People v. Cunningham
Decision Date | 21 December 1976 |
Docket Number | No. 12,12 |
Citation | 398 Mich. 514,248 N.W.2d 166 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Norma Jean CUNNINGHAM, Defendant-Appellant. |
Court | Michigan Supreme Court |
Donald A. Kuebler, Chief, Appellate Div., Joel B. Saxe, Sr. Asst. Pros. Atty., Robert F. Leonard, Pros. Atty., Genesee County, Flint, for plaintiff-appellee.
Michael J. Smith, Flint, for defendant-appellant.
This is an appeal from affirmance of defendant's conviction of second degree murder of her husband. M.C.L.A. § 750.317; M.S.A. § 28.549. We reverse.
Defendant killed her husband with a rifle during a protracted family argument. Her defense was accidental shooting.
A police officer was permitted to testify that in response to a call from defendant he went to the defendant's residence on January 22, 1971 where he found the defendant and her husband in the midst of a 'family fight'. The decedent husband had explained a pistol protruding from his pocket as one he had taken from the defendant because she had threatened to shoot him.
The officer left, with the pistol, shortly after 3:00 p.m. At approximately 4:00 p.m. the same day, in response to another call by defendant, police returned and discovered Mr. Cunningham's body lying in the doorway. Defendant was charged with murder.
At trial, the officer testified that during his 3:00 p.m. visit to defendant's home the decedent
'stated then that he had taken the gun from her (defendant) because she had threatened to shoot him with it'.
Defense counsel made a belated objection to this testimony which was overruled. At the conclusion of the first day of trial, defense counsel moved to strike the testimony as inadmissible hearsay, and moved for a mistrial, stating
The motions were denied. The court found the statement to be .
The Court of Appeals agreed, finding that: 'A review of the sequence of events leading to the fatal shooting convinces us that there was a circumstantial probability that the statement was trustworthy and admissible as part of the Res gestae'.
We are convinced that this conclusion is unwarranted and stems from a confusion of closely related concepts.
The use of the term 'res gestae' in this context has properly been criticized. See, E.g., People v. Randall, 42 Mich.App. 187, 201 N.W.2d 292 (1972); People v. Jones, 38 Mich.App. 512, 515--516, 196 N.W.2d 817, 818--819 (1972). We agree with the observation of Justice Levin in People v. Thomas, 14 Mich.App. 642, 654--655, 165 N.W.2d 879, 885 (1968) (concurring):
In this case, it is clear that the decedent's statement was admitted under the 'excited utterance' exception.
The standards for admissibility of such statements were stated in Rogers v. Saginaw BC R. Co., 187 Mich. 490, 493--494, 153 N.W. 784, 785 (1915):
See also, People v. Thomas, 14 Mich.App. 642, 165 N.W.2d 879 (1968); Federal Rules of Evidence, 803(2).
The rationale for this exception is stated by Dean McCormick to be '* * * the special reliability which is regarded as furnished by the excitement suspending the declarant's powers of reflection and fabrication.' C. McCormick, supra at 704.
Wigmore states: 'Since this utterance is made * * * during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance is taken as particularly trustworthy * * *'. 6 Wigmore on Evidence, (Chadbourn rev.) § 1747, p. 195.
As Justice Levin recognized in People v. Thomas, supra:
14 Mich.App. at 655, 165 N.W.2d 879 (1968). (Levin, J., concurring).
In this case decedent was attempting to explain to a police officer investigating a family fight why he had a loaded gun in his pocket. When measured against the criteria for admissibility as an excited utterance, and against the rationale for that hearsay exception, it is apparent that decedent's statement was not admissible. It was not made immediately after a startling event to which it related. It was not 'spontaneous and unreflecting'. It was made after there was time to contrive and misrepresent, and after time for consideration of self-interest.
'Evidence that the statement was self-serving or made in response to an inquiry, while not justification for automatic exclusion, is an indication that the statement was the result of reflective thought, and where the time interval permitted such thought these factors might swing the balance in favor of exclusion.' C. McCormick, Supra, p. 706. See also, People v. Thomas, supra (Levin, J., concurring); Rice v. Jackson, 1 Mich.App. 105, 134 N.W.2d 366 (1965).
This statement was made at a time and in such circumstances that it was not admissible as an excited utterance. The prosecution also argues that because the challenged statement of the decedent 'was made not only in appellant's presence, but also as part of a conversation and debate in which she herself took quite an active role, such statement was not hearsay evidence as to her * * *'. We explicitly reject that argument.
Hearsay is an extrajudicial statement which is offered to prove the truth of the thing said. People v. Hallaway, 389 Mich. 265, 275, 205 N.W.2d 451 (1973).
'One widely held myth about the hearsay rule is that an out-of-court statement is not hearsay if it was made in the presence of a party and hearsay if not made in his presence.' Robinson, Civil and Criminal Evidence, 20 Wayne L.Rev. 391, 398 (1974).
Judge Danhof pertinently recognized in People v. Sixty-Eighth District Judge, 44 Mich.App. 553, 554, fn. 1, 205 N.W.2d 608, 609 (1973),
The testimony in question was clearly hearsay. In fact, it was 'double hearsay', consisting of the police officer testifying as to what the decedent told him concerning defendant's threats.
Finally, the prosecutor argues that even if the statement was improperly admitted, any resulting error was harmless because defendant herself told the officer that she '* * * might load this gun and shoot (the decedent)'. Thus, the testimony of the officer concerning decedent's statement was merely cumulative or corroborative on the issue of defendant's intent.
We disagree.
The statement was offered to show that defendant had threatened to shoot her husband, and thereby make it more believable that she murdered him.
The state has not demonstrated beyond a reasonable doubt that this inadmissible hearsay testimony concerning decedent's statement did not contribute to defendant's conviction. People v. Robinson, 386 Mich. 551, 194 N.W.2d 709 (1972); People v. Liggett, 378 Mich. 706, 717, 148 N.W.2d 784 (1967). The admission of this statement, with no opportunity in the presence of the jury for the defendant to challenge the person who made it, denied defendant a fair trial.
The conviction is reversed. The cause is remanded for further proceedings.
I concur with the Chief Justice's conclusion that the contested statement in this case was hearsay and therefore inadmissible.
However, I dissent with respect to the order in this case. I agree with the prosecutor that even if the contested statement was improperly admitted, the resulting error was harmless. As the record indicates, the police officer testified at trial that defendant herself told him she '. . . might load this gun and shoot (the decedent).' In light of his testimony, I believe the hearsay testimony of the officer concerning decedent's statement was cumulative. I would, therefore, affirm the conviction.
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...premise. Hearsay is an [82 MICHAPP 265] extrajudicial statement offered to prove the truth of the matter asserted. People v. Cunningham, 398 Mich. 514, 248 N.W.2d 166 (1976), McCormick, Evidence (2d ed), § 246. In the case at bar, the jury was instructed that the testimony was not offered t......
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...has been time to contrive and misrepresent; and (3) it must relate to the circumstances of the startling occasion. People v. Cunningham, 398 Mich 514, 519; 248 NW2d 166 (1976), citing Rogers v. Saginaw B C R Co, 187 Mich 490, 493-494; 153 NW 784 We first consider whether a proffered excited......
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