People v. Duncan

Decision Date30 July 2013
Docket NumberDocket Nos. 146295,Calendar No. 6.,146296.
Citation835 N.W.2d 399,494 Mich. 713
PartiesPEOPLE v. Stanley DUNCAN. People v. Vita Duncan.
CourtMichigan Supreme Court


Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Eric J. Smith, Prosecuting Attorney, and Joshua D. Abbott, Assistant Prosecuting Attorney, for the people.

Martin J. Beres, Clinton Township, for Stanley Duncan.

Frank D. Eaman, PLLC, Detroit (by Frank D. Eaman), for Vita Duncan.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Richard A. Bandstra, Chief Legal Counsel, and Anica Letica, Assistant Attorney General, for the Department of the Attorney General.


While hearsay is generally inadmissible,1 the Michigan Rules of Evidence permit certain prior out-of-court statements to be admitted into evidence when a witness is unavailable.2MRE 804(a) enumerates five situations when a witness is unavailable, including when the witness is unable to testify because of a then existing physical or mental illness or infirmity.3 We hold that when a child attempts to testify but, because of her youth, is unable to do so because she lacks the mental ability to overcome her distress, the child has a “then existing ... mental ... infirmity” within the meaning of MRE 804(a)(4) and is therefore unavailable as a witness. Accordingly, we reverse the judgment of the Court of Appeals and remand to the trial court for further proceedings consistent with this opinion. On remand, the trial court must determine whether the complainant's preliminary examination testimony satisfies the requirements of MRE 804(b)(1) 4 and, if so, whether admission of that testimony would violate defendants' rights under the Confrontation Clause.5


Defendant Stanley Duncan was charged in the Macomb Circuit Court with five counts of first-degree criminal sexual conduct (CSC–I) 6 and four counts of second-degree criminal sexual conduct (CSC–II).7 Stanley's wife, defendant Vita Duncan, was charged with two counts of CSC–I, two counts of CSC–II, and with the misdemeanor offense of operating a daycare facility without a license.8 The alleged victim in this case, RS, is the sole complainant against Vita and one of three complainants against Stanley.

Separate preliminary examinations were held for each defendant. At Stanley Duncan's preliminary examination on October 17, 2011, then three year old RS correctly answered the trial court's questions about her age, her birthday, and her dog's name, among others. The judge then asked RS if she knew the difference between telling the truth and not telling the truth, to which she responded, “Yes.” She also affirmed that she would honestly answer the questions of the attorneys. The court therefore qualified RS as competent to testify, determining that she had sufficient mental intelligence to communicate and had a sense of obligation to testify honestly.9

RS testified that on at least three occasions, Stanley Duncan touched her “private,” indicating her vaginal area, and “blew raspberries” on her vaginal area while her pants and underwear were off. The raspberries hurt “a little bit,” and his touching “really hurted.” She testified that the acts occurred in the bathroom of defendants' home, where RS attended daycare.

On December 2, 2011, at the preliminary examination concerning the charges against Vita Duncan, RS was qualified as competent after she correctly answered questions about her birthday, her dog's name, and the name of her schoolteacher. RS affirmed her understandingof what telling the truth means, and promised to do so. RS repeated substantially the same answers that she previously gave regarding Stanley Duncan, and also stated that she told Vita more than once that Stanley had touched her. RS also testified that, on at least one occasion while Stanley was touching her, Vita was just outside the bathroom, and that RS could see Vita.

Both defendants were bound over on the charges against them, and a joint trial before a single jury began on September 28, 2012. RS was called to the stand and was first questioned by the court. When asked whether she knew the difference between the truth and a lie, RS responded, “No,” and was unable to explain what a promise means. After RS struggled to answer questions similar to those answered at the preliminary examinations, the trial court excused the jury, and met with counsel, RS, and RS's parents in chambers. Afterward, RS was again put on the stand, and again answered, “No” to the questions regarding whether she knew what the truth is, what a lie is, and what a promise is. RS was clearly agitated. Throughout the court's questioning, RS had tears in her eyes and was wringing her hands. RS began crying in earnest just before the court excused her. The court ruled that she was not competent to testify pursuant to MRE 601.

The prosecution immediately asked the court to declare RS unavailable, arguing that RS lacked memory of the events giving rise to the charges,10 and moved to admit her preliminary examination testimony pursuant to MRE 804(b)(1), a hearsay exception for unavailable witnesses.11 The trial court considered each of the five situations of unavailability enumerated in MRE 804(a),12 but held that none of them applied to RS.13

After the trial court granted a stay of the trial proceedings, the prosecution sought emergency leave to appeal in the Court of Appeals and moved for immediate consideration of the trial court's ruling that RS was not unavailable. The Court of Appeals granted the prosecution's motion for immediate consideration, held the applications for leave to appeal in abeyance, and remanded the cases to the trial court with instructions to issue an opinion explaining its decision.

In its opinion on remand, the trial court reiterated its holding that RS was not unavailable because her failure to take the equivalent of the oath did not trigger any of the scenarios enumerated in MRE 804(a). Without much discussion, the court ruled that MRE 804(a)(4), which renders a declarant unavailable if she is dead or has a physical or mental infirmity or illness, did not apply because RS's situation did not include any of these circumstances. The court stressed that RS was even younger at the preliminary examination than at trial and suggested that this fact lent support to its ruling that she was not unavailable at the later trial date.14

The Court of Appeals denied the prosecution's applications for leave to appeal. This Court granted the prosecution's motion for immediate consideration, stayed the proceedings, and remanded both cases to the Court of Appeals for consideration as on leave granted.15

In its opinion, the Court of Appeals affirmed the trial court's finding that RS was not unavailable within the meaning of MRE 804(a) generally and that RS did not meet the specific circumstance of having a “then existing physical or mental illness or infirmity” within the meaning of MRE 804(a)(4). 16 Distinguishing this case from past cases in which witnesses were held both incompetent and unavailable,17 the Court of Appeals reasoned that the fact that some witnesses are both incompetent and unavailable does not mean that all incompetent witnesses are unavailable. Under MRE 601, a witness is not competent to testify if she “does not have sufficientphysical or mental capacity ... to testify truthfully....” By comparison, MRE 804(a)(4) renders a declarant unavailable as a witness if she “is unable ... to testify ... because of ... then existing physical or mental illness or infirmity[.] Because the use of distinct language in the two provisions suggests distinct requirements to meet each rule, the Court concluded that RS was not mentally ill or infirm even though she may have lacked the mental capacity to qualify as competent.18

We granted the prosecution's motion for immediate consideration and application for leave to appeal, limited “to the issue whether the witness was ‘unavailable’ for the purposes of MRE 804(a).” 19


The decision whether to admit evidence falls within a trial court's discretion and will be reversed only when there is an abuse of that discretion.20 A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes. 21 Decisions concerning the admission of evidence often involve preliminary questions of law that are reviewed de novo.22 These preliminary questions of law include questions involving the interpretation of rules of evidence.23 A trial court necessarily abuses its discretion when it makes an error of law.24


When construing court rules, including evidentiary rules, this Court applies the same principles applicable to the construction of statutes.25 Accordingly, we begin with the rule's plain language.26 When the language of the rule is unambiguous,we enforce the plain meaning without further judicial construction.27 The Court may refer to dictionaries to aid in discerning the plain meaning of a rule.28

Hearsay is “a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” 29 “Hearsay is generally prohibited and may only be admitted at trial if provided for in an exception to the hearsay rule.” 30MRE 804(b) enumerates several exceptions to the rule prohibiting hearsay evidence that apply when a declarant is deemed “unavailable as a witness” pursuant to MRE 804(a). Consequently, if a witness is determined to be unavailable, certain evidence that would otherwise be inadmissible may be admitted at trial so long as it meets the requirements of MRE 804(b) and is not otherwise excluded by another rule of evidence. 31

With regard to hearsay, a witness's unavailability to testify is governed by MRE 804(a), which provides:

Definition of unavailability. “Unavailability as a witness” includes...

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