# People v. Garland > Michigan Court of Appeals · June 3, 1986 · 152 Mich. App. 301 URL: https://www.frixlaw.com/law-library/cases/9671740 ## Case - **Full name:** People v. Garland - **Court:** Michigan Court of Appeals - **Decided:** June 3, 1986 - **Citations:** 152 Mich. App. 301; 393 N.W.2d 896 - **Precedential status:** Published - **Opinion:** Dissent by Wahls - **Judges:** Cynar, Wahls, Gribbs - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9671740 ## Opinion text Wahls, J. (dissenting). I respectfully dissent because I find that two errors occurred requiring reversal. First, I cannot agree that Jaydeen’s statements to her school teacher and principal were excited utterances. Second, I do not believe that the testimony of Jaydeen’s half sisters should have been admitted under the similar-acts exception. i In People v Ivory Thomas, 14 Mich App 642, 650-651, n 3 ; 165 NW2d 879 (1968), Justice (then Judge) Levin, concurring, noted that appellate courts were not ready to give up entirely their supervision of trial courts, although Professors Wigmore and McCormick had recommended that appellate courts leave the excited utterance exception to the discretion of the trial judge in each case. Our ongoing supervision over admission of statements as excited utterances is apparent in cases such as People v Creith, 151 Mich App 217 ; — NW2d — (1986); People v Pullins, 145 Mich App 414 ; 378 NW2d 502 (1985); People v Petrella, 124 Mich App 745 ; 336 NW2d 761 (1983), aff'd on other grounds 424 Mich 221 ; 380 NW2d 11 (1985); People v Carner, 117 Mich App 560 ; 324 NW2d 78 (1982). See also People v McConnell, 420 Mich 852 ; 358 NW2d 895 (1984); People v Kreiner, 415 Mich 372 ; 329 NW2d 716 (1982), reh den 417 Mich 1104 (1983). I think the need for supervision is especially important in a case like this where we have state *312 ments by a very young victim of a sexual offense. Less than three and one-half years ago, these statements would generally have been considered admissible pursuant to the "tender years” exception to the hearsay rule. Indeed, in this case, the admissibility of Jaydeen’s statements to her teacher was argued as early as July 16, 1982, at the preliminary examination, and the prosecution relied heavily on the tender years exception. However, on February 18, 1983, when the Supreme Court denied rehearing in Kreiner, supra, all courts in this state became bound by the Supreme Court’s decision that the tender years exception did not survive the adoption in 1978 of the Michigan Rules of Evidence. The hearsay exceptions in MRE 803 exist because it is believed that the exceptions have indicia of trustworthiness justifying admission of the hearsay. In contrast to MRE 803, the Federal Rules of Evidence have a "catchall” provision, FRE 803(24), which allows the court to admit hearsay not specifically excepted but which has adequate indicia of trustworthiness. In Kreiner, the Supreme Court did not overrule the longstanding view that the tender years exception has indicia of trustworthiness, but the Court concluded that MRE 803 does not leave room for the courts to create exceptions beyond those specifically enumerated. I am inclined to believe that cases like the instant one are explainable, at least in part, as reflecting dissatisfaction with the artificial limitations of MRE 803 and specifically subrule (2). I also believe, based on a review of the preliminary examination and the arguments raised during the motion in limine, that there was confusion in this case about the distinction between the tender years exception and the excited utterance exception of MRE 803(2). *313 The trial court did not explain its ruling, so we cannot know its mental processes in reaching its finding of admissibility. Looking to the record, I cannot find the evidentiary support to sustain its ruling. What I find is evidence of spontaneity and of absence of manufacture and a reasonable explanation for Jaydeen’s delay in making her statement. Those findings establish a classic case for application of the tender years exception. In People v Baker, 251 Mich 322, 326 ; 232 NW 381 (1930), the Supreme Court said of the tender years exception: An assault made by the father of the victim and his admonition to her not to tell what had happened are as effective to promote delay as threats by a stranger would have been. A child would ordinarily have no sense of outrage at such acts by her own father, and complaining of them would not occur to her. Her telling of the affair would more naturally arise as the relation of an unusual occurrence and might be delayed until something arose to suggest it. This quote perfectly summarizes the instant case. From the teacher’s testimony at the preliminary examination, it is apparent that the January 7 offense was not the first, but one of probably many such occurrences. Further, it does not appear that defendant threatened Jaydeen, but rather that he told her that they had a secret which she was not to share with others. Only at trial, after the court had ruled that the statements were admissible, did the teacher and principal state that Jaydeen was excited, and it appears that this excitement was a response to revealing the "secret” and not to the sexual assault itself. The prosecutor argued strongly during the motion hearing that Jaydeen delayed telling her *314 story because she was fearful. The record simply does not support this claim. An argument can be made that Jaydeen was fearful of her father at the preliminary exam, but such a conclusion is tenuous indeed. In response to leading questions by the prosecutor, Jaydeen apparently admitted that she was afraid of defendant. The admission followed very shortly after Jaydeen, in a conversation with the judge about eating fish during a recess, said, "Did Jay [defendant]? Daddy, I’m going to tickle you.” This impulsive remark to her father hardly reflects fear. In any event, the evidence of fear at the preliminary exam is not probative of fear following the sexual assault. Without evidence of excitement or stress resulting from the sexual assault and existing at the time Jaydeen made the statements to her teacher and principal, I cannot find that the foundation for admission pursuant to MRE 803(2) has been established. Kreiner, supra, p 379 and n 8. The majority says that Jaydeen had limited mental ability. At the preliminary exam, the testimony was to the effect that she was educationally mentally impaired, probably for emotional rather than intellectual reasons. The cause of her emotional problems was not established, and it is mere speculation whether they arose because defendant sexually abused her, or because of her mother’s divorce from defendant years earlier, or because of some other reason. Jaydeen’s teacher described Jaydeen as an impulsive child, who made up stories. The teacher said that she could tell when Jaydeen was lying because Jaydeen would laugh and then back down when challenged. The teacher stated, by way of example, that one day Jaydeen came to school and said she had just been to the zoo. That the teacher believed she could tell when Jaydeen was lying and believed that Jaydeen’s *315 statements about defendant assaulting her were true is some indication that Jaydeen’s statements are trustworthy. However, this circumstantial guarantee of trustworthiness does not, in my view, satisfy the criteria of MRE 803(2). Jaydeen’s hearsay statements as testified to by her teacher and principal were the heart of the prosecution’s case. Their erroneous admission was clearly prejudicial. I would reverse. II While the prosecutor followed the criteria set forth in People v Golochowicz, 413 Mich 298, 309 ; 319 NW2d 518 (1982), it is clear that neither the prosecutor nor the trial court paid heed to the Supreme Court’s discussion in that case about admitting similar-acts testimony pursuant to MRE 404(b). At the expense of brevity, I believe the comments of Justice Ryan, writing for the Court, are worth setting forth at some length: . . . Usually, only one among the several purposes described in the rule is material to the case and justifies admission of such evidence. Consequently, if the prosecutor does not announce the purpose for which the evidence is offered, the trial judge should require the prosecutor to identify the specific basis in the rule justifying its admission: to show motive, opportunity, knowledge, preparation, intent, the absence of mistake or accident on the part of the defendant, or to prove the defendant’s scheme, plan or system in doing an act, or because scheme is itself directly material, or because it tends to prove the defendant’s identity as the perpetrator of the crime in question. Experience in the trial courtroom and review of trial records on appeal suggests rather incontrovertibly that, when asked by the trial judge to specify the grounds for admission of similar-acts *316 evidence, prosecutors often loose a "shotgun” fusillade of reasons which typically include most, if not all, of the purposes named in the statute. Such a response hints, of course, if it does not demonstrate, that the prosecutor has an inadequate understanding of the correct application of the rule and is unclear as to precisely why the evidence is or is not admissible. Similarly, trial judges, when admitting evidence of other crimes, should avoid doing so with the vague justification that "I’ll let it in for what it is worth,” or "I’ll allow it to show plan, scheme or system” when that is the basis suggested by the prosecutor, without requiring a showing by the prosecutor as to how such evidence is relevant to show plan, scheme or system, or how plan, scheme or system is material to the case, or, most importantly, whether the evidence, if indeed relevant and material, is not more unfairly prejudicial than probative of the proposition for which it is offered. As we have said before, evidence of other misconduct is not admissible in this state to negate mistake or accident, to prove motive, to show intent, to demonstrate the defendant’s plan, scheme or system, or to prove his identity, unless one or more of those factors are genuinely in issue —not "in issue” in the sense that criminal intent, identity, motive, lack of accident or some criminal plan are nearly always in issue to some greater or lesser degree in every case, but in issue or "material” in the sense that they are genuinely controverted matters. A genuine controversy exists concerning such matters when the defendant, either by counsel’s opening statement, a motion in limine, the nature of cross-examination by the defense, or evidence offered by the defense, has made one or more of them and issue actually disputed in the case. [Footnote omitted. 413 Mich 314 -316.] In this case, the prosecutor argued that the similar-acts testimony was admissible to show opportunity (in light of defendant’s alibi defense), to show preparation, scheme, plan or a system in *317 doing an act, as material to Jaydeen’s credibility, and to show absence of accident or mistake. The prosecutor also argued that the evidence was more probative than prejudicial because it corroborated Jaydeen’s statements and the evidence that she had symptoms of a sexually abused child. The trial court ruled that the similar-acts testimony was admissible "based upon the uncontroverted statement by the prosecutor that there was a tape recorded statement to a police officer by Mr. Garland denying the act and explaining that Jaydeen was an intelligent, sexually active child who makes things up.” While identifying the record support for its ruling, the court’s statement does not indicate for which purpose provided in MRE 404(b) the testimony was admitted. I cannot find a proper purpose on my review of the record. Identity, intent and absence of mistake were not in issue in this case. Either defendant committed a crime on January 7, 1982, or no one did. Either a crime was committed or nothing happened. Because the above are not in issue, preparation, scheme, plan or system must be directly in issue to be admissible. Golochowicz, supra, pp 313-314 . The majority correctly states that defendant put in issue his opportunity to commit the offense. The defense, offered through defendant’s wife and two of his daughters, was that defendant was not alone with Jaydeen during the evening of January 7, 1982. However, the testimony of two different daughters that he had abused them years earlier was not probative of defendant’s opportunity to abuse Jaydeen on January 7, 1982. The issue in this case was who to believe, Jaydeen or defendant. In such a case, similar-acts testimony will do one or both of two things — corroborate the victim’s testimony and show the defendant to be a person of bad character. The latter effect is what MRE *318 404(b) expressly seeks to prevent; the former is prohibited by People v DerMartzex, 390 Mich 410 ; 213 NW2d 97 (1973), as clarified in People v Jones, 417 Mich 285 ; 335 NW2d 465 (1983). I do not believe that the trial court’s limiting instruction prevented the prejudice resulting from the erroneous admission of the similar-acts testimony. I would reverse. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9671740. Public record. Not legal advice.