People Of The State Of Mich. v. Gursky
| Decision Date | 22 July 2010 |
| Docket Number | Calendar No. 3.,No. 137251.,137251. |
| Citation | 486 Mich. 596,786 N.W.2d 579 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee,v.Jason Michael GURSKY, Defendant-Appellant. |
| Court | Michigan Supreme Court |
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Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, Eric J. Smith, Prosecuting Attorney, Robert Berlin, Chief Appellate Lawyer, and Joshua D. Abbott, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Peter Jon Van Hoek) for defendant.
Jeffrey L. Sauter and William M. Worden for amici curiae the prosecuting Attorneys Association of Michigan.
Defendant was charged with and convicted of four counts of first-degree criminal sexual conduct for sexually abusing his girlfriend's child. At trial, the child's hearsay statements to a third party were admitted over defendant's objection. Those statements, which were made when the child first revealed the allegations of abuse, contained all the details of the alleged assaults and were used at trial to corroborate the child's testimony. Defendant appealed, arguing that the statements should not have been admitted because they were not spontaneously given as required by Michigan Rule of Evidence 803A.
We agree that the child's statements were not “spontaneous” and therefore hold that the statements should not have been admitted under the limited “tender years” hearsay exception created by MRE 803A. We nevertheless affirm defendant's convictions because the improper admission of the hearsay statements was harmless error. The error is not so prejudicial as to require reversal because the hearsay statements were not used substantively at trial to prove guilt (but rather only to show consistency in the child's testimony), the statements were cumulative to the victim's testimony at trial, and there was other corroborating evidence of defendant's guilt.
Accordingly, we affirm the judgment of the Court of Appeals, but do so on alternative grounds.
Defendant Jason Gursky was tried on and convicted of four counts of criminal sexual conduct in the first degree (CSC-I) for sexual penetration of a person under the age of 13.1 The victim in this case, GA, was the daughter of Gursky's girlfriend, Lori.2
The charges against Gursky arose out of two alleged incidents of sexual contact with GA: one in September 2005, when GA was six, and the second around April 30, 2006, when GA was seven. On May 4, 2006, during a visit to the home of Stacy Morgan, a close friend of Lori, GA first alleged that Gursky had improperly touched her.
The focus of this appeal is the proper characterization of GA's statements when she first discussed the sexual abuse. Those statements are thus provided here in detail, as relayed by Morgan during her testimony at Gursky's trial.
Lori arrived at Morgan's home about 8:00 p.m. after picking her children up from their father's home. Morgan, acting on a suspicion that “something had been going on” with Gursky,3 asked GA “ if anyone had been touching her.” GA did not verbally respond, but “ got a horrified look on her face,” and her eyes welled up. Morgan summoned GA to come closer and talk with Morgan and Lori, which she did and orally responded “ What do you mean? ” Morgan answered: “ Has anyone ever touched your private parts? ” GA's eyes welled up again, she started to suck her thumb, and she responded that somebody had. Morgan followed up: ” and then listed “ people's names, every man's name that could come to mind, the last of which was Jason [Gursky].” 4 At the mention of defendant's name, GA began “ bawling, [and] gasping for breath,” pointed to her vaginal area, and indicated that defendant had touched her “ down there.” Morgan continued questioning GA: ” GA responded: “ With his finger.” Morgan asked: ” And GA responded that he had not. Morgan asked: “ Did he ever touch you any other way? ” and GA responded that “ he kissed me with his tongue.” Morgan followed up: “ On your mouth? ” GA responded: “ No, down here ” and again pointed to her vaginal area.
Morgan noted that GA was “ kind of hesitant ” so she hugged GA and said to her, She gave GA time to calm down, during which time Lori left the room to call Gursky. Morgan then asked how many times the alleged abuse had happened. GA “ kind of looked in the sky ” and responded “ I think it was four times because the first time was when we lived at Miss Tracy's basement.” Later Lori confronted Gursky, who denied touching GA; when Lori brought GA into the room with Gursky, GA again began to cry but did not make any further accusations against Gursky. A few days later, GA wondered aloud to her mother, “ what if it was a bad dream? ” 5 The following day Lori went to the police and prepared a written statement describing GA's allegations. A detective subsequently asked Gursky to come to the police station, where he questioned Gursky for approximately two hours. Gursky answered all the detective's questions, denied the accusations, and never requested a lawyer. During these interviews, the detective noted that Gursky's fingernails were “jagged.”
That same day GA was examined by a nurse, which is common when a sexual assault is believed to have happened within the prior 96 hours. GA complained to the nurse of experiencing pain in her vaginal area since “Jason put his finger in my pee-pee.” GA told the nurse that defendant had kissed and touched her “where her pee-pee comes out from.” During the examination, the nurse noted that GA had an abrasion on her labia minora, which appeared to have occurred within the last 24 to 48 hours, but could have occurred earlier. The nurse later testified that the abrasion was “consistent” with a fingernail scratch, or could have resulted from innocent behavior. Other than the scratch, the nurse found no other trauma to GA.
Defendant was charged with four counts of CSC-I. Pursuant to MRE 803A, the prosecution provided notice that it would call Stacy Morgan to testify regarding what GA told her when GA first relayed the details of sexual abuse. MRE 803A provides a hearsay exception to allow the admission of statements by victims of child abuse under the age of 10 that would otherwise be excluded. 6
Before trial, defendant objected to the admission of GA's statements to Morgan on the grounds that they did not fall within the parameters of MRE 803A's hearsay exception-specifically, that the statements were not “spontaneous” as required by MRE 803A(2). Defendant argued that The trial court did not directly rule on this issue or address defendant's arguments regarding the lack of spontaneity. Instead, the court stated that “the reasonableness of the delay [between the alleged incidents and GA's disclosures is] ... really the only issue I can consider.” The court then held that the delay was reasonable, and Morgan's testimony thus admissible under MRE 803A.
The trial commenced, and GA testified that she had awakened on two separate occasions when defendant had touched her “private” with “his finger” and “tongue.” 7 She also testified that she first told this to Morgan and her mother, but could not recall being asked any questions by Morgan. Morgan testified about what GA had originally told her when GA had first disclosed the alleged abuse, the details of which are set forth above. Lori testified about the circumstances regarding GA's first statement of sexual abuse. She further testified about how she had found defendant in GA's bedroom at 3:30 a.m. on the night of the second incident with the bedcovers pulled down and his hands on GA's legs. The nurse also testified about her medical evaluation of GA, including the scrape on GA's labia. In closing argument, the prosecutor argued that if the jury believed GA's testimony, they must convict; she then acknowledged that this testimony was buttressed by Morgan's testimony which “corroborates everything GA said on the stand.” 8 Defendant was convicted of all four counts and sentenced to four concurrent terms of 15 to 30 years in prison.
On appeal, the Court of Appeals affirmed the admission of Morgan's testimony regarding GA's statements.9 The panel concluded that although the trial court had abused its discretion by failing to address defendant's objection that GA's out-of-court statements were not spontaneously made, reversal was not required because the error was harmless: either way, the testimony was admissible. The Court of Appeals cited People v. Dunham for the proposition that “answers to open-ended, innocuous questions are spontaneous.” 10 The Court reviewed the record and then reasoned as follows:
The victim responded emotionally to the first mention of the subject matter, crying and sucking her thumb. She willingly gave details that exceeded the scope of Morgan's inquiry. She pointed to her vaginal area and reported that the touching had occurred “down there,” volunteered that the touching was with a finger and a tongue, denied that defendant touched her with his penis, and volunteered that the conduct had occurred over a greater span of time than suspected by Morgan. Taken as a whole, the victim's statements were primarily spontaneous, despite being prompted by Morgan's questions. Thus, the testimony would have been admissible had the trial court considered this objection and, therefore, the court's erroneous legal conclusion had no effect on the outcome of...
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