People v. Hendrickson

Brickley, J.

(concurring in part and dissenting in part.) I concur in the lead opinion’s conclusion that the hearsay statement at issue in this case cannot be admitted without corroborating evidence extrinsic to the contents of the hearsay statement itself. This result is compelled by our holding in People v Burton, 433 Mich 268; 445 NW2d 133 (1989). I dissent from that portion of the lead opinion that holds that corroboration of the event described in the statement is sufficient to satisfy the extrinsic evidence requirement. The extrinsic evidence rule of Burton demands that evidence other than the disputed statement itself be used to establish the conditions for admitting a hearsay statement under the excited utterance or present sense impression exceptions to the hearsay rule. Id., pp 280-282.

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In Burton, we held that an excited utterance could not be admitted, where the only evidence of the “startling event” underlying the excited utterance was the *250content of the utterance itself. Id., p 282. This holding was based upon our belief that “ ‘[a]ny other rule would “lift [hearsay] by its own bootstraps to the level of competent evidence.” ’ ” Id., pp 281-282, quoting People v Vega, 413 Mich 773, 780; 321 NW2d 675 (1982), quoting Glasser v United States, 315 US 60, 75; 62 S Ct 457; 86 L Ed 680 (1942).

We quoted the three conditions that must be satisfied before a hearsay statement could come within the excited utterance exception to the rule excluding hearsay:

“(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.” [Burton, supra, p 280, quoting 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) (emphasis supplied).]

We then stated the main question in the case: “whether a proffered excited utterance, standing alone, may be used to satisfy the conditions for its own admissibility." Burton, supra, p 280 (emphasis supplied).

The question in Burton was not whether the disputed statement was deemed reliable, and hence admissible, because there was independent evidence that the described event actually occurred. Rather, the question was whether the disputed statement could be “used to satisfy the conditions for its own admissibility.” Id. One of these conditions was that a “startling event” gave rise to the disputed statement. While the distinction between these two questions is clouded because the “startling event” and the criminal act were the same in Burton, the distinction is nevertheless crucial. My dissent is compelled by this dis*251tinction between corroboration of the reliability of the statement itself, and corroboration that the statement was made under conditions that satisfy the hearsay exception.

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Independent evidence of the “startling event” was necessary in Burton because “[i]t is the presence of a startling event that lends the utterance emanating therefrom its special reliability.” Id, p 295. Unlike an excited utterance, however, a present sense impression gains its “special reliability” from the fact that it is made during, or very shortly after, the event described. The statement is likely to be reliable because it is made before the declarant has an opportunity to fabricate, embellish, or forget what is being described. As the lead opinion recognizes, “the ‘substantial contemporaneity of event and statement negate the likelihood of deliberate or conscious misrepresentation.’ 1 Ante, p 235, quoting FRE 803(1) advisory committee’s note; citing United States v Campbell, 782 F Supp 1258, 1260 (ND Ill, 1991).

Therefore, the extrinsic evidence requirement demands some showing, outside the contents of the *252disputed statement, that the 911 call was likely made at about the same time as the criminal act. This requirement is not satisfied by evidence that the described act occurred. “ ‘For aught that appears beyond the statement itself, the injury may have occurred three or four horns before the statement was made .... In such an event, the element of spontaneousness is absent.’ ” Burton, supra, p 280, quoting Rogers, supra, p 494. Extrinsic evidence of the underlying criminal act supports the general reliability of a disputed hearsay statement describing that act.2 This is not, however, the purpose of the extrinsic evidence rule. That rule prohibits the use of a hearsay statement “to satisfy the conditions for its own admissibility.” Id., p 280.

In this case, there was no evidence before the trial court showing the substantial contemporaneity of the disputed statement and the events it describes, other than the disputed statement itself. Therefore, the extrinsic evidence rule was not satisfied, and the trial court abused its discretion by admitting the disputed statement.

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The extrinsic evidence requirement serves the purpose of assuring that the present sense impression exception to the hearsay rule is used in conformity with its underlying purposes. Hearsay statements are excluded from evidence because they lack the tradi*253tional indicia of credibility: the statement was not made under oath, the declarant is often not personally present at trial, and is often not subject to cross-examination. The present sense impression exception to the hearsay rule allows the admission of statements that are made under circumstances tending to support their reliability, despite their lack of the traditional indicia of credibility.3

The extrinsic evidence rule prevents the “bootstrapping” of hearsay statements into evidence, by demanding some independent proof that they were actually made under conditions justifying their admission. This requirement could have been satisfied here, for example, if the prosecution had produced a witness who saw the defendant leaving the house at *254about the same time as the 911 call; if a neighbor had heard the defendant and the complainant fighting at about the same time as the call; if the victim had, as she stated she would on the taped 911 call, immediately sought medical treatment and the time of treatment could be verified; or if the police had arrived at the scene shortly after the call. With such evidence, a trial judge would not have to rely on circular reasoning to determine that the hearsay statement was made “substantially contemporaneously” with the described event.4

Any argument that the extrinsic evidence requirement makes 911 recordings useless for prosecution purposes utterly misses the point of this rule. The Rules of Evidence exist largely to assure that evidence admitted at trial is relevant and reasonably reliable. Only if a statement is made under certain conditions may it be admitted in evidence without the benefit of cross-examination and oath. The necessary conditions in this case were shown only by the dis*255puted statement. Therefore that statement was improperly admitted.

IV

Because the only evidence that the taped statement was made substantially contemporaneously with the event it described was the statement itself, the extrinsic evidence rule was not satisfied. Burton, supra, p 294. Therefore, the trial court abused its discretion in admitting the taped statement.

Because the admission of this statement is not harmless error, see MCR 2.613(A), I would affirm the decision of the Court of Appeals, and remand this case for a new trial.

I agree with the lead opinion and the concurring opinion of Justice Boyle that the following three conditions must be satisfied before a statement may be admitted as a present sense impression: “(1) the statement must provide an explanation or description of the perceived event, (2) the declarant must personally perceive the event, and (3) the explanation or description must be ‘substantially contemporaneous’ with the event.” Ante, p 236, citing United States v Mitchell, 145 F3d 572, 576 (CA 3, 1998), and United States v Campbell, 782 F Supp 1258, 1260 (ND Ill, 1991); see concurring opinion of Boyle, J., ante, p 243.

The first and the second criteria are satisfied here by the nature of the event described and by the photographs taken the day after the 911 call was made, which corroborate that the described beating actually occurred. The third criterion has not been satisfied, however, as I discuss herein.

Indeed, the lead opinion appears to construe the extrinsic evidence requirement as a general reliability test for admissibility. See MRE 803(24) (“A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness [may be admissible]”). I do not believe that the disputed statement in this case could be admissible under MRE 803(24).

I cannot agree with Justice Boyle’s condemnation of the extrinsic evidence requirement on the grounds that “many trustworthy statements would be excluded simply out of adherence to a formula premised on an unfounded distrust of the finder of fact.” Ante, p 248. Many statements that are not only “trustworthy,” but -verifiably true, are excluded by the Rules of Evidence because they may be improper appeals to the prejudices or sympathies of the factfinder. See, e.g., MRE 403 (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice”); MRE 404(a) (“Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith”); MRE 404(b)(1) (“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith”); MRE 407 (“When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event”); MRE 411 (“Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully”); MRE 609 (“For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall not be admitted [except under certain circumstances]”); MRE 610 (“Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’ credibility is impaired or enhanced”); MRE 802 (“Hearsay is not admissible except as provided by these rules”).

Other cases have demonstrated that such extrinsic guarantees of the conditions of reliability are not rare. See, e.g., People v Slaton, 135 Mich App 328, 330-331; 354 NW2d 326 (1984) (police arrived before the 911 call had terminated, but after the victim had been killed by perpetrators; arrival of the police could be heard on recording of 911 call); United States v Hawkins, 59 F3d 723, 730 (CA 8, 1995) (neighbors placed a 911 call complaining of disturbance, in complainant’s apartment at 1:07 am.; complainant’s 911 call, from which a present sense impression statement was taken, was made at 1:14 am.); United States v Blakey, 607 F2d 779, 785 (CA 7, 1979) (although no available witnesses were present at recorded conversation, “there were several witnesses who could testify to all the events leading up to and following that brief meeting”); United States v Mejia-Velez, 855 F Supp 607, 613-614 (ED NY, 1994) (confirming that both 911 calls in question were within two minutes of the shooting that they described); People v Brown, 80 NY2d 729, 730; 610 NE2d 369 (1993) (taped 911 call described perpetrators and apprehension of them by the police; police arrived three minutes after call was initiated).