Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Marilyn Kelly Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway
FILED JULY 22, 2010
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 137251
JASON MICHAEL GURSKY,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH
YOUNG, J.
Defendant was charged with and convicted of four counts of first-degree criminal
sexual conduct for sexually abusing his girlfriend’s child. At trial, the child’s hearsay
statements to a third party were admitted over defendant’s objection. Those statements,
which were made when the child first revealed the allegations of abuse, contained all the
details of the alleged assaults and were used at trial to corroborate the child’s testimony.
Defendant appealed, arguing that the statements should not have been admitted because
they were not spontaneously given as required by Michigan Rule of Evidence 803A.
We agree that the child’s statements were not “spontaneous” and therefore hold
that the statements should not have been admitted under the limited “tender years”
hearsay exception created by MRE 803A. We nevertheless affirm defendant’s
convictions because the improper admission of the hearsay statements was harmless
error. The error is not so prejudicial as to require reversal because the hearsay statements
were not used substantively at trial to prove guilt (but rather only to show consistency in
the child’s testimony), the statements were cumulative to the victim’s testimony at trial,
and there was other corroborating evidence of defendant’s guilt.
Accordingly, we affirm the judgment of the Court of Appeals, but do so on
alternative grounds.
I. FACTS AND PROCEDURAL HISTORY
Defendant Jason Gursky was tried on and convicted of four counts of criminal
sexual conduct in the first degree (CSC-I) for sexual penetration of a person under the
age of 13.1 The victim in this case, GA, was the daughter of Gursky’s girlfriend, Lori.2
The charges against Gursky arose out of two alleged incidents of sexual contact
with GA: one in September 2005, when GA was six, and the second around April 30,
1
MCL 750.520b(1)(a) (“A person is guilty of criminal sexual conduct in the first
degree if he or she engages in sexual penetration with another person and if . . . [t]hat
other person is under 13 years of age.”).
2
I refer to the complainant by her initials and her mother simply as “Lori” in order
to protect their identities.
2
2006, when GA was seven. On May 4, 2006, during a visit to the home of Stacy Morgan,
a close friend of Lori, GA first alleged that Gursky had improperly touched her.
The focus of this appeal is the proper characterization of GA’s statements when
she first discussed the sexual abuse. Those statements are thus provided here in detail, as
relayed by Morgan during her testimony at Gursky’s trial.
Lori arrived at Morgan’s home about 8:00 p.m. after picking her children up from
their father’s home. Morgan, acting on a suspicion that “something had been going on”
with Gursky,3 asked GA “if anyone had been touching her.” GA did not verbally
respond, but “got a horrified look on her face,” and her eyes welled up. Morgan
summoned GA to come closer and talk with Morgan and Lori, which she did and orally
responded “What do you mean?” Morgan answered: “Has anyone ever touched your
private parts?” GA’s eyes welled up again, she started to suck her thumb, and she
responded that somebody had. Morgan followed up: “Where have you been touched?
Who touched you?” and then listed “people’s names, every man’s name that could come
to mind, the last of which was Jason [Gursky].”4 At the mention of defendant’s name,
GA began “bawling, [and] gasping for breath,” pointed to her vaginal area, and indicated
that defendant had touched her “down there.” Morgan continued questioning GA: “How
3
Earlier in the day Morgan and Lori had a private conversation wherein Lori
mentioned “a situation that had happened prior” involving defendant and GA.
Apparently this is what stirred Morgan to ask GA if anyone had been touching her.
4
Morgan was also asked if there were different reactions by GA when the names
of the men were mentioned; she answered: “Each one, she just told me no, no, no, and as
soon as Jason’s name was mentioned, she welled up and said he did it.”
3
did he touch you? What did he touch you with?” GA responded: “With his finger.”
Morgan asked: “Did he touch you any other way? Did he touch you with his penis?”
And GA responded that he had not. Morgan asked: “Did he ever touch you any other
way?” and GA responded that “he kissed me with his tongue.” Morgan followed up: “On
your mouth?” GA responded: “No, down here” and again pointed to her vaginal area.
Morgan noted that GA was “kind of hesitant” so she hugged GA and said to her,
“Miss Stacy is your safe person. You know, tell me and I’ll make sure it doesn’t happen
again.” She gave GA time to calm down, during which time Lori left the room to call
Gursky. Morgan then asked how many times the alleged abuse had happened. GA “kind
of looked in the sky” and responded “I think it was four times because the first time was
when we lived at Miss Tracy’s basement.” Later Lori confronted Gursky, who denied
touching GA; when Lori brought GA into the room with Gursky, GA again began to cry
but did not make any further accusations against Gursky. A few days later, GA
wondered aloud to her mother, “what if it was a bad dream?”5
5
Lori’s testimony concerning the circumstances surrounding GA’s statement was
largely consistent with that of Stacy Morgan. Lori testified that she believed something
was wrong before she and GA arrived at Morgan’s house because GA was acting “a little
different.” Once Lori and her children arrived at Morgan’s house, the children were
running around, but “Stacy wanted me to have [GA] sit on my lap and ask her some
questions, and I did, I asked [GA] some questions, and that’s when I learned of—.”
Counsel did not allow her to finish, but asked what GA’s reaction was after the first
question. Lori testified that GA started to cry, noting that GA hesitated for “quite a
while” before she began to talk, and that she had a four to five minute conversation with
GA. She stated that Morgan was present but she did not say whether Morgan asked any
of the questions.
4
The following day Lori went to the police and prepared a written statement
describing GA’s allegations. A detective subsequently asked Gursky to come to the
police station, where he questioned Gursky for approximately two hours. Gursky
answered all the detective’s questions, denied the accusations, and never requested a
lawyer. During these interviews, the detective noted that Gursky’s fingernails were
“jagged.”
That same day GA was examined by a nurse, which is common when a sexual
assault is believed to have happened within the prior 96 hours. GA complained to the
nurse of experiencing pain in her vaginal area since “Jason put his finger in my pee-pee.”
GA told the nurse that defendant had kissed and touched her “where her pee-pee comes
out from.” During the examination, the nurse noted that GA had an abrasion on her labia
minora, which appeared to have occurred within the last 24 to 48 hours, but could have
occurred earlier. The nurse later testified that the abrasion was “consistent” with a
fingernail scratch, or could have resulted from innocent behavior. Other than the scratch,
the nurse found no other trauma to GA.
Defendant was charged with four counts of CSC-I. Pursuant to MRE 803A, the
prosecution provided notice that it would call Stacy Morgan to testify regarding what GA
When asked whom she first told about the abuse, GA testified, “[m]y mom.”
When the prosecutor asked whether anyone else was there, GA said “Her friend,” “Miss
Stacy.” When asked “Do you remember how it came about that you told them?” GA
responded that she did not. When asked whether she told “both of them or just one of
them,” GA testified, “Both.”
5
told her when GA first relayed the details of sexual abuse. MRE 803A provides a
hearsay exception to allow the admission of statements by victims of child abuse under
the age of 10 that would otherwise be excluded.6
Before trial, defendant objected to the admission of GA’s statements to Morgan on
the grounds that they did not fall within the parameters of MRE 803A’s hearsay
exception—specifically, that the statements were not “spontaneous” as required by MRE
803A(2). Defendant argued that “it is clear from the statement of this Stacy Morgan . . .
that while she’s there[,] names are suggested to this child, including [Mr. Gursky’s]
name . . . she is continuously questioned as to what occurred here . . . . It is not
spontaneous by any means.” The trial court did not directly rule on this issue or address
defendant’s arguments regarding the lack of spontaneity. Instead, the court stated that
6
Michigan Rule of Evidence 803A, which is a hearsay exception for a child’s
statement about sexual assault, provides in relevant part:
A statement describing an incident that included a sexual act
performed with or on the declarant by the defendant or an accomplice is
admissible to the extent that it corroborates testimony given by the
declarant during the same proceeding, provided:
(1) the declarant was under the age of ten when the statement was
made;
(2) the statement is shown to have been spontaneous and without
indication of manufacture;
(3) either the declarant made the statement immediately after the
incident or any delay is excusable as having been caused by fear or other
equally effective circumstance; and
(4) the statement is introduced through the testimony of someone
other than the declarant. [MRE 803A (emphasis added).]
6
“the reasonableness of the delay [between the alleged incidents and GA’s disclosures
is] . . . really the only issue I can consider.” The court then held that the delay was
reasonable, and Morgan’s testimony thus admissible under MRE 803A.
The trial commenced, and GA testified that she had awakened on two separate
occasions when defendant had touched her “private” with “his finger” and “tongue.”7
She also testified that she first told this to Morgan and her mother, but could not recall
being asked any questions by Morgan. Morgan testified about what GA had originally
told her when GA had first disclosed the alleged abuse, the details of which are set forth
above. Lori testified about the circumstances regarding GA’s first statement of sexual
abuse. She further testified about how she had found defendant in GA’s bedroom at 3:30
a.m. on the night of the second incident with the bedcovers pulled down and his hands on
7
The facts of the actual sexual assaults, as described at trial, are as follows: The
first and second contacts occurred on a night around August or September of 2005. GA
was wearing pajamas and underwear in her bed. During the night, Gursky appeared in
her bedroom, reached underneath her clothing, and touched her vaginal area with his
finger and tongue. The third and fourth incidents occurred on one night at the end of
April 2006. That night, GA had fallen asleep on the couch, so Lori put her to bed in her
street clothes in the bedroom that GA shared with her brother, and Lori then went to bed
herself. Lori woke up around 3:30 a.m. and noticed that her door had been closed; she
walked out of her room and noticed that no one was in the living room where the TV was
on, but she also saw that the door to the children’s bedroom was slightly open. She
opened the door and noticed Gursky kneeling by the middle of GA’s bed, where the
covers had been pushed to the end of the bed. GA was lying on her back and Gursky had
his hand between her knee and feet. Lori asked Gursky what he was doing, and he
replied that he was tucking in the children. Lori stood there a while longer, then left; a
few minutes later she returned to the children’s bedroom and noticed that GA had been
changed into her nightgown. She then confronted Gursky: “Jason, what were you doing
in there?” He repeated his prior answer: that he had changed GA into her nightgown.
Lori stated that it left her feeling uneasy, so Gursky apologized and said it wouldn’t
happen again.
7
GA’s legs. The nurse also testified about her medical evaluation of GA, including the
scrape on GA’s labia. In closing argument, the prosecutor argued that if the jury believed
GA’s testimony, they must convict; she then acknowledged that this testimony was
buttressed by Morgan’s testimony which “corroborates everything GA said on the
stand.”8 Defendant was convicted of all four counts and sentenced to four concurrent
terms of 15 to 30 years in prison.
On appeal, the Court of Appeals affirmed the admission of Morgan’s testimony
regarding GA’s statements.9 The panel concluded that although the trial court had abused
its discretion by failing to address defendant’s objection that GA’s out-of-court
statements were not spontaneously made, reversal was not required because the error was
harmless: either way, the testimony was admissible. The Court of Appeals cited People v
Dunham for the proposition that “answers to open-ended, innocuous questions are
spontaneous.”10 The Court reviewed the record and then reasoned as follows:
The victim responded emotionally to the first mention of the subject
matter, crying and sucking her thumb. She willingly gave details that
exceeded the scope of Morgan’s inquiry. She pointed to her vaginal area
and reported that the touching had occurred “down there,” volunteered that
the touching was with a finger and a tongue, denied that defendant touched
her with his penis, and volunteered that the conduct had occurred over a
greater span of time than suspected by Morgan. Taken as a whole, the
8
The trial court also denied a directed verdict at the close of the prosecution’s
case, noting that GA “has been absolutely consistent with her version of events from the
first time she disclosed it through . . . her testimony in court.”
9
People v Gursky, unpublished opinion per curiam of the Court of Appeals, issued
July 17, 2008 (Docket No. 274945).
10
220 Mich App 268, 271-272; 559 NW2d 360 (1996).
8
victim’s statements were primarily spontaneous, despite being prompted by
Morgan’s questions. Thus, the testimony would have been admissible had
the trial court considered this objection and, therefore, the court's erroneous
legal conclusion had no effect on the outcome of the trial.[11]
On the basis of this reasoning and finding the statements to be “primarily spontaneous,”12
the Court affirmed defendant’s conviction.
Defendant sought leave to appeal in this Court. We granted his application for
leave to appeal and directed the parties to address specifically
(1) whether the statements made by the complainant to Stacy Morgan on or
about May 4, 2006, were “shown to have been spontaneous and without
indication of manufacture” within the meaning of MRE 803A(2), and (2)
whether it was more probable than not that any error in this regard was
outcome determinative.[13]
II. STANDARD OF REVIEW
The decision whether to admit evidence is within the trial court’s discretion, which
will be reversed only where there is an abuse of discretion.14 However, decisions
regarding the admission of evidence frequently involve preliminary questions of law,
such as whether a rule of evidence or statute precludes admitting of the evidence. This
Court reviews questions of law de novo.15 Accordingly, “when such preliminary
11
Gursky, unpub op at 3 (emphasis added).
12
Id.
13
People v Gursky, 483 Mich 999 (2009).
14
People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998).
15
People v Sierb, 456 Mich 519, 522; 581 NW2d 219 (1998).
9
questions of law are at issue, it must be borne in mind that it is an abuse of discretion to
admit evidence that is inadmissible as a matter of law.”16
III. ANALYSIS
A. THE “SPONTANEITY” REQUIREMENT OF MRE 803A
1. PRINCIPLES OF LAW
Hearsay is “a statement, other than the one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”17
Hearsay is generally prohibited and may only be admitted at trial if provided for in an
exception to the hearsay rule.18 MRE 803A provides just such an exception for a child’s
statement regarding sexual assault in certain circumstances. The rule provides:
A statement describing an incident that included a sexual act
performed with or on the declarant by the defendant or an accomplice is
admissible to the extent that it corroborates testimony given by the
declarant during the same proceeding, provided:
(1) the declarant was under the age of ten when the statement was
made;
(2) the statement is shown to have been spontaneous and without
indication of manufacture;
(3) either the declarant made the statement immediately after the
incident or any delay is excusable as having been caused by fear or other
equally effective circumstance; and
16
People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).
17
MRE 801(c).
18
MRE 802 (“Hearsay is not admissible except as provided by these rules.”).
10
(4) the statement is introduced through the testimony of someone
other than the declarant.
If the declarant made more than one corroborative statement about
the incident, only the first is admissible under this rule.
A statement may not be admitted under this rule unless the
proponent of the statement makes known to the adverse party the intent to
offer the statement, and the particulars of the statement, sufficiently in
advance of the trial or hearing to provide the adverse party with a fair
opportunity to prepare to meet the statement.[19]
MRE 803A, which codified the common-law “tender years exception,” is also an
exception to the prohibition against the use of hearsay testimony to bolster the credibility
of a witness.20 Relevant to this appeal, MRE 803A plainly requires the declarant’s
original statement to have been “spontaneous.”
The Michigan Rules of Evidence do not define “spontaneous.” As when
construing statutes, in the absence of a specific definition of a common term used in an
evidentiary rule, it is appropriate to look to the dictionary definition to discern the term’s
19
MRE 803A (emphasis added).
20
This Court first recognized the common-law tender years rule in People v Gage,
62 Mich 271; 28 NW 835 (1886), as a permissible rule to allow hearsay in order to
corroborate the testimony of a child complainant. “The rule in this State is that where the
victim is of tender years the testimony of the details of her complaint may be introduced
in corroboration of her evidence, if her statement is shown to have been spontaneous and
without indication of manufacture; and delay in making the complaint is excusable so far
as it is caused by fear or other equally effective circumstance.” People v Baker, 251
Mich 322, 326; 232 NW 381 (1930) (holding also that only a child’s first statement made
is admissible under the exception). However, this Court held in People v Kreiner, 415
Mich 372, 377-378; 329 NW2d 716 (1982), that the common-law tender years exception
to hearsay did not survive the adoption of the Michigan Rules of Evidence in 1978. In its
stead, MRE 803A was adopted on December 17, 1990, and became effective on March 1,
1991.
11
ordinary and generally accepted meaning.21 “Spontaneous” is defined as: “(1) coming or
resulting from natural impulse or tendency; without effort or premeditation; natural and
unconstrained; unplanned; (2) of a person: giving to acting on sudden impulse.”22
The standards for spontaneity have been well litigated. The leading case on this
issue in Michigan is People v Dunham, a decision of the Court of Appeals holding that
statements made in response to customary, open-ended questions may be considered
spontaneous.23 In Dunham, a child was asked questions by an adult mediator during the
child’s parents’ divorce. The questions were generally innocuous and customarily asked
of all children participating in divorce mediation, yet the child in Dunham responded with
allegations of sexual abuse. Virtually every Court of Appeals decision (including the
panel in this case) has applied Dunham when examining the issue of spontaneity,
although the holding has been broadened to stand for the general proposition that
statements made in response to questioning may be considered spontaneous.24 Until this
21
See Waknin v Chamberlain, 467 Mich 329, 332; 653 NW2d 176 (2002)
(providing that this Court construes a rule of evidence in the same manner as a court rule
or statute); In re Certified Question from the United States Court of Appeals for the Sixth
Circuit, 468 Mich 109, 113; 659 NW2d 597 (2003), citing People v Morey, 461 Mich
325, 330; 603 NW2d 250 (1999) (providing that this Court may refer to dictionary
definitions in the absence of an explicit definition in the text being interpreted).
22
Webster’s New Universal Unabridged Dictionary (1996).
23
220 Mich App 268; 559 NW2d 360 (1997).
24
See, e.g., Gursky, unpub op at 3 (“In People v Dunham, 220 Mich App 268,
271-272; 559 NW2d 360 [1996], this Court declared that answers to open-ended,
innocuous questions are spontaneous.”).
12
case, this Court has not itself discussed or defined the parameters under which a
statement can be spontaneous for the purposes of MRE 803A.25
Other states’ courts and the federal courts have addressed the issue of spontaneity
as well; their decisions may be classified into separate groups for our purposes here. The
most recognizable spontaneous statements are those that arise out of pure impulse—that
is, they are made by the declarant without prompt, plan, or questioning. This type of
“impulsive” statement is prototypically spontaneous because it appears to “come out of
nowhere” or “out of the blue.” For example, in People v Bowers,26 the Colorado
25
In 2008, this Court peremptorily reversed a decision of the Court of Appeals
“for the reasons stated in the Court of Appeals dissenting opinion . . . .” People v
George, 481 Mich 867 (2008), reversing and remanding People v George, unpublished
opinion per curiam of the Court of Appeals, issued November 20, 2007 (Docket No.
271892). In George, the Court of Appeals affirmed the defendant’s conviction in a split
decision, with Judge GLEICHER dissenting from the portion of the majority opinion
holding that the hearsay evidence provided by the victim’s mother and sister was
properly admitted under MRE 803A. The dissent argued that the trial court ignored
evidence that the victim’s hearsay statement was not the first one made to another person
(as MRE 803A requires), that the statement was not spontaneous, and that the defendant
was prejudiced by this error. Regarding spontaneity, Judge GLEICHER wrote:
Additionally, the evidence did not support a finding that the victim
spontaneously made her statement to [the victim’s sister,] Marquayla. Both
Marquayla and the mother testified that the victim’s report to Marquayla
was not spontaneous, but was made in response to questioning.
Marquayla’s testimony reflects that the questioning included threats about
“lying” and “getting into trouble.” The victim did not supply any other
information regarding the circumstances of the statement she claimed to
have made to Marquayla. The absence of a showing of spontaneity
reinforces the need, in this case, for a pretrial determination as to the
admissibility of the hearsay evidence pursuant to MRE 104. [George,
unpub op at 4 (GLEICHER, J., dissenting).]
26
801 P2d 511 (Colo, 1990).
13
Supreme Court held that a child’s statements were spontaneous where she made
unexpected allegations of sexual abuse with no questioning or prompting from the adult.
There, a babysitter was changing the child’s brother’s diaper when the child pointed to
her brother’s penis and said that her father “‘had one just like that but it was bigger and
he hurts me with it’” and the child also said to a foster care program coordinator that “‘I
don’t like boneys . . . I don’t like Daddy to put his boney on me.’”27 The Court held that
the statements were made “spontaneously without prompting or suggesting.”28
Statements that are made as a result of prompt, plan, or questioning by a third
party, yet are in some manner atypical, unexpected, or do not logically follow from the
prompt are also widely considered spontaneous. This type of “non sequitur” statement is
generally considered spontaneous because it shows that the declarant was acting from
natural impulses or tendencies by responding atypically to what may otherwise have been
innocent prompts. For example, in State v Aaron L,29 the Connecticut Supreme Court
held that the victim’s statement showed spontaneity and consistency, and was therefore
27
Id. at 514-515.
28
Id. at 521. See also State v Robinson, 153 Ariz 191, 201; 735 P2d 801 (1987)
(the absence of leading questions was an important factor supporting the admission of a
child’s statement after the child made statements implicating the defendant while at
breakfast with her mother without being asked any questions; the statement was thus
spontaneous and fully explained with “little prompting”); In re Ne-Kia S, 566 A2d 392,
395 (RI, 1989) (child responded to an adult’s presence in his house by retrieving a stick
and asking the adult to take it so the child’s mother would no longer hit the child with it;
the child later told the adult that his mother hit him on a daily basis and the adult testified
that this was the “first thing Ne-kia told him. There was no reflection or deliberation
involved.”).
29
272 Conn 798; 865 A2d 1135 (2005).
14
sufficiently reliable to be admissible under Connecticut’s residual exception to the
hearsay rule. There, the child’s statement, “‘I’m not going to tell you that I touch
daddy’s pee-pee,’” did not “logically relate to the event that preceded it—her mother
admonishing the victim that it was not nice to grope her breast.”30
A third category that poses closer questions involves cases where statements are
given as a result of open-ended and nonleading questions that include answers or
information outside the scope of the questions themselves. Often, this type of unplanned
yet responsive statement may be considered “spontaneous” because the information that
results is based on knowledge independent of that provided in the question. For example,
in State v Shafer, the Washington Supreme Court held that where the child “without
prompting” told her mother about encounters with the defendant and the child’s mother
then inquired further, while the child’s “statements in response to her mother’s
questioning were not entirely spontaneous, they were not the result of leading questions
or a structured interrogation” and were thus admissible.31 Similarly, the decision in
30
Id. at 816. See also Swan v Peterson, 6 F3d 1373, 1377, 1381 (CA 9, 1993)
(where a child’s day-care provider told the child to put her dress down because “no one
should look at or touch her ‘private parts,’” the child replied “‘Un-huh, Mommy and
Daddy do’” and proceeded to make a detailed allegation of abuse, the court held that
there was sufficient spontaneity because “[a]lthough [the child’s] statement did not come
out of the blue, it was not made in response to any question posed by [the caregiver]”).
31
156 Wash 2d 381, 390; 128 P3d 87 (2006). See also State v Young, 62 Wash
App 895, 901; 802 P2d 829 (1991) (“Washington law . . . recognizes that a child’s
answers are spontaneous so long as the questions are not leading or suggestive. . . . [And
caselaw had] broadened the definition of ‘spontaneous’ to include ‘the entire context in
which the child [made] the statement.’”).
15
McCafferty v Leapley32 demonstrates how a spontaneous statement may arise out of
simple questioning or innocent prompting. There, the child’s statements “about how her
‘daddy’ sucked on her neck were given spontaneously in response to a nonleading
question about how she got the mark on her neck. Her statements about this were
consistent with what she told others and with what she demonstrated on [the adult’s] own
neck and with [the adult’s] playroom dolls. . . . [It was also the child] who volunteered in
play statements such as ‘this is how she could sit on her daddy’s weenie.’”33 The
aforementioned Michigan Court of Appeals decision in Dunham—holding that
statements resulting from open-ended, nonleading questions may be spontaneous—is
another prime example of this type of statement.
Statements falling within this last category, however, are also the type that are
most likely to be nonspontaneous, and thus deserve extra scrutiny by trial courts before
they may be admitted. When examining statements that have some of the same
characteristics as GA’s statements here, many courts have found a lack of spontaneity.
The analysis they employed is informative for our purposes here. For example, the New
Jersey Supreme Court’s decision in State v DG provides a useful comparison.34 There,
the court concluded that there was not a “‘probability that the statement [was]
trustworthy’” as required by New Jersey’s applicable rule, because the “situation under
32
944 F2d 445 (CA 8, 1991).
33
Id. at 451.
34
157 NJ 112; 723 A2d 588 (1999).
16
which [the child] disclosed the sexual abuse was very stressful” and the child did not
“spontaneously divulge information concerning the assault” to the adult, but rather the
adult “interrogated her after finding her performing questionable acts while at play.”35
Interrogation, aggressive or leading questioning, and similar factual scenarios may all
work to eliminate the spontaneity of a declarant’s statement, which would thus render it
inadmissible in the MRE 803A context.
2. APPLICATION
Having examined these principles of hearsay and the requirement of “spontaneity”
generally, we must determine the parameters of this requirement in Michigan for the
purposes of MRE 803A.
We hold that MRE 803A generally requires the declarant-victim to initiate the
subject of sexual abuse. The question of spontaneity, at its essence, asks whether the
statement is the creation of the child or another. There is certainly no doubt that the types
of “impulsive” or “non sequitur” statements described above should be considered
35
Id. at 122, 126-127 (holding that the child’s statement regarding sexual abuse
was not sufficiently trustworthy when made in direct response to the question “‘[d]id
anybody ever do anything like this to you to make you do this?’” after the child was
found sexually touching her sister). See also Felix v State, 109 Nev 151, 167-168, 184;
849 P2d 220 (1993) (adult could not remember whether child’s statement—“Martha hurt
me here” while pointing to her vagina—was spontaneously made, and a second statement
which came after “coercive questioning” could not be deemed reliable because answers
provided by children after being questioned in a group were not spontaneous given that
“there is no way to determine the extent to which the prior coercive questioning actually
affected the statement.”); United States v Sumner, 204 F3d 1182, 1186 (CA 8, 2000) (the
child’s statements were not spontaneous where the child responded to questions by
merely answering “yes/no” or pointing).
17
spontaneous for the purposes of MRE 803A because they result from the declarant’s
“natural impulse or tendency” or are “unplanned” and made “without effort or
premeditation,” as a common definition of spontaneity provides. Such statements are
quintessentially the “creation” of the child-declarant, and are thus certainly admissible
under MRE 803A, assuming they meet the rule’s other requirements.
This case, on the other hand, requires that we address the closer question: whether
prompts from adults render a child’s responsive statement inadmissible. This type of
statement most often arises in the context of questioning by an adult. We hold that the
mere fact that questioning occurred is not incompatible with a ruling that the child
produced a spontaneous statement. However, for such statements to be admissible, the
child must broach the subject of sexual abuse, and any questioning or prompts from
adults must be nonleading or open-ended in order for the statement to be considered the
creation of the child.
To be clear, we do not hold that any questioning by an adult automatically renders
a statement “nonspontaneous” and thus inadmissible under MRE 803A. Open-ended,
nonleading questions that do not specifically suggest sexual abuse do not pose a problem
with eliciting potentially false claims of sexual abuse.36 But where the initial questioning
36
This approach is consistent with the Court of Appeals’ original decision in
Dunham, although not necessarily so with later panels of the Court of Appeals. For
example, the Court of Appeals panel in the instant case applied Dunham in a broader
context and unmoored from the factual situation of the original decision. In other
instances, the Court of Appeals has applied this principle in a manner consistent with our
decision today. By way of example, we note approvingly the analysis in People v
Leatherman, unpublished opinion per curiam of the Court of Appeals, issued June 30,
18
focuses on possible sexual abuse, the resultant answers are not spontaneous because they
do not arise without external cause. When questioning is involved, trial courts must look
specifically at the questions posed in order to determine whether the questioning shaped,
prompted, suggested, or otherwise implied the answers.
This approach requires that trial courts review the totality of the circumstances
surrounding the statement in order to determine the issue of spontaneity. Even though
courts should look at the surrounding circumstances and larger context in order to
understand whether the statement was spontaneously made, we note that this review is
not solely determinative of the question of admissibility. As MRE 803A requires, the
statement must be “shown to have been spontaneous and without indication of
manufacture.”37 The language of MRE 803A(2) clearly demonstrates that spontaneity is
an independent requirement of admissibility rather than one factor that weighs in favor of
2005 (Docket No. 252679) at 8-9. There, the Court of Appeals properly assessed how
this rule applies in close cases:
Dona[, the victim’s mother,] admitted asking the victim a few
questions after the victim initially told her that “Uncle Brad touched me
down there,” gestured toward her private area, and said that defendant did
other stuff, too. Dona then asked what other stuff defendant did and when
the victim stated that defendant had a “vibrating handlebar machine,” Dona
asked what he did with it. Dona also asked the victim if defendant said
anything to her. The questions were not so specific and leading [as] to taint
the spontaneity of the victim’s statements. Dona’s questions were fairly
general given the context of the victim’s statements.
37
MRE 803A(2) (emphasis added).
19
reliability or admissibility.38 Thus, even if, considering the totality of the circumstances,
the trial court determines that a statement is spontaneous for the purposes of MRE
803A(2), it must nevertheless also conduct the separate analyses necessary to determine
whether the statement meets the other independent requirements of MRE 803A.
Turning to the facts of this case, we do not conclude that GA’s statements were
spontaneously given. Morgan directed GA to sit on Lori’s lap, whereupon Morgan, Lori,
or both questioned GA about sexual abuse. Morgan testified that she specifically
broached the subject of sexual abuse on her initiative, questioning and otherwise probing
GA for details. According to her trial testimony, Morgan asked GA numerous questions,
including whether “anyone had been touching her,” “Has anyone ever touched your
private places?” “Where have you been touched? Who touched you?” and, after
identifying defendant, “How did he touch you? What did he touch you with?” There is
simply no indication in this case that GA would have made the statements she made or
even broached the subject of sexual abuse if not otherwise prompted and, indeed, directly
questioned by Morgan. Moreover, the testimony indicates that GA hesitated for “quite a
38
This is contrary to similar rules in other states where spontaneity is but one
factor taken into account in determining whether a statement is sufficiently reliable and
thus admissible. See, e.g., Ohio Evid R 807(A)(1) (providing that an out-of-court
statement made by a child alleging sexual or physical violence against the child will not
be excluded as hearsay if the “court finds that the totality of the circumstances
surrounding the making of the statement provides particularized guarantees of
trustworthiness” that render the statement reliable, “including but not limited to
spontaneity . . . .”). However, unlike our sister-state’s rule, MRE 803A contains no
“factor among many” language that permits the admission of a child’s statement simply
upon a showing of reliability even if it was not spontaneously made.
20
while” before making the first statement; this tends to suggest that GA did not come forth
with her statements on her own initiative, and thus that the statements were not
necessarily products of her creation. More troubling, Morgan specifically suggested
defendant’s name to GA in a list of possible perpetrators. These facts demonstrate that
GA’s statements were not spontaneously given, nor did they arise out of an otherwise
innocent conversation or set of nonleading and open-ended questions.
Although there were concededly spontaneous elements in GA’s statements, this is
insufficient to establish the general kind of spontaneity the rule requires. The Court of
Appeals below concluded that “on balance” the statements were “primarily spontaneous”
by focusing not on who broached the subject of sexual abuse, but instead on the nature of
some of the questions that were open-ended, the degree of voluntariness GA displayed in
answering questions and providing details not necessarily evident by the nature of the
questions, and the physical reactions that GA exhibited as a result of the questioning. In
this sense, the statements had spontaneous elements inasmuch as the answers were “given
without premeditation,” some answers seemed “unplanned,” and some of her responses
were “natural” and impulsive—and this is true even if GA’s statements were given in
response to direct questions. Nevertheless, when considering the questions in their
entirety, we cannot conclude that GA’s responses were, on the whole, spontaneous. As
noted, because spontaneity is an independent requirement under MRE 803A(2) rather
than one factor that weighs in favor of reliability and therefore admissibility, an overall
sense of reliability or trustworthiness cannot render nonspontaneous statements
admissible under MRE 803A.
21
In deciding that GA’s statements are inadmissible, we must be clear that we do not
expect a parent or other concerned adult not trained in the delicate nature of questioning a
child regarding sexual abuse to recognize the danger of influencing a child’s responses
with the type of questioning used here. Nor do we expect that most parents or adults
would treat this situation casually in order to allow the child to come forward with a
“spontaneous” statement. Indeed, quite the contrary is likely to be true: it is perfectly
natural for a parent or other concerned adult to engage in direct questioning or seek as
much information as possible if his suspicions are aroused regarding possible sexual
abuse of a child. We merely hold that statements resulting from such questioning cannot
meet the narrow grounds for admissibility under MRE 803A. The prohibition on hearsay
is the longstanding general rule, and thus exceptions to this prohibition must be
appropriately enforced.39
In sum, we hold that a statement prompted by an adult’s question specifically
concerning sexual abuse is not spontaneous. This is true even if other indicia of
reliability exist, such as an emotional response or details provided by the child that
exceed the scope of the adult’s inquiry. The Court of Appeals thereby erred by focusing
on these other indicia of reliability rather than who broached the subject of sexual abuse,
the specific questions asked by the adult during the conversation, and how some of the
questioning suggested or implied answers. Viewing GA’s statements in light of the
39
This Court will assess in its administrative rules process whether the language of
the current rule should be amended.
22
totality of the circumstances in this case, these critical factors render her statements
nonspontaneous. In future cases, though, we emphasize that a statement made in
response to an adult’s question or comment that does not concern abuse, or where the
child brings up the subject of abuse, may be spontaneous, and for the purposes of MRE
803A may be equally as admissible as if the child had made a statement arising “out of
nowhere.”
B. HARMLESS ERROR ANALYSIS
Having determined that the trial court in this case abused its discretion by
impermissibly allowing Stacy Morgan to testify regarding GA’s out-of-court statements
concerning alleged sexual abuse, we must next determine whether this error was
sufficiently prejudicial to warrant reversal of defendant’s convictions. We hold that it
was not.
Defendant’s claim of error in this case involves preserved, non-constitutional
error. The standard we must apply here is governed by statute. MCL 769.26 provides:
No judgment or verdict shall be set aside or reversed or a new trial
be granted by any court of this state in any criminal case, on the ground of
misdirection of the jury, or the improper admission or rejection of evidence,
or for error as to any matter of pleading or procedure, unless in the opinion
of the court, after an examination of the entire cause, it shall affirmatively
appear that the error complained of has resulted in a miscarriage of
justice.[40]
In making this determination for preserved, non-constitutional error, this Court asks
whether, absent the error, it is “more probable than not” that a different outcome would
40
MCL 769.26 (emphasis added); see also Lukity, 460 Mich at 494-495.
23
have resulted.41 The burden is on the defendant to show that the error resulted in a
miscarriage of justice.42 Where the error did not result in a miscarriage of justice and a
defendant cannot meet this burden, we have deemed the error “harmless” and thus not
meriting reversal of the conviction.43
Michigan law provides that where a hearsay statement is not offered and argued as
substantive proof of guilt, but rather offered merely to corroborate the child’s testimony,
it is more likely that the error will be harmless.44 Moreover, the admission of a hearsay
statement that is cumulative to in-court testimony by the declarant can be harmless error,
particularly when corroborated by other evidence.45 This Court has cautioned, though,
that “the fact that the statement [is] cumulative, standing alone, does not automatically
41
See Lukity, 460 Mich at 495 (“[T]he effect of the error is evaluated by assessing
it in the context of the untainted evidence to determine whether it is more probable than
not that a different outcome would have resulted without the error.”).
42
Id. at 493-494.
43
See, e.g., id. at 491-493; People v Mateo, 453 Mich 203, 212-215; 551 NW2d
891 (1996).
44
People v Straight, 430 Mich 418, 426-428; 424 NW2d 257 (1988).
45
See, e.g., Solomon v Shuell, 435 Mich 104, 146-149; 457 NW2d 669 (1990)
(BOYLE, J., concurring) (citing federal and published Court of Appeals decisions standing
for the proposition that “improperly admitted hearsay evidence constitutes harmless error
when it is merely cumulative of other properly admitted evidence”); People v Hill, 257
Mich App 126, 140; 667 NW2d 78 (2003) (“An erroneous admission of hearsay evidence
can be rendered harmless error where corroborated by other competent testimony. . . .
[Here, the admission of improper hearsay] was merely cumulative and did not place any
relevant and damaging information before the jury that the jury did not know already.
Therefore, there was not a reasonable probability that, but for counsel’s error, the result
of the proceeding would have been different.”).
24
result in a finding of harmless error. . . . [Instead, the] inquiry into prejudice focuses on
the nature of the error and assesses its effect in light of the weight and strength of the
untainted evidence.”46 In a trial where the evidence essentially presents a one-on-one
credibility contest between the victim and the defendant, hearsay evidence may tip the
scales against the defendant, which means that the error is more harmful.47 This may be
even more likely when the hearsay statement was made by a young child, as opposed to
an older child or adult.48 However, if the declarant himself testified at trial, “any
likelihood of prejudice was greatly diminished” because “the primary rationale for the
exclusion of hearsay is the inability to test the reliability of out-of-court statements[.]”49
46
People v Smith, 456 Mich 543, 555; 581 NW2d 654 (1998) (quotation marks
and citations omitted). The Supreme Court of the United States has elaborated on factors
relevant to making this determination:
[W]hether . . . the error was harmless beyond a reasonable doubt . . .
in a particular case depends upon a host of factors, all readily accessible to
reviewing courts. These factors include the importance of the witness’
testimony in the prosecution’s case, whether the testimony was cumulative,
the presence or absence of evidence corroborating or contradicting the
testimony of the witness on material points, . . . and, of course, the overall
strength of the prosecution’s case. [Delaware v Van Arsdall, 475 US 673,
684; 106 S Ct 1431; 89 L Ed 2d 674 (1986).]
47
Straight, 430 Mich at 427-428.
48
See Smith, 456 Mich at 555 n 5 (distinguishing Straight from the facts of Smith
because “it involved the testimony of a five-year-old complainant, while the present case
involves the testimony of a sixteen-year-old complainant whom the defense had full
opportunity to cross-examine”).
49
Solomon, 435 Mich at 148 (BOYLE, J., concurring), citing Swartz v Dow Chem,
414 Mich 433, 442; 326 NW2d 804 (1982).
25
Where the declarant himself testifies and is subject to cross-examination, the hearsay
testimony is of less importance and less prejudicial.
On the basis of this harmless error framework, we are not convinced that
defendant has met the burden of showing that, but for the fact that Morgan testified
regarding GA’s original statements of abuse, it is more probable than not that a different
outcome would have occurred.
First, the prosecutor relied on Morgan’s testimony only as corroboration for GA’s
direct testimony, and did not admit the testimony for its substantive value. The
prosecutor’s opening sentence when discussing Morgan’s testimony during closing
arguments explicitly indicated the limited purpose for which this testimony was offered:
“Stacy Morgan’s testimony corroborates everything that [GA] said on the stand last
Friday.” The prosecutor then proceeded to describe precisely how Morgan’s testimony
confirmed that GA’s statements at trial and when talking to Morgan were the same. In
essence, Morgan’s statement was used to show that GA had not changed her story in the
intervening time. Although Morgan’s testimony was undoubtedly important, the record
is clear that it simply was never used substantively by the prosecutor.50 This is consistent
50
By way of example, the facts of this case stand in stark contrast to those of
People v Straight. In Straight, this Court stated as follows:
The hearsay testimony of the parents was not offered merely to
corroborate the child’s testimony, but rather was offered and argued for its
substantive worth as the prosecution’s closing argument clearly reveals:
“And ladies and gentlemen, I would suggest to you that that was
what was happening on that night in question that the statements made by
26
with an MRE 803A statement generally, which is only “admissible to the extent that it
corroborates testimony given by the declarant during the same proceeding . . . .”51
Second, Morgan’s testimony was cumulative to GA’s testimony at trial. GA
testified at trial and was subject to cross-examination. GA’s testimony at trial was
sufficient standing alone to support defendant’s conviction of all four CSC charges.52
[the child] at the hospital can be considered by you and even if she hasn’t
said on the stand what happened as she did yesterday, she just clammed up
and said, ‘I don’t remember,’ or, ‘I don’t want to say anything,’ you can
still find that the defendant is guilty merely from the testimony that the
mother gave as to the information given to her and to the father as to what
she said in the hospital.”
These comments establish that the parents’ testimony was presented to the jury
without limitation as substantive proof of defendant’s guilt. [Straight, 430 Mich at
426-427 (emphasis added).]
Moreover, reviewing the entire record, we do not agree with defendant’s
characterization of Morgan’s testimony as outcome-determinative in the trial. In support,
defendant argues that the prosecutor devoted pages of the record to discussing Morgan’s
testimony. While true that the prosecutor discussed Morgan’s testimony in her closing
statement, it was the prosecutor’s “fifth reason” for conviction out of seven reasons total.
Moreover, the prosecutor’s discussion of Morgan’s testimony accounts for less than 2½
transcript pages, which likely amounted to no more than a few minutes time during the
prosecutor’s closing statement. Despite defendant’s characterization to the contrary, we
do not believe that this represents the type of overwhelming reliance that would lead to
the conclusion that Morgan’s testimony was highly prejudicial.
51
MRE 803A. This has always been the standard in Michigan, even under the
prior common-law “tender years” version of the rule. See Baker, 251 Mich at 326
(“[W]here the victim is of tender years the testimony of the details of her complaint may
be introduced in corroboration of her evidence . . . .”).
52
MCL 750.520h provides that “[t]he testimony of a victim need not be
corroborated in prosecutions under sections [MCL 750.]520b to [MCL 750.]520g.”
Defendant was charged of four counts of first-degree criminal sexual conduct, MCL
750.520b(1)(a), and thus GA’s testimony did not need to be corroborated in order for the
27
Although whether a hearsay statement is cumulative is not dispositive to this analysis
under Michigan law, it is an indicator that the error was not highly prejudicial,
particularly in the presence of other corroborating evidence. Here, the improperly
admitted portions of Morgan’s testimony did not introduce any new information to the
jury. Instead, Morgan’s testimony was merely cumulative to GA’s in-court testimony.
Defendant contends that this case largely rested on GA’s credibility and
believability, which Morgan undoubtedly bolstered. However, there was additional
corroborating evidence introduced which tends to belie this claim. Perhaps the most
damaging of this evidence is Lori’s testimony that she walked in to GA’s room at 3:30
a.m. and found defendant kneeling at GA’s bed, with the bedcovers pushed down,
touching GA in the leg area. This testimony corroborates GA’s testimony regarding the
timing of the alleged crime, namely that defendant had touched and “kissed” her vaginal
area that night, and corroborates precisely GA’s testimony that her mother entered the
jury to convict defendant, assuming of course that the jury found her credible. And it
appears that the jury did find GA credible in this case. For example, GA’s testimony was
the only direct evidence supporting the allegation that defendant had sexually assaulted
her on the first occasion, yet the jury returned verdicts of guilty on those charges.
Contrary to the dissent’s implication, our assertion that the jury must find the victim
credible if the victim’s testimony is the only evidence of a crime in this type of case is
merely a statement of obvious fact, not commentary on GA’s credibility in this case.
Moreover, we reject the dissent’s citation of a single law review article in an
attempt to discredit GA’s testimony in toto. Post at 4-5. While there are admittedly
unique difficulties in questioning children, we certainly find no support in the dissent’s
sweeping proclamation that cross-examination of GA was possibly “useless” in this case.
As discussed earlier, even though GA’s statements were not “spontaneous,” there are
many other indicia of reliability with regard to her statement, which remained consistent
over time.
28
room during the sexual assault and then left the room again. The nurse also testified that
GA stated during the medical examination that she experienced pain in her vaginal area
because “Jason put his finger in my pee-pee” and that defendant had kissed and touched
her “where her pee-pee comes out from.” This testimony was properly admitted under
MRE 803(4), which allows the admission of statements made for purposes of medical
treatment.53 The nurse’s testimony also introduced the fact that GA had recently suffered
a scratch on her labia minora.54 Thus, the other properly admitted evidence reveals that
this case was not purely a one-on-one credibility contest between the defendant and the
victim.
Third, to the degree that Morgan’s testimony prejudiced defendant when she
described how GA reacted during the conversation, the victim’s emotional reactions are
not hearsay and are perfectly admissible at trial.55 Morgan testified about the horrified
53
MRE 803(4) provides for admission of
[s]tatements made for purposes of medical treatment or medical diagnosis
in connection with treatment and describing medical history, or past or
present symptoms, pain, or sensations, or the inception or general character
of the cause or external source thereof insofar as reasonably necessary to
such diagnosis and treatment.
54
Although the nurse testified that the scratch had likely occurred within the last
24 to 48 hours, she also testified that it could have occurred earlier, encompassing a
period that corresponds to GA’s account of when defendant assaulted her. The police
officer who interviewed defendant testified that he noted that defendant’s fingernails
were “jagged or sharp, uneven.”
55
See MRE 801(c), which defines “hearsay” as a “statement”; a “statement” is
then defined in MRE 801(a) as “(1) an oral or written assertion or (2) nonverbal conduct
of a person, if it is intended by the person as an assertion.” (Emphasis added). Thus,
29
look on GA’s face, how her eyes welled up, how she began sucking her thumb, and her
crying, bawling, and gasping for breath. Testimony to this effect would be damaging
inasmuch as these were GA’s inadvertent, non-coerced physical reactions that tended to
show the reliability of her statements. More important, though, the testimony about these
reactions is admissible as non-hearsay because they are nonassertive conduct.56 Morgan
could properly testify as to GA’s nonassertive conduct that she personally observed and
about which she has first-hand knowledge.
On the basis of this analysis, we hold that although Morgan’s testimony was
erroneously admitted, the error does not require reversal. Morgan’s testimony was
cumulative to and corroborated GA’s testimony, which was further buttressed by other
evidence. On this record, defendant cannot meet his burden of showing that a different
outcome would have been the more probable result without Morgan’s testimony.57
physical conduct or reactions are not hearsay as long as the conduct or reactions are not
intended as assertions.
56
This conduct can be contrasted with actual assertive conduct by GA, which
would not be admissible. For example, when Morgan asked GA if Gursky had “kissed”
her with his tongue on her mouth, GA replied “No, down here” and pointed to her vaginal
area. GA’s act of pointing would be assertive conduct designated as hearsay by MRE
801(a) and (c), and would not admissible in this case given the foregoing analysis.
57
For these reasons, we similarly reject the dissent’s contention that the error here
was so harmful as to require a new trial. While the dissent criticizes a few of this
opinion’s characterizations or the weight this opinion gives to certain evidence, it fails to
demonstrate how defendant has met his burden. Both defendant and the dissent call into
question the credibility of certain evidence when viewed singularly, but when taken as a
whole, the properly admitted evidence is sufficient to sustain defendant’s conviction to
the extent that we cannot say that it is more probable than not that a different outcome
would have resulted.
30
IV. CONCLUSION
We hold that the child’s statements in this case were not “spontaneous” and
therefore should not have been admitted under the limited hearsay exception created by
MRE 803A. Statements specifically prompted by an adult’s question concerning sexual
abuse are not spontaneous, even if other indicia of trustworthiness or reliability exist.
However, where the child brings up the subject of abuse, the resulting statement may be
considered spontaneous, even if later questioning occurs by an adult. For such statements
to be admissible, the child must broach the subject of sexual abuse, any questioning or
prompts from adults must be nonleading and open-ended, and the statement must be the
creation of the child.
Although the trial court abused its discretion by admitting hearsay testimony in
this case, we nonetheless affirm defendant’s convictions because the improper admission
was harmless error. Defendant has not been able to show that the error is so prejudicial
as to require reversal. Here, the hearsay statements were not used substantively at trial to
prove guilt (but rather only to show consistency in the child’s testimony), the statement
was cumulative to other trial evidence, and there was other corroborating evidence of
defendant’s guilt.
The decision of the Court of Appeals is thus vacated, and defendant’s conviction is
affirmed on other grounds.
WEAVER, CORRIGAN, MARKMAN, and HATHAWAY, JJ., concurred with YOUNG, J.
31
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 137251
JASON MICHAEL GURSKY,
Defendant-Appellant.
CAVANAGH, J. (concurring in part and dissenting in part).
I agree with the majority that the testimony at issue in this case did not involve
statements that satisfy the “spontaneous” requirement of MRE 803A, and, as a result, the
trial court abused its discretion when it allowed the testimony. I disagree, however, that
this error was harmless. I think that a full review of the record reveals that this case
rested largely on the complainant’s credibility, and, as the prosecution stressed in its
closing argument, Stacy Morgan’s corroborating testimony bolstering GA’s credibility
was an essential piece of evidence that was critical to the outcome of this case.
Therefore, I think that defendant has satisfied his burden under People v Lukity, 460 Mich
484; 596 NW2d 607 (1999), to show that it is “more probable than not” that a different
outcome would have resulted absent Morgan’s testimony. Thus, I respectfully dissent
from part III(B) of the majority opinion.1
The majority’s harmless-error analysis goes astray in several places. First, the
majority glosses over the key details regarding the important facts in this case. Second,
the majority gives insufficient weight to this Court’s caselaw regarding the importance
of improperly admitted hearsay. Finally, I disagree with the majority’s attempt to
minimize the importance of the hearsay testimony to the prosecution’s case.
To begin with, the majority ignores several key details regarding the facts that it
relies on to argue that there was evidence, other than Morgan’s testimony, that
corroborated GA’s testimony.
First, the majority states that “the most damaging of this [corroborative]
evidence” was Lori’s testimony “that she walked in to GA’s room at 3:30 a.m. and
found defendant kneeling at GA’s bed, with the bedcovers pushed down, touching GA in
the leg area.” Ante at 28 (emphasis added). The majority mischaracterizes Lori’s
testimony and overlooks a potentially innocent explanation for the evidence that it finds
so damning. A full review of the record indicates that Lori testified that defendant
stayed up late playing video games with her son on the night that she saw defendant in
GA’s room. She also testified that she had told defendant previously that she preferred
that GA sleep in her pajamas, but, on that night, she had put GA to bed in her street
1
Although I remain committed to my Lukity dissent, 460 Mich at 504-510
(CAVANAGH, J., dissenting), because I think that defendant is entitled to a new trial even
under the higher burden created by the majority in Lukity, I will apply that standard here.
2
clothes because GA had fallen asleep in the living room. When Lori confronted
defendant about what he was doing in GA’s room, he explained that he had changed GA
into her pajamas. Further, while the majority states that Lori saw defendant “touching
GA in the leg area,” the record indicates that what Lori actually testified is that she saw
defendant’s hand “between [GA’s] knee and feet,” which has much less sinister
implications. In light of these details, the corroborative nature of this particular
evidence is substantially weakened, along with the majority’s harmless-error conclusion.
Second, the majority also ignores several important details surrounding the
nurse’s and investigating detective’s testimony. As the majority notes, the nurse
testified that GA had a scratch on her labia minora, and the investigating detective
testified that defendant’s fingernails were jagged or sharp when he interviewed
defendant. Although the majority acknowledges that the nurse testified that the scratch
likely occurred in the 24 to 48 hours preceding her examination of GA, it fails to
mention that the exam occurred five days after defendant allegedly sexually abused GA.
Nor does the majority consider that the nurse testified that the scratch could have
resulted from totally innocent behavior, such as a child playing. Furthermore, the
nurse’s testimony regarding GA’s description of what had happened to her corroborates
at most one instance of sexual abuse. It does not corroborate the testimony related to the
other accusation of sexual abuse against defendant. Again, when this particular
evidence is considered in context, its corroborative nature is substantially weakened, and
the majority’s harmless-error conclusion is further eroded.
3
The majority also gives insufficient weight to this Court’s caselaw when it
concludes that the prejudicial nature of the error was limited because GA testified at trial
and was subject to cross-examination, making Morgan’s testimony merely corroborative
and cumulative. In making these generalizations, the majority pays lip service to this
Court’s warnings that “the fact that the statement was cumulative, standing alone, does
not automatically result in a finding of harmless error,” People v Smith, 456 Mich 543,
554; 581 NW2d 654 (1998), and that hearsay evidence may tip the scales against a
defendant when a case presents a credibility contest, especially when the declarant is a
young child. People v Straight, 430 Mich 418, 427-428; 424 NW2d 257 (1988); Smith,
456 Mich at 555 n 5. Unfortunately, however, the majority largely fails to heed those
warnings in reaching its conclusion.
To start with, the utility of cross-examining a seven-year-old girl is debatable. In
order to avoid the appearance of bullying a child before the jury, “no defense lawyer
will subject a small child to an unnecessarily traumatic courtroom experience,” even at
the expense of leaving a possible error in the testimony undiscovered. Christiansen, The
testimony of child witnesses: Fact, fantasy, and the influence of pretrial interviews, 62
Wash L R 705, 719 (1987). Further, a child “will adopt false memory as truth and be
unable to distinguish the source of what she recalls. The sources of her knowledge are
obscured and the possibility of falsehood hidden behind her sincere belief in the truth of
her memory.” Id. This concern is reflected in MRE 803A’s limitations on the
admissibility of hearsay statements made by children, which require that a child’s
statements be made as soon as practicable after the incident and that the statements be
4
spontaneous and without indication of manufacture. Therefore, given that Morgan’s
suggestive questioning occurred before GA testified at trial, cross-examination may
have been useless in this case. As a result, the jury may have been “presented with an
unshakably false basis for assessing the weight of her testimony,” and defendant’s
felony convictions may have been based on inaccurate information that was impossible
to test. Id. at 719-720.
Also, the majority’s reliance on MCL 750.520h to argue that the prosecution in
this case did not need to corroborate GA’s testimony is misplaced. The credibility of
GA’s testimony was a critical issue because there was little physical evidence in this
case. Indeed, as the majority notes, GA’s testimony was the only basis for defendant’s
conviction for one of the alleged incidences of abuse. Presumably, the only support for
the jury’s finding was its belief that GA was credible, which was unfairly bolstered by
the inadmissible hearsay. Therefore, as the majority acknowledges, the prosecution did
not need to corroborate GA’s testimony only if we are willing to “assum[e] . . . that the
jury found her credible.” Ante at 28 n 52 (emphasis added).
The fact that GA’s credibility was the key issue is precisely why the error was
not harmless: Morgan’s erroneously admitted hearsay testimony strongly bolstered
GA’s credibility. Thus, as the majority admits, we are left to assume that even without
Morgan’s testimony the jury would have found GA credible. This case simply presents
too many unknowns to base multiple serious criminal convictions on a bare assumption.
Furthermore, there are several problems with the majority’s reference to GA’s
credibility. First, it inaccurately states that GA’s statements were “consistent over
5
time.” This ignores that several days after Morgan’s conversation with her, GA made a
seemingly inconsistent statement when she asked Lori, “Mommy, what if it was a bad
dream?”
Second, the majority’s statement that it is not commenting on GA’s credibility is
incorrect and irrelevant. The majority does comment on the credibility of GA’s
testimony when it notes that GA’s statement “remained consistent over time.” Ante at
28 n 52. Because the majority must rely on GA’s admittedly inadmissible statement to
Morgan to label her statements “consistent,” the majority only compounds the harm and
proves that Morgan’s testimony was critical to the prosecution’s case.
Third, the majority’s commentary on the credibility of GA’s statements is
irrelevant. The question is not whether this Court finds GA credible but whether the
inadmissible hearsay unfairly influenced the jury’s ability to determine GA’s credibility.
Because it is more probable than not that the hearsay influenced the jury and affected
the trial’s outcome, the error was not harmless.
Contrary to the majority’s claim, I do not discredit GA’s testimony “in toto.”
Rather, I merely note that children, by no fault of their own, are highly susceptible to
influence. On the basis of this widely accepted observation, which the majority accepts,
I conclude that the jury’s ability to determine whether it found GA’s testimony credible
was unfairly influenced by Morgan’s inadmissible testimony to the point that the error
was not harmless.
Finally, the majority’s attempt to minimize the importance of Morgan’s hearsay
testimony to the prosecution’s case is also misleading. Ante at 26-27 n 50. Simply
6
because the prosecution listed Morgan’s testimony as the “fifth reason” supporting
conviction in her closing argument is not evidence that the testimony was not important.
The order in which the prosecution presented the supporting evidence in her closing
argument is not an indication of the weight that the prosecution or, more importantly,
the jury gave the evidence. And, even if the order of presentation did somehow relate to
the testimony’s importance, it should be noted that in the first paragraphs of its closing
argument, the prosecution stressed that GA’s believability was key to the case.
Furthermore, the first sentence of the prosecution’s discussion of Morgan’s testimony
during closing argument stressed that Morgan’s testimony “corroborated everything that
[GA] said on the stand . . . .” Similarly, it is irrelevant that “the prosecutor’s discussion
of Morgan’s testimony accounts for less than 2½ transcript pages,” given that this is no
indication of the weight that the jury gave Morgan’s testimony. Indeed, in People v
Snyder, 462 Mich 38; 609 NW2d 831 (2000), we remanded for a new trial under the
Lukity standard because of an erroneous evidentiary ruling by the trial court that affected
the complainant’s credibility. We reasoned that, much like this case, “the prosecution’s
case rested almost entirely on the testimony of the complainant,” and the “prosecutor
took advantage of the circuit court’s erroneous ruling during her closing argument.” Id.
at 44, 45.
In summary, defendant’s convictions largely rested on GA’s credibility, and, as
the prosecution stressed, Morgan’s corroborating testimony bolstering her credibility
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was an essential piece of evidence in this case.2 Furthermore, much of the admissible
“corroborating” evidence cited by the majority is less convincing when viewed in
context, and the majority’s conclusion that this case was not merely a credibility contest
is called into question. Finally, as the majority acknowledges, this Court has held that
hearsay evidence is more harmful in credibility contests, particularly when the declarant
is a young child. Accordingly, I do not agree with the majority that the trial court’s
abuse of discretion was harmless error, and I would remand for a new trial.
KELLY, C.J., concurred with CAVANAGH, J.
2
Indeed, the trial court based its decision to deny defendant’s motion for a
directed verdict on its belief that “[t]he complainant . . . has been absolutely consistent
with her version of events from the first time she disclosed it [to Morgan] through . . . her
testimony in court.”
8