People v. Hackney

• Decision Date: 01 June 1990
• Docket Number: Docket No. 108257
• Citation: 183 Mich.App. 516,455 N.W.2d 358
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stacey Devon HACKNEY, Defendant-Appellant. 183 Mich.App. 516, 455 N.W.2d 358
• Court: Court of Appeal of Michigan — District of US

Page 358

455 N.W.2d 358

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stacey Devon HACKNEY, Defendant-Appellant.

Docket No. 108257.

183 Mich.App. 516, 455 N.W.2d 358

Court of Appeals of Michigan.

Submitted July 12, 1989.

Decided May 7, 1990.

Released for Publication June 1, 1990.

[183 MICHAPP 518] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Paul Maloney, Pros. Atty., and David P. LaForge, Asst. Pros. Atty., for the People.

Stuart D. Hubbell, Traverse City, for defendant-appellant on appeal.

Before MICHAEL J. KELLY, P.J., and WAHLS and HOLBROOK, JJ.

HOLBROOK, Judge.

Defendant was convicted by a [183 MICHAPP 519] jury of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1)(a); M.S.A. Sec. 28.788(2)(1)(a). Defendant appeals, arguing that the trial court erroneously ruled that several statements made by the victim after the sexual assault were admissible into evidence. We affirm.

Primarily, evidence of the criminal charge against defendant was established by the testimony of the victim, who was seven years old at the time of the alleged sexual assault. According to the victim, he arrived home from school on the day of the incident and met defendant, his second cousin, who was charged with responsibility for taking the victim to the home of defendant's mother, Teresa Hackney. It had been arranged that Hackney would baby-sit the victim while the victim's mother was working. The victim testified that defendant pulled the victim by the shirt into the victim's bedroom and pushed him onto the bed. A pillow was placed in the window. Defendant then pulled down both the child's pants and his own pants. Defendant obtained a jar of Vaseline from the bathroom and applied some "grease" "up [the victim's] behind" before he penetrated the victim by "put[ting] his private in [the victim's] behind." Defendant instructed the victim not to tell anybody because defendant did not want to go to jail. Defendant cleaned both himself and the victim with paper towels and then took the victim over to the Hackney residence.

I

As part of the prosecutor's case, the victim testified that he disclosed the sexual abuse to several persons within a day of the incident. The prosecutor, over defendant's hearsay objections, called those persons as witnesses to testify regarding [183 MICHAPP 520] the victim's statements. We examine each of these statements in the chronological order of their making under the pertinent hearsay exceptions.

A decision whether or not to admit evidence is committed to the sound discretion of the trial court. Accordingly, our review is limited to a determination whether the trial court abused its discretion in making these rulings. See People v. Johnson, 174 Mich.App. 108, 112, 435 N.W.2d 465 (1989); People v. King, 158 Mich.App. 672, 678, 405 N.W.2d 116 (1987).

A

In the aftermath of the assault, the victim testified that, after his arrival at the Hackney home, he went outside to play with children of Marian Feller, a neighbor of the Hackneys. The victim told the other children about the sexual assault, and the children prompted the victim to relate the incident to Feller.

Feller testified that the victim came to her house about 5:00 or 5:30 p.m. to play with her children. After perhaps two hours of play, according to Feller, the following occurred:

R____ [the child or victim] and my two kids were out back playing, and they came around to the front, my two. They said, "Mommy, R____ wants to talk to you. Mommy, R____ wants to tell you something." I said, "Okay. Tell him to come on." They said, "Come on in R____. Mamma said, 'Come on in.' "

He came in, walked straight up to a chair similar to this. He walked right up to the side, he blurted out, "Stacey took" ...

* * * * * *

[183 MICHAPP 521] R____ said, "Stacey put his private in my behind." And I asked the child "Could you say that for me again," because I didn't think I understood him or heard it right. He repeated it. I asked him did he tell his mother. He said, "No." I said, "Well, how? When?" He said when he came home from school he made him go to his bedroom and he pulled his pants down. And he told him no, but he went to the bathroom and got grease and did it anyhow.

* * * * * *

When he said, "Stacey put his private in my behind," he said it fast and a little louder than what he normally talks, normally speaks, because he's soft spoken. But he said that, just blurted it out, "Stacey put his private in my behind," real quick like that.

* * * * * *

He told me--he also said he just wanted it to stop. He didn't want that to happen again. I told him, "Okay. I will get in touch with your mom, let her know," because he said he hadn't told her.

The hearsay exception at issue, the excited utterance exception, pertains to a "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." MRE 803(2). In deciding whether the victim's statement to Feller fits the exception, we have the benefit of guidance from the recent decision in People v. Straight, 430 Mich. 418, 424 N.W.2d 257 (1988). In Straight, the issue arose in the context of statements made by a four-year-old child identifying the defendant as the perpetrator of an incident of sexual assault one month previously. In reversing a conviction on the ground that the statements of the child victim were erroneously admitted, the Court reaffirmed adherence to the three-part test set forth in People v. Gee, 406 Mich. 279, 282, 278 N.W.2d 304 (1979):

[183 MICHAPP 522] To come within the excited utterance exception to the hearsay rule, a statement must meet three criteria: (1) it must arise out of a startling occasion; (2) it must be made before there has been time to contrive and misrepresent; and (3) it must relate to the circumstances of the startling occasion. [Straight, supra, 430 Mich. p. 424, 424 N.W.2d 257 (quoting Gee, supra).]

See also People v. Burton, 433 Mich. 268, 445 N.W.2d 133 (1989).

As is common in questions of admissibility of statements by sexual abuse victims, it is the second part of the Straight-Gee test that creates doubt as to its proper application. The Court in Straight explained this part as "a reformulation of the inquiry as to whether the statement was made when the witness was still under the influence of an overwhelming emotional condition." 430 Mich. 425, 424 N.W.2d 257. Properly understood, it relates to a "lack of capacity to fabricate rather than the lack of time to fabricate." Id. Thus, the question is not whether it is likely that the child's statements were falsely made--in point of fact, the detail and recollection of the victim's testimony in this case is convincingly consistent with third-party testimony of his out-of-court statements, thus suggesting a large measure of reliability--but rather whether the circumstances surrounding the making of the statement suggest reliability and lack of opportunity for the deliberation and preparation attendant to giving a false statement.

In making this determination, the Court in Straight noted the following considerations equally pertinent to this case:

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, [183 MICHAPP 523] and where the time interval permitted such thought these factors might swing the balance in favor of exclusion. Proof that between the event and the statement the declarant performed tasks requiring relatively careful thought, of course, is strong evidence that the effect of the exciting event had subsided. Because of the wide variety of factual situations, appellate courts have recognized wide discretion in trial courts to determine whether in fact a declarant was at the time of an offered statement still under the influence of an exciting event. [430 Mich. 426, n. 6, 424 N.W.2d 257; quoting McCormick, Evidence (3d ed), Sec. 293, p 857.]

Whether or not there was "time to contrive and misrepresent" in the instant case presents a close question. According to defendant's testimony, the victim arrived home from school about 3:45 or 3:50 p.m. ¹ The statement to Feller occurred some time in the early evening, perhaps three to four hours after the incident itself. This relatively short duration supports an inference that the child's statement was made out of a continuing state of emotional shock or impairment precipitated by the assault itself. Because the startling event was so traumatic in nature, it is understandable that the effect on the child's emotional state could have persisted up to the time of the statement. On the other hand, the child's own testimony establishes that he engaged in normal childhood play with others for some time before finally disclosing the incident. Disclosure of the incident was made in response to a limited degree of encouragement by Feller and her children to tell what was bothering [183 MICHAPP 524] him. "Although the fact that a statement has been made in response to questions does not in and of itself preclude the statement from being an excited utterance, it is a factor militating against admitting it." People v. Petrella, 124 Mich.App. 745, 759-760, 336 N.W.2d 761 (1983), aff'd. 424 Mich. 221, 380 N.W.2d 11 (1985).

The determination whether the statement to Feller was a spontaneous response emanating directly from a startling event is subject to conflicting inferences drawn from the circumstances surrounding the making of the statement. We note that the trial judge is appropriately accorded "wide discretion" in deciding these matters. Straight, supra, 430 Mich. p. 426, n 6, 424 N.W.2d 257. In an appropriate case, the concept of discretion implies that a judicial ruling choosing between two viable alternatives, i.e., to admit or exclude proposed evidence, cannot be deemed error by the reviewing court. Se...