People v. Hackney

455 N.W.2d 358, 183 Mich. App. 516
CourtMichigan Court of Appeals
DecidedMay 7, 1990
DocketDocket 108257
StatusPublished
Cited by48 cases

This text of 455 N.W.2d 358 (People v. Hackney) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Hackney, 455 N.W.2d 358, 183 Mich. App. 516 (Mich. Ct. App. 1990).

Opinions

Holbrook, Jr., J.

Defendant was convicted by a [519]*519jury of first-degree criminal sexual conduct, MCL 750.520b(l)(a); MSA 28.788(2)(l)(a). Defendant appeals, arguing that the trial court erroneously ruled that several statements made by the victim after the sexual assault were admissible into evidence. We affirm.

Primarily, evidence of the criminal charge against defendant was established by the testimony of the victim, who was seven years old at the time of the alleged sexual assault. According to the victim, he arrived home from school on the day of the incident and met defendant, his second cousin, who was charged with responsibility for taking the victim to the home of defendant’s mother, Teresa Hackney. It had been arranged that Hackney would baby-sit the victim while the victim’s mother was working. The victim testified that defendant pulled the victim by the shirt into the victim’s bedroom and pushed him onto the bed. A pillow was placed in the window. Defendant then pulled down both the child’s pants and his own pants. Defendant obtained a jar of Vaseline from the bathroom and applied some "grease” "up [the victim’s] behind” before he penetrated the victim by "put[ting] his private in [the victim’s] behind.” Defendant instructed the victim not to tell anybody because defendant did not want to go to jail. Defendant cleaned both himself and the victim with paper towels and then took the victim over to the Hackney residence.

i

As part of the prosecutor’s case, the victim testified that he disclosed the sexual abuse to several persons within a day of the incident. The prosecutor, over defendant’s hearsay objections, called those persons as witnesses to testify regard[520]*520ing the victim’s statements. We examine each of these statements in the chronological order of their making under the pertinent hearsay exceptions.

A decision whether or not to admit evidence is committed to the sound discretion of the trial court. Accordingly, our review is limited to a determination whether the trial court abused its discretion in making these rulings. See People v Johnson, 174 Mich App 108, 112; 435 NW2d 465 (1989); People v King, 158 Mich App 672, 678; 405 NW2d 116 (1987).

A

In the aftermath of the assault, the victim testified that, after his arrival at the Hackney home, he went outside to play with children of Marian Feller, a neighbor of the Hackneys. The victim told the other children about the sexual assault, and the children prompted the victim to relate the incident to Feller.

Feller testified that the victim came to her house about 5:00 or 5:30 p.m. to play with her children. After perhaps two hours of play, according to Feller, the following occurred:

R_[the child or victim] and my two kids were out back playing, and they came around to the front, my two. They said, "Mommy, R_ wants to talk to you. Mommy, R_ wants to tell you something.” I said, "Okay. Tell him to come on.” They said, "Come on in R__Mamma said, 'Come on in.’ ”
He came in, walked straight up to a chair similar to this. He walked right up to the side, he blurted out, "Stacey took” . . .
[521]*521R_ said, "Stacey put his private in my behind.” And I asked the child, "Could you say that for me again,” because I didn’t think I understood him or heard it right. He repeated it. I asked him did he tell his mother. He said, "No.” I said, "Well, how? When?” He said when he came home from school he made him go to his bedroom and he pulled his pants down. And he told him no, but he went to the bathroom and got grease and did it anyhow.
When he said, "Stacey put his private in my behind,” he said it fast and a little louder than what he normally talks, normally speaks, because he’s soft spoken. But he said that, just blurted it out, "Stacey put his private in my behind,” real quick like that.
He told me—he also said he just wanted it to stop. He didn’t want that to happen again. I told him, "Okay. I will get in touch with your mom, let her know,” because he said he hadn’t told her.

The hearsay exception at issue, the excited utterance exception, pertains to 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). In deciding whether the victim’s statement to Feller fits the exception, we have the benefit of guidance from the recent decision in People v Straight, 430 Mich 418; 424 NW2d 257 (1988). In Straight, the issue arose in the context of statements made by a four-year-old child identifying the defendant as the perpetrator of an incident of sexual assault one month previously. In reversing a conviction on the ground that the statements of the child victim were erroneously admitted, the Court reaffirmed adherence to the three-part test set forth in People v Gee, 406 Mich 279, 282; 278 NW2d 304 (1979):

[522]*522To 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. [Straight, supra, p 424 (quoting Gee, supra).]

See also People v Burton, 433 Mich 268; 445 NW2d 133 (1989).

As is common in questions of admissibility of statements by sexual abuse victims, it is the second part of the Straight-Gee test that creates doubt as to its proper application. The Court in Straight explained this part as "a reformulation of the inquiry as to whether the statement was made when the witness was still under the influence of an overwhelming emotional condition.” 430 Mich 425. Properly understood, it relates to a "lack of capacity to fabricate rather than the lack of time to fabricate.” Id. Thus, the question is not whether it is likely that the child’s statements were falsely made—in point of fact, the detail and recollection of the victim’s testimony in this case is convincingly consistent with third-party testimony of his out-of-court statements, thus suggesting a large measure of reliability—but rather whether the circumstances surrounding the making of the statement suggest reliability and lack of opportunity for the deliberation and preparation attendant to giving a false statement.

In making this determination, the Court in Straight noted the following considerations equally pertinent to this case:

Evidence that the statement was self-serving or made in response to an inquiry, while not justification for automatic exclusion, is an indication that the statement was the result of reflective thought, [523]*523and where the time interval permitted such thought these factors might swing the balance in favor of exclusion. Proof that between the event and the statement the declarant performed tasks requiring relatively careful thought, of course, is strong evidence that the effect of the exciting event had subsided. Because of the wide variety of factual situations, appellate courts have recognized wide discretion in trial courts to determine whether in fact a declarant was at the time of an offered statement still under the influence of an exciting event.

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Cite This Page — Counsel Stack

Bluebook (online)
455 N.W.2d 358, 183 Mich. App. 516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-hackney-michctapp-1990.