People v. Harrison

Decision Date25 September 1973
Docket NumberNo. 2,Docket No. 13076,2
Citation212 N.W.2d 278,49 Mich.App. 546
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Henry HARRISON, Defendant-Appellant
CourtCourt of Appeal of Michigan — District of US

Larry J. Stecco, Stecco, Wascha & Eakin, Flint, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and DANHOF and ADAMS,* JJ.

ADAMS, Judge.

John Henry Harrison was charged with first-degree murder in the March 4, 1970 slaying of Jan Logsdon. M.C.L.A. § 750.316; M.S.A. § 28.548. Preliminary examination was held on March 26, 1970, April 14, 1970, and May 14, 1970. Defendant was bound over to circuit court on a charge of first-degree murder. Defendant's trial commenced on June 22, 1971 and ended on July 9, 1971 when the jury found him guilty of first-degree murder.

Issue I

Did the trial court abuse its discretion in finding a minor witness competent to testify at the trial within the meaning of MCLA 600.2163; MSA 27A.2163?

At the preliminary examination, Derrell Snyder, then six years of age, was barred from testifying by the district court, which questioned his 'sense of obligation' to tell the truth because, in the opinion of that court, he did not know what a 'promise' was. The examining magistrate, however, did find that Derrell had 'sufficient intelligence' to testify. During the trial, upon motion of the prosecutor, the trial court conducted an In camera hearing to determine whether Derrell (then age seven) was competent to testify at the trial. After discussing the issue with both counsel holding a further separate hearing, considering the record of the hearing held on this issue before the district court, and listening to argument by counsel, the trial court found Derrell Snyder competent to testify under the statute. In so doing, the court stated in part as follows:

'The Court: In discussing the matter earlier, setting the background for this, I think I failed to indicate that most importantly I had discussed with Derrell Snyder, the youngster involved, in the presence of both counsel, in addition to the other witnesses that I named for the purposes of this so-called competency hearing. I think it is uncontradicted that both Judge Horrigan and this court have indicated that the youngster appears to be intelligent enough to testify. I think that the reservations that Judge Horrigan had, the examining magistrate in this matter, was whether this youngster had the sense of obligation to tell the truth as the statute in question (MCLA 600.2163; MSA 27A.2163) indicates. I think those are the two principal issues that the court has to decide, and I concur with Judge Horrigan, that he has sufficient intelligence, and I disagree with him as to the sense of obligation to tell the truth, because it appears to me that the youngster does have that sense of obligation to tell the truth.'

In McGuire v. People, 44 Mich. 286, 287--288, 6 N.W. 669, 670 (1880), there is an excellent statement by Justice Campbell pertaining to the testimony of a boy who was a few months over six years of age. He points out that if the judge is satisfied to allow the testimony, 'the inability of such an inexperienced boy to keep up a consistent false story through the various questionings of a trial is a pretty safe guard against any great danger on that head'. See also People v. Walker, 113 Mich. 367, 71 N.W. 641 (1897); People v. Minchella, 268 Mich. 123, 255 N.W. 735 (1934).

The trial court specifically concluded that Derrell had not been unduly influenced in any way by his mother, by the detective in charge of the case, or by the prosecutor. We agree with that conclusion. Derrell testified that Miss Logsdon had gone outside with defendant on a certain night when she had been baby-sitting with Derrell and that he (Derrell) had told this fact at that time over the telephone to Michael O'Neal.

We find no error.

Issue II

Did the trial court err reversibly by allowing Michael O'Neal to testify at trial regarding a statement made to him Derrell Snyder in a telephone conversation on March 4, 1970?

After the testimony of Derrell Snyder, Michael O'Neal testified that at approximately 7:00 p.m. on March 4, 1970 he called the Snyder home, where Jan was baby-sitting, and talked with Derrell Snyder. O'Neal called back and talked with Derrell again at about 7:30 p.m. The witness stated that Derrell then told him over the telephone that Jan had gone 'outside with the man next door, out back'. Defense counsel objected, claiming that the statement made to O'Neal was hearsay. The trial judge overruled the objection and the testimony was allowed to stand.

The prosecutor has presented two grounds for the admission of the challenged testimony: 1) that it was not offered to establish the truth of Derrell's telephone statement, but only to pinpoint the particular night on which the call took place; and 2) that Derrell's statement was admissible as a res gestae exception to the hearsay rule.

The first ground relied upon by the people is insufficient, under the facts of this case, to justify admission of the statement. As to the second argument advanced in support of admissibility, the governing rule is aptly stated in Sexton v. Balinski, 280 Mich. 28, 29--30, 273 N.W. 335, 336 (1937), as follows:

'Statements which are part of the Res gestae are always hearsay but constitute, as generally classified, an exception thereto based upon the fact they are spontaneous exclamations which by virtue of their origin have a peculiar trust-worthiness. The only conditions on which such statements will be allowed in evidence are: (1) That there is a startling occasion, startling enough to produce nervous excitement and render the utterance spontaneous and unreflecting; (2) the statement must have been made before there has been time to contrive or misrepresent; and (3) the statement must relate to the circumstances preceding it.'

See aso Holtz v. L. J. Beal & Son, Inc., 339 Mich. 235, 63 N.W.2d 627 (1954); Rice v. Jackson, 1 Mich.App. 105, 134 N.W.2d 366 (1965); People v. Kelley, 32 Mich.App. 126, 188 N.W.2d 654 (1971).

The record in this case is devoid of evidence justifying a conclusion that Derrell's telephone statement was made under conditions which would render the remark admissible as a res gestae exception to the hearsay rule. The trial judge therefore erroneously admitted the statement into evidence.

As stated earlier, prior to O'Neal's hearsay testimony Derrell Snyder had himself testified that Jan Logsdon left the house with defendant, and he was cross-examined by defense counsel. Since the hearsay statement related by O'Neal recapitulated and was merely cumulative of Derrell's earlier testimony, its admission was harmless error beyond a reasonable doubt. People v. Dykes, 37 Mich.App. 555, 195 N.W.2d 14 (1972).

Issue III

Where an expert witness testified for the prosecution, and the defense was not provided with the content of this expert testimony until one day before the witness took the stand, did the court err in admitting this evidence?

Approximately nine months before trial the name of Walter Holz, an expert associated with the Division of Crime Detection of the Michigan Department of Public Health, was endorsed as a witness. The relevant paragraphs in the...

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    ...391 (1975), People v. Vargas, 50 Mich.App. 738, 741-742, 213 N.W.2d 848 (1973), lv. den., 392 Mich. 915 (1974), People v. Harrison, 49 Mich.App. 546, 212 N.W.2d 278 (1973), lv. den., 392 Mich. 779 (1974).4 Carelock observed defendant at close range for at least a minute, watched from the ba......
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