People v. Washington

• Decision Date: 18 July 1978
• Docket Number: Docket No. 77-5070
• Citation: 270 N.W.2d 511,84 Mich.App. 750
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Louis WASHINGTON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 511

270 N.W.2d 511

84 Mich.App. 750

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Louis WASHINGTON, Defendant-Appellant.

Docket No. 77-5070.

Court of Appeals of Michigan.

July 18, 1978.

Released for Publication Oct. 20, 1978.

Varnum, Riddering, Wierengo & Christenson by Dennis C. Kolenda, Grand Rapids, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., David H. Sawyer, Pros. Atty., for plaintiff-appellee.

Before D. E. HOLBROOK, Jr., P. J., and BASHARA and MAHER, JJ.

MAHER, Judge.

On October 27, 1977, defendant was bound over to Kent County Circuit Court on two counts of murder. M.C.L.A. §§ 750.316, 750.317; M.S.A. §§ 28.548, 28.549. A motion to quash was filed on November 14, 1977, but an order denying that motion was entered on December 18, 1977. By order dated January 20, 1978, this Court granted leave to appeal.

Russell and Jacqueline Palmer were slain in their home on March 20, 1975. The only witness to the slayings was decedents' four-year-old daughter, Clarissa. She testified that during the evening three men, one of whom was armed with a gun, entered the home where she lived with her parents, brother and sister. Clarissa testified that the man carrying a gun was wearing a cast. Other witnesses had testified that during the period in question defendant was wearing a cast on one leg. At the preliminary examination, however, Clarissa was twice walked through the courtroom and could not identify anyone present as being the person she had seen in her home the night of the killings. Defendant was seated in the courtroom.

The final witness called on October 25, 1977, was Kate Visser, a police detective. She testified that on March 21, 1975, she first interviewed Clarissa and that on March 25, 1975, she showed her ten photographs. Visser testified that Clarissa selected three, including that of defendant, as being those of the men who entered her home on the night of the murders.

Defendant contends that the district court erred reversibly at the preliminary examination in admitting Officer Visser's hearsay testimony concerning Clarissa Palmer's prior identification of defendant and in relying on that testimony in determining that there was probable cause to believe that defendant was the individual who committed the charged offenses.

At a preliminary examination the recognized rules of evidence apply. In People v. Walker, 385 Mich. 565, 189 N.W.2d 234 (1971), this Court held that at the preliminary examination there must be a showing From legally admissible evidence that a crime has been committed and that there is probable cause to believe that defendant committed it. See also People v. Gwinn, 47 Mich.App. 134, 209 N.W.2d 297 (1973). Both parties agree that the testimony in question was hearsay: a third party may not testify about another person's out-of-court identification. People v. Poe, 388 Mich. 611, 202 N.W.2d 320 (1972).

But the people contend that Officer Visser's testimony as to Clarissa Palmer's identification of defendant was admissible under the "tender years" exception to the hearsay rule. That exception allows the admission into evidence of hearsay statements made by a victim of tender years who subsequently testifies to the content of those declarations. The delay from the time of the incident to the time of the conversation must be adequately explained. People v. Payne, 37 Mich.App. 442, 194 N.W.2d 906 (1971).

The tender years exception is, however, limited in some respects. The prosecutor is able to point us to no case where the offense involved is not sex-related. People v. Gage, 62 Mich. 271, 28 N.W. 835 (1886), the first case to apply the exception, involved assault with intent to commit rape. Subsequent cases have seemingly all dealt with sex offenses. See People v. Hicks, 98 Mich. 86, 56 N.W. 1102 (1893), People v. Werner, 221 Mich. 123, 190 N.W. 652 (1922), People v. Bonneau, 323 Mich. 237, 35 N.W.2d 161 (1948). In People v. Payne, supra, this Court, speaking specifically of the tender years exception, limited its definition with the words "In sex offenses". The crime at issue here is not a sex-related offense it is murder.

Moreover, in all of the above mentioned cases the party whose statement has been allowed in despite its hearsay nature has been the victim of the alleged crime, the sex offense. Clarissa Palmer was not the victim of the crime in this case.

Nor is Clarissa's prior identification admissible as part of the res gestae. The murders took place March 20. Clarissa found her parents on March 21 but she made no identification statement until March 25. We believe the statement too remote in time to be part of the res gestae.

In order for a statement to qualify as part of the res gestae "(1) that there (must) be 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 and misrepresent and (3) the statement must relate to the circumstances of the occurrence preceding it. 3 Wigmore on Evidence § 1750 et seq." Rogers v. Saginaw-Bay City R. Co., 187 Mich. 490, 494, 153 N.W. 784, 785 (1915).

The delay between the slayings and Clarissa's statement removes her identification from that class of statements which may properly be called spontaneous and unreflecting within the special context of the res gestae. See also People v. Woodward, 21 Mich.App. 549, 175 N.W.2d 842 (1970). ¹

Since we find the hearsay statements inadmissible, we must reverse the circuit court order denying defendant's motion to quash. The matter is remanded to circuit court where the circuit judge may either dismiss or remand for further examination. If the case is so remanded, the Michigan Rules of Evidence, effective March 1, 1978, will govern. Therefore we consider whether the proffered evidence is to be treated any differently under the new rules.

The Michigan Rules of Evidence contain no tender years exception. See MRE 1978, 802, 803, 804, wherein the hearsay rule and the exceptions thereto are dealt with. Attempts to establish an exception for the testimony of Officer Visser elsewhere in the rules fail. MRE 1978, 801(d)(1) provides:

"(d) Statements which are not hearsay. A statement is not hearsay if

"(1) Prior statement of witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is one of identification of a person made after perceiving him." (Emphasis added.)

Clarissa Palmer's testimony might be said, after cursory reading, to meet the standard of this rule. But the pertinent committee note declares:

"MRE 801(d)(1)(C) (now renumbered to be 801(d)(1)) is consistent with prior Michigan law in admitting Testimony by a witness as to his own prior statement of identification of a person made after perceiving him. People v. Poe, 388 Mich. 611, 202 N.W.2d 320 (1...