People v. Hendrickson

586 N.W.2d 906, 459 Mich. 229

• Court: Michigan Supreme Court
• Decided: December 28, 1998
• Docket: 110397, Calendar No. 10
• Status: Published

Opinions

Kelly, J.

We granted leave in this case to determine (1) whether independent evidence of a beating was required before a 911 audiotape recording about the beating could be admitted under the present sense impression exception to the rule barring hearsay, and (2) whether photographic evidence depicting the victim’s injuries presented independent evidence of the beating.

We find that the photographs of the victim depicting injuries consistent with the allegations of assault provide independent evidence that the assault occurred. Therefore, we conclude that the recording of the victim’s statement that defendant had just beaten her is admissible under the present sense impression exception to the rule barring hearsay. The trial court did not abuse its discretion in admitting the recording.

I. FACTUAL AND PROCEDURAL BACKGROUND

On the evening of October 8, 1994, defendant and his live-in girlfriend, the victim, met at a bar in Republic, Michigan. Apparently, the two began arguing after the intoxicated victim noticed defendant’s former girlfriend in the bar. After hearing a slap, a waitress overheard defendant exclaim, “Please don’t hit me again.” As defendant and the victim prepared to leave, the victim told the waitress to “call 911.” The waitress also noticed the victim’s arm reappear in the doorway after she left, indicating that she may have fallen while leaving.

At 12:43 A.M., the victim telephoned 911 and stated, “I want someone to pick up Charles Hendrickson from Republic.” After the dispatcher inquired regarding what defendant had done, the victim responded, “I have just had the living s— beat out of me.” She also informed the dispatcher that defendant was “leaving the house now” and that she was leaving to seek medical treatment.

At approximately 7:00 A.M., a state trooper interviewed the victim regarding the 911 call. Visibly shaken, the victim informed the trooper that defendant had grabbed her around the neck, thrown her to the floor, and pummeled her. Consistent with the victim’s allegations, the trooper observed bruising on the left side of her neck and swelling on the right side of her lip. There was bruising and swelling on her left eye and lacerations on her chin, left eye, and the inside of her lip. During the course of the interview, the trooper photographed the injuries. The prosecution charged defendant with one count of domestic violence under MCL 750.81(2); MSA 28.276(2).

The day after defendant had been charged, the victim recanted her statement to the police, asserting that she had made a mistake. She claimed the incident had been her fault and had occurred in the parking lot outside the bar rather than at her residence. Consistent with its “no drop” policy for domestic abuse cases, the prosecution proceeded with its case against defendant.

Some days afterward, the victim informed a victim/witness coordinator with the prosecutor’s office that she had lied about the assault and was angry that authorities disbelieved her. She later informed the prosecutor’s office, through counsel, that she intended to assert her Fifth Amendment privilege against self-incrimination¹ if called to testify.

At trial, over defendant’s objection, the district court permitted the prosecution to introduce the 911 audiotape as evidence of the assault. It concluded that the victim’s statements fit within the present sense impression exception to the exclusionary hearsay rule. It also admitted the police photographs taken on October 9 showing the victim’s injuries.

During her testimony, the victim/witness coordinator explained that the victim had contacted her regarding domestic violence incidents on two previous occasions. Although the victim informed the coordinator that defendant assaulted her on March 17, 1994, she later recanted. On April 7, 1994, the victim reported another assault and informed the coordinator that “she was tired of being [defendant’s] punching bag.” Defendant was convicted of assault and battery on the basis of the April 7 assault. The prosecution also introduced photographs of the victim taken after the assaults.

At the conclusion of trial, the jury found defendant guilty of domestic violence for the October 9 assault. However, the circuit court reversed the conviction, concluding that the district court had abused its discretion in admitting the 911 audiotape. It explained that the victim’s statement could not be admitted as a present sense impression without independent evidence establishing the assault. Without the 911 audiotape, the circuit court ruled, there was no evidence of an assault.

The Court of Appeals affirmed, concluding that the victim’s statements lacked sufficient indicia of reliability to qualify under the present sense impression exception to the rule barring hearsay. Noting the absence of independent evidence corroborating complainant’s statements, the Court of Appeals concluded that the district court had abused its discretion by admitting the 911 audiotape.

Dissenting, Judge Markman stated that the present sense impression exception does not require corroborating evidence of the perceived event. Notwithstanding this determination, he reasoned that the photographs depicting the victim’s injuries represented corroborating evidence that an assault had occurred. Therefore, he found that the district court did not abuse its discretion in admitting the 911 audiotape.

II. ANALYSIS

A. PRESENT SENSE IMPRESSION

We review a trial court’s decision to admit evidence for an abuse of discretion. People v Bahoda, 448 Mich ; 531 NW2d 659 (1995). An abuse of discretion exists when “an unprejudiced person,” considering “the facts upon which the trial court acted, [would] say that there was no justification or excuse for the ruling made.” Detroit Tug & Wrecking Co v Wayne Circuit Judge, 75 Mich 360, 361; 42 NW 968 (1889).

In determining whether an abuse of discretion occurred, we consider if the 911 audiotape recording of the victim’s statement that defendant had just beaten her constituted a present sense impression. Pursuant to MRE 803(1), a statement “describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter” is excepted from the rule barring hearsay evidence. MRE 803(1) is identical in its wording to the federal rule, FRE 803(1). The principle underlying this exclusion is that the “substantial contemporaneity of event and statement negate the likelihood of deliberate or conscious misrepresentation.” FRE 803(1) advisory committee note; see also United States v Campbell, 782 F Supp 1258, 1260 (ND Ill, 1991).

Present sense impressions are presumed to be trustworthy because (1) the simultaneous event and description leave no time for reflection, (2) the likelihood for calculated misstatements is minimized, and (3) generally, the statement is made in the presence of another witness who has the opportunity to observe and verify its accuracy.² United States v Narciso, 446 F Supp 252, 288 (ED Mich, 1977); People v Brown, 80 NY2d 729, 732-733; 610 NE2d 369 (1993).

The admission of hearsay evidence as a present sense impression requires satisfaction of three conditions: (1) the statement must provide an explanation or description of the perceived event, (2) the declar-ant must personally perceive the event, and (3) the explanation or description must be “substantially contemporaneous” with the event. United States v Mitchell, 145 F3d 572, 576 (CA 3, 1998); Campbell, supra at 1260.

In this case, the 911 audiotape recording contains the victim’s statement that she had just been beaten. The first condition is satisfied because the victim explained the perceived event, the beating. The second condition is satisfied because the victim personally experienced the beating.

The third condition requires that the statement be substantially contemporaneous with the beating. MRE 803(1) provides that a statement may be admitted if made while “perceiving the event or condition, or immediately thereafter.” However, the exception “recognizes that in many, if not most, instances precise contemporaneity is not possible and hence a slight lapse is allowable.” FRE 803(1) advisory committee note; Campbell, supra at 1260.

Consistent with this analysis, we have concluded that a four-minute interval between the perceived event and a declarant’s statement satisfied the “immediately thereafter” condition. Johnson v White, 430 Mich 47, 56; 420 NW2d 87 (1988). In United States v Mejia-Velez,³ a New York federal district court found that sixteen minutes between the perceived event and the statement satisfied the “substantially contemporaneous” condition.

In the case under consideration, the 911 recorded victim’s statement was that the beating had just taken place; the defendant was in the process of leaving the house as the victim spoke. If true, the remarks were substantially contemporaneous with the actual beating. Federal authorities have concluded that similar language satisfies the federal standard. See United States v Hawkins, 59 F3d 723, 730 (CA 8, 1995), vacated on other grounds 516 US 1168 (1996). In Hawkins, the declarant telephoned 911 and stated, “[M]y husband just pulled a gun on me.” In Campbell, supra at 1260, the declarant telephoned 911 and stated, “I just had a man shoot at another . . . .” Therefore, we find that, in this case, as in Hawkins and Campbell, the contemporaneous requirement was satisfied.

The victim’s statement satisfies the three conditions to constitute a present sense impression, but may it provide its own foundation for admissibility? The concurrence accurately states the three competing viewpoints regarding the necessity of corroboration: (1) the corroboration requirement should be rejected; (2) strict corroboration should be required, necessitating a percipient witness;⁴ and (3) corroboration should be required and will suffice if it assures the reliability of the statement. See Brown, supra at 735-736. We adopt the third viewpoint and conclude that the sufficiency of the corroboration depends on the particular circumstances of each case. Id. at 737.

We recognize that the “ ‘present sense impression’ exception is a close relative of the analytically similar ‘excited utterance’ exception” to the rule barring hearsay. People v Vasquez, 88 NY2d 561, 574; 647 NYS2d 697; 670 NE2d 1328 (1996). In fact, “both are members of a larger category of exceptions that were formerly grouped together and classified, inaptly, as res gestae . . . .’’Id.

In People v Burton,5 we held that an excited utterance could not establish its own underlying event. Because of our aversion to the “bootstrapping” of hearsay evidence, we concluded that an excited utterance was inadmissible without independent proof, direct or circumstantial, that the underlying event took place. Id. at 282, 294. Given the analytical similarity between the present sense impression and excited utterance exceptions, we conclude that their independent evidence requirements are similarly analogous. Applying this rationale to the immediate case:

We turn now to the question whether the evidence which may be considered apart from the purported [present sense impression] proves by a preponderance of the evidence that the underlying event occurred.6 [Id. at 295 (emphasis added).]

We conclude that admission of the recording requires independent evidence that the assault occurred before it may be admitted as a present sense impression.

B. INDEPENDENT PROOF

The question becomes did the photographs⁷ depicting the victim’s injuries represent independent evidence that the assault occurred? In Burton, this Court examined whether hearsay statements were admissible as excited utterances under MRE 803(2) without independent evidence of the startling event. Id. at 271. The excited utterances sought to be admitted were statements by the complainant, later recanted, alleging that the defendant had sexually assaulted her. Id. The independent evidence of the alleged sexual assault that was offered showed no more than a “stressful event with sexual connotations.” Id. at 299. It consisted of evidence that defendant attempted to remove the complainant’s underwear and shoes from his home and a description of the complainant’s physical appearance when making her allegations. Id. at 297.

We find the present case distinguishable on the basis of the independent evidence establishing the assault. In this case, photographs showing the victim’s injuries were taken near the time the beating is alleged to have occurred. In addition, the injuries depicted in the photographs were consistent with the type of injuries sustained after a beating. Therefore, we conclude that the photographs provide credible independent evidence of the assault, permitting the admission of the victim’s statement as a present sense impression.

This analysis is consistent with that made in other jurisdictions. In Brown, supra,8 an anonymous 911 telephone call, admitted under the present sense impression exception, was found to have been sufficiently corroborated by testimony of police officers arriving shortly after the call. In People v Chaparro,⁹ the testimony of a police officer provided adequate corroboration to permit admission of a 911 telephone call.

Therefore, the recording in this case was admissible as a present sense impression exception to the rule barring hearsay, because the injury photographs presented credible independent evidence of the assault. We note also that, because the admission was made “under a firmly rooted hearsay exception,” it satisfied the constitutional requirement of reliability. Idaho v Wright, 497 US 805, 817; 110 S Ct 3139; 111 L Ed 2d 638 (1990). Consequently, the trial court did not abuse its discretion.

m. CONCLUSION

We reverse the decision of the Court of Appeals and hold that the district court properly admitted the 911 audiotape recording. Defendant’s conviction and sentence are hereby reinstated.

Mallett, C.J., and Cavanagh, J., concurred with Kelly, J.

1 US Const, Am V.

2 We recognize that, in this case, the 911 audiotape statement lacks this component of trustworthiness because the speaker was alone and made the statement to a dispatcher over the telephone. The dispatcher was unable to observe and verify the statement’s accuracy.

3 855 F Supp 607 (ED NY, 1994).

4 Contrary to the position of the dissent, we reject strict corroboration requiring a percipient witness, such as a neighbor or police officer. Post, pp 253-255.

5 433 Mich 268, 294; 445 NW2d 133 (1989).

6 The position of the dissent appears to contradict the plain language of Burton when it states, “[The extrinsic evidence] requirement is not satisfied by evidence that the described act occurred.” Post, p 252.

7 Generally, a perceived event is presumed to have occurred because a witness was present, observed, and can verify the statement’s accuracy. Narciso, supra at 288; Brown, supra at 732-733. Therefore, we recognize that independent evidence of the perceived event normally will be established by another witness who can testify about the accuracy of the declarant’s statement.

8 80 NY2d 736.

9 246 AD2d 339; 667 NYS2d 349 (1998).