PEOPLE v STRAIGHT
Docket Nos. 76317, 76318
Supreme Court of Michigan
Decided June 1, 1988.
430 MICH 418
Argued June 2, 1987 (Calendar No. 5).
In an opinion by Justice BOYLE, joined by Chief Justice RILEY and Justices BRICKLEY, CAVANAGH, and GRIFFIN, the Supreme Court held:
The statements of the child in this case were not admissible as excited utterances under
1. To be admitted as an excited utterance, a statement must be made while the declarant is under excitement caused by a startling event, and it must relate to the circumstances of the startling event. The focus of
2. While a sexual assault is a startling event, in this case, the statements at issue were made approximately one month after the alleged assault, immediately after a medical examination of
3. Application of the Rules of Evidence to child witnesses in cases of sexual abuse has created tension in the trial courts and the Court of Appeals as a result of the conflict between the underlying policies to protect children from exploitation and accused persons from erroneous convictions and their consequences. Increasingly, the courts have resorted to the excited utterance exception to admit statements of young children. However, the problems inherent in sex offense cases involving young children cannot be resolved by stretching the excited utterance exception so far as to abuse its intended purpose. Because the existing Rules of Evidence and procedure may not adequately deal with such cases, publicаtion of a proposed rule for comment is appropriate.
Justices LEVIN and ARCHER concurred, except with respect to part IV of the opinion.
Reversed and remanded for a new trial.
EVIDENCE — HEARSAY — EXCITED UTTERANCE.
In determining whether a statement by a declarant was an excited utterance, the proper focus is whether the declarant spoke while still under stress caused by a startling event; it is the lack of capacity to fabricate, rather than the lack of time to fabricate, which justifies the determination (
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William A. Forsyth, Prosecuting Attorney, аnd Timothy K. McMorrow, Chief Appellate Attorney, for the people.
James R. Rinck for the defendant.
BOYLE, J. We are asked in this appeal from defendant‘s conviction of criminal sexual conduct to decide whether a child‘s statements, made approximately one month after the event, as related
We hold that these statements were not admissible as excited utterances under
I
William Straight was charged with first-degree criminal sexual conduct. The victim was four years old at the time of the alleged assault. The jury‘s verdict and the defendant‘s conviction of second-degree criminal sexuаl conduct were affirmed by the Court of Appeals.
The alleged assault took place in early October, 1982, when the victim‘s mother went to the bank late one night with the defendant‘s wife. The mother had asked defendant, her next-door neighbor, to look in on her children during the few minutes that she expected to be away. She actually was gone for quite some time. When she arrived home, she found defendant sitting on the floor of her dining room with his legs extended and his arms around the child, who was crying. The mother asked defendant what he was doing, and why the child was out of bed. He resрonded that when he had looked in on the children he had found the child crying at the top of the stairs and that he had been comforting her when the mother returned.
The child was examined at the hospital where no physical evidence of molestation was found. When the parents and child were alone, they began questioning her about defendant. Both the mother and the child‘s father testified about the conversation.1 The victim, then five years old, also testified.
This case represents the most recent example of the tension created in the trial courts and the Court of Appeals by the application of the Rules of Evidence to the unique situation of a child witness in an alleged sexual abuse case. The tension originates frоm the conflict between two underlying policies: a desire to protect the most vulnerable of our citizens from heinous and damaging exploita-
The attempts to resolve this tension vary. The Court of Appeals in this case has urged us to reconsider the holding in People v Kreiner, 415 Mich 372; 329 NW2d 716 (1982). What remains consistent, however, is the perception that existing rules of evidence and procedure may not adequately deal with these cases. This case illustrates an extension of the Rules of Evidence to accommodate facts which fail to neatly fall within a recognized exception to the hearsay rule.
III
An excited utterance is defined as: “A statement relating to a startling event or condition made while the dеclarant was under the stress of excitement caused by the event or condition.”
To come within the excited utterance exception to the hearsay rule, a statement must meet three criteria: (1) it must arise out of a startling occasion;4 (2) it must be made before there has been time to contrive and misrepresent; and (3) it must relate to the circumstances of the startling occasion.
The second prong of Gee deals with the relative time frame, i.e., the statement “must be made before there has been time to contrive and misrepresent.” Obviously this statement does not contemplatе a sequence in which the utterance necessarily follows immediately on the startling event, just as it does not contemplate admission of a statement made while under control, even though made contemporaneously. Thus, Gee did not subordinate the requirements that the statement must be made while under the stress of excitement and relate to the startling event, to the time-to-contrive element of the formulation. Logically there is always time to contrive whether the statement begins as the event is observed or is made ten
The focus of
The crucial point is that the court must be able to find that the declarant‘s state at the time he made the declaration ruled out the possibility of conscious reflection.
Physical factors, such as shock, unconsciousness or pain, may prolong the period in which the risk of fabrication is reduced to an acceptable minimum. The interaction of other factors may also affect the court‘s determination . . . including the nature of the stаrtling event, the character of the statement, the condition of the declarant, the identity of the declarant, and the availability of other evidence. [Weinstein, supra, pp 803-91 to 803-94.]
Few could quarrel with the conclusion that a sexual assault is a startling event.5 The difficulty in this case arises because the statements at issue were made approximately one month after the
The prosecution argues that should we find the statements at issue inadmissible under
And ladies and gentlemen, I would suggest to
you that that was what was happening on that night in question that the statements made by [R ________] at the hospital can be considered by you and even if she hasn‘t said on the stand what happened as she did yesterday, she just clammed up and said, “I don‘t remember,” or, “I don‘t want to say anything,” you can still find that the defendant is guilty merely from the testimony that the mother gave as to the information given to her and to the father as to what she said in the hospital.
These comments establish that the parents’ testimony was presented to the jury without limitation as substantive proof of defendant‘s guilt.8
The admission of this evidence being erroneous, we must determine whether a miscarriage of justice has resulted.
IV
Wigmore summarized the general rules regarding admission of out-of-court statements by the victim of a sexual offense as follows: 1) the fact of complaint, including the time and place, but not the identity of the perpetrator, is admissible through third-party testimony in the case in chief,9 2) the details of the complaint, by the majority rule, are not admissible as substantive evidence unless, 3) they come within a hearsay еxception such as excited utterance or a res gestae or tender years exception (where recognized), and 4) the statement may be admitted to support the complainant‘s credibility where the rules of the jurisdiction would otherwise allow use of a prior consistent statement in rehabilitation. See 4 Wigmore, Evidence (Chadbourn rev), §§ 1134-1138, pp 297-312.10
In People v Kreiner, supra, this Court held that the tender-years exception did not survive the adoption of the Michigan Rules of Evidence, barring the use of this theory to admit third-party testimony of the details of the offense. Use of third-party testimony to rehabilitate the impeached child has also been limited by the apparent requirement that the impeachment must amount tо a suggestion of recent fabrication or contrivance and that the prior statement must have been made at a time when there was no motive to fabricate. People v Washington, 100 Mich App 628, 632-633; 300 NW2d 347 (1980). See, e.g., Cunningham v State, 100 Nev 396; 683 P2d 500 (1984) (impeachment by a suggestion that the victim‘s testimony was influenced by the mother and by demonstration that prior to the acts in question the victim was jealous of the attention paid by the defendant to the victim‘s sister; a prior consistent statement was admissible to rebut a charge of improper influence).
Our review of cases on application for leave to appeal in thе wake of Kreiner has shown increasing resort to the excited utterance exception to admit a young child‘s statements. The problems inherent in sex offense cases involving a young child cannot, however, be resolved by stretching
It could be observed that adoption of the Michigan Rules of Evidence did not abrogate case law which permitted the use of prior consistent statements for limited purposes,12 People v Edwards, 139 Mich App 711, 715; 362 NW2d 775 (1984), or that a preferred approach to thе problem is that taken by the Federal Rules of Evidence which define certain prior statements as nonhearsay.13
We have yet to take steps specifically directed at the unique evidentiary problems which arise in the prosecution of child criminal sexual conduct cases. While we have declined the prosecution‘s invitation to overrule Kreiner, supra, we agree with the observation that this case illustrates the
V
The trial court erred in admitting certain hearsay statements to the substantial prejudice of the defendant. The defendant‘s conviction is reversed, and the case is remanded to the circuit court for a new trial.
RILEY, C.J., and BRICKLEY, CAVANAGH, and GRIFFIN, JJ., concurred with BOYLE, J.
LEVIN and ARCHER, JJ. We concur except for part IV.
LEVIN, J. (concurring in result). We have signed the opinion of the Court except for part IV, which contains statements unnecessary to decision in the instant casе.1
ARCHER, J., concurred with LEVIN, J.
Notes
The mother testified before the child testified:
Q. Okay. Was her dad there in the room with you?
A. He was there the whole time.
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 herе, 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.
The father testified after the mother and the child had testified:
Q. I‘ve talked to you a little bit but would you just pick it up from who said what from the first moment that you can remember when you were alone together. Pick it up from there, what, if anything, was said in resрonse, if you can for us.
A. Well, yes.
Q. Okay, would you do that please.
A. Well, [R ________ and her mother] were crying and [her mother] was really crying and she kept saying, “Did Bill do anything, is that why you are getting sick?” and she kept on looking all shook up and she said, “No,” and then [her mother] kept saying, “I know there‘s something wrong.”
Q. Okay.
A. And they were crying and we were in the room there and they were both crying and [her mother] says, “Did Bill have anything to do with this?“, and [R ________] was all shook up and she said, “No.” So then she said, “[G ________], I know there‘s something wrong, there‘s something wrong.” So I said, “[R ________], tell the truth. Did Bill do something?” And she said that he stuck his fingers in her and then I says, well, that is it, that‘s what she said.
Q. Okay. So then, of course—to whom wеre you speaking when you said that, there it is?
A. To [her mother].
Q. Okay. Did you or anyone else suggest the answer to [R ________]?
A. Well, I believe that [her mother] asked her if he was playing around with her or if he was playing with himself or something.
Q. Okay. I don‘t want to put any words in your mouth. Was there anything else she said along those lines?
A. Well, she kept saying—she kept denying it and then she said that he pinched her and told her not to say anything and she said that she—he told my other daughter to go get a fork because he was going to eat her, stuff like that.
The tender years exception, adverted to in part IV, permitted the admission of third-party testimony of the child‘s statements only to corroborate the child‘s own testimony. See People v Kreiner, 415 Mich 372, 376; 329 NW2d 716 (1982), quoting People v Baker, 251 Mich 322, 326; 232 NW 381 (1930).
Also noteworthy is that the cases referred to in People v Washington, 100 Mich App 628, 633; 300 NW2d 347 (1980), do not authorize rehabilitation where the complainant has been impeached on the basis that he is mistaken or lying unless he has been impeached on the basis that he fabricated the allegation sometime after he made his consistent statement.
Statements made long after the fact, by an easily influenced youngster, after repeated and suggestive questioning by parents, are the sort of statements which should be excluded.
See also McCormick, supra, pp 854-855; Weinstein, n 3 supra, pp 803-87 to 803-89.The assumption underlying this exception is that a person under the sway of excitement precipitated by an external startling event will be bereft of the reflective capacity essential for fabrication and that, consequently, any utterance he makes will be spontaneous and trustworthy.
Specifically, § 1136 states:
When the complaint is admitted on this theory, certain limitations upon its use follow logically and necessarily.
(1) Only the fact of the complaint, not the details. The purpose is to negative the supposed inconsistency of silence by showing that thеre was not silence. Thus the gist of the evidential circumstances is merely nonsilence, i.e., the fact of a complaint, but the fact only. That she complained of a rape, or an attempt at rape, is all that principle permits; the further terms of her utterance (except so far as to identify the time and place with that of the one charged) are not only immaterial for the purpose, but practically turn the statement into a hearsay assertion, and as such it is inadmissible (except on the third theory).
(2) The woman must be a witness. Since the only object of thе evidence is to repel the supposed inconsistency between the woman‘s present testimony and her former silence, it is obvious that if she has not testified at all, there is no inconsistency to repel, and therefore the evidence is irrelevant. In a rape, for instance, charged to have been committed on a frequented way, and testified to by several bystanders, without calling the woman herself to the stand, it is entirely immaterial whether she made complaint or not; there is no story of hers before the court, and there is therefore no suspicion about such a story and nothing to repel. On the other hand, if the woman has taken the stand, it is immaterial whether she has been impeached or cross-examined (a matter of importance under the next theory); the fact of complaint may be introduced immediately, even by her own testimony in chief.Were we to reexamine Kreiner in light of the argument that the “tender years” rule is one allowing for corroboration of a victim‘s testimony rather than for its substitution with hearsay evidence, a majority might agree that Kreiner is distinguishable.
In light of our decision to publish for comment a court rule addressing these concerns, we find it inappropriate to revisit Kreiner at this time.The rule in this State is that where the victim is of tender years the testimony of the details of her complaint may be introduced in corroboration of her evidence, if her statement is shown to have been spontaneous and without indication of manufacture; and delay in making the complaint is excusable so far as it is caused by fear or other equally effective circumstance. [Emphasis added. People v Baker, 251 Mich 322, 326; 232 NW 381 (1930).]