People v. Jones

O’Connell, RJ.

(concurring in part and dissenting in part). I agree with the conclusion reached by the majority, but write separately to clarify certain areas where my views diverge from those of the majority.

The majority concludes that Alicia Love’s statements — “Bitch come out, I’m gonna kick your ass. And Alphonzo don’t want you, Alphonzo don’t love you.” — do not constitute hearsay.

Defendant was on trial for assaulting another individual with the intent to commit murder. To the extent that one considers, as does the majority, only the literal denotation of Love’s words, that is, that Love intended to assault Christine Berry and that defendant no longer cared for Berry, they were not relevant to any fact in issue, see MRE 401, and should have been excluded. 1 To the extent that the state- *227 merits were intended to demonstrate that defendant was agitated immediately before the incident underlying his convictions (which is obviously the reason for which they were offered), the statements were being used to prove the truth of the matter asserted; they contained the “implied assertion” that Love, and, by association, defendant, were angry. See 2 McCormick, Evidence (4th ed), § 250, p 107. Love’s statements, suggesting both that defendant did not care for Berry and that Love was angry, could constitute hearsay if admitted to demonstrate that Love was angry. 2 See *228 MRE 801(c). Thus, these statements should not, in my opinion, have been admitted into evidence, unless they qualified under one of the recognized hearsay *229 exceptions. To the extent that the majority concludes that an “implied assertion” is not hearsay, I respectfully disagree. 3 3 Michigan Court Rules Practice, Evidence , § 801.2, pp 7-10. 4

MRE 402 provides that “[e]vidence which is not relevant is not admissible.” The term “relevant evidence” is defined to mean “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” MRE 401. Our Supreme Court recently emphasized that “[m]ateriality, under Rule 401, is the requirement that the proffered evidence be related to ‘any fact that is of consequence’ to the action. ‘In other words, is the fact to be proven truly in issue?’ ” People v Mills, 450 Mich 61, 67 ; 537 NW2d 909 (1995), quoting Wade & Strom, Michigan Courtroom Evidence (rev ed), Rule 401, p 71 (emphasis in Mills).

Here, Ms. Love’s comments had no bearing on any matter that was in issue at defendant’s trial. Assuming arguendo that her statements were not hearsay, they failed to make any matter that was in issue, any matter of consequence, Mills, supra, more probable or less probable than the *227 matter would have been in the absence of the evidence. MRE 401. Defendant’s alleged acts did not stem from some affaire de coeur where his feelings for witness Berry would, perhaps, have been germane. And, of course, Ms. Love’s feelings of hostility for witness Berry shed no light on whether defendant later committed an assault on another individual. In sum, the comments of Ms. Love did not pertain to any element of the crimes of which defendant was ultimately convicted and bore no relationship to any other pertinent matter.

That being said, I would caution that the fact that witness Berry saw defendant in the area may have been relevant evidence. However, I address only the propriety of the admission into evidence of witness Berry’s reiteration of the woman’s statements, as opposed to witness Berry’s testimony that she saw defendant in the area. While defendant’s presence may have been relevant, the statements of Ms. Love, who did not testify at trial and who made no comment incriminating defendant with respect to the charged crimes was not relevant evidence.

While no Michigan case has addressed this issue, I note the following federal cases in support of my position: Krulewitch v United States, 336 US 440 ; 69 S Ct 716 ; 93 L Ed 790 (1949) (holding that a statement implying that the defendant was guilty of the crime for which he was on trial was inadmissible hearsay); United States v Reynolds, 715 F2d 99, 103 (CA 3, 1983) (implied assertions qualify as hearsay “when the matter which the declarant intends to assert is different from the matter to be proved, but the matter asserted, if true, is circumstantial evidence of the matter to be proved”); United States v McGlory, 968 F2d 309, 332 (CA 3, 1992), cert den 507 US 962 ; 113 S Ct 1388 ; 122 L Ed 2d 763 (1993) (“statements containing express assertions not offered for their truth may contain implied assertions that qualify as hearsay because the truth of the implied assertions is at issue and relevant to guilt”); United States v Palma-Ruedas, 121 F3d 841, 857 (CA 3, 1997) (statements offered to support an implied assertion are inadmissible hearsay); Park v Huff, 493 F2d 923, 928 (CA 5, 1974), withdrawn on other grounds 506 F2d 849 (CA 5, 1975) (en banc), *228 cert den 423 US 824 ; 96 S Ct 38 ; 46 L Ed 2d 40 (1975) (holding that “[w]hen the possibility is real that an out-of-court statement which implies the existence of the ultimate fact in issue was made with assertive intent, it is essential that the statement be treated as hearsay if a direct declaration of that fact would be so treated”); Lyle v Koehler, 720 F2d 426 (CA 6, 1983) (out-of-court implied utterances should be considered hearsay because of what they implied about the guilt of the defendant); United States v Pacelli, 491 F2d 1108 (CA 2, 1974), cert den 419 US 826 ; 95 S Ct 43 ; 42 L Ed 2d 49 (1974) (same conclusions as in Lyle, supra).

For other authority in support of my position, see: Seidelson, Implied Assertions and Federal Rule of Evidence 801: A Continuing Quandary for Federal Courts, 16 Miss C L R 33, 52-53 (1995) (concluding that implied assertions should “remain hearsay under Rule 801, thereby giving effect to the apparent congressional intent and precluding the Advisory Committee from perverting that intent by a perfunctory effect to analogize implied assertions with nonassertive conduct”); Ulam, The Hearsay Rule: Are Telephone Calls Intercepted by Police Admissible to Prove the Truth of Matters Impliedly Asserted?, 11 Miss C L R 349, 366 (1991) (finding that “[b]oth the direct assertion and the implied assertion contain hearsay dangers which justify the exclusion of the evidence on hearsay grounds”); Rice, Should Unintended Implications of Speech be Considered Nonhearsay? The Assertive/Nonassertive Distinction Under Rule 801(A) of the Federal Rules of Evidence, 65 Temp L R 529 (1992) (“regardless of whether the statement was direct or indirect (and if indirect, whether the implication was intended or not), if the evidence is logically relevant only if one believes the truth of the matter explicitly or implicitly asserted, it is hearsay”); Finman, Implied Assertions as Hearsay: Some Criticisms of the Uniform Rules of Evidence, 14 Stan L R 682, 691-693 (1962) (arguing that nonassertive conduct offered for the two-step inference of belief and statements offered to prove unspoken beliefs should be treated as hearsay); Fenner, Law Professor Reveals Shocking Truth About Hearsay, 62 UMKC L R 1, 105, n 258 (1993) (agreeing with the court in Reynolds, supra); Saltzburg & Redden, Federal Rules of Evidence Manual (4th ed), p 717 (“[t]o the extent that one fact must be asserted if another that is directly asserted is to be taken as true, both should be treated as hearsay when the direct assertion is offered to prove the other”); 2 Graham, Handbook of Federal Evidence (4th ed), § 801.7, pp 241-242 (“[w]hen a statement is offered to infer the declarant’s state of mind from which a given fact is inferred in the form of an opinion or otherwise, since the truth of the matter asserted must be assumed in order for the nonasserted inference to be drawn, the statement is properly classified as hearsay under the language of Rule 801(c)”); 4 Louisell & Mueller, Federal Evidence, § 415, p 94, n 84 (same conclusion as in Graham, supra).

An example of an implied assertion is the statement, “John go get your bike out of the driveway.” If this “implied assertion” is offered to prove that there is a bike in the driveway, it is hearsay. (The lead opinion would conclude that this statement is not an assertion and, therefore, not hearsay). If it is offered for another relevant purpose, it may not be hearsay.

“To the extent that ‘questions’ containing indirect assertions of fact are offered as proof of such facts (e.g., if the question ‘Did you get the stuff?’ is offered as a speaker’s intended indirect assertion that the defendant is a drug dealer), we believe they should be categorized as ‘statements’ subject to the hearsay rule.” 3 Michigan Court Rules Practice, Evidence, § 801.2, p 9.