People v. Hackney
People v. Hackney
Opinion of the Court
Defendant was convicted by a
Primarily, evidence of the criminal charge against defendant was established by the testimony of the victim, who was seven years old at the time of the alleged sexual assault. According to the victim, he arrived home from school on the day of the incident and met defendant, his second cousin, who was charged with responsibility for taking the victim to the home of defendant’s mother, Teresa Hackney. It had been arranged that Hackney would baby-sit the victim while the victim’s mother was working. The victim testified that defendant pulled the victim by the shirt into the victim’s bedroom and pushed him onto the bed. A pillow was placed in the window. Defendant then pulled down both the child’s pants and his own pants. Defendant obtained a jar of Vaseline from the bathroom and applied some "grease” "up [the victim’s] behind” before he penetrated the victim by "put[ting] his private in [the victim’s] behind.” Defendant instructed the victim not to tell anybody because defendant did not want to go to jail. Defendant cleaned both himself and the victim with paper towels and then took the victim over to the Hackney residence.
i
As part of the prosecutor’s case, the victim testified that he disclosed the sexual abuse to several persons within a day of the incident. The prosecutor, over defendant’s hearsay objections, called those persons as witnesses to testify regard
A decision whether or not to admit evidence is committed to the sound discretion of the trial court. Accordingly, our review is limited to a determination whether the trial court abused its discretion in making these rulings. See People v Johnson, 174 Mich App 108, 112; 435 NW2d 465 (1989); People v King, 158 Mich App 672, 678; 405 NW2d 116 (1987).
A
In the aftermath of the assault, the victim testified that, after his arrival at the Hackney home, he went outside to play with children of Marian Feller, a neighbor of the Hackneys. The victim told the other children about the sexual assault, and the children prompted the victim to relate the incident to Feller.
Feller testified that the victim came to her house about 5:00 or 5:30 p.m. to play with her children. After perhaps two hours of play, according to Feller, the following occurred:
R_[the child or victim] and my two kids were out back playing, and they came around to the front, my two. They said, "Mommy, R_ wants to talk to you. Mommy, R_ wants to tell you something.” I said, "Okay. Tell him to come on.” They said, "Come on in R__Mamma said, 'Come on in.’ ”
He came in, walked straight up to a chair similar to this. He walked right up to the side, he blurted out, "Stacey took” . . .
*521 R_ said, "Stacey put his private in my behind.” And I asked the child, "Could you say that for me again,” because I didn’t think I understood him or heard it right. He repeated it. I asked him did he tell his mother. He said, "No.” I said, "Well, how? When?” He said when he came home from school he made him go to his bedroom and he pulled his pants down. And he told him no, but he went to the bathroom and got grease and did it anyhow.
When he said, "Stacey put his private in my behind,” he said it fast and a little louder than what he normally talks, normally speaks, because he’s soft spoken. But he said that, just blurted it out, "Stacey put his private in my behind,” real quick like that.
He told me—he also said he just wanted it to stop. He didn’t want that to happen again. I told him, "Okay. I will get in touch with your mom, let her know,” because he said he hadn’t told her.
The hearsay exception at issue, the excited utterance exception, pertains to 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.” MRE 803(2). In deciding whether the victim’s statement to Feller fits the exception, we have the benefit of guidance from the recent decision in People v Straight, 430 Mich 418; 424 NW2d 257 (1988). In Straight, the issue arose in the context of statements made by a four-year-old child identifying the defendant as the perpetrator of an incident of sexual assault one month previously. In reversing a conviction on the ground that the statements of the child victim were erroneously admitted, the Court reaffirmed adherence to the three-part test set forth in People v Gee, 406 Mich 279, 282; 278 NW2d 304 (1979):
*522 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. [Straight, supra, p 424 (quoting Gee, supra).]
See also People v Burton, 433 Mich 268; 445 NW2d 133 (1989).
As is common in questions of admissibility of statements by sexual abuse victims, it is the second part of the Straight-Gee test that creates doubt as to its proper application. The Court in Straight explained this part as "a reformulation of the inquiry as to whether the statement was made when the witness was still under the influence of an overwhelming emotional condition.” 430 Mich 425. Properly understood, it relates to a "lack of capacity to fabricate rather than the lack of time to fabricate.” Id. Thus, the question is not whether it is likely that the child’s statements were falsely made—in point of fact, the detail and recollection of the victim’s testimony in this case is convincingly consistent with third-party testimony of his out-of-court statements, thus suggesting a large measure of reliability—but rather whether the circumstances surrounding the making of the statement suggest reliability and lack of opportunity for the deliberation and preparation attendant to giving a false statement.
In making this determination, the Court in Straight noted the following considerations equally pertinent to this case:
Evidence that the statement was self-serving or made in response to an inquiry, while not justification for automatic exclusion, is an indication that the statement was the result of reflective thought,*523 and where the time interval permitted such thought these factors might swing the balance in favor of exclusion. Proof that between the event and the statement the declarant performed tasks requiring relatively careful thought, of course, is strong evidence that the effect of the exciting event had subsided. Because of the wide variety of factual situations, appellate courts have recognized wide discretion in trial courts to determine whether in fact a declarant was at the time of an offered statement still under the influence of an exciting event. [430 Mich 426, n 6, quoting McCormick, Evidence (3d ed), § 293, p 857.]
Whether or not there was "time to contrive and misrepresent” in the instant case presents a close question. According to defendant’s testimony, the victim arrived home from school about 3:45 or 3:50 p.m.
The determination whether the statement to Feller was a spontaneous response emanating directly from a startling event is subject to conflicting inferences drawn from the circumstances surrounding the making of the statement. We note that the trial judge is appropriately accorded "wide discretion” in deciding these matters. Straight, supra, p 426, n 6. In an appropriate case, the concept of discretion implies that a judicial ruling choosing between two viable alternatives, i.e., to admit or exclude proposed evidence, cannot be deemed error by the reviewing court. See People v Golochowicz, 413 Mich 298, 322; 319 NW2d 518 (1982) ("The decision upon a close evidentiary question by definition ordinarily cannot be an abuse of discretion.”). This is one of those cases. We conclude that the ruling admitting the statement to Feller was properly within the bounds of the court’s discretion.
B
After the victim disclosed the sexual assault to Feller, Feller contacted the victim’s mother at her workplace and told her to come home early because an emergency situation had arisen. The mother went to Feller’s house, where Feller informed her of the child’s disclosure of sexual abuse. The mother then proceeded to the neighboring Hackney home, picked up the child, and proceeded to drive home sometime before 11:00 p.m.
I asked him what was going on, you know, what was up.
I asked him what was wrong. I asked him what happened. He said that Stacey put his privates in his behind. He said—I asked him when. He told me. I asked him.
He said it happened today, it happened yesterday.
The mother testified that the child then proceeded to give a detailed account of the incident, which was consistent with the statement to Feller and the child’s trial testimony.
According to the victim’s testimony, after disclosing the incident to Feller, he continued playing until defendant told him to come back to the Hackney home. The child played cards and watched a movie until his mother arrived to pick him up.
When viewed against the criteria of an excited utterance set forth in part i-a of this opinion, it is apparent that the circumstances of the victim’s statement to his mother present a more compelling case for exclusion as inadmissible hearsay. The statement itself was significantly farther removed in time from the sexual assault. After the child made the shocking disclosure to Feller, Feller told him that she would apprise his mother of the incident, leaving him with time and opportunity to reflect upon his disclosure and to anticipate further inquiries from his mother. The child continued in ordinary, unremarkable activities until
c
After 2:30 or 2:45 a.m. the next day, the victim’s mother took the victim to a hospital emergency room, where he was examined by Judith Sulok, R.N. Sulok interviewed the child, took samples of his saliva and blood, and secured underwear as part of a sexual assault kit. The samples and kit were sent to the police. Sulok testified that she asked the victim what happened to him in order to determine what types of medical testing were appropriate. An attending physician took rectal smears in order to detect the presence of sperm or venereal disease.
Sulok testified that, during her interview with the victim, she was informed:
R_ stated that Stacey had put his penis into R_’s rectum and then Stacey had taken his hands and had touched and fondled Stacey’s penis.
Sulok further testified that defendant threatened the victim. Defendant’s objection to this particular testimony was sustained.
In this case, Sulok testified that the purpose underlying the hospital procedures involved medical treatment. It seems obvious that a sexual assault involving anal penetration of a seven-year-old child would require specific medical attention. Sulok testified that a detailed account by the victim was necessary in order to determine the necessary tests, and the victim was in fact administered a rectal smear in order to detect possible venereal disease. It is also apparent that some of the procedures were designed to gather and preserve evidence to facilitate a criminal investiga
In People v LaLone, 432 Mich 103, 110-115; 437 NW2d 611 (1989), it was held that the identity of the perpetrator of a sexual assault is not admissible as part of a statement made for medical purposes pursuant to MRE 803(4). Even if, the prosecutor contends, the holding in LaLone is limited to the context of psychological treatment, there is no plausible argument in the instant case that defendant’s identity was "reasonably necessary” for medical care or treatment. Cf. People v Wilkins, 134 Mich App 39; 349 NW2d 815 (1984), lv den 422 Mich 862 (1985). Accordingly, it was beyond the discretion afforded the trial court to allow Sulok to testify to those statements of the victim that tended to identify defendant.
D
In sum, we have concluded that it was improper for the trial court to have admitted evidence of (1) the victim’s out-of-court statement related by his mother’s testimony pursuant to the excited utterance exception, MRE 803(2), and (2) nurse Sulok’s testimony of the victim’s identification of defendant as the perpetrator of a sexual assault pursuant to the medical treatment exception, MRE 803(4). It remains to be decided whether reversal is required in consequence of these errors.
The account of the incident provided by the victim’s own testimony was graphic, detailed, and convincing. It leads to a strong inference that such testimony is credible because a seven-year-old
Physical evidence overwhelmingly established that the child had been sexually abused and corroborated defendant’s identity as the perpetrator. Sperm was detected on the child’s underpants and on paper towels discarded at the location of the sexual assault. Tests conducted on samples of the sperm indicated that the source, in all likelihood, was a secretor with an ab blood type,
It is fair to characterize the totality of the prosecutor’s evidence linking defendant to the sexual assault as overwhelming. Because defendant failed to seriously diminish the credibility of. the prosecutor’s witnesses, it does not seem likely that
ii
Defendant argues that a mistrial should have
Q. Can you tell the ladies and gentlemen of the jury what the Defendant, Stacey Hackney, said?
A. He, at this point, stated that R_ was making the whole thing up and he could give no reason why R_ would do it, but R_was making the whole thing up.
And Stacey’s demeanor, he was very cocky towards me at this particular point in time with his actions and his answers.
Q. Did the Defendant, Stacey Hackney, have anything else to say?
A. No, he did not. He did not offer an alibi, which I thought was unusual at the time.
The reference to defendant’s failure to offer an alibi was unresponsive to the prosecutor’s question. As a general rule, unresponsive testimony by a prosecution witness does not justify a mistrial unless the prosecutor knew in advance that the witness would give the unresponsive testimony or the prosecutor conspired with or encouraged the witness to give that testimony. People v Barker, 161 Mich App 296, 305-306, 307; 409 NW2d 813 (1987). The ruling on a motion for a mistrial is committed to the sound discretion of the trial court. Id., p 305. The test is whether the defendant has been deprived of a fair trial. People v Siler, 171 Mich App 246, 256; 429 NW2d 865 (1988).
The trial court gave a cautionary instruction that the jury not consider the witness’ comment on the absence of an alibi, but then it denied a mistrial. We conclude that the court’s response to the mistrial motion was within its discretion. Fur
Affirmed.
There does not appear to be any other indication in the record of the child’s time of arrival in defendant’s presence or of the time of the sexual assault. Given that this fact would appear to be readily verifiable if it was believed that defendant was being untruthful, we see no reason to reject defendant’s testimony in this regard. We also note that the child’s mother testified that it was usual for the child to arrive home from school between 3:45 and 4:00 p.m.
After grounding his ruling on the medical treatment exception, the trial judge added that the statement was "an existing physical condition of R- at that time, and therefore, it is an exception to the hearsay rule.” This appears to be an alternative ruling of admissibility pursuant to the exception in MRE 803(3) for a then existing physical condition, although the parties have not argued the applicability of this particular exception on appeal. However, MRE 803(3) is not a valid ground of admissibility because a statement explaining a past sequence of events (from the standpoint of the declarant at the time of the statement) is not a then existing physical condition within the meaning of the rule but, rather, a "statement of memory or belief’ that is explicitly excluded from the exception. See Duke v American Olean Tile Co, 155 Mich App 555, 571; 400 NW2d 677 (1986); People v DeRushia, 109 Mich App 419, 424-425; 311 NW2d 374 (1981).
According to the prosecutor’s expert witness, a crime laboratory scientist, the only other medical possibility was that the sperm was deposited by multiple persons, one of whom was a type a secretor- and another who was a type b secretor. The likelihood that the victim was abused by several persons fitting these physical characteristics seems remote, and there was no evidence or plausible theory advanced at trial supporting this theory.
Even if we had held that all postassault out-of-court statements made by the victim to Feller, his mother, and Sulok were admitted in violation of the hearsay rule, we would not be inclined to reverse the conviction, notwithstanding that admission of the statements under these circumstances would then be cumulative only to the victim’s own trial testimony. Because the uncorroborated testimony of a sexual assault victim is often viewed as inherently suspect, see People v DerMartzex, 390 Mich 410, 412-415; 213 NW2d 97 (1973), improper admission of the postassault statements would arguably carry a great deal of prejudice by providing the missing corroborative piece of evidence against defendant. However, the physical evidence of the assault, viewed in conjunction with the victim’s testimony, remains an overwhelming indication of defendant’s guilt, and we would still find the error to be harmless.
Dissenting Opinion
(dissenting). According to the testimony in this case, complainant was sexually abused by defendant at approximately 3:45 p.m. after arriving home from school. Complainant was then driven by defendant to defendant’s mother’s house. From there, complainant walked across the street and began playing with his friends, the children of Marian Feller, at approximately 5:00 p.m. The children, including complainant, apparently played in their usual fashion for approximately the next two hours. Eventually, Feller’s two children approached Feller and informed her that complainant wanted to tell her something. Feller summoned complainant to her. Complainant walked up to Feller and declared that defendant "put his private in my behind.” Complainant then returned to his play with Feller’s children. Over defendant’s objection at trial, the trial court admitted Feller’s hearsay testimony repeating complainant’s statement to Feller under the excited utterance exception to the hearsay rule, MRE 803(2).
The majority believes that the issue whether Feller’s hearsay testimony was properly admitted presents a close evidentiary question. Since the decision upon a close evidentiary question "by definition ordinarily cannot be an abuse of discre
I believe that the issue is not at all close and that the trial court abused its discretion when it admitted Feller’s hearsay testimony. Therefore, I dissent from that portion of the majority’s decision.
In People v Kreiner, 415 Mich 372, 376, 378; 329 NW2d 716 (1982), our Supreme Court held that the "tender years exception,” which permitted hearsay testimony of the statements of a sexually abused child for the purpose of corroborating the child’s trial testimony, did not survive the adoption in 1978 of the Michigan Rules of Evidence. Our Supreme Court recently observed that, following Kreiner, there has been "increasing resort to the excited utterance exception to admit a young child’s statements.” People v Straight, 430 Mich 418, 430; 424 NW2d 257 (1988). Apparently, evidence which formerly would have been admitted only under the tender years exception is now being admitted under the excited utterance exception. See Straight, supra, pp 423, 430-431; cf. Kreiner, supra, p 377. Accordingly, evidence which formerly could be used only to corroborate the victim’s testimony is now being used as substantive evidence to establish the elements of the offense or circumstances surrounding the offense. See, e.g., Straight, supra, pp 426-427; cf. Kreiner, supra, p 377.
The Court in Straight, supra, pp 430-431, made clear that the excited utterance exception should no longer be stretched to fill the void left by the abolition of the tender years exception. In this case, the majority’s affirmance of the trial court’s ruling effectively condones the continuation of past
In Gee, supra, p 282, our Supreme Court stated the essential foundational requirements for an excited utterance:
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;4 (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.
I have no doubt that the evidence in this case supports a finding that the "occasion” was startling enough to produce an utterance which was spontaneous and unreflecting. I do not believe, however, that the utterance to Feller was "spontaneous and unreflecting,” as explained in Straight, supra.
The Court in Straight, supra, pp 423-424, n 3, noted that " '[t]he assumption underlying this exception is that a person under the sway of excitement precipitated by an external startling event will be bereñ of the reñective capacity essential for fabrication and that, consequently, any utterance he makes will be spontaneous and trustworthy.’ ”
In this case, the evidence does not support a finding that complainant was still under the sway of excitement from the incident such that he was bereft of reflective capacity when he made the statement which Feller repeated at trial. Moreover, there clearly was conscious reflection.
Complainant told others before he told Feller, see Gee, supra, p 283, ns 5-6, and repeated the statement to Feller at the urging of Feller and her children,
In closing, I emphasize that I do not question the reliability and trustworthiness of the child’s statements to Feller given the circumstances sur
Startling enough to produce nervous excitement and to render the utterance spontaneous and unreflecting.
Quoting 4 Weinstein, Evidence, ¶ 803(2)[01], pp 803-85 to 803-86; emphasis added.
Quoting Weinstein, supra, p 803-91; emphasis added.
I assume he was repeating the earlier statement. Curiously, the testimony of the children was not offered.
The "circumstances” include, but are not limited to, the similar statements made to others and the corroborative physical evidence both on complainant and at the scene. On the other hand, I do not believe judicial notice can be taken, as the trial court effectively did, that it would be "unusual and difficult” for a child of complainant’s age "to contrive facts of this nature.”
Reference
- Cited By
- 48 cases
- Status
- Published