People v. Davison
| Decision Date | 24 July 1968 |
| Docket Number | No. 1,Docket No. 2564,1 |
| Citation | 12 Mich.App. 429,163 N.W.2d 10 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George DAVISON, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Norman L. Zemke, Detroit, for appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Wayne County, Samuel J. Torina, Chief Appellate Lawyer, Wayne County, Thomas P. Smith, Asst. Pros. Atty., Wayne County, Detroit, for appellee.
Before T. G. KAVANAGH, P.J., and BURNS and FITZGERALD, JJ.
Defendant was convicted in a non-jury proceeding of taking indecent liberties 1 with the person of a 9 year old girl. It is the unopposed admission of testimony by the victim's mother and sister which is argued most strongly on appeal.
Though it is said that evidence admitted without objection presents no error on appeal, no asserted error may ever be totally ignored. An appellate court, upon presentation of the record, scrutinizes the proceedings focusing particularly on those matters raised, but not closing its eyes to other matters which might result in a miscarriage of justice. 2 A defendant has a constitutional guarantee of a fair trial, which right demands more than the mere presence of counsel throughout the proceedings.
To say that a judge must not interfere in a trial, but rather let the lawyers try the case is not to absolve him from all responsibility.
If evidence be offered that is palpably inadmissible and irretrievably prejudicial to a defendant a trial judge should not let it in, even though no objection be made. On review we have a similar duty, in that if we observe the presence of such evidence in the record we may not let an unfair trial stand because no objection was made. Ordinarily, only in those cases where the evidence is so erroneous as to reduce the trial to a sham (see People v. Ibarra (1936), 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487), or to result in incurable and fatal prejudice to defendant (see People v. Homes (1940), 292 Mich. 212, 290 N.W. 384) will a reviewing Court find reversible error in the admission of evidence not properly objected to at the time of trial.
To answer defendant's main issue on appeal, that defense counsel was incompetent in failing to object, we must consider the admissibility of the unopposed evidence and, if deemed clearly inadmissible, assay the effect it had on the proceedings.
The mother and sister were permitted to testify concerning the details of the complaint which the child had made to them, sometime after the alleged incident. Various legal principles are advanced to test the competency of such testimony 3 but the authority is far from uniform throughout the states, 4 some holding such hearsay admissible through an exception to the rule, while others finding it wholly objectionable.
The Michigan cases reviewed supply no clear line to follow, but the court's position in the past suggests that a spontaneous, voluntary complaint to another by a child of tender years will be admissible as part of the Res gestae despite the lapse of time between incident and complaint if the delay is explained. 5 The only other time that details of prosecutrix's complaint may be introduced is in corroboration of her testimony once impeached.
In the case before us, the child voluntarily complained to her older sister apparently within 2 weeks following the incident, her delay resulting from fear that defendant would 'get her.' Such fear explains the delay. In view of the age of the child, then, her conversation with her sister is generally admissible as part of the Res gestae.
It was four months following the incident, however, when the mother was told of the deed whereupon she directly questioned the child. The details then provided in the child's complaint were not spontaneous, and, therefore, not part of the Res gestae. Unless there had been an attempt to impeach the child's previous statements, thereby allowing for corroborative evidence, the mother's testimony of the details was inadmissible.
No objection was made. The mother briefly repeated that which the child had already explained in great length. The trial judge sitting without a jury was able to rely on evidence properly offered while ignoring that...
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