters asserted by the declarant. They were not offered, for example, to prove that Ms. Love was going to assault Ms. Berry. By the time of trial it was known with certainty that she had not kicked her, and the statement could not have been offered for that purpose. Nor was the evidence offered to prove that Alphonzo didn‘t love Ms. Berry, as it did not matter for the prosecutor‘s purpose what might have been the particular source of the defendant‘s anger toward Ms. Berry.
Ms. Love‘s words were offered, rather, as an integral part of the series of events that led to the shooting of the victim, which events included Ms. Love‘s verbal conduct—the more significant part—as well as any other part of her behavior. In this instance her assertions were a component of the threat she was making to Christine Berry, a threat being an act done with words that is admissible as nonhearsay. Gibson v Group Ins Co of Michigan, 142 Mich App 271, 277; 369 NW2d 484 (1985).
The defendant argues that the evidence is hearsay because the words of another tend to establish circumstantially his anger and, thus, his motive to kill. But if that is what the evidence shows, that is what evidence is supposed to do. Hearsay is not defined by
Indeed, in saying that his motive was shown circumstantially by showing Ms. Love‘s state of mind, the defendant identifies one of the reasons why the evidence is not hearsay. As the court noted in State v Martin, 458 So 2d 454, 460-461 (La, 1984):
An out of court statement may also be offered to show the speaker‘s state of mind. The statement may be a direct assertion of the speaker‘s state of mind or it may indirectly tend to establish that the speaker had a particular state of mind. If the statement is a direct assertion of the speaker‘s state of mind, then it is offered for the truth of the matter asserted but it usually falls within an exception to the hearsay rule for declarations of a then existing state of mind. See McCormick [Evidence (Cleary ed), § 249]; 6 Wigmore [Evidence (Chadbourn rev), § 1790]; 4 Weinstein [Evidence, ¶ 801(c)[101] (1981)]; Federal Rule of Evidence 803(3). If the statement only indirectly tends to prove a certain state of mind then it is not hearsay because the truth of the assertion and the credibility of the declarant are not relied upon. Rather, the fact that the statement was made, regardless of its truth, is relevant to show the speaker‘s knowledge, intent, or some other state of mind. State v Edwards, 420 So 2d 663, 671 (La, 1982); State v Sheppard, 371 So 2d 1135, 1142 (La, 1979); McCormick, supra, sections 249, 295; 6 Wigmore, supra, section 1790.
While the declarant was asserting that the defendant didn‘t love Ms. Berry, the prosecutor was offering the evidence to prove something else, i.e., that the defendant was angry, and thus it was offered to prove something other than the truth of the matter asserted
The concurring opinion of our colleague maintains that Ms. Love‘s words should be considered hearsay because they contain an “implied assertion” that she was angry. This is the same contention made by the defendant—that the words were hearsay for being circumstantial evidence of state of mind—under a different name. Because the “implied assertion” theory is sometimes invoked to classify out-of-court behavior as hearsay by what we consider a “back-door” approach, we believe that it merits discussion.
While a number of decisions over the years have regarded “implied” assertions as hearsay, we believe that the theory had a questionable origin, that it has never achieved general recognition in decided cases, that it is expressly negated by the modern rules of evidence, and that it is contrary to Michigan precedent.
The use of the term “implied assertion” to denote hearsay has occurred in situations where out-of-court conduct of a person, sometimes verbal and sometimes nonverbal, is offered in evidence to demonstrate that person‘s belief, from which the inference is offered that the belief is true, when it was not the actor‘s intent to communicate the matter to be proved in court. And so, to use a famous example, if the issue were the seaworthiness of a ship, evidence that the ship captain sailed away with his family aboard
All discussions of the issue begin with a famous and protracted early 19th century English case, Wright v Doe d Tatham, 7 Adolph & E 313; 112 Eng Rep 488 (Exch Ch, 1837), aff‘d 5 Cl & F 670; 7 Eng Rep 559 (HL, 1838), in which the issue was the competence of a testator, John Marsden, to make a will.6
A result that excluded three letters written without intent to communicate anything about Marsden‘s competence must have seemed obnoxious to Wright‘s counsel, who had argued that the letters were no less admissible than other evidence that had been received in the trial:
Many instances were given of the treatment which Marsden received from Wright and from others. It was stated . . . that Marsden was treated as a child by his own menial servants; that, in his youth, he was called, in the village where he lived, “Silly Jack,” and “Silly Marsden,” and was never talked to “as a man that was capable as any thing, but as a child;” that a witness had seen boys shouting after him, “There goes crazy Marsden,” and throwing dirt at him, and had persuaded a person passing by to see him home; and
that once, when Marsden passed the evening at a gentleman‘s house . . . the elder persons of the family sat down to whist, and, Ellershaw mentioning that Marsden was unable to play, some children were sent for, and he was put to play with them at loo, at a side table, a man-servant supervising the game. [Wright, supra, 112 Eng Rep 490.]
Of all the opinions written in the last two levels of appellate review, only one, that of Lord Denham in the Court of Exchequer Chamber, made any attempt to explain why letters that expressed nothing overtly about competence should be excluded as hearsay, while at the same time it was permissible to receive other out-of-court speech that reeked of opinion:
The hardship of excluding these letters was powerfully urged, since it was said that letters of a contrary tendency might undoubtedly have been given in evidence, and that the jury were in fact much influenced by the manner in which the testator was treated by children pursuing him in the street like one deprived of reason. But the answer is, that letters of a contrary tendency, tendered under the same circumstances, have never, to our knowledge, been held admissible, nor could be, in our opinion received. So the insults offered to him as an idiot by boys, when he walked out, are not evidence as the acts of the boys: their treatment of him as such is nothing; but the manner in which he received that treatment falls within the scope of our rule, and may certainly furnish strong proofs in affirmance or refutation of the proposition under inquiry. [Id., 494.]
There should be some difficulty understanding how a jury that was considered so unsophisticated that they would be improperly influenced by three innocuous letters was not supposed to learn from this evidence that the boys had a low opinion of Marsden‘s intellect. Nevertheless, if the only force of the evi-
The holding of Wright v Doe d Tatham was not revisited in the House of Lords for more than 150 years,8 until it resurfaced in Regina v Kearley, [1992] 2 AC 228. In a prosecution for possession of drugs with intent to supply, the trial court had admitted evidence that, after the defendant‘s arrest, a number of telephone calls were intercepted at his house, the callers asking for the defendant and requesting to be supplied drugs; and that a number of others called at the house personally with the same request. The conviction was upheld in the Court of Appeal. Over vigorous dissent9 and by a vote of three to two, the House of Lords reversed the conviction on the evidentiary issue, invoking Wright v Doe d Tatham. All the majority opinions stated that, even if it would be prudent to reevaluate the holding of Wright v Doe d Tatham, the House of Lords could not do so because of its decision a quarter century earlier in Myers v Director of Public Prosecutions, [1965] AC 1001, (also decided three to two) that no further judicial development of the law of hearsay was permissible and that any
I fully appreciate the cogency of the reasons advanced in favour of a limitation or exception to the operation of the hearsay rule which would allow the admission of implied assertions of the kind in question. But is it open to your Lordships to modify judicially the common law rule as expounded in Wright v Doe d Tatham, 7 Ad & E 313 in the same sense as it has been modified legislatively in the United States by the
Federal Rules of Evidence ? Such a modification would involve not only overruling Wright v Doe d Tatham but also departing, in reliance on the Practice Statement of 1966 (Practice Statement (Judicial Precedent) [1966] 1 WLR 1234), from the precedents set by the decisions of this House in both Reg v Blastland [1986] AC 41 and Myers v Director of Public Prosecutions [1965] AC 1001.
* * *
... However strong the temptation to legislate judicially in favour of what is seen as a “common sense” result and however tardy Parliament may appear to be in reforming an area of the law which is seen to be in need of radical reform, the uncertainty and confusion to which well intentioned attempts at judicial legislation can lead have been clearly demonstrated by recent decisions of your Lordships’ House. The operation of the hearsay rule in modern conditions is in many respects unsatisfactory. But Lord Reid‘s warning that in this field of the law a judicial “policy of make do and mend is no longer adequate” is as true today as it was in 1964. However long overdue we may feel an overhaul of the hearsay rule in criminal cases to be, we should not be deluded into thinking that we can achieve it piecemeal. [Regina v Kearley, supra, 249-251 (opinion of Lord Bridge).]
Whatever the treatment was of the implied assertion theory in its country of origin, a smattering of early cases in the United States determined various
If the courts were generally ignoring Wright v Doe d Tatham and the nonassertive conduct issue, the legal scholars were not, as the subject was vigorously discussed in a series of articles spanning decades.12 Eventually, eminent writers recognized a fundamental difference in hearsay considerations between behavior that involves an intent to communicate a proposition and that which does not:
Yet there is a difference, which lies in this: in the first example the conduct was intended to convey thought, in the second it was not. When there is no intention to communicate to any one there is very much less chance that the act was done in order to deceive, and hence the third and fundamental danger in admitting hearsay does not here exist, or at least not so strongly. Furthermore, as a rule the fact believed in this latter class of cases is a simple one, and hence the first and second dangers are decreased. Accordingly, there appears to be a sound distinction between the cases, which may be formulated in the state-
ment that only conduct apparently intended to convey thought can come under the ban of the hearsay rule. [Seligman, An Exception to the Hearsay Rule, 26 Harv L R 146, 148-149 (1912).]
Falknor said essentially the same thing in a graphic way:
A man does not lie to himself. Put otherwise, if in doing what he does a man has no intention of asserting the existence or non-existence of a fact, it would appear that the trustworthiness of evidence of this conduct is the same whether he is an egregious liar or a paragon of veracity. Accordingly, the lack of opportunity for cross-examination in relation to this veracity or lack of it, would seem to be of no substantial importance. [Falknor, supra, 136.]
Eventually McCormick explained the rationale for excluding nonassertive conduct from the definition of hearsay altogether:
People do not, prior to raising their umbrellas, say to themselves in soliloquy form, “It is raining,” nor does the motorist go forward on the green light only after making an inward assertion, “The light is green.” The conduct offered in the one instance to prove it was raining and in the other that the light was green, involves no intent to communicate the act sought to be proved, and it was recognized long ago that purposeful deception is less likely in the absence of intent to communicate. True, the threshold question whether communication was in fact intended may on occasion present difficulty, yet the probabilities against intent are so great as to justify imposing the burden of establishing it upon the party urging the hearsay objection.
Even though the risks arising from purposeful deception may be slight or nonexistent in the absence of intent to communicate, the objection remains that the actor‘s perception and memory are untested by cross-examination for the possibility of honest mistake. However, in contrast to the risks from purposeful deception those arising from the
chance of honest mistake seem more sensibly to be factors useful in evaluating weight and credibility rather than grounds for exclusion. Moreover, the kind of situation involved is ordinarily such as either to minimize the likelihood of flaws of perception and memory or to present circumstances lending themselves to their evaluation. While the suggestion has been advanced that conduct evidence ought to be admitted only when the actor‘s behavior has an element of significant reliance as an assurance of trustworthiness, a sufficient response here too is that the factor is one of evaluation, not a ground for exclusion. Undue complication ought to be avoided in the interest of ease of the application. The same can be said with respect to the possibility that the conduct may be ambiguous so that the trier of fact will draw a wrong inference. Finally, a rule attaching the hearsay tag to the kind of conduct under consideration is bound to operate unevenly, since the possibility of a hearsay objection will more often than not simply be overlooked. [2 McCormick on Evidence (4th ed), § 250, pp 110-111.13]
More significantly for our purposes, the “implied assertion” theory was rejected with the adoption of the
Subdivision (a). The definition of “statement” assumes importance because the term is used in the definition of hearsay in subdivision (c). The effect of the definition of “statement” is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion. The key to the definition is that nothing is an assertion unless intended to be one.
It can scarcely be doubted that an assertion made in words is intended by the declarant to be an assertion. Hence verbal assertions readily fall into the category of “statement.” Whether nonverbal conduct should be regarded as a statement for purposes of defining hearsay requires further consideration. Some nonverbal conduct, such as the act of pointing to identify a suspect in a lineup, is clearly the equivalent of words, assertive in nature, and to be regarded as a statement. Other nonverbal conduct, however, may be offered as evidence that the person acted as he did because of his belief in the existence of the condition sought to be proved, from which belief the existence of the condition may be inferred. This sequence is, arguably, in effect an assertion of the existence of the condition and hence properly includable within the hearsay concept. See Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv L Rev 177, 214, 217 (1948), and the elaboration in Finman, Implied Assertions as Hearsay: Some Criticisms of the Uniform Rules of Evidence, 14 Stan L Rev 682 (1962). Admittedly evidence of this character is untested with respect to the perception, memory, and narration (or their equivalents) of the actor, but the Advisory Committee is of the view that these dangers are minimal in the absence of an intent to assert and do not justify the loss of the evidence on hearsay grounds. No class of evidence is free of the possibility of fabrication, but the likelihood is less with nonverbal than with assertive verbal conduct. The situations giving rise to the nonverbal conduct are such as virtually to eliminate questions of sincerity. Motivation, the nature of the conduct, and the presence or absence of reli-
ance will bear heavily upon the weight to be given the evidence. Falknor, The “Hear-Say” Rule as a “See-Do” Rule: Evidence of Conduct, 33 Rocky Mt L Rev 133 (1961). Similar considerations govern nonassertive verbal conduct and verbal conduct which is assertive but offered as a basis for inferring something other than the matter asserted, also excluded from the definition of hearsay by the language of subdivision (c). When evidence of conduct is offered on the theory that it is not a statement, and hence not hearsay, a preliminary determination will be required to determine whether an assertion is intended. The rule is so worded as to place the burden upon the party claiming that the intention existed; ambiguous and doubtful cases will be resolved against him and in favor of admissibility. The determination involves no greater difficulty than many other preliminary questions of fact. Maguire, The Hearsay System: Around and Through the Thicket, 14 Vand L Rev 741, 765-767 (1961).
For similar approaches, see Uniform Rule 62(1);
California Evidence Code §§ 225 ,1200 ; Kansas Code of Civil Procedure § 60-459(a); New Jersey Evidence Rule 62(1). [Emphasis supplied.]
The committee‘s rationale recognizes that, of the two obstacles to truth that cross-examination is designed to expose, insincerity and mistake, the former is by far the more significant, as any courtroom observer can attest. The risk of mistake in perception, memory, or narration is so small by comparison that loss of the evidence is not warranted.
Accordingly, we should not be surprised that the vast majority of cases decided under the
As Judge (now Justice) Clarence Thomas put it in United States v Long, 284 US App DC 405, 412-413; 905 F2d 1572 (1990), a case with facts like United States v Lewis, supra:
The caller‘s words, thus, cannot be characterized as an “assertion,” even an implied one, unless the caller intended to make such an assertion. While Long‘s criticism of a rigid dichotomy between express and implied assertions is not without merit, it misses the point that the crucial distinction under rule 801 is between intentional and unintentional messages, regardless of whether they are express or implied. It is difficult to imagine any question, or for that matter any act, that does not in some way convey an implicit message. One of the principal goals of the hearsay rule is to exclude declarations when their veracity cannot be tested through cross-examination. When a declarant does not intend to communicate anything, however, his sincerity is not in question and the need for cross-examination is sharply diminished. Thus, an unintentional message is presumptively more reliable. See United States v Groce, 682 F2d 1359, 1364 (CA 11, 1982); 4 J Weinstein & M Berger, Weinstein‘s Evidence ¶ 801(a)[01] (1988). Evidence of unintended implicit assertions is “[a]dmittedly untested ...
with respect to the perception, memory, and narration (or their equivalents) of the actor,” but “these dangers are minimal in the absence of an intent to assert and do not justify the loss of the evidence on hearsay grounds.” Fed R Evid 801 advisory committee note.
Other authorities that have declined to classify nonassertive conduct as hearsay include United States v Jackson, 88 F3d 845 (CA 10, 1996) (a telephone caller‘s response to a page asks “Is this Kenny?” admissible as evidence that the defendant had been in possession of the pager); United States v Oguns, 921 F2d 442 (CA 2, 1990) (telephone caller asks for the defendant and asks “Have the apples arrived there?” admissible as evidence that the defendant was expecting narcotics); United States v Weeks, 919 F2d 248 (CA 5, 1990) (unidentified persons addressing the defendant as “Gato” was their nonassertive use of the name and therefore nonhearsay evidence that the defendant was Gato); United States v Lis, 120 F3d 28 (CA 4, 1997) (error to exclude arithmetic calculations made by the defendant‘s deceased husband offered to show that large sums of money were product of his embezzlement and not hers); United States v Perez, 658 F2d 654 (CA 9, 1981) (testimony that an accomplice referred to the defendant by name on the telephone while making arrangements for delivery of drugs admissible to show the defendant‘s complicity); United States v Singer, 687 F2d 1135 (CA 8, 1982) (landlord‘s envelope addressing a termination of tenancy notice to two persons not hearsay when offered to show that those persons lived together); United States v Groce, 682 F2d 1359 (CA 11, 1982) (pencil marks on a nautical chart fixing positions of a vessel admissible to show intended course of the vessel);
Not all cases have accepted the rule definition of hearsay. Two that have similarities are Lyle v Koehler, 720 F2d 426 (CA 6, 1983), and United States v Reynolds, 715 F2d 99 (CA 3, 1983). In the former case, Lyle, the appellant, and a nontestifying codefendant,
In United States v Reynolds, Parran and Reynolds were jointly tried for conspiracy to defraud, and, over the hearsay objection of Parran, a witness testified that after Reynolds was arrested he said to Parran on approaching him, “I didn‘t tell them anything about you.” Id., 100. Similarly, the panel found that conduct to be hearsay and its admission a denial of the right of confrontation.
While both the Lyle and Reynolds opinions referred to the rule definition of hearsay, neither discussed the definition of “statement” in
It would be a boon to lawyers and litigants if hearsay were limited by the court to assertions, whether by words or substitutes for words.... It would exclude evidence of a declarant‘s conduct offered to prove his state of mind and the facts creating that state of mind if the conduct did not
consist of assertive words or symbols. [Morgan, Hearsay, 25 Miss L J 1, 8 (1953).]
The hearsay conclusions of the Lyle and Reynolds courts have been considered and rejected elsewhere. State v Esposito, supra; State v Collins, supra, respectively. In commenting about cases reaching conclusions opposite to Lyle and Reynolds, one observer said:
[C]ourts seem to have used the concepts of nonassertive conduct, and of assertive conduct offered to prove something other than the matter asserted, in a manner consistent with the Advisory Committee‘s theory that sincerity dangers are lessened. The cases generally involve utterances classed as nonhearsay that raise no real insincerity dangers affecting the purpose for which they are being used. The persons who made the intercepted calls to bookmakers are very unlikely to have been consciously plotting to incriminate the bookmakers. It is unlikely that codefendants who made false statements exculpating their accomplices were hoping to incriminate their accomplices. The makers of secret records of drug dealing and gambling are unlikely to have manufactured them and left them on the premises so they later would be used to incriminate those on the premises. This sort of frame-up possibly could occur, just as someone might frame a defendant by planting drug paraphernalia on the premises. The need for cross-examination, however, is no greater than in the case of drug books than in the case of drug paraphernalia, when the only purpose of the evidence is to show the use of the premises. Nor, finally, are declarants who create documents that later are used as indirect evidence to show association or linkage likely to have done so for purpose of falsely showing association. The person carrying another‘s name and phone number on a slip of paper in his or her pocket possibly might foresee that someone later could find the paper and infer that the person in possession knew the person named on the paper. The chance of this being done deliberately to create that false impression is trifling. [Park, “I Didn‘t Tell Them About
You“: Implied Assertions as Hearsay Under the Federal Rules of Evidence, 74 Minn LR 783, 786-787 (1990).]
After a review of the federal cases, Professor Park‘s article concludes that they have reached fair results under the rule definition of hearsay and that anticipated hearsay dangers have not materialized.
The dissent in Lyle, supra, points out the additional difficulty presented by the majority‘s conclusion that the letter requests for false alibis were hearsay because they were offered for something asserted by the prosecutor, i.e., the guilt of the defendants. The “matter asserted” in the definition of hearsay has always referred to the matter asserted by the out-of-court declarant, not the party offering the evidence. Indeed, if out-of-court statements were hearsay when offered to support an assertion of the proponent of the evidence, every such statement would be hearsay because all of them, if not irrelevant, are offered to prove something.
Although we are unaware of Michigan precedent that discusses the “implied assertion” theory by that name, a number of cases make clear that the theory has already been rejected, at least regarding nonassertive nonverbal conduct. Even before the effective date of the Michigan Rules of Evidence, a majority of participating justices said, in People v Stewart, 397 Mich 1, 9-10; 242 NW2d 760 (1976):
Acts or conduct not intended as assertive are not hearsay and therefore, they are admissible. It should be noted that nonassertive acts or conduct are not an exception to the hearsay rule—rather, they are not hearsay in the first place.
At least three decisions since then have identified conduct as nonhearsay for not fitting the definition of
If we had the authority to engraft the “implied assertion” theory onto the definition of hearsay we would not do so. If we accept that Ms. Love was not intending to convey that the defendant was in the mood to commit assault, it seems an inordinate magnification of the remaining hearsay dangers to say that the factfinder cannot hear the evidence without cross-examining her regarding the opportunity to perceive, remember and articulate the attitude of the person sitting next to her in an automobile. If that is too obvious a case, it is also true that people do not ordinarily order drugs from places that do not sell them, place bets with persons who do not accept them, solicit perjured alibis on behalf of the guiltless, give secret reassurance to those they have never met, or, to be sure, write letters to those who cannot read them.
In any event, under the rule definition of hearsay, an “implied assertion” is a contradiction in terms and a euphemism for declining to apply the rules as they
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
SAAD, J., concurred.
O‘CONNELL, P.J. (concurring in part and dissenting in part). I agree with the conclusion reached by the majority, but write separately to clarify certain areas where my views diverge from those of the majority.
The majority concludes that Alicia Love‘s statements—“Bitch come out, I‘m gonna kick your ass. And Alphonzo don‘t want you, Alphonzo don‘t love you.“—do not constitute hearsay.
Defendant was on trial for assaulting another individual with the intent to commit murder. To the extent that one considers, as does the majority, only the literal denotation of Love‘s words, that is, that Love intended to assault Christine Berry and that defendant no longer cared for Berry, they were not relevant to any fact in issue, see
Notes
(a) Character evidence generally. Evidence of a person‘s character or of a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: . . . .
Here, Ms. Love‘s comments had no bearing on any matter that was in issue at defendant‘s trial. Assuming arguendo that her statements were not hearsay, they failed to make any matter that was in issue, any matter of consequence, Mills, supra, more probable or less probable than the matter would have been in the absence of the evidence.
That being said, I would caution that the fact that witness Berry saw defendant in the area may have been relevant evidence. However, I address only the propriety of the admission into evidence of witness Berry‘s reiteration of the woman‘s statements, as opposed to witness Berry‘s testimony that she saw defendant in the area. While defendant‘s presence may have been relevant, the statements of Ms. Love, who did not testify at trial and who made no comment incriminating defendant with respect to the charged crimes was not relevant evidence.
For other authority in support of my position, see: Seidelson, Implied Assertions and Federal Rule of Evidence 801: A Continuing Quandary for Federal Courts, 16 Miss CLR 33, 52-53 (1995) (concluding that implied assertions should “remain hearsay under Rule 801, thereby giving effect to the apparent congressional intent and precluding the Advisory Committee from perverting that intent by a perfunctory effect to analogize implied assertions with nonassertive conduct“); Ulam, The Hearsay Rule: Are Telephone Calls Intercepted by Police Admissible to Prove the Truth of Matters Impliedly Asserted?, 11 Miss CLR 349, 366 (1991) (finding that “[b]oth the direct assertion and the implied assertion contain hearsay dangers which justify the exclusion of the evidence on hearsay grounds“); Rice, Should Unintended Implications of Speech be Considered Nonhearsay? The Assertive/Nonassertive Distinction Under Rule 801(A) of the Federal Rules of Evidence, 65 Temp LR 529 (1992) (“regardless of whether the statement was direct or indirect (and if indirect, whether the implication was intended or not), if the evidence is logically relevant only if one believes the truth of the matter explicitly or implicitly asserted, it is hearsay“); Finman, Implied Assertions as Hearsay: Some Criticisms of the Uniform Rules of Evidence, 14 Stan LR 682, 691-693 (1962) (arguing that nonassertive conduct offered for the two-step inference of belief and statements offered to prove unspoken beliefs should be treated as hearsay); Fenner, Law Professor Reveals Shocking Truth About Hearsay, 62 UMKC LR 1, 105, n 258 (1993) (agreeing with the court in Reynolds, supra); Saltzburg & Redden, Federal Rules of Evidence Manual (4th ed), p 717 (“[t]o the extent that one fact must be asserted if another that is directly asserted is to be taken as true, both should be treated as hearsay when the direct assertion is offered to prove the other“); 2 Graham, Handbook of Federal Evidence (4th ed), § 801.7, pp 241-242 (“[w]hen a statement is offered to infer the declarant‘s state of mind from which a given fact is inferred in the form of an opinion or otherwise, since the truth of the matter asserted must be assumed in order for the nonasserted inference to be drawn, the statement is properly classified as hearsay under the language of Rule 801(c)“); 4 Louisell & Mueller, Federal Evidence, § 415, p 94, n 84 (same conclusion as in Graham, supra).
There was a precedent, however, that the judges declined to apply. Several of the opinions noted that the letters would have been admissible in the ecclesiastical courts, where they would have been weighed by a judge, adding that a jury should not be trusted with the same evidence. See, e.g., opinion of Judge Bosanquet in the Enchequer Chamber, 112 Eng Rep 512:
Those Courts are constituted upon principles very different from those which regulate the Courts of Common Law. Where the Judges are authorised to deal both with the facts and the law, a much larger discretion with respect to the reception of evidence may not unreasonably be allowed than in Courts of Common Law, where the evidence, if received by the Judge, must necessarily be submitted entire to the jury. By the rules of evidence established in the Courts of Law, circumstances of great moral weight are often excluded, from which much assistance might in particular cases be afforded in coming to a just conclusion, but which are nevertheless withheld from the consideration of the jury upon general principles, lest they should produce an undue influence upon the minds of persons unaccustomed to consider the limitations and restrictions which legal views upon the subject would impose.
Similarly, a question, not ordinarily an assertive form of speech, might contain a de facto assertion. In an example used in Bacigal, Implied Hearsay: Defusing the Battle Line between Pragmatism and Theory, 11 Southern Ill U L J 1127, 1139 (1987), a prospective purchaser of drugs asks, “Is this pure heroin?“, to which the declarant responds with another question, “Do cops wear blue?” The context discloses that the response, while nonassertive in form, is clearly intended as an assertion.
Nor do we suggest that there cannot be other hearsay issues regarding nonassertive conduct. Suppose the declarant clearly did not have expertise that would ordinarily be required to testify about the inference desired: “The notary public told me, ‘Go get checked out for ulcerative colitis.‘”
The Bacigal article is one of a number that continue the academic debate. Professor Bacigal criticizes the rule definition of hearsay for eliminating implied assertions from its scope.