*1 v LEE PEOPLE 1987, Rapids. April Decided at Grand Docket 91332. Submitted No. 6, 1989. appeal applied for. June Leave to first-degree con- criminal sexual D. was convicted of Robert Court, Cook, J., appealed, duct, George R. Kent Circuit allowing alleging mother of the in error concerning testify crime made statements victim days after the fact. her the victim to seventeen Appeals held: The Court of improperly is tender admitted. There no Michigan hearsay years exception to the rule qualify as excited utterance. did not statements Reversed. J., agreed that Weaver, statements were P. She dissented. utterances, hold that admission of but would not excited concerning it was mony harmless error because them was testimony. affirm. She would of the victim’s in-court cumulative Exception — Hearsay — — Rules Excited Utterance 1. Evidence op Evidence. the excited three criteria to come within A statement must meet (1) hearsay must to the rule: (2) occasion, has be made before there out of a arise misrepresent, relate to contrive and been (MRE 803[2]). occurrence circumstances Exception Hearsay — — — Tender Years Rules 2. Evidence Evidence. longer years exception exists rule no The tender Michigan Rules Evidence. under Attorney Kelley, General, J. Louis J. Frank Sawyer, General, H. Prose- Caruso, David Solicitor References 2d, seq. 708 et Am Jur Evidence §§ un- an "excited utterance” admissible When is 803(2) Fed Rules of Evidence. ALR of the Federal der Rule 451. v Lee Opinion op the Court cuting Attorney, Timothy K. McMorrow, Chief Appellate Attorney, people. for the *2 Dodge (by Dodge),
Catchick & David A. for de- fendant. Weaver, P.J.,
Before: Jr. and T. Holbrook, JJ. Gillespie,* J. Defendant was convicted a Holbrook, Jr.,
jury first-degree criminal conduct, sexual MCL 750.520b(l)(a); 28.788(2)(l)(a), arising MSA out of penetration seven-year-old daugh- the sexual of his ter. twenty years He was sentenced six to prison. Defendant’s motion for new trial was de- appeals right, claiming nied and he trial court mony as of that the erred in 803(2),
of the victim’s mother under MRE hearsay exception for excited utterances. The May mother testified that 6, 1985, on seventeen days alleged after the incident, the victim told her penetrated that defendant had the victim’s rec- agree tum.1 improperly that the * judge, sitting Circuit Appeals by assignment. the Court of [1] under what event? May 5. Was that the date? A. Q. Q. May And then Could 6th. you go conditions you reported back in you time, ma’am, first learned about it the 7th, but could and I believe was you particular tell us it Well, watching
A.
we were
tv . . .
[My
passed
gas,
A.
laughing
some
son]
and then he started
it,
about
funny,
me, "Well,
and I
said wasn’t
and then he told
plug my
my finger
I will
butt with
so that
I can’t do it no
more,”
said,
you
that?”,
and I
something
"Where did
hear
like
dad,
said,
and then he told me
"Why
from his
would he
say something
that?”,
like
and then
had
[the
overheard
victim]
this from her bedroom and come out and ...
you.
The Court: I can’t hear
By Mr. Zerial:
Judge
you, okay?
can’t hear
Q.
op
Opinion
the Court
conviction.
reverse defendant’s
admitted and
803(2)
of a
an out-of-court
MRE
allows
"[a]
if it is
to be admitted
declarant
startling
relating
made
or condition
event
a
excite-
was under the stress of
the declarant
while
by the event or condition.”
ment caused
Gee,
require-
Supreme Court
forth three
set
comes
met
a statement
that must be
before
ments
exception:
utterance
excited
within
To
the excited
come within
rule,
must
three
a statement
meet
(1)
arise
occa-
it must
out of
criteria:
(2)
sion;
there has been
it must be made before
it must
misrepresent;
contrive
occa-
relate to the circumstances
*3
514, 519;
Cunningham,
People
398 Mich
v
sion.
248
(1976),
Saginaw B C
Rogers v
citing
166
NW2d
(1915).
Co,
490, 493-494;
See also (1988). 257 NW2d People Kreiner, 329 NW2d v (1983), 417 1104 den Mich reh
Supreme rejected "tender common-law Court exception years” rule2 and affirmed involving application the Gee criteria cases of a child of "tender the utterance years”:_ you read that last answer back? The Court: Would time.) (Last by reporter at this answer read back did, "Yes, says, he had come out and she The Witness: She said, "Yes, says, "Probably Mom,” did and told he what?” She I said, "Why?”, says, it to I "Because he did she him that.” me.” I he had stuck his said, you?”, had me that what to and she told "He did up peter her butt. hearsay testimony exception permitted years” The "tender Kreiner, supra, only of the infant victim. to corroborate the p 376. v 1989] Opinion of the Court If the utterance of a child of "tender years” relates to a "startling event or condition” and was made while the child was "under the stress of excitement statement by condition,” caused the event or may be admitted as an excited utter- 803(2). ance under MRE People Cobb, See On the other [310 hand, if requirements met, these are not the mere fact that the declarant is of years” "tender makes a statement in a sex-related case does not provide the so-called a basis for the statement under gestae” exception. "res 61 Mich Bar J [Kreiner, 332. supra, p n 8.] In the instant case the trial court admitted the hearsay statements concluding: going am to rule that because of the relation- ship of the defendant complainant and the and the victim, years
tender
that the criteria have
been met and the testimony will be allowed under
spontaneous
to the hear-
say rule.
disagree,
noting
first
the court disre-
garded the Kreiner
holding which rejected the
"tender years”
Second,
exception.
we find the sev-
lapse
enteen-day
between the sexual assault
the statement
significant
victim was a
delay
precluding a finding that
the statement was made
before there was time to contrive and misrepre-
Further,
sent.
there was no plausible
excuse for
the delay especially since it appears
the vic-
tim had previous opportunities
to relate the inci-
*4
Gee,
dent
to her mother. See
supra, p 283. Hence
we conclude that
the trial court abused its discre-
tion in allowing the hearsay testimony. People v
Petrella,
124
App
758;
Mich
We reject
the prosecutor’s
contention that Peo-
App
382
by Weaver, P.J.
ple
Soles,
v
NW2d
(1985),
(1985),
applicable.
lv den
Reversed. J.,
T. Gillespie, concurred. (dissenting).
Weaver, I dissent. colleagues Although agree my I with court erred in trial 803(2),
mony under MRE victim’s mother hearsay exception utterances, for excited reasoning. disagree with their TO THE HEARSAY EXCEPTION EXCITED UTTERANCE RULE. 279; Gee, 406 Mich for the three criteria admission sets forth an excited utterance into evidence as
a statement
(1)
803(2):
arise
must
MCR
the statement
under
startling event;
must be made before
out of
misrepresentation;
contrivance
is
there
*5
v
by Weaver,
Dissent
P.J.
it must relate to the
circumstances
the
FOR CONTRIVANCE AND MISREPRESENTATION. though Even child’s state- ment mother to her was not an excited utterance voiding application impor- hearsay rule, it is recognize delay seventeen-day tant that reporting preclude the incident did not of itself finding that the statement was made before there misrepresent. People to contrive and v Kreiner, 329 NW2d 716 years” which found that the "tender adoption rule did not survive Michigan require Evidence, Rules of did not age ignored of the declarant be when determining made be- whether statement was enough passed fore time had or contrivance misrepresentation. People Foreman, 161 Mich App Indeed, 14, 20-21; men- age legiti- young tal deficiencies or a child’s are analyzing mate to be considered when factors may have whether a declarant had time to or analysis employing statement, contrived the may properly these factors lead to the conclusion by Weaver, passage days not weeks would negate spontaneity. Id.1 statement’s case,
In this the victim’s statement was not delayed long enough to contrivance or mis- make high representation likely probability. or of *6 the child’s statement to her mother that defendant peter up obviously her "stuck his butt” was an attempt spontaneous, verify her unsolicited given him that his father had brother’s assertion plugging finger in the of his butt with his idea stop passing gas. It be difficult for order to anyone, especially would child, to
a fabri- play cate and out this scenario.
2. TO ARISE OF A FAILURE OF STATEMENT OUT
STARTLING EVENT. though to her the victim’s statement Even long enough delayed to make not mother was misrepresentation likely high of or contrivance or probability, qualify as an the statement cannot rule excited utterance startling out of an event because it did not arise time the event occurred or the child either at the was uttered. at the time the statement 20-21, Foreman, supra at this Court stated: involving commonly in at issue cases The criterion most here, 803(2), only find at issue is the the criterion we MRE second enough In contrived abilities of natural considerations. minute between be one, requires that the statement be made before which misrepresentation. passed or has for contrivance may analyzing time to or have a declarant had whether statement, age "spontaneous” mental event, declarant, startling are as the as well declarants, passage of one For some may event and a related disqualify utter- enough as an "excited the statement declarants, young age of or with such as those For other ance.” may deficiencies, passage days weeks not of or mental spontaneity A must be negate made between tender sion a statement. distinction of hearsay merely of because admission error, declarant, and admis- age would be which of showing probability that the a low circumstances based on misrepresented. contrived or statement was by Weaver, because make the statement not The child did activity was of seemed sexual shocking of its not aware She was to her. concern Her or terrorized. fearful nature, nor was she support innocently her made was strange for solution But her brother’s for brother. probable gas, passage that the stopping it is incident the sexual not have revealed child would acting point with was she in time because at no awareness wrongdoing. behavior Her usual her told Her father unaffected. remained alright, they should that she was had done what anyone, mother if told her she not tell again. Because him to visit unable would be she him, and to see and wanted father trusted her she yet that there not understand she did because activity, wrong anything the child the sexual with nothing. obediently said her father believed repeated, incident, if not such a chid For thought disappear might from conscious *7 knowledge worldly years until her or even months increased realizing point sexual to the wrong. activity had father been with her an ex- not statement was Because arising activity out of utterance cited incident oc- at the time the either the declarant pro- was time the statement or at curred made nounced, a statement rather was but support brother, not admis- it her was declarant 803(2). I that this conclu- MRE believe under sible clearly the need for estab- demonstrates sion exception years” to the "tender of a lishment hearsay rule. ERROR. TESTIMONY: HARMLESS
CUMULATIVE explains why analysis the excited The above un- rule was by Weaver, in available this case. Hence it is clear that challenged trial court in erred mony. However, the error was harmless because testimony cumulative, mother’s was see MRE testimony 403, to the child’s own in-court which convincing beyond was itself credible and a reason- able doubt. upon
It is true that cross-examination the child’s testimony memory lapses contained and inconsis- tencies as to some details about times and activi- during ties of the weekend visitation sexual assault occurred. the criminal sexual which the description toAs actual activity between her father herself, however, the child’s was convincing. cunnilingus detailed and Fellatio and normally knowledge, imagina- are not within the activity tion or of a child.2 To know part testimony concerning The critical of the child’s fellatio and cunnilingus, during prosecutor’s questioning elicited the assistant using dolls, anatomically the child while ing: correct includes the follow Q. Now, Okay. you you sitting what do do after finish on his stomach? A. He tells me to do this. Dodge: Honor, believe, position, Mr. Your I don’t in the doll’s sitting that it lying— on his stomach. It looked like it was lying top just one doll was of another. Can’t the witness prosecutor answer and the leave where it is? say anything. Mr. Zerial: didn’t observe, one, jury The Court: The can number what she said positioned dolls, jury question. and where she but that’s a By Mr. Zerial: Q. time, long . . by, . after all of this time went what do
you do next and what does Dale do next?
get up
morning.
A. We
in the
Q. Pardon me?
get up
morning.
A.
Now,
Q.
anything
you?
did he do
else to
A. Yes.
*8
Q.
you?
What else did he do to
this,
A. He told me to do
if I can do it.
Q.
you
He told
what?
push
A. To
down.
Q.
push
you push
To
down. Did
down?
by Weaver, activity,
in detail such sexual
and describe
about
to
or
experience
have had
witness
would
the child
Young
it.
children
about
taught
or
it first hand
be
read
on
or
television
activity
this
rarely view
difficult
extremely
It
be
it in
would
books.
about
setting and
in a courtroom
seven-year-old,
push
pushed
A.
me to
down.
He
you?
Q.
pushed
He
push
to
me
A.
down.
He went like
Q. I can hold.
there,
hurting.
push
it
on
started
A.
me to
down
He told
you?
Q.
did it hurt
Where
Right
here.
A.
there and
Q.
places?
It hurt both
A. Yes.
Q.
places
names?
these two
have different
Do
A. Yes.
Now,
going
try
.
Q.
I am
to . .
are
names?
What
potty.
A. Butt and
different, right?
Q. Potty. They are
A. Yes.
places?
Q.
they hurt both
And
A. Yes.
you
hurting
you
say
Q.
were
in both of
did
do
when
What
places?
those
any
A. I
I don’t want
do it
more.
said
you
Q.
say anything
anything
told
or do
after
And did Dale
him that?
A. Yes.
Q.
say
he
or do?
What did
if
do
A.
he told me to—let’s see
I can
it.
Then
Q.
my
just holding it
I am
there. What
Tell me move
hand.
you
he
to do next?
did
tell
peter,
it
suck on his
A. If I can do it. Get
in there. To
right
rubbing
it hurt.
then
there and
he started
Now,
Q.
you
you
hurt on
inside?
how do
know
Easy.
A.
easy?
Q.
it
How was
so
A.
it
hurt.
Because was
peter?
Q.
you
his
Did
suck on
A.
told me to.
He
Q.
peter
your
went inside
nriouth?
And that means
A. Yes.
Now,
you
you
Q.
happens—what
do
do after
sucked
what
your potty
your
peter
butt and
hurt?
he
his
rubbed
*9
by Weaver,
cross-examination,
subject
to lie convincingly
about experiencing fellatio
cunnilingus,
and it
is
improbable that
highly
child could
so.
do
mother’s
testimony was merely
cumulative
the child’s own in-court
testimony,
sufficiently
which was
convincing
credible and
all
jurors
reasonable
guilt
would have found
be-
yond a reasonable
doubt even had the court not
the challenged
admitted
testimony. Therefore
ad-
mission of the
was harmless
error and
2.613(A);
the conviction should stand. MCR
Christensen,
64 Mich App
32-33; 235 NW2d
lv den