People v. Burton

445 N.W.2d 133, 433 Mich. 268

• Court: Michigan Supreme Court
• Decided: August 25, 1989
• Docket: 82216, (Calendar No. 6)
• Status: Published

Opinions

Brickley, J.

This unusual case presents the question whether extrajudicial statements sought to be admitted into evidence as excited utterances under MRE 803(2), standing alone, may establish the foundation for their own admissibility. Specifically, we are asked to decide whether such statements may be admitted when there is no independent evidence, direct or circumstantial, of the underlying startling event to which the statements relate. We answer this question in the negative and reverse the defendant’s convictions.

I. FACTS

Defendant Norman Leroy Burton was convicted by a jury of two counts of first-degree criminal sexual conduct. The counts alleged that the defendant had forced the complainant to perform oral sex acts with the defendant and with a second woman present at the defendant’s house. After leaving the defendant’s house, the complainant gave statements to Southfield Police Officer John Connors which accused the defendant of these crimes. Prior to the preliminary examination, the complainant recanted her earlier allegations and attempted to have the charges against the defendant dropped. At trial, both the complainant and the second woman were called as witnesses by the prosecution; neither alleged victim, however, gave testimony in any way inculpating the defendant with regard to criminal sexual conduct. Although the complainant was impeached with several earlier statements which incriminated the accused, the sole substantive evidence that the defendant had committed criminal sexual conduct consisted of statements given by the complainant to Officer Connors.

A

Officer Connors testified that while he was on duty at 5:30 a.m. on August 5, 1983, he saw the complainant running down the street wearing a twisted dress and no shoes, looking over her shoulder as if someone might be pursuing her. He stated that the complainant appeared to be disheveled. Officer Connors pulled over, and the complainant entered his squad car. After waiting three to five minutes until the complainant "simmered down,” Officer Connors asked the complainant what had happened. At first, Officer Connors was unable to get complete answers from the complainant. He then repeated his question two or three more times. After some hesitation, the complainant began to respond. Initially, the complainant stated that she had been sexually assaulted. Officer Connors stated that he asked her to clarify this response, but she did not provide any detailed information at that time. She indicated that she did not require immediate medical attention.¹ After calling in a backup unit, Officer Connors, accompanied by the complainant, drove around the neighborhood until the complainant located the defendant’s house. By the time the complainant identified the defendant’s house, she had calmed down. Officer Connors stated that she was "quiet now and just sat there. She didn’t say too much.” Officer Connors estimated that roughly forty-five minutes had elapsed from the time that he originally saw the complainant to the time that they located the defendant’s house.² At some unspecified time during these forty-five minutes, the complainant began to answer Officer Connors’ inquiries with specific descriptions of criminal sexual conduct by the defendant. Officer Connors testified that he conducted a question and answer series with the complainant not unlike an investigative interview of a witness at the station, and that the responses of the complainant were not simply blurted out during her excited state.

According to Officer Connors’ testimony, the complainant’s responses to his questions related the following story: She had accompanied an acquaintance to the defendant’s house at 2:00 a.m. Once inside the house, the defendant ordered the complainant and a second woman to remove their clothing. The defendant became very angry and began slapping the women and threatening them with bodily harm. The defendant forcibly removed their clothing and then ordered the other woman to perform oral sex on the complainant. Both women initially resisted, and the defendant threatened them with more bodily harm and roughhousing until they complied with his demands. The other woman then performed cunnilingus on the complainant. After some time, the defendant ordered the two women to switch positions. Again, both women resisted and, after more threats and roughhousing, they complied. The defendant then grabbed the complainant in a headlock and forced her to go upstairs to his bedroom. After dragging the complainant to his bedroom, the defendant ordered her to perform oral sex on him. When the complainant resisted, the defendant threatened her again, grabbed her head, and forced his penis into her mouth. She eventually obtained the permission of the defendant to use the bathroom. She then ran back downstairs to the living room, pulled her dress over her head, and ran out down the street.

The trial testimony of the complainant regarding the events at the defendant’s home was radically different from and inconsistent with the account related by Officer Connors. The complainant was called by the prosecution. She testified that she agreed to accompany an acquaintance to the defendant’s house, where she expected to be paid for having sex with the defendant. After she arrived, she and the defendant went upstairs to the defendant’s bedroom. She had taken her dress off downstairs and disrobed completely in the bedroom. She requested money from the defendant, but the defendant refused and accused her of having taken money from him. She and the defendant then got into an argument during which she began to get very angry and began screaming at the defendant and calling him names. The yelling and screaming continued for five or ten minutes. She stated, "Well, I began to demand something from him and I guess I must have said the wrong nasty words to him and he slapped me and I got angry, cried and ran out.” The complainant further testified that she grabbed her dress and ran out of the house down the street in anger. She stated that the defendant struck her one time in the face and it did not hurt much, other than her pride; however, she became very angry. She explained that she expected the defendant to come after her and try to talk to her, so she kept running and hid behind some bushes until she saw his car pass by. Subsequently, she was observed by officers in a passing police car, and she got into the police car when it pulled over. The complainant testified that she did not perform oral sex on either the defendant or the other woman present at the defendant’s house. She decided to tell the police that the defendant had raped her in order to get back at him for having slapped her. Finally, she testified that fifteen to twenty minutes, or perhaps a slightly longer amount of time, elapsed between the time she left the defendant’s house and the time she was picked up by the police officers.

The second woman, the only other eyewitness called by the people, also contradicted the earlier statements made by the complainant. She testified that she was asked to swear out a complaint against the defendant for criminal sexual conduct, but refused "[b]ecause that didn’t happen.” She stated that the defendant did not rape her or force either woman to perform oral sex on the other and that she did not see the defendant rape anyone else or hear any yelling, screaming, or fighting coming from upstairs. She further testified that she saw the complainant run down the stairs, grab something, and run out of the house. This witness also corroborated the complainant’s trial testimony that the defendant was missing some cash, stating that the defendant asked her that evening whether she had found any money. Finally, she testified that she had been advised by the police that the defendant was a horrible person who should be gotten off the street.

After testifying favorably for the defendant as she had at the preliminary examination, the complainant was impeached at great length by the calling party, the prosecution, with earlier statements consistent with her original story to Officer Connors. First, Detective Kukla testified that on the morning of August 5, 1983 (the morning following the incident), complainant gave him a description of what had taken place at the defendant’s house, which was somewhat more detailed than the version provided by Officer Connors. The complainant testified that the reason she repeated her story to Detective Kukla was because she was still angry and had planned to repeat the accusations. She also stated that she wanted to get even with the defendant because he had slapped her and would not pay her for her services. The following day, Saturday, August 6, 1983, the complainant attempted to have the charges against the defendant dropped. The complainant testified that when she went back to the station that day, the police told her that she was doing the wrong thing and that the defendant was someone who needed to be kept off the streets. She stated that she was visited the evening before by Mr. Smith, the acquaintance who brought her to the defendant’s house, Cheryl (Smith’s girl friend), and Ronald Dease, who held himself out to be defendant’s attorney.

On the following Monday, August 8, 1983, Detectives Kukla and Bolling went to the complainant’s apartment. Detective Kukla testified that the complainant told him that she had been visited first by three persons who suggested that it would be in her best interest to drop the charges. Detective Kukla testified that the complainant had stated that she feared for her safety and would possibly be harmed by someone. Despite the fact that she had been advised to drop the charges in her best interest, she nevertheless stuck by her original statement.

The next day, August 9, the complainant was brought to the Oakland County Prosecutor’s office. There, she declined an offer to be placed in a witness protection program. A material witness warrant requiring a $50,000 cash bond was issued against the complainant. On the evening of August 9, Detectives Kukla and Bolling and Prosecutor Sosnick took taped statements from the complainant. The complainant testified that she had been told by the police that she would be put in jail pursuant to the material witness warrant prior to having made the statements. At some point, the complainant was held overnight pursuant to the warrant and was released the following day through the intervention of an appointed attorney. The date of the complainant’s incarceration is not clear.

Over the vigorous objection of defense counsel, the tape of the interview with the complainant was played in its entirety to the jury for the purpose of testing the witness’ credibility. The jury was provided with photocopied transcripts of the interview. During the interview, the complainant stated that persons had advised her to drop the charges against Mr. Burton. "[T]hey just told me that he was a very big and powerful man and that, you know, that he had plenty of power as well as money, and he had beat cases before and he had just beat a natural life murder case which he only did a year for and got out.” In response to a question by Detective Bolling as to whether Mr. Dease had mentioned anything about the defendant having killed people in the past, the complainant stated, "Yeah, that’s the one reason why he did the . . . had the natural life thing . . . for killing someone.” The complainant responded in the affirmative to the question by Detective Bolling whether statements made by other people to her made her think that she was in some sort of physical danger if she proceeded against the defendant. This was because different people told her how powerful a person he was. The complainant testified that Mr. Smith was afraid not only for her sake, but for himself as well. Mr. Smith, his girl friend Cheryl, and Ronald Dease (the persons who contacted the complainant) were not produced at trial. No evidence was presented linking these people either to the defendant or to his attorney, Otis Culpepper. The defense chose to rest without presenting evidence following the close of the prosecution’s case.³

B

Defense counsel Culpepper filed an unsuccessful motion in limine to suppress the complainant’s statements to Officer Connors, arguing first the circuity of using an excited utterance to prove its own foundation and, second, the absence of spontaneity in the making of the statements.

After the Court of Appeals affirmed the convictions on defendant’s appeal of right, we remanded this case to the Court of Appeals to consider "the defendant’s argument that the complainant’s statements should not have been admitted as excited utterances because the statements themselves were the only evidence that an event capable of provoking an excited utterance had occurred.” 428 Mich 915 (1987).

The Court of Appeals, on remand, declined to address this argument on the ground that "there was substantial corroboration of a startling event in addition to the statement that a startling event had occurred.” The substantial additional evidence discerned by the Court of Appeals consisted of the following facts: the complainant was wearing only a dress, she looked over her shoulder as she ran, she tried to get into the squad car before Officer Connors unlocked the door, she continued to cry for a time while in the car, she repeated her story later that morning, and articles of her clothing were found in the possession of the defendant and in his house.

We granted leave to appeal on the following issues:

(1) Whether the complainant’s initial statements to the responding police officer were properly admitted as excited utterances under MRE 803(2);

(2) Whether there was sufficient evidence to support the conviction of first-degree criminal sexual conduct;

(3) Whether the jury instruction on the mental anguish element of the offense was error requiring reversal; and

(4) Whether the trial court erred by allowing the prosecutor to impeach the complainant’s recantation with evidence that she had received threats that included references to other crimes committed by the defendant. 430 Mich 891 (1988).

II. THE ADMISSIBILITY OF THE COMPLAINANT’S STATEMENTS UNDER MRE 803(2)

In People v Gee, 406 Mich 279, 282; 278 NW2d 304 (1979), this Court described the excited utterance exception to the hearsay rule as follows:

Otherwise objectionable hearsay testimony may be admissible if it amounts to an excited utterance. An excited utterance is defined as:

"A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” MRE 803(2).

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; (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. People v Cunningham, 398 Mich 514, 519; 248 NW2d 166 (1976), citing Rogers v Saginaw BCR Co, 187 Mich 490, 493-494; 153 NW 784 (1915).

We first consider whether a proffered excited utterance, standing alone, may be used to satisfy the conditions for its own admissibility. While the specific question in this case — whether such a declaration may establish the underlying startling event — has not been considered by Michigan courts, a related issue was considered in Rogers. At issue there was whether a statement could be used to establish its own spontaneity. No evidence apart from the statement of plaintiff’s decedent was proffered linking, the time of the startling event to the delivery of the declaration at issue.

But how can the . . . condition be met without direct and independent evidence of the time of the startling occasion with reference to the making of the statement? For aught that appears beyond the statement itself, the injury may have occurred three or four hours before the statement was made, and it does not appear that plaintiff’s decedent had lost at any time control of his faculties. In such an event, the element of spontaneousness is absent. And it is for the proponent to discharge the burden of proving spontaneousness, or the statement is rejected as hearsay. . . . Had the plaintiff presented witnesses who could swear that they saw the decedent on the street car in a normal physical condition, unhurt, shortly before the injury, it might with reason be claimed that then the condition of admissibility would have been met and the spontaneousness of the statement established. Manifestly, the decedent’s statement cannot be used for this purpose, because it has not yet been admitted. But, since the unsworn statement of John Rogers has not been proved to be a spontaneous exclamation, it is not within this exception to the hearsay rule. Not being within any other exception, it is objectionable and inadmissible as hearsay evidence. . . . The question of the failure of proof as to the time of the happening of the event independent of the statement was considered in the well-reasoned case of State v Williams, 108 La 222; 32 S 402 [1902], where it was said:

"... The admissibility itself of the statements being the very question at issue for decision, no part of them are to be used for the purpose of determining it. Counsel very correctly say: 'There being no foundation for the admission of the declaration, it was used as its own foundation and was itself the basis on which it was admitted.’ ” [Rogers, supra, pp 494-495. Citations omitted.]

In People v Vega, 413 Mich 773; 321 NW2d 675 (1982), we considered the admissibility of coconspirators’ statements under MRE 801(d)(2)(E). We held in Vega that MRE 104 and 801(d)(2)(E) require that the underlying conspiracy be proven by a preponderance of independent evidence before a proffered coconspirator’s statement may be placed before the trier of fact. We observed that our inclusion in MRE 801(d)(2)(E) of the independent proof requirement, which is not present in its federal counterpart, was necessary because "[a]ny other rule 'would lift [hearsay] by its own bootstraps to the level of competent evidence.’ ” Vega, supra, p 780, quoting Glasser v United States, 315 US 60, 75; 62 S Ct 457; 86 L Ed 680 (1942). In our opinion, the independent proof requirement of MRE 801(d)(2)(E) militates in favor of reading a similar requirement into the excited utterance rule because it evidences our disinclination to allow the "bootstrapping” of hearsay evidence. That we did not explicitly include a similar requirement in MRE 803(2) is of no significance for two reasons. First, the requirement in MRE 801(d)(2)(E) codified prior case law. Vega, supra, p 780. With regard to the excited utterance exception, however, there were no prior cases requiring independent proof of the startling event. This fact suggests the second reason: cases such as the present are extremely rare relative to those involving the admissibility of coconspirators’ statements.

The conclusion suggested by Rogers and Vega is buttressed by criminal cases from other jurisdictions which have held hearsay statements inadmissible as excited utterances where no independent proof of the underlying startling event was presented.

Commonwealth v Barnes, 310 Pa Super 480; 456 A2d 1037 (1983), is directly on point. In Barnes, the victim of a robbery died of unrelated causes prior to Barnes’ trial. Shortly after the robbery, the agitated victim told a police officer that Barnes had entered the victim’s apartment, struck the victim, pushed the victim to the floor, threw a sheet over the victim’s head, and removed $300 from a drawer in the victim’s bedroom. Because of the victim’s unavailability, the only evidence of the startling events was the extrajudicial statement made by the victim to the police officer. There was no independent evidence of a forced entry into the victim’s apartment, no independent evidence that the victim had been bruised or otherwise injured, and no evidence that the victim either had $300 in his possession before the robbery or that any money belonging to the victim had been stolen. In addition, a search of Barnes’ apartment conducted shortly after the robbery did not produce any of the allegedly stolen cash. The court stated:

We are thus presented with the troublesome situation in which the excited utterance itself is being used to prove that an exciting event did, in fact, occur. This circuitous reasoning is unacceptable. Where there is no independent evidence that a startling event has occurred, an alleged excited utterance cannot be admitted as an exception to the hearsay rule. [Id., p 485.][⁴]

The court in People v Leonard, 83 Ill 2d 411; 415 NE2d 358 (1980), aff'g 80 Ill App 3d 741; 400 NE2d 568 (1980), held that some evidence of the existence of a startling event must be produced before a statement can be admitted as a spontaneous utterance. However, the Leonard court found that corroborative testimony by eyewitnesses to the underlying startling event provided sufficient circumstantial evidence that the event had in fact occurred.

Leonard has been followed in recent Illinois appellate decisions. In People v Coleman, 116 Ill App 3d 28; 451 NE2d 973 (1983), the court reversed convictions where purported excited utteranees were admitted as bearing on the defendant’s motive. These statements were held inadmissible because there was insufficient evidence of an underlying startling event. Coleman, supra, p 34. In People v Webb, 125 Ill App 3d 924; 466 NE2d 936 (1984), the court found that a homicide victim’s statement to a policeman identifying his assailant was admissible because the police officer who took the statement testified that the victim was bleeding from a gunshot wound and moaning for help. Thus, there was independent evidence that a startling event — a gunshot wound — had occurred. Id., p 933.

In Brown v United States, 80 US App DC 270; 152 F2d 138 (1945), the victim of an assault, a three-year-old girl, was held incompetent to testify. The trial court admitted statements made by the child to her mother as excited utterances. The court reversed defendant’s conviction on the grounds that the child was not excited when she recounted the events to her mother. The court also stated, however, that even if the child had been excited, her statements, as recounted by her mother at trial, would have been inadmissible because there had been no independent evidence of an exciting event. Id., pp 271-272.

This exception to the hearsay rule has commonly been applied only when there had been independent evidence of an exciting event; testimony other than the hearsay statement has proved that a collision occurred, a shot was fired, or the like, and the hearsay has served only to identify the actors or to specify their conduct. If, for example, there is no evidence of any assault except A’s testimony that B cried "Smith shot at me,” we do not convict Smith of assault, however excited B’s cry appears to have been. It is not apparent that this principle should be ignored when the assault charged is an indecent one. [Id., p 272.]

Brown was followed in Jones v United States, 97 US App DC 291; 231 F2d 244 (1956). In Jones, as in Brown, the only evidence that an indecent assault had occurred was the child’s account of the assault as related by her mother at trial. There was no physical evidence of an assault. The court reversed the conviction on the grounds that (1) the statements were not admissible as spontaneous statements, and (2) that the statements were insufficient to establish the corpus delicti.

In State v Terry, 10 Wash App 874; 520 P2d 1397 (1974), the court reversed a murder conviction on the basis of an improperly admitted excited utterance. The defendant there was convicted for second-degree murder of a three-year-old child. Over objection, the prosecution elicited a statement from a witness who reported having heard someone else tell the defendant not to choke a baby other than the one who was allegedly killed by the defendant. The court held this testimony inadmissible not only because it failed to relate to the murder for which the defendant was being tried, but also because the defendant’s treatment of the other child was not established except by the hearsay testimony itself. Id., p 880.

Both Barnes and Leonard endorsed the reasoning found in Truck Ins Exchange v Michling, 364 SW2d 172 (Tex, 1963). Michling was a workers’ compensation case in which the only evidence offered to show that the decedent had suffered an injury in the scope of his employment was a statement made by the decedent himself. The fact that the decedent had died from a cerebral hemorrhage which may have been caused by a blow to the head was not considered independent evidence absent any visible mark of injury on the decedent’s head. The court stated:

[I]n this case the only evidence of the occurrence is the hearsay statement. Thus the Court of Civil Appeals is conceding credit to a narrative to prove the very circumstances from which it is said to derive its credit. Its trustworthiness, as to the happening of an accident, is presumed from the influence of the accident which its trustworthiness is taken to prove. Thus this proof, to use a trite expression, is attempting to lift itself by its own bootstraps. [Id., p 174.]

Regarding the traditional wide latitude extended to trial courts in ruling on the admissibility of statements under the excited utterance exception, the court stated:

[T]he discretion of the trial court does not extend to the admission of the testimony here for the reason that there is no proof otherwise of the occurrence of which the statement is asserted to be a part. [Id.]

The Michling decision was followed by the Supreme Court of Texas in Richardson v Green, 677 SW2d 497 (Tex, 1984). There, a father’s parental rights were reinstated after a jury had voted to terminate the rights on the basis of alleged sexual abuse of the child by the father. The testimony adduced against the father consisted solely of hearsay statements made by the child to other people.

The people cite four cases of relatively recent vintage from our Court of Appeals for the proposition that Michigan is prepared to follow the "majority rule,” which is said to allow the underlying event to be proven by the excited utterances.

However, these cases, like those which constitute the supposed majority rule, are distinguishable from the instant case. In each case, there was independent evidence tending to show the existence of the startling event.

The prosecutor first argues that under People v Mosley, 74 Mich App 145; 254 NW2d 33 (1977), the description by Officer Connors of the victim’s behavior and condition warrants the inference that a sexual assault had occurred. However, in contrast to the complainant in the instant case, the victim in Mosley was "swollen, bleeding, shaking and nervous” at the time she made a statement to a witness that her husband " 'did this to her.’ ” Id., p 148. In addition, "the evidence showed that the victim, defendant’s wife, was beaten to death.” Id., p 147. Thus, the physical description from which the Court held that the trial judge could infer the underlying startling event consisted of unmistakable signs, outwardly visible, that the victim had been violently assaulted.

Likewise, in People v Hungate, 27 Mich App 496; 183 NW2d 634 (1970), there was "[c]onsiderable circumstantial evidence” connecting the declarant with the startling event in question, an illegal abortion. The victim’s companion testified with regard to the suspicious circumstances attending their trip to the office where the abortion was performed, and after the victim returned from the office, she was "seriously sick, lying on a couch, vomiting blood and bleeding . . . .” Id., p 499. In addition, foundation testimony established that the victim was pregnant before her death and that her death was caused by an infection following a miscarriage. Thus, the startling event, also the corpus delicti, was established by independent circumstantial evidence.

The prosecutor next suggests that People v Randall, 42 Mich App 187; 201 NW2d 292 (1972), and People v Meyer, 46 Mich App 357; 208 NW2d 230 (1973), establish that "an excited utterance may be used to prove the corpus delicti of a crime even where there is no independent proof.” We disagree. In Randall, several out-of-court statements made by the defendant were admitted against him at trial. The defendant argued that he could not be convicted on the basis of his confessions or admissions alone. The Court noted that some of the defendant’s statements apart from this transcribed confession would have fallen within two exceptions to the hearsay rule. Id., p 192. The Court eschewed detailed discussion of the various statements, however, because "[e]ven if the admissions are totally disregarded there is ample evidence to show the corpus delicti.” Id.

In Meyer, two defendants made inculpatory statements to police officers who found a friend of the defendant dead of a drug overdose. Independent evidence established the corpus delicti — the decedent’s death by an injection of heroin. Thus, the issue in Meyer was not whether the underlying event had occurred but rather the identity of the perpetrator. The excited utterances, relating to the independently established event, resolved the identity issue.

The prosecution directs our attention to several authorities in support of its contention that the majority view would allow the startling event to be established by the excited statement. Nearly all of the older cases cited by these authorities involve statements concerning personal injuries, and most of these cases arose in the context of workers’ compensation. We believe that these cases are better cited for the proposition that an excited utterance may be admitted when the occurrence of the underlying event (generally a work-related injury) is corroborated by independent circumstantial or direct evidence.

First, the prosecutor quotes from McCormick:

Under generally prevailing practice, the statement itself is taken as sufficient proof of the exciting event and therefore the statement is admissible despite absence of other proof that an exciting event occurred. [McCormick, Evidence (3d ed), § 297, p 855.]

While the prosecution states that this edition of the McCormick treatise dates from 1984, we note that the most recent case cited by McCormick, supra, p 855, n 11, was decided in 1943. All four of these cases involve personal injuries, and three are workers’ compensation cases. In Stewart v Baltimore & O R Co, 137 F2d 527 (CA 2, 1943), the decedent died of heart strain after trying to throw an allegedly defective switch in a railroad yard. The decedent had been in good health prior to the date of the accident. Id., p 528. The decedent reported to a co-worker that he had injured his side in unsuccessfully attempting to throw the switch. The court admitted the decedent’s statement to the co-worker as part of the res gestae. However, there was evidence to substantiate the decedent’s injury. First, the co-worker testified that he had to use an iron bar two feet long to pry the switch, but did not need to use the bar on other switches, which tended to show that the switch was in fact difficult to move. Second, the decedent began to suffer severe pains in his chest shortly after the incident. Third, the decedent made subsequent statements regarding the cause of his pain to a physician for the purpose of medical diagnosis. Fourth, the doctor testified that the decedent had died as a direct consequence of the injury during his work. Id. Likewise, in Industrial Comm v Diveley, 88 Colo 190; 294 P 532 (1930), the court held admissible as part of the res gestae statements made by a worker to family members after having sustained an injury while alone at work. The decedent had stated that he sustained severe abdominal pains after lifting a heavy object. Id., p 192. Once again, circumstantial evidence corroborated the decedent’s injury. The condition of the decedent tended to show an injury, and there was testimony that the decedent had been physically strong and did not suffer from any physical ailment prior to the date of the accident. Id. Two days after the alleged injury, the decedent was taken to the hospital, where he was discovered to have a ruptured appendix. He subsequently died of peritonitis. In Johnston v W S Nott Co, 183 Minn 309; 236 NW 466 (1931), a decedent’s spontaneous statement that he had fallen at work was admitted as part of the res gestae. His statement was corroborated by his condition. Testimony showed that he had a bad bump on the back of his head and that his death shortly after the accident was caused by a blow to the head. Finally, in Collins v Equitable Life Ins Co, 122 W Va 171; 8 SE2d 825 (1940), the decedent’s statement to coworkers that he had sustained an injury on the way in to work was supported by circumstantial evidence: he was seen walking briskly to work shortly before the accident, he appeared to be in a considerable amount of pain when he arrived at work shortly thereafter, a doctor found the decedent to have been suffering from a tingling in both arms and from pain in the upper abdomen and chest, and other witnesses testified that his arms were bruised. Id., p 172.

The prosecution also refers to Slough, Res Gestae, 2 U Kan L R 246, 255-256 (1954).

The present question is no doubt tested most frequently in the workmen’s compensation cases when determining whether or not injuries have arisen out of and in the course of employment. . . .

Though the question is too restricted to warrant a summation of majority and minority decisions, there is a tendency to relax ordinary prerequisites for admission of testimony of this nature. An increasing number of cases are being decided wherein the only direct evidence of the exciting event is the declaration itself. Edmund Morgan, in commenting upon the situation, asserts that theoretical distinctions may well have to give way to practical considerations, thus bowing to the policy which regards every injury that occurs while a man is employed as prima facie compensable.

While there may not have been direct evidence, there was nevertheless circumstantial evidence of the underlying injury in these cases. The article cites, among other cases, Bunker v Motor Wheel Corp, 231 Mich 334; 204 NW 110 (1925). In Bunker, a workers’ compensation case, a laid-off employee returned to work for one day. The Court allowed statements of the decedent to a co-worker as part of the res gestae. The decedent had told the co-worker that he dropped a wheel on his toe and that it hurt him tremendously. The co-worker testified that he then saw the decedent sit down and take his shoe off. Evidence showed that the decedent was not lame prior to the day in question, and that on returning from work later that day, he was lame and his great toe was bruised, discolored and lacerated. Id., p 336.⁵ See also McGowan v Peter Doelger Brewing Co, 10 NJ Super 276; 77 A2d 46 (1950), and Preferred Accident Ins Co of NY v Combs, 76 F2d 775 (CA 8, 1935) (the decedent’s physical condition corroborated his statement relating to the injury). In Young v Stewart, 191 NC 297; 131 SE 735 (1926), the plaintiff testified with regard to his wife’s comment upon her discovery that a diamond was missing from her ring. The plaintiff testified having seen the diamond in her ring earlier that evening. Id., p 303. Thus, the wife’s startling event — her having lost the diamond — was corroborated by circumstantial evidence.

In Armour & Co v Industrial Comm, 78 Colo 569; 243 P 546 (1926), which typifies the evidentiary problem in these workers’ compensation cases, the court held admissible as part of the res gestae statements made by the decedent-employee despite the absence of independent proof that the injury was work related. The underlying startling event (the injury), however, was established by "competent and sufficient” evidence. Id., p 571.

These cases should be contrasted with Michling, supra, in which the court refused to allow the admission of a deceased worker’s statements where there was no independent proof that he had been at work on the day of the alleged accident, that he had suffered an accidental injury, or that an accidental injury had contributed to his fatal cerebral hemorrhage (which, according to medical testimony, resulted from a congenital vascular defect).

In sum,

a declaration cannot possibly be admitted as "part of the res gestae” of an event of which it is itself the only evidence; that is, where there is no other prima facie evidence of the appropriate time and place, and of the force or impact, of an alleged accident. Decisions appearing to contradict this proposition on their facts, if sound at all, should be placed on some other ground. [163 ALR 219.]

United States v Moore, 791 F2d 566 (CA 7, 1986), cited by the prosecution, is also distinguishable from the instant case. There, the occurrence of the startling event was corroborated by evidence other than the resulting excited utterance. Id., p 574, n 6.

Weinstein, however, appears to support the prosecution’s position. Citing McCormick and Slough, discussed above, Weinstein asserts that the "modern trend” is to allow excited statements to prove the underlying startling event. 4 Weinstein, Evidence, ¶ 803(2)[01], p 803-88. Weinstein does not specifically address the situation in which the hearsay statement furnishes the only basis for its admissibility, and the authorities cited do not establish that the modern trend supports such a position. Weinstein further states that

[s]uch an approach though somewhat unsettling theoretically as an example of a statement lifting itself into admissibility by its own bootstraps, is justified by the last sentence of Rule 104(a) which provides that in making preliminary determinations the judge "is not bound by the rules of evidence except those with respect to privileges.” A hearsay declaration may be used to establish the foundation for a hearsay exception. Any other approach would greatly undermine the utility of the exception by causing valuable evidence to be excluded. [Id.]

To the extent that Weinstein’s position can be applied to the facts of the instant case, his views are open to criticism. First, it is clear that neither MRE 104 nor its federal equivalent, FRE 104, cloak the trial court with unfettered discretion in ruling on the admissibility of evidence. For example, with regard to the admissibility of coconspirators’ statements, the Court must determine that the underlying conspiracy has been proven by a preponderance of independent evidence under MRE 801(d)(2)(E), in spite of the provision in MRE 104(a) that the Court is not bound by the Rules of Evidence. Vega, supra. Nor does FRE 104 allow coconspirators’ statements to be admitted when there is no other proof of the conspiracy. Bourjaily v United States, 483 US 171; 107 S Ct 2775; 97 L Ed 2d 144 (1987). Second, Weinstein’s justification for admitting excited statements to establish the startling event is unsatisfactory — the application of many exclusionary rules may result in the loss of valuable evidence. In general, potentially valuable hearsay statements are excluded because of the "many possible sources of inaccuracy and untrustworthiness which may lie underneath the bare untested assertion of a witness . . . .”⁶ Many hearsay statements are allowed into evidence not because they are valuable, but because the requirements of the rule under which they are admitted furnish a circumstantial probability of accuracy and trustworthiness.⁷

In short, the prosecution has established neither a majority rule nor a disposition on the part of Michigan courts to allow an excited utterance to prove the underlying event when there is no independent proof, direct or circumstantial, that the event ever took place. Absent independent proof of the startling events — the sexual assaults — the complainant’s statements were not admissible.⁸_

B

We turn now to the question whether the evidence which may be considered apart from the purported excited utterance proves by a preponderance of the evidence that the underlying event occurred.

It is the presence of a startling event that lends the utterance emanating therefrom its special reliability. Care must be taken to ensure that this principle is not reversed, that is, the excited utterance must not be used to substantiate the event from which the utterance must be shown to have arisen. In order to guard against this "bootstrapping,” we must determine whether the non-excited-utterance evidence independently furnishes proof of the underlying event.

It is also important to determine precisely what event such independent evidence substantiates because of the established principle that the excited utterance must be shown to relate to the independently established event before the utterance may be admitted.⁹

We begin our discussion of the independent evidence with the recognition that a trial judge ruling on the admissibility of evidence need not confine his review to admissible evidence only. MRE 104(a). Given that the underlying startling event must be established by evidence independent of the proposed excited utterances, however, we take exception to Justice Boyle’s conclusion that subsequent, unexcited hearsay statements by the same declarant may be used by the trial judge to provide the independent proof of the underlying startling event. Justice Boyle’s approach would allow the admission of an excited utterance whenever the declarant can be induced to repeat the statement under circumstances bereft of the very spontaneity on which the reliability of the original, excited declaration depends. Such a result would allow the least reliable hearsay evidence to furnish the foundation for the more reliable hearsay statement. In effect, MRE 104(a) would swallow MRE 803(2) rather than serve it.

We also disagree with Justice Boyle, in her evaluation of properly considered independent evidence, that the "threats” in this case are probative of the existence of a sexual assault. We find nothing in the record to support either Justice Boyle’s repeated assertions that the complainant was threatened or, assuming that threatening remarks were made, the proposition that they were connected with the defendant. The taped interview, which was admitted to impeach the complainant, does indicate that the complainant was approached by several people who suggested to her that the defendant was a dangerous person. The man who communicated this information felt that he, too, could be in jeopardy because he had brought the complainant to the defendant’s home and might be accused of a "set up.”

If our goal were to explain why the complainant recanted, evidence of threats, if present, would be relevant and probative. Even if we were merely trying to determine the truth of a prior statement by a threatened witness (rather than the existence of a proper foundation for the statement’s admissibility), however, the existence of threats would not aid our determination because a defendant confronted by the prospect of potentially damaging in-court testimony would have a strong incentive to prevent the introduction thereof regardless of its truth. In the instant case, we fail to discern any relevance of threats, not to the truth of the complainant’s utterances, but to the establishment of the underlying startling event.

Finally, we disagree with Justice Boyle that the complainant’s preliminary examination testimony is relevant evidence on the issue of the underlying event. The complainant admitted having made some of the responses to which Officer Connors testified but denied that those statements were true. Because the purported excited utterances may not be used to establish the event from which they were claimed to have emanated, the mere fact that the utterances were made cannot contribute to the preliminary inquiry into the existence of the startling event.

We agree with Justice Boyle regarding the other items of proof which could be considered in answering this inquiry. We consider, of course, the complainant’s demeanor, physical condition and appearance at the time of the utterance since they are not part of the utterance themselves. We also consider the defendant’s attempt to remove the complainant’s shoes and panties from his house, as well as the discovery in the house of the complainant’s brassiere. Although not mentioned by Justice Boyle, the testimony of the other woman present at the defendant’s house may also be considered. This eyewitness, with whom the complainant was allegedly forced to perform sexual acts, testified that she refused a police request to swear out a complaint against the defendant because the alleged acts did not occur, and her exculpatory testimony contradicted the prosection’s version of the facts. Had this eyewitness provided direct testimony of a sexual assault, the existence of the underlying event could have been established; the relevancy of her testimony is not diminished by the fact that she testified adversely to the prosecution.

We return now to consider what, if any, exciting event has been proven by a preponderance of properly considered evidence. We find that this evidence establishes at most a stressful event with sexual overtones. While this evidence would certainly corroborate the testimony of a victim stating that a sexual assault had occurred, it does not, when considered apart from the excited utterance, establish the existence of a sexual assault.

As one court has explained,

Evidence which establishes only that the event could have occurred does not satisfy the requirement; it must be sufficient to support a finding that it did occur. [Hartford Accident & Indemnity Co v Hale, 400 SW2d 310, 311 (Tex, 1966). Emphasis in original.]

It is only when the utterance is used that the event is elevated from an unexplained stressful event to a sexual assault. Excited utterances can be seductive and carry the risk that they will be used to establish the event that must be independently proven. In this case, without the excited utterance, the facts before the court are, of course, not inconsistent with either the complainant’s purported excited utterance or her exculpatory postrecantation statements, or for that matter, with other possible scenarios; but while the independent proofs are consistent with both of these versions, standing alone they do not independently support by a preponderance of evidence a forcible sexual assault. Again, the question is not whether they corroborate the excited utterance, but whether they independently support the startling event to which the excited utterances relate.

The independent evidence does not even mention, let alone prove, a forcible sexual assault. Rather, this evidence at most establishes some stressful event with sexual connotations. The purported excited utterances themselves should not, and cannot, furnish the missing link to the establishment of the specific startling event to which the utterances must relate and from which they must arise.

c

We now address the argument that the complainant’s earlier accusations were admissible on the ground that she furnished direct proof of a startling event by testifying at trial that she had been slapped by the defendant. We find this theory untenable because the incriminating statements did not relate to the slap to which the complainant testified at trial.

Of the three foundational requirements of the excited utterance exception "the requirement that the statement relate to the startling occurrence is virtually always satisfied . . . .” People v Ivory Thomas, 14 Mich App 642, 650; 165 NW2d 879 (1968) (Levin, J., concurring). Nevertheless, in McAvon v Brightmoor Transit Co, 245 Mich 44; 222 NW 126 (1928), this Court held inadmissible a spontaneous statement because it did not relate to the startling event. There, a witness of an accident was not allowed to testify regarding the response of a driver of one of the vehicles concerning the owner of that vehicle. We stated that "[t]he answer of the driver, if responsive to the question asked by Wilson, would in no way have related to the cause of the collision and would not have been a part of the res gestae.” Id., p 48.

McAvon was followed in Sexton v Balinski, 280 Mich 28, 29-30; 273 NW 335 (1937), in which a statement regarding the ownership of a vehicle made fifteen minutes following an accident was held inadmissible.

Other recent decisions in Michigan, while not directly addressing the "relatedness” criterion, suggest this requirement must be satisfied before an excited utterance may be admitted. In People v Kreiner, 415 Mich 372; 392 NW2d 716 (1982), the record had not been sufficiently developed with regard to whether the foundational elements of the excited utterance exception had been established. We therefore remanded the case for a new trial where the prosecution would have an opportunity to establish a foundation for admitting the proffered testimony. We observed that excited utterances are admissible "if the foundation criteria of the rule are met.” Kreiner, supra, p 379. The foundational criteria contemplated in Kreiner were the familiar requirements set forth in Gee and Rogers, which require that the statement relate to the circumstances of the startling occasion. Id.

As observed by Justice Levin in Ivory Thomas, supra, p 694, the utterance which occurs following a startling event must be "a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. ” (Emphasis added.)

In sum, the statement must relate to the circumstances of the startling occasion in order for the statement to be admissible as an excited utterance.¹⁰ As suggested by Weinstein, it must be likely that the subject matter of the statement would be evoked by the event.¹¹

There was testimony from the complainant at trial that the defendant slapped her during an argument over her demands for money in exchange for anticipated sexual favors. There was no evidence that this slap occurred in the context of the defendant forcing her to perform sexual acts; indeed, she testified that she did not engage in any sexual activity at the defendant’s house. The complainant’s recanted allegations of sexual assaults by the defendant did not relate to the slap to which she later testified. Without independent evidence of a sexual assault or of another startling event linked to the sexual assault, the complainant’s earlier accusations do not become admissible as a consequence of her testimony that she was slapped in an argument over money.¹² In the words of Wigmore,

[T]he matter to be "elucidated” is, by hypothesis, the occurrence or act which has led to the utterance . . . .[¹³]

To admit hearsay testimony simply because it was uttered at the time something else was going on is to introduce an arbitrary and unreasoned test and to remove all limits of principle . . . .[¹⁴]

We thus conclude that the complainant’s trial testimony does not constitute a sufficient foundation for the admission of her statements to Officer Connors.

D

The trial judge employed the erroneous procedure of allowing the jury to determine whether the foundational criteria of the excited utterance exception had been met. The satisfaction of conditions for admissibility must be determined by the court. Vega, supra, p 778; MRE 104.

The testimony of Officer Connors casts serious doubt on the proposition that the complainant’s statements were spontaneous despite extensive questioning by Officer Connors and the passage of time.¹⁵ The fact that a statement has been made in response to questions is a factor militating against admission. See, e.g., Holtz v L J Beal & Son, Inc, 339 Mich 235, 240; 63 NW2d 627 (1954); People v Petrella, 124 Mich App 745, 759-760; 336 NW2d 761 (1983), aff'd 424 Mich 221; 380 NW2d 11 (1985). Similarly, the passage of time is another factor in the court’s determination regarding whether the witness was still under the influence of an overwhelming emotional condition. See, e.g., People v Straight, 430 Mich 418, 425; 424 NW2d 257 (1988). In People v Petrella, supra, the Court of Appeals held a statement inadmissible where it was unclear whether the statement was given in response to a question, where the statement was made at least forty minutes after the event, and where the declarant had composed herself enough in the period following a sexual assault to place a phone call. Id., pp 759-760. It is unnecessary for us to determine whether the interposition of questions or the passage of time deprived the statements of the requisite spontaneity because the statements were otherwise inadmissible.¹⁶

hi. conclusion

The complainant’s statements to the police were not admissible under MRE 803(2). In light of this holding, we decline to reach the defendant’s remaining issues. The defendant’s convictions are reversed, and this case is remanded for proceedings consistent with this opinion.

Levin, Cavanagh, and Archer, JJ., concurred with Brickley, J.

Riley, C.J.

(separate opinion). I write separately to indicate that while I agree with Justice Boyle that the complainant’s statements to the police officer were properly admitted as excited utterances under MRE 803(2), I disagree that there was insufficient evidence to support the defendant’s conviction of first-degree criminal sexual conduct.

A conviction of first-degree criminal sexual conduct requires proof of sexual penetration with another, the use of force or coercion, and personal injury to the victim. MCL 750.520b(l)(f); MSA 28.788(2)(l)(f). Personal injury includes "bodily injury, disfigurement, mental anguish, chronic pain, pregnancy, disease, or loss or impairment of a sexual or reproductive organ.” MCL 750.520a(j); MSA 28.788(l)(j).

My review of the record indicates that the prosecution presented sufficient evidence of "bodily injury.” There was testimony that the defendant repeatedly slapped the victim during the sexual assaults. Furthermore, there was testimony that the defendant had "roughhoused” the victim and had forcibly taken off her clothes. There is no indication in the criminal sexual conduct statute that the injuries suffered "must necessarily be permanent or substantial.” People v Kraai, 92 Mich App 398, 403; 285 NW2d 309 (1979), lv den 407 Mich 954 (1980). Accordingly, I would hold that there is sufficient evidence of "bodily injury” in this case.

This conclusion would make it unnecessary for us to decide whether the trial court’s instruction relating to mental anguish was error which requires reversal. I would affirm the Court of Appeals.

Griffin, J., concurred with Riley, C.J.

1 Officer Connors later took the complainant to a hospital. No tests were performed, and she was not treated.

2 Subsequently, the police executed a search warrant at the defendant’s house. The complainant’s brassiere was found on the premises, and her shoes and underwear were retrieved from a small bag in the defendant’s possession.

3 The record does not support Justice Boyle’s assertion that "threats . . . were made to [the complainant] afterwards,” post, p 312, that "the victim had been threatened,” post, p 319, or that there were "intervening threats against the victim,” post, p 326, n 38.

4 Although the court found that there was no independent evidence of an exciting event, the fact that the complainant in this case testified to a potentially startling event — a slap from the defendant during an argument over money-does not distinguish this case from Barnes, because the complainant here, like the victim in Barnes, did not testify regarding a startling event to which the alleged excited utterances related. See the discussion in section 11(c), below.

5 Of similar import is Froman v Banquet Barbecue, Inc, 284 Mich 44, 51; 278 NW 758 (1938).

6 5 Wigmore, Evidence (Chadbourn rev), § 1420, p 251.

7 Wigmore, n 6 supra, § 1422, pp 253-254.

8 We observe that Jones, supra, and the dissenting opinion in Barnes, supra, take the position that uncorroborated extrajudicial statements are insufficient to establish the corpus delicti in a criminal case. The defendant does not argue that the complainant’s statements, if admissible, would not constitute sufficient evidence on which to base his convictions. Having decided that the complainant’s statements to Officer Connors were not competent evidence, we decline to address this issue.

9 See section 11(c), below.

10 Numerous cases from other jurisdictions have held inadmissible spontaneous statements not relating to the startling event. See, e.g., Anders v Nash, 256 SC 102, 108; 180 SE2d 878 (1971), Cook v Hall, 308 Ky 500; 214 SW2d 1017 (1948), Adams v Quality Service Laundry & Dry Cleaners, 253 Wis 334, 338; 34 NW2d 148 (1948), and American General Ins Co v Coleman, 303 SW2d 370 (Tex, 1957).

11 4 Weinstein, Evidence, ¶ 803(2)[01], p 803-95.

12 We note that the slap to which she testified may not be considered as independent evidence of the assault to which the complainant’s purported excited utterances related. The trial judge was not entitled to take the slap testified to at trial out of context. That is, it would be improper to accept the complainant’s testimony that she was slapped but reject her assertion that this occurred during an argument over money.

13 6 Wigmore, Evidence (Chadbourn rev), § 1754, p 226 (emphasis in original).

14 Id., § 1757(1), p 238.

15 On cross-examination, Officer Connors testified as follows:

Q. She got in the vehicle and blurted out all of these things that had happened to her; right?

A. No, sir.

Q. No, sir, it didn’t happen like that?

A. Not like that, sir.

Q. Not like that? She got in the car, she was crying and seemed to be upset. Right?

A. She was very upset.

Q. Okay. And you started asking her questions; right?

A. Not immediately. After she simmered down, I asked her questions.

Q. Okay. How long did you allow her to calm down before you began to ask questions?

A. Approximately three to five minutes.

Q. What did you do during those three to five minutes?

A. I just tried to make her feel at ease, safe, and explain to her that everything would be okay, simmer down. Consoling basically.

Q. You consoled her three to five minutes and then you asked her questions?

A. That’s correct.

Q. Is it fair to say that most of the things that you’ve told us, that came from Ms. Jones, came as a response to your questions?

A. That’s correct.

Q. Not something she just blurted out to you in her excited state; right?

A. They were her answers.

Q. Correct. To your questions?

A. Correct.

Q. Not something — The statement was not something that she just blurted out to you during her excited state; am I correct?

A. Correct.

Q. Now, you’ve been an officer ten years — twelve years now; is that right?

A. Right.

Q. In that time, I would imagine it’s fair to say that you interviewed thousands of witnesses; right?

A. A large number, yes.

Q. And some of those witnesses have been calm and collected; right?

A. Correct.

Q. And some of them have been not so calm, not so collected, excited; right?

A. Correct.

Q. Is it fair to say that during the time and over this period of years you’ve developed your own procedure when you’re talking to witnesses?

A. Yes.

Q. Did you adhere to that ten-year procedure this time?

A. Yes, I did.

Q. I mean, you asked her questions that you thought would give you responses that would aid you in investigating what might be a crime; right?

A. That’s correct.

Q. So, right there in your car, you conducted this question and answer series?

A. Correct.

Q. Not too unlike you would do if you had been in the station interviewing a witness; right?

A. Correct.

Q. Only there you might have the witness to sign the statement and say what they said is accurate; am I correct?

A. That would be something that the Investigations Bureau would handle, yes.

Q. Okay. But, basically, your interview of Ms. Jones was not too dissimilar from an interview — any other interview you’ve conducted at the station; right?

A. That’s correct.

16 To the extent that Justice Boyle suggests that the burden was on the defendant to show an absence of spontaneity, post, p 316, n 21, we disagree. The burden rests with the party seeking to admit the evidence to show that the foundational prerequisites have been satisfied.