PEOPLE v SMITH
Docket No. 103833
Supreme Court of Michigan
Decided March 17, 1998
Argued October 9, 1997 (Calendar No. 4).
In an opinion by Justice WEAVER, joined by Chief Justice MALLETT, and Justices BOYLE and TAYLOR, the Supreme Court held:
The hearsay statement was admissible as an excited utterance. The defendant was not denied effective assistance of counsel.
1. An excited utterance under
2. In this case, there is no question that the sexual assault was a startling event, and the statement was made while the complainant was still under the overwhelming influence of the assault, render
3. To demonstrate that a conflict of interest denied a defendant the Sixth Amendment right to counsel, the defendant must establish that an actual conflict of interest adversely affected counsel‘s performance by showing that the performance fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense so as to deny a fair trial. There is no automatic correlation between an attorney‘s theoretical self-interest and an ability to loyally serve a defendant. In this case, no evidence was cited to suggest that defense counsel actively lessened his defense as a result of his pending felony charge, nor is there evidence of an actual conflict of interest on the record. To the contrary, defense counsel vigorously pursued his objections and presented a strong case.
Affirmed.
Justice BRICKLEY, joined by Justices CAVANAGH and KELLY, concurring in part and dissenting in part, stated that the circumstances of this case do not demonstrate a level of continuing stress sufficient to satisfy the threshold for admission of the complainant‘s statement as an excited utterance. While profound hysteria is not required, something more than unusual or extraordinary behavior must be evident before it can reasonably be concluded that a hearsay declarant spoke under an immediate and uncontrolled domination of the senses. The complainant‘s statement was made after there was more than sufficient time to permit reflective thought, and, thus, was inadmissible. Also militating against the admissibility of the complainant‘s statement is the fact that it was made in response to his mother‘s persistent questioning, and was not the product of the uncontrolled domination of the senses. It did not possess sufficient indicia of reliability to justify its admission as an excited utterance under
The admission of the complainant‘s statement also was not harmless error. No corroborating evidence of the alleged sexual assault was offered independent of the complainant‘s testimony. Further, it was not merely cumulative of properly admitted in-court testimony, but was used to bolster the complainant‘s credibility. Thus, it cannot be safely concluded that the complainant‘s statement did not have a substantial effect on the jury‘s decision.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Pros
State Appellate Defender (by Richard B. Ginsberg) for the defendant.
Amicus Curiae:
William A. Forsyth, President, John D. O‘Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief, Research, Training and Appeals, for Prosecuting Attorneys Association of Michigan.
WEAVER, J. We granted leave in this case to determine whether a hearsay statement, made approximately ten hours after an event, was properly admitted under
I
The complainant was a sixteen-year-old high school sophomore when he joined the gym where he met defendant. Complainant joined the gym to improve his chances of making the varsity baseball team. Defendant was a thirty-one-year-old bodybuilder, from whom others, including complainant, sought weightlifting advice. At some point, defendant and complainant exchanged telephone numbers. Complainant testified that, at that time, defendant had told him that he “expected” complainant to call him.
One week later, complainant called defendant to ask if defendant wanted to go bowling. Defendant suggested they watch a movie at defendant‘s house instead. Defendant again picked complainant up and they returned to defendant‘s house. Complainant testified that while watching the movie defendant said that he found complainant interesting and asked complainant if he was open-minded. Sometime later defendant asked him, “What do you think about getting your dick sucked?” Complainant responded, “I‘m not funny, if that‘s what you mean.”
Soon thereafter, two women stopped by for directions to a party. Defendant led them by car to the party with complainant in the front passenger seat. Complainant testified to a growing uneasiness. In response to this uneasiness, defendant said he would take complainant home. Defendant briefly went into the party and came out with a man whom he drove to the store for more beer. When complainant attempted to move to the backseat of the car, defendant said to him, “You don‘t have to take the backseat for nobody.” After going to the store, the three went back to the party, where defendant and complainant stayed
Upon return to defendant‘s house, complainant testified that defendant offered to involve him in a business venture if complainant would allow defendant to perform fellatio on him. Complainant testified that he told defendant that the proposition was “sick.” Complainant testified that at this point the defendant got very angry, that the defendant would not allow him to leave, and that the options offered by defendant became increasingly violent. Complainant testified further that defendant told him to leave and then would not allow him to go, and that complainant became increasingly frightened. Defendant then promised to take complainant home after defendant smoked a joint, but instead of taking him home at that point, defendant offered complainant other choices. Defendant gave the complainant the choice between fighting defendant, who outsized complainant by eight inches and one hundred pounds, or allowing defendant to perform fellatio on him. When complainant asked to use the telephone, defendant said, “You‘re just going to call your mom . . . . I‘ll just beat her up. I‘ll beat up whoever comes over, or I‘ll just call my friends to beat them up.” Complainant testified that defendant then pushed him and hit him in the chest and leg.
At that point, a group of people came to the door and defendant told complainant to be quiet because they had guns. After the people left, complainant testified that defendant gave him another option: either let defendant perform fellatio or he would give him over to the people who were coming by again later and who were “sicker” than defendant and into
Although defendant testified that there was a conversation regarding open-mindedness and his homosexuality, he denied that he became violent or forced complainant to allow him to perform fellatio. He denied any sexual contact with complainant.
The defendant then drove the complainant home at approximately 1:45 in the morning. Complainant‘s mother testified that she came to the door when complainant returned home because he was having a difficult time getting the door unlocked. She inquired if anything was wrong and testified that his response was, “Oh, mom, leave me alone.” She observed that complainant seemed tearful and emotional. Without answering his mother‘s second inquiry, complainant abruptly left the room and took a bath with the water running continually for approximately one hour. The mother observed complainant pacing the floor and punching his hand into his fist. She testified further that at approximately 5:30 A.M., complainant was uncharacteristically sleeping on the livingroom couch, though his bedroom was adjacent to the livingroom, and that his eyelashes appeared wet.
At 11 o‘clock the next morning complainant awoke. He testified that he asked his father for a weightlifting
It is this statement to which defense counsel objected. However, the court ruled that the statement was admissible as an excited utterance. The jury ultimately convicted defendant of first-degree criminal sexual conduct. Defendant appealed, challenging among other issues, the admission of the hearsay statement. Further, defendant claimed that he was denied his Sixth Amendment right to counsel, because, at the time of trial, his attorney had been charged with a criminal offense in the same county.
The Court of Appeals affirmed the conviction for different reasons. It held that the statement did not qualify as an excited utterance, but that the admission of the statement was harmless error because it was cumulative, given complainant‘s testimony. With respect to the effective assistance of counsel argument, the Court found no conflict of interest because the judge and the prosecutor involved in counsel‘s case were not the same as those in defendant‘s case. This Court granted leave limited to these issues. 454 Mich 873 (1997).
II
We generally review a trial court‘s determination of evidentiary issues for an abuse of discretion. People v
In People v Straight, 430 Mich 418, 424; 424 NW2d 257 (1988), this Court cited the two primary requirements for excited utterances: 1) that there be a startling event, and 2) that the resulting statement be made while under the excitement caused by the event. Straight clarified People v Gee, 406 Mich 279, 282; 278 NW2d 304 (1979), which had split the second requirement into two inquiries: whether the statement was made before there was time to contrive and misrepresent, and whether it related to the circumstances of the startling occasion. Straight explained:
Properly understood, Gee‘s requirement that the statement must “be made before there has been time to contrive and misrepresent” is simply a reformulation of the inquiry as to whether the statement was made when the witness was still under the influence of an overwhelming emotional condition. [Id., p 425.]
This explanation clarified that it is the lack of capacity to fabricate, not the lack of time to fabricate, that is the focus of the excited utterance rule. The question is not strictly one of time, but of the possibility for conscious reflection. 5 Weinstein, supra, § 803.04[4], p 803-23.
In this case, the Court of Appeals found that, although the complainant was still under the stress of the assault, “the statement did not qualify as an excited utterance because . . . the statement was made after there was sufficient time to permit reflective thought.” Unpublished opinion per curiam, decided July 11, 1995 (Docket No. 148757). This reasoning is flawed. Though the time that passes between the event and the statement is an important factor to be considered in determining whether the declarant was still under the stress of the event when the statement was made, it is not dispositive. It is necessary to consider whether there was a plausible explanation for the delay. Gee, p 283. Unlike
There can be no question that the sexual assault in this case was a startling event. The question is whether the complainant was still under the stress of the assault when he stated to his mother ten hours later, “I had to be sucked off last night before I can [sic] even come home.” The circumstances preceding and surrounding the statement convince us that the statement was made while the complainant was still under the overwhelming influence of the assault and, therefore, that the statement was reliable and admissible.
We find that the complainant‘s actions upon arriving home were extraordinary. When he arrived home at approximately 1:45 A.M., he took an hour-long bath and let the water run that entire time. Afterward, he paced the living room and his mother observed him punching his fist into his hand. At approximately 5:30 A.M., complainant uncharacteristically slept on the couch, though his bedroom adjoined the living room. His mother observed that he appeared to have been crying. At approximately 11 o‘clock the next morning, the complainant asked his father and mother separately for a weight bench. His father said maybe, and later, when his mother said yes, but not for three months, complainant broke into tears. When his
The defense cites not only the time lapse between the event and the statement, but also the fact that the statement was made in response to questioning. Like the question of elapsed time, whether a statement made in response to questioning should be excluded under
One final rationale for excluding the statement is that complainant‘s request for a weight bench might appear self-serving or at least to exemplify rational thought. However, from our review of the circumstances surrounding the statement, fabrication seems a remote possibility. It appears that the “dam simply broke” after complainant realized that in order to keep weightlifting, he would have to go to the gym where he would be faced with seeing defendant. Thus, we hold that the trial court did not abuse its discretion by admitting the statement because we find that statement was admissible as an excited utterance.4
Even if we were to agree with the Court of Appeals that it was error to admit complainant‘s statement, we would affirm the Court of Appeals ruling that the error was harmless. The Court of Appeals concluded that the error was harmless because the statement was cumulative to the victim‘s own in-court testimony. We clarify that the fact that the statement was cumulative, standing alone, does not automatically result in a finding of harmless error. Harmless error review requires reversal only if the error is prejudi-
III
Defendant argues that he was denied the effective assistance of counsel in violation of his Sixth Amendment rights because his attorney was charged with a felony pending in the same county. Defendant asks
In People v Pickens, 446 Mich 298; 521 NW2d 797 (1994), this Court adopted the ineffective assistance of counsel standard articulated by Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984). To prove a claim of ineffective assistance of counsel under Pickens and Strickland, a defendant must show that counsel‘s performance fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense so as to deny defendant a fair trial. Strickland, pp 688-689. In dicta however, Strickland cited Cuyler‘s rule for cases involving ineffective assistance of counsel claims premised on an actual conflict of interest. Id., p 692. Cuyler calls for a heightened standard in conflict of interest claims. In circumstances involving a conflict of interest, Cuyler stated that “counsel breaches the duty of loyalty, perhaps the most basic of counsel‘s duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests.” Strickland, p 692. This heightened standard is not a rule of
Cuyler involved an alleged conflict of interest arising from an attorney‘s representation of codefendants. Defendant argues that a potential conflict of interest between an attorney and his client is more serious than the representation of codefendants and, therefore, claims that a rule of prejudice per se is necessary. However, we find our reasoning in People v Pubrat, 451 Mich 589; 548 NW2d 595 (1996), persuasive in this case. In Pubrat, we held that an attorney‘s suspension from the practice of law does not create a presumption of ineffective assistance of counsel. We reasoned, “[a]ttorneys may be suspended from the practice of law for a multitude of reasons . . . [and] there is no necessary correlation between an attorney‘s suspension and competency . . . .” Id., p 598. Similarly, we find that there is no automatic correlation between an attorney‘s theoretical self-interest and an ability to loyally serve a defendant. As in Pubrat, we recognize the potential for an attorney‘s self-interest to conflict with the representation of a defendant and that in such a case a finding of ineffective assistance of counsel would be warranted. If a convicted defendant believes that his attorney‘s representation was below an objective standard of reasonableness, the appropriate procedure is to seek a Ginther hearing. People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
We find that a rule per se is inappropriate and favor the reasoned approach of Cuyler, supra. In this case,
IV
The defendant‘s conviction and sentence are affirmed.
MALLETT, C.J., and BOYLE and TAYLOR JJ., concurred with WEAVER, J.
BRICKLEY, J. (concurring in part and dissenting in part). I dissent from that part of the lead opinion upholding the admission of the complainant‘s hearsay statement to his mother approximately ten hours after the alleged assault. First, I believe that the majority erroneously concluded that the statement was admissible as an excited utterance under
I
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.”
As the lead opinion correctly recognizes, the rationale for the excited utterance exception to the hearsay rule is based on the perception that a person who is still under the “sway of excitement precipitated by an external startling event will not have the reflective capacity essential for fabrication so that any utterance will be spontaneous and trustworthy.” 5 Weinstein, Evidence (2d ed), § 803.04[1], p 803-19. The lead opinion also correctly observes that it is the lack of capacity to fabricate, not the lack of time to fabricate, that is the focus of the exception. However, I believe the majority is unfaithful to the important principles that it espouses.
The majority sets forth the following “extraordinary” facts to support its conclusion that the complainant‘s statement was made while still under the continuing stress of the alleged sexual assault:
When he arrived home at approximately 1:45 A.M., he took an hour-long bath and let the water run that entire time. Afterward, he paced the living room and his mother observed him punching his fist into his hand. At approximately 5:30 A.M., complainant uncharacteristically slept on the couch, though his bedroom adjoined the living room. His mother observed that he appeared to have been crying. At approximately 11 o‘clock the next morning, the complainant asked his father and mother separately for a weight bench. His father said maybe, and later, when his mother said yes, but not for three months, complainant broke into tears. When his mother asked what was wrong,
complainant made the statement in question. We agree with the trial court that these circumstances describe a continuing level of stress arising from the assault that precluded any possibility of fabrication. [Ante, pp 552-553.]
I disagree that these circumstances demonstrate a level of continuing stress sufficient to satisfy the threshold for admission of the complainant‘s statement as an excited utterance. While profound hysteria is not required, something more than unusual or “extraordinary” behavior must be evident before it can reasonably be concluded that a hearsay declarant spoke under what Wigmore called the “immediate and uncontrolled domination of the senses . . . .” 6 Wigmore, Evidence (Chadbourn rev), § 1747, p 195.1 I believe the fact that the complainant took a long bath and paced for hours while slamming a fist into his hand is indicative of a person deep in thought, reflecting on the earlier assault. Moreover, the complainant was able to calm himself enough to sleep for several hours. Finally, when he did wake up, he asked his
I also believe that the majority grossly understates the importance of the ten-hour time lapse between the alleged event and hearsay statement in this case. The Court of Appeals found that, although the complainant was still under the stress of the assault, the “statement did not qualify as an excited utterance because . . . the statement was made after there was sufficient time to permit reflective thought.” Unpublished opinion per curiam, decided July 11, 1995 (Docket No. 148757). The majority concludes that this reasoning is “flawed” because “[t]hough the time that passes between the event and the statement is an important factor to be considered in determining whether the declarant was still under the stress of the event when the statement was made, it is not dispositive.” Ante, p 551.
While I agree that the Court of Appeals analysis was overly simplistic, I do not believe it can be said that its analysis was “flawed.” Although not dispositive, temporal proximity is certainly the most important factor of the analysis, for, as time passes, the justification for the excited utterance exception disappears as the emotional excitement of the declarant subsides and his capacity for reflection revives. However, as Weinstein explains, “[P]hysical factors, such as shock, unconsciousness, or pain, may prolong the
Also militating against the admissibility of the complainant‘s statement is the fact that the statement was made in response to his mother‘s persistent questioning. Like the question of elapsed time, whether a statement made in response to questioning should be excluded under
“Evidence that the statement was . . . made in response to an inquiry, while not justification for automatic exclusion, is an indication that the statement was the result of reflective thought, and where the time interval permitted such thought these factors might swing the balance in favor of exclusion.” [Id., p 426, n 6, quoting McCormick, supra, p 857.]
The record reflects the following scenario. Complainant returned home around 1:45 A.M., but seemed to have a hard time getting in the door. Once inside his mother asked, “Joel, what‘s wrong?” to which he replied, “Oh, mom, leave me alone.” Moments later she asked, “Well, Joel, do you want to talk to me?” to which he responded, “No, I can‘t.” A short time later she assured him that “[w]hen you want to talk, I‘m here.” The following morning, after complainant asked for the weight bench, his mother once again asked him, “what‘s wrong?” In response to this question complainant made the hearsay statement in issue, “Oh, mom, I had to be sucked off last night before I can [sic] even come home.”
Had the complainant blurted out the statement immediately after returning home, I might agree, as the majority put it, that the “dam simply broke.” Ante, p 554. However, this is not what happened. The complainant‘s mother, observing the complainant‘s apparent distress, began questioning him as soon as he got home. He was, however, sufficiently in control of himself to refuse to answer her questions. By the time he finally responded, he had had more than nine hours to formulate his eventual response to her per-
II
I also disagree with the majority‘s conclusion that the admission of the complainant‘s statement was harmless error. The Court of Appeals concluded that the error was harmless because it was cumulative to the complainant‘s in-court testimony. The majority correctly points out that the fact that a statement is cumulative, standing alone, does not result in a finding of harmless error. Rather, error requires reversal only if it is prejudicial. People v Mateo, 453 Mich 203, 215; 551 NW2d 891 (1996). The prejudice inquiry “focuses on the nature of the error and assesses its effect in light of the weight and strength of the untainted evidence.” Id., p 217.
In People v Straight, supra, the defendant was convicted of second-degree criminal sexual conduct involving a four-year-old girl. This Court held that the trial judge had erroneously permitted the parents of the four-year-old victim to testify under the excited utterance exception regarding statements made by the victim one month after the alleged assault. In evaluating the prejudicial effect of the improperly admitted hearsay, we stated:
The admission of this evidence being erroneous, we must determine whether a miscarriage of justice has resulted.
MCL 769.26 ; MSA 28.1096. Our inquiry is to the “effect the error had or reasonably may be taken to have had upon the jury‘s decision.” Kotteakos v United States, 328 US 750, 764; 66 S Ct 1239; 90 L Ed 1557 (1946). To determine whether the defendant was so prejudiced that reversal is required, we evaluate the prejudicial effect of testimony in the light of other competent evidence. People v Kregger, 335 Mich
457; 56 NW2d 349 (1953). In light of the emphasis placed on this evidence by the prosecution, we cannot safely conclude that the error did not have substantial influence on the jury‘s result. Although the child testified at trial regarding the facts related by her parents, these facts were denied by the defendant. When viewed as a one-to-one credibility contest between the child and defendant, the reinforcement provided by the people‘s hearsay evidence may have tipped the scales toward a guilty verdict. In any event, upon review of the whole record, we conclude that the error was such that failure to grant the requested relief would be inconsistent with substantial justice. [Straight, supra, pp 427-428 (emphasis added).]
I believe that our reasoning in Straight applies with equal force to the present case. First, like Straight, this case came down to a one-against-one credibility contest, there being no corroborating evidence of the alleged sexual assault independent of the complainant‘s testimony. The majority concludes that the statement was merely cumulative because “the mother‘s testimony . . . was replete with evidence of the complainant‘s distress upon his arrival home.” Ante, p 555. However, the statement was not offered to prove that the complainant was distressed when he arrived at home. Instead, it was offered to prove the truth of the matter asserted, that is, that the sexual assault actually occurred. The complainant‘s mother was not present and thus could not testify about the circumstances surrounding the alleged assault. Thus, the statement was not merely cumulative to the rest of her properly admitted in-court testimony.
Second, also as in Straight, the prosecution in the present case used the hearsay testimony to bolster
But those same factors that contribute to the statements’ reliability cannot be recaptured even by later in-court testimony. A statement that has been offered in a moment of excitement—without the opportunity to reflect on the consequences of one‘s exclamation—may justifiably carry more weight with a trier of fact than a similar statement offered in the relative calm of the courtroom. [White v Illinois, 502 US 346, 355-356; 112 S Ct 736; 116 L Ed 2d 848 (1992).]
Upon review of the entire record, I cannot safely conclude that complainant‘s statement did not have a substantial effect on the jury‘s decision. I believe the error to be of a kind that the failure to grant relief has resulted in a miscarriage of justice, and, thus, would reverse the defendant‘s conviction and remand for a new trial.
CAVANAGH and KELLY, JJ., concurred with BRICKLEY, J.
Notes
This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced 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. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or at least as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker‘s belief as to the facts just observed by him; and may therefore be received as testimony to those facts. Id.
“Q. Could you tell us how this developed, who said what and when?
“A. First I started in on her about, ‘[R____ (the child)], what is wrong with you? Why do you keep throwing up? Why do you keep waking up and shaking. Tell me what is wrong with you.’
“So she just, you know, kept on looking up at me really scared and she wouldn‘t say anything and I just looked over at [her father] and I said, ‘[G____], you‘ve got to do something with her. I can‘t find out what‘s wrong with her.’ And so he looked at her and said, ‘[R____], tell us what happened right now.’ And that is when she come out and said something and I said, ‘Did Bill do anything to you?,’ and she said yes—do you want me to go ahead and say it?
“Q. That is right. We are all adults here, we want to hear it.
“A. She said, ‘Yes, Bill put his fingers inside me,’ and I said, ‘What else did he do?,’ and she said, ‘he told [T____ (another child)], to go get a fork so that he could eat me.’ And [T____] was downstairs when I came home that night so she said that [T____] went and got a fork out of the cupboard so that he could eat [R____].
“Q. Okay. Is that basically what she told you in front of your husband?
“A. Yes.” [People v Straight, supra, p 421, n 1.]
The majority loses sight of the crucial question, which is whether the declarant was still under the stress of the event so that his statement could not possibly be the result of fabrication, intervening actions, or the exercise of choice or judgment. Whether the declarant in fact fabricated his statement, or whether he at least possessed the motive to fabricate, is irrelevant to the
Hearsay is defined as an extra-judicial statement which is offered for the purpose of proving the truth of the thing said. While some writers have suggested that the hearsay rule need not be applied to the extra-judicial statements of a declarant, who later testifies as a witness, this Court has not recognized such an exception to the hearsay rule. Of course, prior inconsistent statements of a witness can be shown for impeachment purposes. But this is not properly an exception to the hearsay rule. Prior inconsistent statements are not admissible to prove the truth of the thing said. They are offered, rather, to prove that the inconsistent statement was in fact made, irrespective of its truth, for the purpose of impeaching contrary testimony from the witness stand. Where the prior extra-judicial statement of a witness agrees with his testimony, the out-of-court remark is self-serving, and is not generally permitted under any established exception to the hearsay rule. [389 Mich 265, 275-276; 205 NW2d 451 (1973) (emphasis supplied); see also Stewart v People, 23 Mich 63 (1871).]
Where, as in the present case, the occurrence of the event described by the hearsay statement was a hotly contested issue of fact, the people should not have been permitted to bolster the testimony of their witness with his extrajudicial statement to his mother. Hallaway, supra, p 279; see also People v Cunningham, 398 Mich 514, 522; 248 NW2d 166 (1976). The admission of the complainant‘s prior consistent statement was prejudicial and constituted error requiring reversal. Id.