People v. Verburg, Docket No. 87775

Decision Date02 August 1988
Docket NumberDocket No. 87775
Citation170 Mich.App. 490,430 N.W.2d 775
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward Joseph VERBURG, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William A. Forsyth, Pros. Atty., Timothy K. McMorrow, Chief Appellate Atty., Kalamazoo, for the People.

James R. Rinck, Grand Rapids, for defendant-appellant.

Before WAHLS, P.J., and MAHER and BOYLE *, JJ.


Following a jury trial, defendant was convicted of second-degree criminal sexual conduct, M.C.L. Sec. 750.520c(1)(a); M.S.A. Sec. 28.788(3)(1)(a). Defendant subsequently pled guilty to being an habitual (third) offender; M.C.L. Sec. 769.13; M.S.A. Sec. 28.1085. He was sentenced to 6 to 30 years' imprisonment. Defendant appeals by right, raising two issues regarding his jury trial. We affirm.

Defendant's criminal sexual conduct conviction arose from his sexual molestation of a five-year-old boy, whom defendant's wife cared for after school and until the boy's mother returned from work. After the repeated assaults, defendant threatened the boy not to tell anyone. However, the boy eventually told his older sister, Jessica, about the assaults, and she informed their mother. Both children testified at trial.

On appeal, defendant first claims that the sister's testimony was improperly admitted over his objection because it was hearsay and it did not fall within the excited utterance exception, MRE 803(2). That exception applies to statements that (1) arose out of a startling event, (2) were made before there was time to contrive or misrepresent, and (3) relate to the circumstances of the startling occurrence. People v. Gee, 406 Mich. 279, 282, 278 N.W.2d 304 (1979). Here, the only question is whether the time lapse between defendant's assaults and the boy's statements to his sister was too lengthy to satisfy the second requirement. To properly resolve this issue, we believe that it would be helpful to consider the impact of our Supreme Court's decision that the tender years exception to the rule prohibiting the use of hearsay evidence did not survive the adoption of the Michigan Rules of Evidence. People v. Kreiner, 415 Mich. 372, 329 N.W.2d 716 (1982).

The Kreiner case, in part by invitation in its express language at pp. 378-379, 329 N.W.2d 716, has put great pressure on trial courts to admit into evidence under the aegis of excited utterance [MRE 803(2) ] that which would formerly have been allowed by the tender years exception. As a result, the collected reported and unreported opinions of this Court have begun to allow greater lapses of time between the startling event and its being reported. This is particularly true where the delay in complaint is explained by the utterance of threats of violence and physical force or by the infliction of severe injury. See People v. Soles, 143 Mich.App. 433, 372 N.W.2d 588 (1985), lv. den. 424 Mich. 863 (1985) (five day delay during four of which the victim, a six-year old, was interviewed by a protective services worker and a Michigan State Police detective before the victim related the facts of the complaint); People v. Foreman, 161 Mich.App. 14, 23, 410 N.W.2d 289 (1987), lv. den. 430 Mich. 860 (1988).

In this case, we are dealing with a five-year-old child who was threatened if he revealed the sexual contact. There are several indications of trustworthiness in his statements to his sister, i.e., the use of defendant's language, the meaning of which the child did not understand, and the description of physical appearance.

However, the record does not reveal, nor could it, the time lapse involved. The crime was charged as having occurred between November 1, 1984, and December 18, 1984, the date of report. It is apparent that the activity occurred more than once, but the victim did not know how many times it occurred. It is simply not possible on this record to find the second prong of the Gee test, that the statement was made before there has been time to contrive and misrepresent, particularly where it is impossible to delimit the time except to say it occurred within six weeks.

The prosecution strongly argues that the proper standard under the second prong where the case involves young children is not the time to contrive or misrepresent, but rather the capacity to do so. Thus, it argues that Soles, supra, 143 Mich.App. at 438, 372 N.W.2d 588, uses the following language in interpreting the second prong: "[S]he could remain so traumatized by the incident as to be incapable of contriving or misrepresenting the crimes committed to her person for a period of five days or longer." (Emphasis added). Further, the prosecution relies on In the Matter of Meeboer, 134 Mich.App. 294, 302, 350 N.W.2d 868 (1984), wherein this Court used the following language in referring to a nine-year-old girl with an IQ of not more than 40: "It would be unreasonable to expect that a child of her age and mentality would ... contrive or misrepresent as to sexual matters."

The essential problem with the prosecution's argument is that it asks this Court to import into the meaning of MRE 803(2) the very concepts embodied in the tender years exception, a proposition rejected by our Supreme Court in Kreiner, supra.

Of course, on the other hand, the problem in accurately analyzing the facts of this case so as to apply precedential concepts from our Supreme Court is that those concepts are blurred at best and somewhat confusing. It might help to clarify the problem by using the pertinent language of MRE 803 creating exceptions to the rule prohibiting hearsay:

"The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

"(1) Present Sense Impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

"(2) Excited Utterance. 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."

There is no exact counterpart to MRE 803(1) in Michigan law prior to adoption of the Michigan Rules of Evidence. Wade & Strom, Michigan Courtroom Evidence (1985), p 404. There are also few Michigan pre-Rules appellate cases dealing with the admissibility of present sense impressions, and those that exist analyze the matter under the common law res gestae exception to the hearsay rule.

Analytically, there are two major differences between the rules. MRE 803(1) requires contemporaneity, but not excitement. MRE 803(2) requires excitement, but not contemporaneity. Obviously, time lapse is a factor bearing on admissibility, but the standard under the latter rule's express language is that time lapse will not alone render an excited utterance inadmissible so long as the declarant is still under the stress of the excitement caused by the event.

Again, analytically, there are three, and only three, elements for MRE 803(2): (1) A startling event; (2) A statement made by a declarant relating to that event; and (3) The statement must be made while the declarant is under the stress of excitement caused by the event. Under this analysis, the trial court properly admitted the testimony of the victim's sister because the record was adequate to show that declarant's statement was made under the continuing influence of the stress of excitement caused by the criminal sexual conduct.

However, in Gee, supra, our Supreme Court ruled that a statement made by a victim of criminal sexual conduct to her boyfriend while she was upset and crying within 12 to 20 hours of the alleged assault could not be admitted under MRE 803(2). The Gee Court added to the three elements set forth above the following elements for admissibility under the rule: (1) The startling event must produce nervous excitement; (2) The declaration must be spontaneous; (3) The declaration must be unreflecting; and (4) The declaration must have been made before there has been time to contrive and misrepresent. Id. 406 Mich. at p. 282, 278 N.W.2d 304. Moreover, in analyzing the facts, the Gee Court alluded to "self-interest" as though that is a factor against admissibility and suggested that any delay between the event and the declaration must have a plausible explanation. Id., at p. 283, 278 N.W.2d 304.

Subsequently, in People v. Morgan, 418 Mich. 916, 342 N.W.2d 523 (1984), the Court summarily, and without benefit of an opinion, reversed a conviction with a statement that a time lapse of three weeks renders the declaration inadmissible pursuant to MRE 803(2) and Kreiner, supra.

In People v. McConnell, 420 Mich. 852, 358 N.W.2d 895 (1984), the Court again summarily, and without benefit of an opinion, reversed a conviction for criminal sexual conduct wherein the victim was a six-year old and the trial judge and this Court had agreed that the seven-day delay between the event and the declaration was explained by youth and fear. Our Supreme Court simply stated that the declaration lacked the requisite spontaneity pursuant to MRE 803(2) and Kreiner.

The disturbing aspect of Kreiner...

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