People v. Straight

• Decision Date: 01 June 1988
• Docket Number: Docket Nos. 76317,76318
• Citation: 430 Mich. 418,424 N.W.2d 257
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee and Cross-Appellant, v. William Junior STRAIGHT, Defendant-Appellant and Cross-Appellee. 430 Mich. 418, 424 N.W.2d 257
• Court: Michigan Supreme Court

Page 257

424 N.W.2d 257

PEOPLE of the State of Michigan, Plaintiff-Appellee and Cross-Appellant, v. William Junior STRAIGHT, Defendant-Appellant and Cross-Appellee.

Docket Nos. 76317, 76318.

430 Mich. 418, 424 N.W.2d 257

Supreme Court of Michigan.

Argued June 2, 1987.

Decided June 1, 1988.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., David H. Sawyer, William A. Forsyth, Kent County Pros. Attys., Timothy

K. McMorrow, Chief Appellate Atty., Grand Rapids, for plaintiff-appellee and cross-appellant.

James R. Rinck, Grand Rapids, for defendant-appellant and cross-appellee.

Before the Entire Bench.

BOYLE, Justice.

We are asked in this appeal from defendant's conviction of criminal sexual conduct to decide whether a child's statements, made approximately one month after the event, as related by her parents, were properly admitted as substantive evidence under MRE 803(2)--the excited utterance exception to the hearsay rule. The statements concerned the details of the assault and the identity of her attacker.

We hold that these statements were not admissible as excited utterances under MRE 803(2). Further, in light of the substantive use of this evidence by the prosecuting attorney, it cannot be concluded that this evidence was merely corroborative. Admitting this testimony for substantive use was error. Consequently, we reverse the decision of the Court of Appeals and remand this case to the trial court for a new trial.

I

William Straight was charged with first-degree criminal sexual conduct. The victim was four years old at the time of the alleged assault. The jury's verdict and the defendant's conviction of second-degree criminal sexual conduct were affirmed by the Court of Appeals.

The alleged assault took place in early October, 1982, when the victim's mother went to the bank late one night with the defendant's wife. The mother had asked defendant, her next-door neighbor, to look in on her children during the few minutes that she expected to be away. She actually was gone for quite some time. When she arrived home, she found defendant sitting on the floor of her dining room with his legs extended and his arms around the child, who was crying. The mother asked defendant what he was doing, and why the child was out of bed. He responded that when he had looked in on the children he had found the child crying at the top of the stairs and that he had been comforting her when the mother returned.

At trial, the mother testified that during the next three to four weeks the child had recurring nightmares and a poor appetite, experienced vomiting, and was irritable. One evening when the child vomited, approximately one month after the mother had found defendant holding the child, the mother and the child's father took the child to a hospital where the conversation admitted as an excited utterance occurred.

The child was examined at the hospital where no physical evidence of molestation was found. When the parents and child were alone, they began questioning her about defendant. Both the mother and the child's father testified about the conversation. ¹ The victim, then five years old, also testified.

II

This case represents the most recent example of the tension created in the trial courts and the Court of Appeals by the application of the Rules of Evidence to the unique situation of a child witness in an alleged sexual abuse case. The tension originates from the conflict between two underlying policies: a desire to protect the most vulnerable of our citizens from heinous and damaging exploitation, and a need to protect the accused individual against both erroneous conviction and the devastating consequences that can follow. The tension is exacerbated by an ever-growing number of such cases, ² and by what some members of the bench and bar may perceive as an overly rigid application and unfortunate effect of the Rules of Evidence in this category of cases.

The attempts to resolve this tension vary. The Court of Appeals in this case has urged us to reconsider the holding in People v. Kreiner, 415 Mich. 372, 329 N.W.2d 716 (1982). What remains consistent, however, is the perception that existing rules of evidence and procedure may not adequately deal with these cases. This case illustrates an extension of the Rules of Evidence to accommodate facts which fail to neatly fall within a recognized exception to the hearsay rule.

III

An excited utterance is defined as: "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). Traditional justification for this rule lies in the belief that "special reliability" can be afforded a statement made while under sufficient stress or excitement because "the declarant's powers of reflection and fabrication" are removed. McCormick, Evidence (3d ed), Sec. 297, p 855. ³ To qualify as an excited utterance, two requirements must be satisfied. First, there must be a startling event, and, second, the resulting statement of the declarant must be made while under the excitement caused by that event. ⁴ In People v. Gee, 406 Mich. 279, 282, 278 N.W.2d 304 (1979), this Court summarized the criteria for the excited utterance as follows:

"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; ⁴ (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, id., p. 282, 278 N.W.2d 304.

The second prong of Gee deals with the relative time frame, i.e., the statement "must be made before there has been time to contrive and misrepresent." Obviously this statement does not contemplate a sequence in which the utterance necessarily follows immediately on the startling event, just as it does not contemplate admission of a statement made while under control, even though made contemporaneously. Thus, Gee did not subordinate the requirements that the statement must be made while under the stress of excitement and relate to the startling event, to the time-to-contrive element of the formulation. Logically there is always time to contrive whether the statement begins as the event is observed or is made ten minutes later. Properly understood, Gee 's requirement that the statement must "be made before there has been time to contrive and misrepresent" is simply 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.

The focus of MRE 803(2), given a startling event, is whether the declarant spoke while still under the stress caused by the startling event. Because the justification for this rule is lack of capacity to fabricate rather than the lack of time to fabricate, which is the justification for the present sense impression exception MRE 803(1), "the period of acceptable time will frequently be considerably longer" under 803(2) than is acceptable under 803(1). 4 Weinstein, Evidence (3d ed), Sec. 803(2), p. 803-90.

"The crucial point is that the court must be able to find that the declarant's state at the time he made the declaration ruled out the possibility of conscious reflection.

"Physical factors, such as shock, unconsciousness or pain, may prolong the period in which the risk of fabrication is reduced to an acceptable minimum. The interaction of other factors may also affect the court's determination ... including the nature of the startling event, the character of the statement, the condition of the declarant, the identity of the declarant, and the availability of other evidence." Weinstein, supra, pp. 803-91 to 803-94.

Few could quarrel with the conclusion that a sexual assault is a startling event. ⁵ The difficulty in this case arises because the statements at issue were made approximately one month after the alleged assault, immediately after a medical examination of the child's pelvic area, and after repeated questioning by her parents. Under these circumstances, it simply cannot be concluded that the statements were made "while the declarant was under the stress of excitement caused by the event or condition." Certainly the declarant was under stress, but one cannot safely say that this stress resulted from the alleged assault rather than from a combination of the medical examination and repeated questioning. ⁶

The prosecution argues that should we find the statements at issue inadmissible under MRE 803(2) we should nonetheless hold that the statement of a child should be admissible to corroborate the child's trial testimony. ⁷ We are unwilling to do so in the context of this case. The hearsay testimony of the parents was not offered merely to corroborate the child's testimony, but rather was offered and argued for its substantive worth as the prosecution's closing argument clearly reveals:

"And ladies and gentlemen, I would suggest to you that that was what was happening on that night in question that the statements made by [R______] at the hospital can be considered by you and even if she hasn't said on the stand what happened as she did yesterday, she just clammed up and said, 'I don't remember,' or, 'I don't want to say anything,' you can still find that the defendant is guilty merely from the testimony that the mother gave as to the information given to her and to the father as to what she said in the hospital."

These comments establish that the parents' testimony was presented to the jury without limitation as substantive proof of defendant's guilt. ⁸

The admission of this evidence being erroneous, we must determine whether a miscarriage of justice has resulted. M.C.L. Sec. 769.26; M.S.A. Sec. 28.1096. Our inquiry is to the "effect the error had or reasonably may be taken to have had upon the jury's decision." Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 90...