People v. Katt

• Decision Date: 30 May 2003
• Docket Number: Docket No. 120515, Calendar No. 6.
• Citation: 662 N.W.2d 12,468 Mich. 272
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Terry Lynn KATT, Defendant-Appellant.
• Court: Michigan Supreme Court

662 N.W.2d 12

468 Mich. 272

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Terry Lynn KATT, Defendant-Appellant.

Docket No. 120515, Calendar No. 6.

Supreme Court of Michigan.

Argued December 10, 2002.

Decided May 30, 2003.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, James Cherry, Prosecuting Attorney, and Aaron J. Mead, Assistant Prosecuting Attorney, St. Joseph, for the people.

State Appellate Defender by P.E. Bennett, Valerie R. Newman, and Jacqueline J. McCann, Detroit, for the defendant-appellant.

David L. Morse, President, William A. Forsyth, Kent County Prosecuting Attorney, and Timothy K. McMorrow, Chief Appellate Attorney, Grand Rapids, for the Prosecuting Attorneys Association of Michigan.

OPINION

MARILYN J. KELLY, J.

The issue in this case is whether the trial court properly admitted under MRE 803(24) the victim's hearsay statement made to a social worker that defendant sexually abused her. The statement did not qualify for admission under MRE 803A, the tender-years rule.

We conclude that the trial court properly admitted the statement. MRE 803(24) permits the admission of hearsay statements that narrowly miss the categorical exceptions of MRE 803, but satisfy the requirement of MRE 803(24), under circumstances such as those present in this case. Accordingly, we affirm the judgment of the Court of Appeals.

I. FACTUAL AND PROCEDURAL BACKGROUND

A jury convicted defendant of three counts of first-degree criminal sexual conduct, sexual penetration of a victim under thirteen years of age (CSC I). M.C.L. § 750.520b(1)(a). The Court of Appeals affirmed the convictions.

A. THE TRIAL COURT

In the trial court, the prosecution charged defendant with the sexual assaults of a seven-year-old boy (DD) and his five-year-old sister (AD) in the autumn of 1998. Defendant lived in a home with the children, their mother, her ex-husband, and another individual.

Before trial, the prosecutor moved to admit the testimony of Angela Bowman, a child-protective-services specialist with the Family Independence Agency (FIA). During the hearing, Bowman testified that she had visited DD at his elementary school after the FIA received an anonymous report that the children's mother was physically abusing them.

In the course of their conversation, Bowman asked DD to name the members of his household. He named defendant as a relative and spontaneously told Bowman that defendant was doing "nasty stuff" to him.

Bowman further testified that, when she asked DD what he meant by nasty stuff, he was initially guarded, but, then, made the following statement:

[Defendant] would come into his room, which [DD] shared with his sister [AD] and dis— totally disrobed, and take off his clothes, which would be a shirt, an underwear— some underwear or pajamas bottoms, if he were wearing them, and get on top of [DD]. And I ask— I asked him to describe now— at the time, because I wasn't prepared for this interview, I didn't have any anatomically correct dolls or anything, so I ask him to show— to demonstrate to the best of his ability what he was describing.

Bowman related the details of this and numerous other specific instances of defendant's abuse as DD had revealed them to her.

The prosecution conceded that DD's statement to Bowman was not admissible under the tender-years exception to the hearsay rule, MRE 803A, because it was his second statement about the abuse. Defendant argued that MRE 803A "covers the field," meaning that, if a statement falls in the category of a tender-years statement and is inadmissible under MRE 803A, it cannot be admitted under MRE 803(24).

The trial court rejected defendant's argument and admitted the evidence under MRE 803(24). In ruling that DD's statements satisfied the requirements of MRE 803(24), the court stated:

[I]n the Court's opinion there are several indicia of trustworthiness in the statements given by [DD] to Miss Bowman. First is the spontaneity of [DD's] first statements to Miss Bowman. Recall— The Court's [sic] heard the testimony, that Miss Bowman was not there to talk about sexual abuse, she was there to talk about physical abuse. I would also note that as far as this Court's record is concerned [DD and AD's mother] did not know that her child was going to be interviewed on October 27. Accordingly, there doesn't appear to be anything on the record here which would establish that somehow [DD] was prepped by somebody to mouth sentences to Miss Bowman that were not true. Mis Bowman first inquired of [DD] about physical abuse. Then, [DD,] and in this Court's opinion this is important, not in response to any questioning by Miss Bowman regarding sexual abuse, spontaneously spoke about abuse— sexual abuse by the defendant. It's clear that [DD] spoke from his personal knowledge. And, as her duty as a protective service worker, Miss Bowman inquired further. Now, Miss Bowman's qualifications to interview children were obvious from the record. She is aware of how to ... interview children. She testified that she avoided leading questions and avoided other pitfalls of questioning young children. And the Court finds that she was totally aware how to get truthful information from [DD]. The Court finds that the record and the dynamics of this exchange between Miss Bowman and [DD] provided a form [sic] that an accurate statement would be uttered by [DD]. The Court finds no plan of falsification by [DD] under the circumstances in the record that I have before me, and no— and I do find a lack of motive to fabricate on the child's part. The Court also notes that Miss Bowman testified, and I believe her testimony, she had no preconceived notion that anything of a sexual nature occurred when she walked into the room on October 27, [19]97. Indeed, as I've stated before, she was there to talk about physical abuse.

* * *

Accordingly, the Court finds— from the totality of the circumstances here, I find the required trustworthiness guarantees that [MRE] 803(24) requires.

B. THE COURT OF APPEALS

On appeal, defendant again contended that DD's statement to Bowman was not admissible under MRE 803(24). He urged that the Court adopt what has been dubbed the "near-miss" theory, which "maintains that a hearsay statement that is close to, but that does not fit precisely into, a recognized hearsay exception is not admissible under [the residual hearsay exception.]" United States v. Deeb, 13 F.3d 1532, 1536 (C.A.11 1994).

The Court of Appeals rejected the near miss-theory and defendant's narrow interpretation of MRE 803(24) and, instead, adopted the approach taken by the United States Court of Appeals for the Eighth Circuit in United States v. Earles, 113 F.3d 796 (C.A.8 1997):

The meaning of the catch-all's "specifically covered" language has caused considerable debate. See, e.g., McKethan v. United States, 439 U.S. 936, 99 S.Ct. 333, 58 L.Ed.2d 333 (1978) (Justices Stewart and Marshall dissenting from the Court's denial of writs of certiorari and contending that the Court should resolve the circuit split on this issue[.]). However, the majority of circuit courts have held that the phrase "specifically covered" means only that if a statement is admissible under one of the prior exceptions, such prior subsection should be relied upon instead of [the residual hearsay exception]. If, on the other hand, the statement is inadmissible under the other exceptions, these courts allow the testimony to be considered for admission under [the residual hearsay exception]. [248 Mich.App. 282, 292, 639 N.W.2d 815 (2001), quoting Earles, supra at 800 (emphasis in 248 Mich.App at 292, 639 N.W.2d 815).]

Defendant next argued that DD's statement did not meet two of the requirements of MRE 803(24). Specifically, (1) the evidence did not possess "equivalent circumstantial guarantees of trustworthiness" and (2) it was not more probative than DD's first statement about the abuse, which was made to his mother before the Bowman interview.

The Court of Appeals rejected the first challenge, stating that it agreed with the trial court's "thorough and well-reasoned assessment that DD's statement implicating defendant in these crimes contained ample `circumstantial guarantees of trustworthiness' as required by MRE 803(24)." 248 Mich.App at 297, 639 N.W.2d 815. Regarding DD's statements to his mother, the panel found that

"there is no indication in the record that either DD or AD recounted the circumstances of the assaults with the same detail. Nor is there any indication that their alleged statements to their mother contained particularized guarantees of trustworthiness similar to those regarding the statement given to Bowman. Indeed, when defense counsel inquired of the mother during trial regarding her knowledge of the alleged sexual abuse, she indicated only that AD had told the children's uncle about the abuse, who in turn told the mother...." [Id. at 299-300, 639 N.W.2d 815.]

Accordingly, the Court of Appeals affirmed the trial court's admission of the evidence.

II. STANDARD OF REVIEW

The decision whether to admit evidence is within a trial court's discretion. This Court reverses it only where there has been an abuse of discretion. People v. Lukity, 460 Mich. 484, 488, 596 N.W.2d 607 (1999). However, the decision frequently involves a preliminary question of law, such as whether a rule of evidence or statute precludes the admission of the evidence. We review questions of law de novo. Id.; People v. Starr, 457 Mich. 490, 494, 577 N.W.2d 673 (1998). Therefore, when such preliminary questions are at issue, we will find an abuse of discretion when a trial court admits evidence that is inadmissible as a matter of law. Id.

III. ANALYSIS

The Michigan Rules of Evidence contain two residual exceptions: MRE 803(24) and MRE 804(b)(7). MRE 803(24), the exception at issue here, provides:

(24) Other Exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent

...