People v. DeWitt, Docket No. 97330
| Decision Date | 13 January 1989 |
| Docket Number | Docket No. 97330 |
| Citation | 173 Mich.App. 261,433 N.W.2d 325 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dennis DeWITT, Defendant-Appellant. 173 Mich.App. 261, 433 N.W.2d 325 |
| Court | Court of Appeal of Michigan — District of US |
[173 MICHAPP 263] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Judy A.H. Hughes, Pros. Atty., and J. Ronald Kaplansky, Asst. Atty. Gen., for the People.
Smiley & Holst by Richard D. Holst, Wyoming, for defendant-appellant on appeal.
Before CYNAR, P.J., and WEAVER and PAJTAS, * JJ.
Following a jury trial, defendant was convicted of attempted second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, and possession of a firearm in the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Defendant was sentenced to life imprisonment for the attempted murder conviction and a mandatory consecutive two-year term for the felony-firearm conviction. Defendant appeals as of right. We reverse and remand for a new trial.
Defendant's convictions arose out of a shooting into an occupied mobile home on the evening of January 6, 1986, in Barry County. No one was injured from the shooting. However, approximately forty-five minutes after the shots were fired, the mobile home exploded due to a ruptured propane gas line.
[173 MICHAPP 264] Victor Kelly, also known as Duane Dye, testified that he has known defendant's estranged wife, Roxanne DeWitt, for about ten years. He knew that defendant and Roxanne had been separated for about six months. The night before the shooting, Duane spent the night with Roxanne at Cindy Gibson's rented trailer which was located south of Hastings, Michigan. On the evening of the shooting, Duane, his brother Rodney, Rodney's girlfriend, Cindy, Cindy's baby and Scott Hulse were in the trailer kitchen playing cards. Rodney left for work at about 10:20 p.m.
After Rodney left, Duane heard shots or firecracker sounds from outside the trailer. Twenty minutes later, he saw headlights coming down the road. He opened the bedroom window and saw a blue Buick with a light top. There were several people in the car. Five minutes later, bullets began coming through the trailer walls. Glass from the china cabinet and television shattered as bullets hit the trailer. As soon as the shooting stopped, Duane telephoned the police, his mother Karen L. Dye and Roxanne. He saw that there was a gas leak and told everyone to get out of the trailer. He then shut off the main valve at the propane tank.
When the police officers arrived, he showed them the areas inside the trailer where the bullets had struck. The officers told him to take the plastic off of the windows to ventilate the trailer. As the officers walked out, the trailer exploded. Duane and Karen were injured as a result of the explosion.
Karen, testified that she has known Roxanne for approximately fourteen years. She saw Roxanne with Duane a number of times in December, 1985. On January 6, 1986, at about 11:00 p.m., she received a call from Duane, who was extremely [173 MICHAPP 265] excited. He told her that someone had shot at the trailer and asked her to come and pick up Cindy and the baby. When Karen arrived at the trailer, she received a telephone call from Roxanne. Roxanne's voice was shaky and excited. Roxanne told Karen to tell Duane: "They're out to get him." Karen gave the phone to Duane who told Roxanne: "They've already been here and shot the place up."
The morning following the explosion of the trailer, Rodney saw a black Chrysler Laser approach and a passenger yelled, "that's what you get, you son of a bitch, for fucking somebody else's old lady." Defendant objected to the introduction of this statement. His objection was overruled.
Defendant presented an alibi defense. He claimed that, on the evening of the shooting, he and some friends went to a bar to play a game of pool. They returned about 10:45 p.m. and he went home. Defendant denied any involvement in the shooting.
Following his convictions, defendant filed the instant appeal raising five issues, two of which we find meritorious and dispositive.
First, defendant alleges that the trial court erred in admitting statements made by defendant's wife, Roxanne, to a third person on the basis that these statements were privileged or constituted hearsay not within any exception. There are two different conversations. The first took place when Roxanne spoke on the telephone with Karen shortly after the shooting. The second occurred the following day when Roxanne called Karen at the hospital. Defendant claims that these conversations fall within the marital privilege and, thus, should have been excluded. We disagree.
The marital privilege is codified in M.C.L. Sec. [173 MICHAPP 266] 600.2162; M.S.A. Sec. 27A.2162, which, in pertinent part, provides:
"A husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent, ... nor shall either, during the marriage or afterwards, without the consent of both, be examined as to any communication made by one to the other during the marriage...."
The statute codified the common-law spousal privilege and the confidential-communication privilege. The spousal privilege precludes spousal testimony. The privilege can be asserted only while the spouses are legally married. It precludes all testimony regardless of whether the events at issue occurred before or during the marriage. People v. Love, 425 Mich. 691, 696, 391 N.W.2d 738 (1986).
The communication privilege applies to confidential communications made within the marital relationship irrespective of the marital status of the parties at the time of trial. People v. Wadkins, 101 Mich.App. 272, 282, 300 N.W.2d 542 (1980); People v. Stubli, 163 Mich.App. 376, 380, 413 N.W.2d 804 (1987). This privilege requires the consent of both parties.
In this case, the marital privilege is inapplicable because defendant's wife did not testify. Her statements were introduced through a third party. The statute clearly states that neither spouse may be "examined as a witness" against the other spouse, implying that either spouse must testify. Therefore, the privilege does not apply.
Although the privilege is inapplicable, we hold that these statements should have been excluded since they constituted hearsay not falling within any exception. Hearsay is an out-of-court statement[173 MICHAPP 267] offered to prove the truth of the matter asserted. MRE 801(c). Hearsay evidence is inadmissible unless it falls within a recognized exception to the rule. MRE 802. The statements made by Roxanne and Duane, as testified to by Karen, constituted hearsay, since they were made out of court and were offered to prove the truth of the matters asserted.
The trial court permitted Karen to testify as to what Roxanne told her, finding that the statement was an excited utterance as defined in MRE 803(2). The Supreme Court, in People v. Gee, 406 Mich. 279, 282, 278 N.W.2d 304 (1979), set forth three criteria which must be met before a statement can be admitted into evidence as an excited utterance: (1) the statement must arise from a startling event; (2) it must be made before there has been time for contrivance or misrepresentation; and (3) it must relate to the circumstances of the startling event. See also People v. Foreman, 161 Mich.App. 14, 20, 410 N.W.2d 289 (1987). In addition, a panel of this Court, in People v. Kent, 157 Mich.App. 780, 788, 404 N.W.2d 668 (1987), held that one of the requirements for the admission of an excited utterance is that the declarant appear to have had an opportunity to personally observe the matter of which he or she speaks.
We find that the trial court erred in allowing Karen to testify regarding her and Roxanne's first telephone conversation. While the testimony related a startling event, Roxanne's statements were not made before there was time to contrive or misrepresent since Roxanne's call came sometime after the time that she had been called by Duane. Arguably, Roxanne and Duane had the opportunity to contrive the entire story. Thus, Roxanne's statements should have been excluded since they were inadmissible hearsay.
[173 MICHAPP 268] The second conversation took place some eight hours after the trailer explosion. Karen, who went to the hospital for treatment of injuries, received a call from Roxanne. Roxanne...
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