Davis, Matter of

• Decision Date: 07 April 1988
• Docket Number: Docket No. 95062
• Parties: In the Matter of Sean DAVIS, a Minor. WAYNE COUNTY PROBATE COURT, JUVENILE DIVISION, Appellee, v. Sean DAVIS, Appellant, and Charles C. Davis and Evelyn Davis, Interested Parties. 166 Mich.App. 735, 420 N.W.2d 872
• Court: Court of Appeal of Michigan — District of US

Page 872

420 N.W.2d 872

In the Matter of Sean DAVIS, a Minor.

WAYNE COUNTY PROBATE COURT, JUVENILE DIVISION, Appellee, v. Sean DAVIS, Appellant, and Charles C. Davis and Evelyn Davis, Interested Parties.

Docket No. 95062.

166 Mich.App. 735, 420 N.W.2d 872

Court of Appeals of Michigan.

Submitted Nov. 19, 1987.

Decided March 7, 1988.

Released for Publication April 7, 1988.

[166 MICHAPP 736] John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Criminal Div. Research, Training and Appeals, and Susan Randolph, Asst. Pros. Atty., for the people.

Carolyn A. Blanchard, Detroit, for Sean Davis.

Before KELLY, P.J., and McDONALD and PAYANT, ^* JJ.

PAYANT, Judge.

A referee of the Wayne County Probate Court, Juvenile Division, found appellant guilty of one count of felonious assault. Appellant was made a temporary ward of the court and placed on probation in his parents' home. Appellant's petition for review was heard by a judge of the Wayne County Probate Court, Juvenile Division. The reviewing judge affirmed the findings of the referee. Appellant appeals as of right.

Appellant and Cordell Johnson were each charged with one count of felonious assault against Dwaine Campbell and one count of felonious assault against Greg Nelson. Campbell and Nelson testified that appellant and Johnson started a fight with them. Appellant approached Nelson from behind and held a baseball bat across Nelson's neck while Johnson hit Nelson.

Campbell testified that he ran to the side door of his house which was on the corner. Somebody pushed him from behind into the door. When [166 MICHAPP 737] Campbell turned around, he saw appellant and another person. As a result of being pushed through the door, Campbell cut his arm and required thirteen stitches.

Campbell testified that he did not know who pushed him through the door. However, several witnesses said that a tall person named Al chased Campbell up to Campbell's house and pushed him through a door. Appellant said that he had subpoenaed Alonzo Garvin to appear, but he had not appeared. Appellant asked that the court issue a writ of apprehension. However, appellant's attorney later informed the court that he had spoken to appellant and his parents and they were willing to waive the presence of Alonzo Garvin.

Appellant's father testified that when he received notice to appear in court, he and appellant went to Campbell's house to talk about the incident. They met with Campbell and Nelson. A hearsay objection was made, and appellant argued that the testimony fell within the hearsay exception for a statement made against interest. The objection was sustained, and appellant's father was not allowed to testify as to any conversation that took place at Campbell's house.

The referee granted Johnson a partial directed verdict as to the count alleging the felonious assault of Campbell. The referee said there was no evidence that Johnson had pushed Campbell through the door. A motion to dismiss both counts against appellant was denied. However, appellant was found guilty of only one count of felonious assault, committed against Nelson by holding the baseball bat against Nelson's neck while Johnson hit Nelson.

Appellant's first argument is that the trial court erred in refusing to allow the testimony of appellant's father. Although not reflected in the record, [166 MICHAPP 738] appellant argues on appeal that his father would have testified that Campbell and Nelson were unable to identify appellant prior to the first court date. Error may not be predicated on a ruling that admits or excludes evidence unless a substantial right of a party is affected and a timely objection is made. MRE 103. Objections based on one ground are insufficient to preserve an appellate attack based on different grounds. Harvey v. Security Services, Inc., 148 Mich.App. 260, 384 N.W.2d 414 (1986), lv. den. 425 Mich. 863 (1986); Joba Construction Co., Inc. v. Burns & Roe, Inc., 121 Mich.App. 615, 329 N.W.2d 760 (1982).

In the present case, appellant argued at trial that the testimony was admissible under the exception to the hearsay rule for statements contrary to the declarant's interest. The trial court did not err in sustaining the objection. The declarant must be unavailable as a prerequisite to applying the statement against interest exception contained in MRE 804(b)(3).

However, on appeal, appellant challenges the ruling on the basis that the testimony is not hearsay because it is an admission of a party-opponent under MRE 801(d)(2). A challenge on this basis was not made at trial and is therefore not preserved for appellate review. Moreover, a substantial right is not affected by the referee's ruling. In addition, neither Campbell nor Nelson are party-opponents under MRE 801(d)(2), as a witness in a criminal proceeding is not a party unless the witness is a defendant. People v. Margaret Jones, 48 Mich.App. 334, 210 N.W.2d 396 (1973), lv. den. 391 Mich. 785 (1974). Numerous witnesses testified that they knew Sean and they saw him in the group of people who were fighting. There was no significant issue of identification with regard to who held the baseball bat across Nelson's neck. The identification[166 MICHAPP 739] issue pertained to who pushed Campbell through the door. Appellant was found not guilty of the charges...