People v. Carson

• Decision Date: 27 November 1978
• Docket Number: Docket Nos. 30015,30016
• Citation: 274 N.W.2d 3,87 Mich.App. 163
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Lemuel CARSON, Jasper King, Defendants-Appellants. 87 Mich.App. 163, 274 N.W.2d 3
• Court: Court of Appeal of Michigan — District of US

Page 3

274 N.W.2d 3

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Lemuel CARSON, Jasper King, Defendants-Appellants.

Docket Nos. 30015, 30016.

87 Mich.App. 163, 274 N.W.2d 3

Court of Appeals of Michigan.

Nov. 27, 1978.

Released for Publication Jan. 25, 1979.

[87 MICHAPP 166] Jack J. Kraizman, Detroit, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, App. Chief, Asst. Pros. Atty., by William A. Wertheimer, Jr., Asst. Pros. Atty., for plaintiff-appellee.

Before BASHARA, P. J., and BRONSON and SIMON, ^* JJ.

BRONSON, Judge.

Defendants Carson and King were convicted by a jury of carnal knowledge of a female over 16 years of age contrary to M.C.L. § 750.520; M.S.A. § 28.788 and were sentenced to terms in prison of 6 to 10 years and 10 to 15 years respectively. Defendant Carson was also convicted of gross indecency contrary to M.C.L. § 750.338b; M.S.A. § 28.570(2) and was sentenced from 3 to 5 years in prison. ¹ Defendants appeal as of right.

The only evidence which directly tied defendants to the crimes was the testimony of the complaining witness. If believed, her testimony was sufficient[87 MICHAPP 167] to establish all elements of the crimes charged. Defendants challenge their convictions on the grounds of insufficient evidence based upon the complainant's lack of credibility. Credibility is a question for the jury. People v. Renno, 392 Mich. 45, 219 N.W.2d 422 (1974). A review of the record certainly does not demonstrate that complainant's testimony was so entirely unbelievable as to be outside the realm of credibility. This being the case, the jury's determination will not be disturbed on appeal. See People v. Palmer, 392 Mich. 370, 376, 220 N.W.2d 393 (1974); People v. Smalls, 61 Mich.App. 53, 232 N.W.2d 298 (1975).

Defendants next allege that the trial court erred in allowing a witness to testify to a telephone conversation between the witness and complainant approximately 4 1/2 hours after the crimes. The trial court apparently permitted the testimony under the excited utterance prong of the res gestae rule. See McCormick, Evidence (2d ed.), § 288, p. 686.

Excited utterances are deemed reliable, and thus admissible, on the theory that the startling event suspends the witness' reflective thought process and renders the person incapable of fabricating a story at the time the statement was made. McCormick, Evidence (2d ed.), § 297, p. 704. In recognition of this rationale, three conditions must be satisfied before a statement can be admitted as an excited utterance.

"(1) that there is a startling occasion, startling enough to produce nervous excitement, and render the utterance spontaneous and unreflecting; (2) that the statement must have been made before there has been time to contrive and misrepresent; and (3) the statement must relate to the circumstances of the occurrence preceding it." Rice v. Jackson, 1 Mich.App. 105, [87 MICHAPP 168] 111, 134 N.W.2d 366, 368 (1965), accord, People v. Mosley, 74 Mich.App. 145, 254 N.W.2d 33 (1977).

In the present case, the primary problem concerns condition number two. In considering the "time for contrivance" requirement a court must examine not only whether the time period between the event and the statement provided an opportunity for fabrication but also whether the witness' emotional state during this time period rendered him capable of fabricating a story. These two factors cannot be considered in isolation but must be considered jointly.

In the present case four and one-half hours elapsed between the crimes and the telephone conversation in question. This is a sufficient time lag to provide a person with the opportunity for fabrication. Secondly, complainant testified that after the crimes she returned home and thought about what had just happened. There is no indication that she was in a state of continuous nervous excitement during this time period. Conversely, the evidence demonstrates that although understandably upset, complainant engaged in activities requiring contemplation and reflective thought. Therefore, since the time lapse provided sufficient opportunity for fabrication and her activities showed that she was capable of reflective thought during this period, her conversation with the witness could not be considered an excited utterance.

Although this testimony should not have been admitted, the error does not require reversal. The testimony was merely a reiteration of testimony given by the complainant to which no objection had been made. Complainant's account of the conversation was objectionable on the same grounds as that of the present witness. No objection was [87 MICHAPP 169] made, however, and the evidence was admitted. ² Thus the objected-to testimony was merely cumulative and its admission or omission would not have affected the outcome of the trial. Therefore, the error was harmless. See People v. Swan, 56 Mich.App. 22, 223 N.W.2d 346 (1974).

Defendants' next contention is that the court erred in prohibiting defendant Carson's mother from testifying about a telephone conversation she had with complainant. Allegedly, complainant stated that she did not wish to get defendants in trouble but that a close friend had been checking up on her and she had to tell him something to explain why she had come home late. Defendants claim that the testimony was admissible as an admission. A statement qualifies as an admission only if it was made by a party opponent. See Ghezzi v. Holly, 22 Mich.App. 157, 177 N.W.2d 247 (1970); MRE 801(d)(2). The complaining witness in a criminal prosecution is not a party opponent. 4 Wigmore, Evidence (Chadbourn Rev.), § 1076, p. 154.

Although not an admission, the statement could still qualify as a prior inconsistent statement. However, before testimony is admissible as a prior inconsistent statement, a proper foundation must be laid. The cross-examiner must identify the statement as to time, place and substance and ask the witness whether he or she made the statement. Upon receiving a denial or equivocal answer, the foundation has been laid and the cross-examiner may proceed to prove the making of the alleged statement. People v. Dozier, 22 Mich.App. 528, 177 N.W.2d 694 (1970). Absent such a foundation[87 MICHAPP 170] the statement is inadmissible. Since defendants did not lay the proper foundation, the trial court did not err in excluding the statement.

Finally, defendants contend that the trial court erred when it sentenced them upon retrial to harsher sentences than those imposed after their first trial. The Supreme Court has held that an increase in sentence upon retrial is not per se unconstitutional. North Carolina v. Pearce, 395 U.S. 711, 723, 89 S.Ct. 2072, 2079, 23 L.Ed.2d 656, 668 (1969). The Court noted, however, that it would be impermissible to impose a harsher sentence merely as a penalty on a defendant for having successfully exercised his right to appeal. Realizing that the fear of such a retaliatory motive might serve to chill a defendant's right to appeal, the Court adopted a prophylactic rule to be followed when an increased sentence is imposed upon retrial.

"In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal." 395 U.S. at 726, 89 S.Ct. at 2081, 23 L.Ed.2d at 670.

Subsequent Supreme Court cases have served to limit the application of the Pearce rule in analogous situations. A review of these cases ³ demonstrates[87 MICHAPP 171] that the determinative factor in deciding upon the applicability of the rule is whether the increased sentence in the second proceeding poses "a realistic likelihood of 'vindictiveness' ". Blackledge v. Perry,...