The opinion
M. J. Kelly, J.
(concurring). I concur in the result reached by the majority but I am compelled to disagree with the majority’s treatment of the hearsay evidence under section III, D of the opinion.
*472 The Avalon Bar was originally one of the defendants in this case. It settled following a favorable summary judgment ruling and is not a party to this appeal. Its owner, Francis R. Beadle, was permitted to testify about a conversation he had with a bystander shortly after the accident:
”Q. Tell us about the conversation that you had with that man.
"A. Well the man — I didn’t really say anything to him. He just started telling me what happened.
”Q. And what did he say?
"A. He said that he was following Mr. Johnson and—
Mr. Sumpter: I will object, your Honor, on the basis of hearsay.
"The Court: Objection overruled.
"The Witness: And that Mr. Johnson had never stopped for the corner. He pulled right on out, and that’s when the accident happened.”
This archetypical hearsay is sought to be justified by the defendants as a present sense impression and excited utterance, therefore qualifying as an exception to the exclusionary rule. The majority says that "the trial court concluded that the statements were admissible as a present sense impression. MRE 803(1)”, and condones the admission of this testimony on that basis.
The present sense impression exception to the hearsay rule was considered by this Court in Hewitt v Grand Trunk W R Co, 123 Mich App 309, 317-318 ; 333 NW2d 264 (1983):
"The purpose and intent of subrule 803(1) can be served most effectively by limiting the scope of that exception to statements made while describing the event or condition or instantly thereafter.”
In that case, the Court noted that "at least sev *473 eral, and possibly as many as 30, minutes passed” before the witness heard the declarant make his statement about the accident. 123 Mich App 317 . The Hewitt panel expressly opted for a "restrictive interpretation of the phrase 'instantly thereafter”’ and concluded that a delay of even several minutes removes the statement from the present sense impression exception to the hearsay rule. I agree with the analysis in Hewitt and, applying it to the instant case, I would hold that the testimony of Francis Beadle regarding his conversation with an unidentified witness was inadmissible hearsay.
The statement was made to Beadle several minutes after the accident. Indeed, Beadle had time to run from the bar out to the car, back to the bar to pick up the fire extinguisher and return to the car, back to the gas pumps in front of the bar where the unidentified witness was, back into the bar to call the sheriff or have his wife call the sheriff, and then back out to the pumps where he finally heard the statement. It is clear to me that the unidentified witness did not make his statements to Beadle "instantly thereafter”.
Neither am I persuaded that the statement is admissible under the excited utterance exception to the hearsay rule, which was also considered in Hewitt . The party introducing the hearsay evidence under the excited utterance exception has the burden of establishing a sufficient foundation for admission, including that the statement (1) arose out of a startling occasion, (2) was made before there was time to misrepresent and contrive and (3) related to the circumstances of the startling event. 123 Mich App 318 -319. The record in this case does not establish to my satisfaction that the unidentified witness’s statement was made while he was "excited or under particular nervous stress” and I am not convinced that the statement *474 was made before there was time to misrepresent and contrive. I am not persuaded that the witness’s statement was made with the spontaneity required under the excited utterance exception. See People v Petrella, 124 Mich App 745, 760 ; 336 NW2d 761 (1983), lv gtd on other grounds, 419 Mich 922 (1984).
I would direct the trial court to exclude at any subsequent trial the hearsay statement of the unidentified witness as described through the testimony of Francis Beadle.
I am also compelled to disagree with the majority’s treatment of the deposition testimony of Deputy Schwartz. It is not clear to me whether Schwartz factored in the unidentified witness’s hearsay in arriving at his conclusion, but it is clear that he interviewed defendant White and then was allowed to give an opinion on the ultimate jury question, namely, whether decedent failed to yield the right-of-way. Defendant White’s testimony does not substantiate that conclusion. As I read White’s testimony, he surmised that decedent had stopped far enough back from the intersection to be blocked from view and further that the view between the two vehicles was obstructed by a third vehicle as decedent was pulling out into the intersection. I do not believe that a sufficient proper foundation was laid for the admission of Deputy Schwartz’s expert testimony because when the unidentified witness’s hearsay observation is stricken there is nothing in the record to support the deputy’s conclusion.
I concur in reversal.