People v. Hackney

Wahls, J.

(dissenting). According to the testimony in this case, complainant was sexually abused by defendant at approximately 3:45 p.m. after arriving home from school. Complainant was then driven by defendant to defendant’s mother’s house. From there, complainant walked across the street and began playing with his friends, the children of Marian Feller, at approximately 5:00 p.m. The children, including complainant, apparently played in their usual fashion for approximately the next two hours. Eventually, Feller’s two children approached Feller and informed her that complainant wanted to tell her something. Feller summoned complainant to her. Complainant walked up to Feller and declared that defendant "put his private in my behind.” Complainant then returned to his play with Feller’s children. Over defendant’s objection at trial, the trial court admitted Feller’s hearsay testimony repeating complainant’s statement to Feller under the excited utterance exception to the hearsay rule, MRE 803(2).

The majority believes that the issue whether Feller’s hearsay testimony was properly admitted presents a close evidentiary question. Since the decision upon a close evidentiary question "by definition ordinarily cannot be an abuse of discre *533 tion,” People v Golochowicz, 413 Mich 298, 322 ; 319 NW2d 518 (1982), the majority concludes that the trial court’s ruling was within the bounds of its discretion,

I believe that the issue is not at all close and that the trial court abused its discretion when it admitted Feller’s hearsay testimony. Therefore, I dissent from that portion of the majority’s decision.

In People v Kreiner, 415 Mich 372, 376, 378 ; 329 NW2d 716 (1982), our Supreme Court held that the "tender years exception,” which permitted hearsay testimony of the statements of a sexually abused child for the purpose of corroborating the child’s trial testimony, did not survive the adoption in 1978 of the Michigan Rules of Evidence. Our Supreme Court recently observed that, following Kreiner , there has been "increasing resort to the excited utterance exception to admit a young child’s statements.” People v Straight, 430 Mich 418, 430 ; 424 NW2d 257 (1988). Apparently, evidence which formerly would have been admitted only under the tender years exception is now being admitted under the excited utterance exception. See Straight, supra, pp 423, 430-431 ; cf. Kreiner, supra, p 377 . Accordingly, evidence which formerly could be used only to corroborate the victim’s testimony is now being used as substantive evidence to establish the elements of the offense or circumstances surrounding the offense. See, e.g., Straight, supra, pp 426-427 ; cf. Kreiner, supra, p 377 .

The Court in Straight, supra, pp 430-431 , made clear that the excited utterance exception should no longer be stretched to fill the void left by the abolition of the tender years exception. In this case, the majority’s affirmance of the trial court’s ruling effectively condones the continuation of past *534 practice in spite of Straight, supra. As will be shown, Feller’s hearsay testimony clearly does not meet the foundational requirements set forth in People v Gee, 406 Mich 279 ; 278 NW2d 304 (1979), and explained in Straight, supra, pp 423-426 , for admission of hearsay testimony as an excited utterance under MRE 803(2).

In Gee, supra, p 282 , our Supreme Court stated the essential foundational requirements for an excited utterance:

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.

I have no doubt that the evidence in this case supports a finding that the "occasion” was startling enough to produce an utterance which was spontaneous and unreflecting. I do not believe, however, that the utterance to Feller was "spontaneous and unreflecting,” as explained in Straight, supra.

The Court in Straight, supra, pp 423-424, n 3 , noted that " '[t]he assumption underlying this exception is that a person under the sway of excitement precipitated by an external startling event will be bereñ of the reñective capacity essential for fabrication and that, consequently, any utterance he makes will be spontaneous and trustworthy.’ ” 1 " The crucial point is that the *535 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.’ ” Straight, supra, p 425 . 2 If the declarant was not "still under the influence of an overwhelming emotional condition” which was originally "caused by the startling event,” Straight, supra, pp 425-426 , there is a possibility that the statement was the result of conscious reflection, and, therefore, the statement would not be admissible as an excited utterance.

In this case, the evidence does not support a finding that complainant was still under the sway of excitement from the incident such that he was bereft of reflective capacity when he made the statement which Feller repeated at trial. Moreover, there clearly was conscious reflection.

Complainant told others before he told Feller, see Gee, supra, p 283 , ns 5-6, and repeated the statement to Feller at the urging of Feller and her children, 3 see Straight, supra, p 426, n 6 . Complainant played normally with the other children before he spoke to Feller. See id. Although Feller testified that when complainant made the statement he spoke faster and louder than usual, Feller also testified that complainant did not appear to be upset when he was playing with her children. Finally, complainant himself testified that he was not scared or upset when he spoke to Feller. Considering all of these circumstances, it was an abuse of discretion for the trial court to admit Feller’s hearsay testimony.

In closing, I emphasize that I do not question the reliability and trustworthiness of the child’s statements to Feller given the circumstances sur *536 rounding the hearsay statement. 4 In federal courts, and in child protective proceedings in Michigan, hearsay statements not otherwise admissible under a specific exception to the hearsay rule are admissible when equivalent circumstantial guarantees of trustworthiness are shown. FRE 803(24); MCR 5.972(C). However, there is no similar rule applicable in this case which would permit the admission of Feller’s hearsay testimony on the basis of its apparent reliability and trustworthiness. Compare FRE 803 with MRE 803; see also Kreiner , pp 377-378. The critical point presently is that, while all excited utterances are presumed to be reliable and trustworthy, Straight, supra, p 423 , not all reliable and trustworthy statements are excited utterances, even where the statement is made by a child in a sex-related case, Kreiner, supra, p 379, n 8 . I would reverse defendant’s conviction and remand for a new trial._

Startling enough to produce nervous excitement and to render the utterance spontaneous and unreflecting.

Quoting 4 Weinstein, Evidence, ¶ 803(2)[01], pp 803-85 to 803-86; emphasis added.

Quoting Weinstein, supra, p 803-91; emphasis added.

I assume he was repeating the earlier statement. Curiously, the testimony of the children was not offered.

The "circumstances” include, but are not limited to, the similar statements made to others and the corroborative physical evidence both on complainant and at the scene. On the other hand, I do not believe judicial notice can be taken, as the trial court effectively did, that it would be "unusual and difficult” for a child of complainant’s age "to contrive facts of this nature.”