People v. Debreczeny
People v. Debreczeny
Opinion of the Court
Defendant was convicted by the court, sitting without a jury, of the offense of taking indecent liberties with an eight-year-old girl. MCLA 750.336; MSA 28.568. Subsequently sentenced to 2-1/2 to 10 years imprisonment, defendant appeals his conviction as of right.
Initially, defendant claims that the district court abused its discretion by binding defendant over to the circuit court to stand trial. Defendant now asserts certain procedural irregularities in the preliminary examination. Defendant did not object to such alleged irregularities prior to or during the trial. Hence, he has waived his right to object and cannot now raise this issue on appeal. People v Childrey, 65 Mich App 276; 237 NW2d 288 (1975).
Next defendant claims that the trial court abused its discretion by allowing one Diane Davis, a policewoman, to testify over defendant’s objection as to the contents of her conversation with the victim which took place early to mid-morning
Defendant also contends that he was denied a fair trial because of the prosecution’s failing to call all res gestae witnesses and by the trial court’s allowing the prosecutor to endorse additional res gestae witnesses during the course of trial. Such claims must also fail. Here no motion for a new trial was ever filed. People v Robinson, 390 Mich 629; 213 NW2d 106 (1973). Furthermore, the late endorsement of witnesses is within the discretion of the trial court. People v Harrison, 44 Mich App 578; 205 NW2d 900 (1973). A review of the record reveals that none of the witnesses subsequently endorsed were crucial to the people’s case nor does the record show that their endorsement or subsequent testimony denied defendant a fair trial. Hence no abuse of discretion has been shown.
We find no reversible error.
Affirmed.
"Sec 2163. Whenever a child under the age of 10 years is produced as a witness, the court shall by an examination made by itself publicly, or separate and apart, ascertain to its own satisfaction whether such child has sufficient intelligence and sense of obligation to tell the truth to be safely admitted to testify; and in such case such testimony may be given on a promise to tell the truth instead of upon oath or statutory affirmation, and shall be given such credit as to the court or jury, if there be a jury, it may appear to deserve.”
Concurring Opinion
(concurring). There is a confusion of concepts with regard to the treatment of the admissibility of the young victim’s statements to third persons. This has been recognized by Wig-more who deals with it under the topics, Complaint of Rape, 4 Wigmore, Evidence, § 1134 et seq. (Chadbourn rev 1972) and Spontaneous Exclamations, 6 Wigmore, Evidence, § 1760 et seq. (Chad
In the present case the victim’s statements to Ms. Davis could not qualify under either treatment. I find Ms. Davis’ testimony was largely cumulative and amounted to harmless error only (as per Justice Williams’ opinion in Cunningham, supra).
The majority relies on the holding in People v Payne, 37 Mich App 442, 444; 194 NW2d 906 (1971), that:
"In sex offenses, hearsay statements made by a victim of tender years to a witness who subsequently testifies to the content of these declarations are admissible as part of the res gestae of the crime if the delay from the time of the incident to the time of the conversation is adequately explained.”
Without trying to take on the task of delineating situations where the delay is "adequately explained” it should be noted that the Payne quote is mere dicta because that Court held:
"However, we feel it is unnecessary to determine if this concededly hearsay testimony is admissible as a segment of the continuing res gestae of the crime; we hold that the error, if any, is harmless.” Payne, supra at 444.
The cases which center on the victim’s fear of reprisal as being a catalyst for expanding on the interlude between the event and the utterance are not in point because no such claim is made in the case at bar. This young victim was not frightened into silence, nor was she shocked into an excited utterance. The question and answer session with Ms. Davis is emphatically not a situation which tends to "create a circumstantial probability of trustworthiness”. People v Ivory Thomas, 14 Mich App 642; 165 NW2d 879 (1968) (Levin, J. concurring).
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