People v. Burton, Docket No. 82216

CourtSupreme Court of Michigan
Citation445 N.W.2d 133,433 Mich. 268
Docket NumberDocket No. 82216
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Norman Leroy BURTON, Defendant-Appellant.
Decision Date25 August 1989

Page 133

445 N.W.2d 133
433 Mich. 268
PEOPLE of the State of Michigan, Plaintiff-Appellee,
Norman Leroy BURTON, Defendant-Appellant.
Docket No. 82216.
Supreme Court of Michigan.
Argued Dec. 8, 1988.
Decided Aug. 25, 1989.

Page 134

[433 Mich. 270] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Oakland County and Robert C. Williams, Chief, [433 Mich. 271] Appellate Div. by Thomas S. Richards, Asst. Pros. Atty., Pontiac, for plaintiff-appellee.

Faintuck, Shwedel & Wolfram by William G. Wolfram, Franklin, for defendant-appellant.

Before the entire bench.


BRICKLEY, Justice.

This unusual case presents the question whether extrajudicial statements sought to be admitted into evidence as excited utterances under MRE 803(2), standing alone, may establish the foundation for their own admissibility. Specifically, we are asked to decide whether such statements may be admitted when there is no independent evidence, direct or circumstantial, of the underlying startling event to which the statements relate. We answer this question in the negative and reverse the defendant's convictions.


Defendant Norman Leroy Burton was convicted by a jury of two counts of first-degree criminal sexual conduct. The counts alleged that the defendant had forced the complainant to perform oral sex acts with the defendant and with a second woman present at the defendant's house. After leaving the defendant's house, the complainant gave statements to Southfield Police Officer John Connors which accused the defendant of these crimes. Prior to the preliminary examination, the complainant recanted her earlier allegations and attempted to have the charges against the defendant dropped. At trial, both the complainant and the second woman were called as witnesses by the prosecution; neither alleged victim, however, gave testimony in any way inculpating the defendant with regard to criminal sexual conduct. Although the complainant was impeached with several earlier statements which incriminated the accused, [433 Mich. 272] the sole substantive evidence that the defendant had committed criminal sexual conduct consisted of statements given by the complainant to Officer Connors.


Officer Connors testified that while he was on duty at 5:30 a.m. on August 5, 1983, he saw the complainant running down the street wearing a twisted dress and no shoes, looking over her shoulder as if someone might be pursuing her. He stated that the complainant appeared to be disheveled. Officer Connors pulled over, and the complainant entered his squad car. After waiting three to five minutes until the complainant "simmered down," Officer Connors asked the complainant what had happened. At first, Officer Connors was unable to get complete answers from the complainant. He then repeated his question two or three more times. After some hesitation, the complainant began to respond. Initially, the complainant stated that she had been sexually assaulted. Officer Connors stated that he asked her to clarify this response, but she did not provide any detailed

Page 135

information at that time. She indicated that she did not require immediate medical attention. 1 After calling in a backup unit, Officer Connors, accompanied by the complainant, drove around the neighborhood until the complainant located the defendant's house. By the time the complainant identified the defendant's house, she had calmed down. Officer Connors stated that she was "quiet now and just sat there. She didn't say too much." Officer Connors estimated that roughly forty-five minutes had elapsed from the time that he originally[433 Mich. 273] saw the complainant to the time that they located the defendant's house. 2 At some unspecified time during these forty-five minutes, the complainant began to answer Officer Connors' inquiries with specific descriptions of criminal sexual conduct by the defendant. Officer Connors testified that he conducted a question and answer series with the complainant not unlike an investigative interview of a witness at the station, and that the responses of the complainant were not simply blurted out during her excited state.

According to Officer Connors' testimony, the complainant's responses to his questions related the following story: She had accompanied an acquaintance to the defendant's house at 2:00 a.m. Once inside the house, the defendant ordered the complainant and a second woman to remove their clothing. The defendant became very angry and began slapping the women and threatening them with bodily harm. The defendant forcibly removed their clothing and then ordered the other woman to perform oral sex on the complainant. Both women initially resisted, and the defendant threatened them with more bodily harm and roughhousing until they complied with his demands. The other woman then performed cunnilingus on the complainant. After some time, the defendant ordered the two women to switch positions. Again, both women resisted and, after more threats and roughhousing, they complied. The defendant then grabbed the complainant in a headlock and forced her to go upstairs to his bedroom. After dragging the complainant to his bedroom, the defendant ordered her to perform oral sex on him. When the complainant resisted, the defendant threatened [433 Mich. 274] her again, grabbed her head, and forced his penis into her mouth. She eventually obtained the permission of the defendant to use the bathroom. She then ran back downstairs to the living room, pulled her dress over her head, and ran out down the street.

The trial testimony of the complainant regarding the events at the defendant's home was radically different from and inconsistent with the account related by Officer Connors. The complainant was called by the prosecution. She testified that she agreed to accompany an acquaintance to the defendant's house, where she expected to be paid for having sex with the defendant. After she arrived, she and the defendant went upstairs to the defendant's bedroom. She had taken her dress off downstairs and disrobed completely in the bedroom. She requested money from the defendant, but the defendant refused and accused her of having taken money from him. She and the defendant then got into an argument during which she began to get very angry and began screaming at the defendant and calling him names. The yelling and screaming continued for five or ten minutes. She stated, "Well, I began to demand something from him and I guess I must have said the wrong nasty words to him and he slapped me and I got angry, cried and ran out." The complainant further testified that she grabbed her dress and ran out of the house down the street in anger. She stated that the defendant struck her one time in the face and it did not hurt much, other than her pride; however, she became very angry. She explained that she expected the defendant to come after her and try to talk to her, so she kept running and hid behind some

Page 136

bushes until she saw his car pass by. Subsequently, she was observed by officers in a passing police car, and she got into the [433 Mich. 275] police car when it pulled over. The complainant testified that she did not perform oral sex on either the defendant or the other woman present at the defendant's house. She decided to tell the police that the defendant had raped her in order to get back at him for having slapped her. Finally, she testified that fifteen to twenty minutes, or perhaps a slightly longer amount of time, elapsed between the time she left the defendant's house and the time she was picked up by the police officers.

The second woman, the only other eyewitness called by the people, also contradicted the earlier statements made by the complainant. She testified that she was asked to swear out a complaint against the defendant for criminal sexual conduct, but refused "[b]ecause that didn't happen." She stated that the defendant did not rape her or force either woman to perform oral sex on the other and that she did not see the defendant rape anyone else or hear any yelling, screaming, or fighting coming from upstairs. She further testified that she saw the complainant run down the stairs, grab something, and run out of the house. This witness also corroborated the complainant's trial testimony that the defendant was missing some cash, stating that the defendant asked her that evening whether she had found any money. Finally, she testified that she had been advised by the police that the defendant was a horrible person who should be gotten off the street.

After testifying favorably for the defendant as she had at the preliminary examination, the complainant was impeached at great length by the calling party, the prosecution, with earlier statements consistent with her original story to Officer Connors. First, Detective Kukla testified that on the morning of August 5, 1983 (the morning following[433 Mich. 276] the incident), complainant gave him a description of what had taken place at the defendant's house, which was somewhat more detailed than the version provided by Officer Connors. The complainant testified that the reason she repeated her story to Detective Kukla was because she was still angry and had planned to repeat the accusations. She also stated that she wanted to get even with the defendant because he had slapped her and would not pay her for her services. The following day, Saturday, August 6, 1983, the complainant attempted to have the charges against the defendant dropped. The complainant testified that when she went back to the station that day, the police told her that she was doing the wrong thing and that the defendant was someone who needed to be kept off the streets. She stated that she was visited the evening before by Mr. Smith, the acquaintance who brought her to the defendant's house, Cheryl (Smith's girl friend), and Ronald Dease, who held himself out to be defendant's...

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    • United States
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