People v. Lee

442 N.W.2d 662, 177 Mich. App. 382

• Court: Michigan Court of Appeals
• Decided: June 6, 1989
• Docket: Docket 91332
• Status: Published

Opinions

Holbrook, Jr., J.

Defendant was convicted by a jury of first-degree criminal sexual conduct, MCL 750.520b(l)(a); MSA 28.788(2)(l)(a), arising out of the sexual penetration of his seven-year-old daughter. He was sentenced to six to twenty years in prison. Defendant’s motion for new trial was denied and he appeals as of right, claiming that the trial court erred in admitting the hearsay testimony of the victim’s mother under MRE 803(2), the hearsay exception for excited utterances. The mother testified that on May 6, 1985, seventeen days after the alleged incident, the victim told her that defendant had penetrated the victim’s rectum.¹ We agree that the testimony was improperly admitted and reverse defendant’s conviction.

MRE 803(2) allows an out-of-court statement of a declarant to be admitted if it is "[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.”

In People v Gee, 406 Mich 279; 278 NW2d 304 (1979), the Supreme Court set forth three requirements that must be met before a statement comes within the excited utterance exception:

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 B C R Co, 187 Mich 490, 493-494; 153 NW 784 (1915). [Gee, supra, p 282.]

See also People v Straight, 430 Mich 418; 424 NW2d 257 (1988).

In People v Kreiner, 415 Mich 372; 329 NW2d 716 (1982), reh den 417 Mich 1104 (1983), the Supreme Court rejected the common-law "tender years” exception to the hearsay rule² and affirmed application of the Gee criteria to cases involving the utterance of a child of "tender years”:_

If the utterance of a child of "tender years” relates to a "startling event or condition” and was made while the child was "under the stress of excitement caused by the event or condition,” the statement may be admitted as an excited utterance under MRE 803(2). See People v Cobb, 108 Mich App 573 [310 NW2d 798] (1981). On the other hand, if these requirements are not met, the mere fact that the declarant is of "tender years” and makes a statement in a sex-related case does not provide a basis for admitting the statement under the so-called "res gestae” exception. 61 Mich Bar J 332. [Kreiner, supra, p 379, n 8.]

In the instant case the trial court admitted the hearsay statements concluding:

I am going to rule that because of the relationship of the defendant and the complainant and the tender years of the victim, that the criteria have been met and the testimony will be allowed under the spontaneous utterance exception to the hearsay rule.

We disagree, first noting that the court disregarded the Kreiner holding which rejected the "tender years” exception. Second, we find the seventeen-day lapse between the sexual assault and the statement by the victim was a significant delay precluding a finding that the statement was made before there was time to contrive and misrepresent. Further, there was no plausible excuse for the delay especially since it appears that the victim had previous opportunities to relate the incident to her mother. See Gee, supra, p 283. Hence we conclude that the trial court abused its discretion in allowing the hearsay testimony. People v Petrella, 124 Mich App 745, 758; 336 NW2d 761 (1983).

We reject the prosecutor’s contention that People v Soles, 143 Mich App 433; 372 NW2d 588 (1985), lv den 424 Mich 863 (1985), is applicable. We find that case distinguishable on the basis of the heinous nature of the assault, the seriousness of the victim’s injuries and the resulting shock. This Court concluded that the shock was of such a duration as to permit the statements as excited utterances. Here, the victim was neither seriously injured nor exhibited shock. In fact, the day after the incident she was playing.

Finally, we do not find that the error was harmless. The controlling question was the parties’ credibility and any corroborating evidence on either side could tip the scales. See Gee, supra, p 283.

Reversed.

T. Gillespie, J., concurred.

¹

Q. Could you go back in time, ma’am, and I believe it was May 5. Was that the date?

A. May 6th.

Q. And then you reported it the 7th, but could you tell us under what conditions you first learned about this particular event?

A. Well, we were watching tv . . .

A. [My son] passed some gas, and then he started laughing about it, and I said it wasn’t funny, and then he told me, "Well, I will plug my butt with my finger so that I can’t do it no more,” and I said, "Where did you hear something like that?”, and then he told me from his dad, and I said, "Why would he say something like that?”, and then [the victim] had overheard this from her bedroom and come out and ...

The Court: I can’t hear you.

By Mr. Zerial:

Q. The Judge can’t hear you, okay?

The Court: Would you read that last answer back?

(Last answer read back by the reporter at this time.)

The Witness: She had come out and she says, "Yes, he did, Mom,” and I said, "Yes, he did what?” She says, "Probably told him that.” I said, "Why?”, and she says, "Because he did it to me.” I said, "He did what to you?”, and she had told me that he had stuck his peter up her butt.

2 The "tender years” exception permitted the hearsay testimony only to corroborate the testimony of the infant victim. Kreiner, supra, p 376.