People v. Walker
| Decision Date | 26 May 2005 |
| Docket Number | Docket No. 250006. |
| Citation | 265 Mich. App. 530,697 N.W.2d 159 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alvin C. WALKER, Jr., Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Kathryn G. Barnes, Assistant Prosecuting Attorney, for the people.
Ronald D. Ambrose, for the defendant.
Before: NEFF, P.J., and COOPER and R.S. GRIBBS1, JJ.
Defendant appeals as of right his jury trial convictions of felonious assault, MCL 750.82; possession of a firearm by a felon, MCL 750.224f; and two counts of possession of a firearm during the commission of a felony, MCL 750.227b. Defendant was sentenced as an habitual offender, third offense, MCL 769.11, to concurrent prison terms of two to eight years for the felonious assault conviction and thirty-five months to ten years for the conviction of possession of a firearm by a felon, and to two consecutive prison terms of two years for the felony-firearm convictions. We affirm.
This case stems from a domestic assault in which defendant beat his live-in girl-friend repeatedly with a stick and threatened her with a gun. The couple had been living together for several years and had a son together. The victim told police that after the couple had an argument on the evening of October 18, 2002, defendant forced her to lie on the bed on her stomach while he beat her with white sticks on her back, buttocks, legs, and arms. He then pointed a handgun at her and told her he would "blow her back out" if she moved. The beatings continued until early the next morning. The victim escaped at approximately 9:00 a.m. by jumping from a second-story balcony while defendant was sleeping. She ran to the home of a neighbor, who called 911.
The police arrived within a few minutes. Because the victim was upset, the neighbor wrote out her statement of what happened. The victim accompanied the police to the couple's home, where the police found three white sticks and a handgun. Defendant was not at the home, but was located and arrested a short while later.
Defendant first argues that he was denied his right of due process and the right to confront witnesses by the admission of the victim's hearsay statements. Defendant contends that the trial court erred by admitting the statements under MRE 803(2), the hearsay exception for excited utterances.
The trial court's ruling regarding the admission of evidence is reviewed for an abuse of discretion. People v. Hine, 467 Mich. 242, 250, 650 N.W.2d 659 (2002); People v. Taylor, 195 Mich.App. 57, 60, 489 N.W.2d 99 (1992). This Court will find an abuse of discretion only when an unprejudiced person, considering the facts on which the trial court acted, would say there was no justification or excuse for the ruling. Id.
Defendant argues that the admission of the victim's statements as excited utterances was improper because the statements were not made before the victim had the time and capacity to fabricate the statements. He argues that there was a two-hour delay from the time of the assault to the time of the statements, the victim fell asleep between the assault and her escape, and she had time to compose herself enough to jump from a second-story window, all of which support a conclusion that she had the capacity to fabricate the assault.
The prosecutor filed a pretrial motion to admit the victim's statements to the neighbor under MRE 803(2). The record indicates that following a hearing, the trial court granted the motion. We find no error in the admission of the victim's statements.
Under MRE 803(2), a hearsay statement is admissible if it is "[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 are two primary requirements for an excited utterance: (1) there must be a startling event, and (2) the resulting statement must have been made while the declarant was under the excitement caused by that event. People v. Smith, 456 Mich. 543, 550, 581 N.W.2d 654 (1998).
There is no express time limit for excited utterances. The rule focuses on the lack of capacity to fabricate, not the lack of time to fabricate. Although the amount of time that passes between the event and the statement is an important factor in determining whether the declarant was still under the stress of the event when the statement was made, it is not dispositive. The question is not strictly one of time, but of the possibility of conscious reflection. Id. at 551, 581 N.W.2d 654. The trial court's decision regarding whether the declarant was still under the stress of the event is given wide discretion. Id. at 552, 581 N.W.2d 654.
Here, all the circumstances support a finding that the victim's statements were the result of a startling event and constituted an excited utterance. According to the evidence, the victim was beaten throughout the night and escaped within two hours of the last beating. She jumped from a second-story balcony, ran to a neighbor's house, and asked her to call 911. According to the neighbor, the victim was injured and "crying and shaking and she seemed really upset, hurt." The 911 call was received at 9:02 a.m. and the first police officer arrived at the neighbor's home within five minutes; other officers arrived within fifteen to twenty minutes. According to the officers' testimony, the victim was hysterical: she was scared, crying, highly upset, and shaking. There is nothing to suggest that the intervals between the assault, her escape, and the statements to the neighbor and the police gave rise to reflective fabrication. Accordingly, the determination was within the bounds of discretion, and the trial court properly admitted this testimony into evidence under MRE 803(2). Smith, supra at 550, 581 N.W.2d 654.
In response to our dissenting colleague, we first note that defendant's challenge in the trial court to the victim's statements was based on his contention that the facts did not support admission of the victim's statement to her neighbor under the hearsay exception for an excited utterance, MRE 803(2). His challenge based on the Confrontation Clause2 is raised for the first time on appeal. Accordingly, it is arguable whether the issue raised and discussed by the dissent pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and United States v. Cromer, 389 F.3d 662 (C.A.6, 2004), is preserved for appellate review.3 Nevertheless, we are unpersuaded that either Crawford or Cromer compels the result for which the dissent argues.
The dissent concludes that the victim's statements were inadmissible because they constitute testimonial hearsay under Crawford. The Crawford Court avoided any attempt to define "testimonial," admittedly creating interim uncertainty concerning the reach of its holding, Crawford, supra at 68 n. 10, and essentially leaving the lower courts to decide whether particular hearsay evidence is or is not "testimonial." We conclude that the statements of the victim in this case do not qualify as testimonial under the analysis and guidance of Crawford.
In Crawford, the Court declined to set forth a "precise articulation" of what constitutes "testimonial" hearsay for purposes of the Confrontation Clause, despite acknowledging various formulations of a definition. Id. at 52, 124 S.Ct. 1354. The bar imposed on testimonial hearsay is therefore unsupported by any explicit rule beyond (1) the Court's pronouncements that "ex parte testimony at a preliminary hearing" and "[s]tatements taken by police officers in the course of interrogations" are indisputably testimonial, id., and (2) the Court's concluding summary:
Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Cause was directed. [Id. at 68, 124 S.Ct. 1354.]
Even then, the opinion acknowledges that the term "interrogation" is open to definition. Id. at 53 n. 4, 124 S.Ct. 1354.
Although statements to authorities routinely fall within the category of statements made for the purpose of the investigation of a crime and the "production of testimony with an eye toward trial," id. at 56 n. 7, 124 S.Ct. 1354, that is not always the case. And it does not accurately characterize the majority of the statements in this case.4 This case involved a domestic assault and, as is not uncommon in these cases, the complainant-victim was not available to testify against her assailant-boyfriend. The victim's statements were initially made to a disinterested female neighbor. The statements to the neighbor were spontaneous and could as justifiably be characterized as a plea for safety and protection as statements made for the investigation of a crime. It is unlikely that someone would jump from a second-story balcony and run to the home of a neighbor she did not know, all with an eye toward developing testimony for subsequent prosecution.
Justice Scalia's majority opinion in Crawford acknowledges that the language of the Confrontation Clause alone does not answer the question posed. Id. at 42-43, 124 S.Ct. 1354. He engages in a lengthy discussion of the history of the right to confront one's accusers in support of his interpretation of the Confrontation Clause. Given the historical perspective of Crawford, and its recognition that "[p]olice interrogations bear a striking resemblance to examinations by justices of the peace in England," id. at 52, 124 S.Ct. 1354, we cannot conclude that the victim's spontaneous statements in this case are akin to the...
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...conclusion that the victim's statements were not "testimonial" is further supported by this Court's decisions in People v. Walker, 265 Mich.App. 530, 697 N.W.2d 159 (2005), lv. gtd. 472 Mich. 928, 697 N.W.2d 527 (2005), and People v. Geno, 261 Mich.App. 624, 683 N.W.2d 687 (2004). The Geno ......
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People v. Walker, Docket No. 250006.
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