People v. Cunningham ( 1976 )

Kavanagh, C. J.

(for reversal). This is an appeal from affirmance of defendant’s conviction of second-degree murder of her husband. MCLA 750.317; MSA 28.549. We reverse.

Defendant killed her husband with a rifle during a protracted family argument. Her defense was accidental shooting.

A police officer was permitted to testify that in response to a call from defendant he went to the defendant’s residence on January 22, 1971 where he found the defendant and her husband in the midst of a "family fight”. The decedent husband had explained a pistol protruding from his pocket as one he had taken from the defendant because she had threatened to shoot him.

The officer left, with the pistol, shortly after 3 p.m. At approximately 4 p.m. the same day, in response to another call by defendant, police returned and discovered Mr. Cunningham’s body lying in the doorway. Defendant was charged with murder.

At trial, the officer testified that during his 3 p.m. visit to defendant’s home the decedent

"stated then that he had taken the gun from her [defendant] because she had threatened to shoot him with it”.

Defense counsel made a belated objection to this testimony which was overruled. At the conclusion, of the first day of trial, defense counsel moved to strike the testimony as inadmissible hearsay, and moved for a mistrial, stating "we can’t cross-examine the decedent on this. There’s no way we can have any attack whether this is — was a lie or not, and yet it’s obviously extremely crucial to the decision of the jury in this case.”

The motions were denied. The court found the statement to be "clearly hearsay, but * * * the res gestae exception to the hearsay rule may apply. * * * [T]here was an occasion which was startling enough to exert excitement and to render the statements by the deceased spontanéous and unreflecting. It was made before there was time to contrive or misrepresent.”

The Court of Appeals agreed, finding that: "A review of the sequence of events leading to the fatal shooting convinces us that there was a circumstantial probability that the statement was trustworthy and admissible as part. of the res gestae”.

We are convinced that this conclusion is unwarranted and stems from a confusion of closely related concepts.

The use of the term "res gestae” in this context has properly been criticized. See, e.g., People v Randall, 42 Mich App 187; 201 NW2d 292 (1972); People v Jones, 38 Mich App 512, 515-516; 196 NW2d 817, 818-819 (1972). We agree with the observation of Justice Levin in People v Ivory Thomas, 14 Mich App 642, 654-655; 165 NW2d 879 (1968) (concurring):

"A more neutral, and for that reason more accurate, rubric than either ’res gestae’ or 'spontaneous exclamation’ is the one adopted by Professor McCormick — 'excited utterance.’ McCormick on Evidence, § 272, p 578. Since courts generally hold admissible under this exception the statements of an excited person * * * this definitional refinement is a welcome advance toward clarity.”

In this case, it is clear that the decedent’s statement was admitted under the "excited utterance” exception.

The standards for admissibility of such statements were stated in Rogers v Saginaw B C R Co, 187 Mich 490, 493-494; 153 NW 784 (1915):

"The exception is based upon the fact that such exclamations, by virtue of their origin, have peculiar trustworthiness. It is well established by the authorities that the only conditions upon which such statements will be allowed in evidence are (1) that there is a startling occasion, startling enough to produce nervous excitement, and render the utterance spontaneous and unreflecting; (2) that the statement must have been made before there has been time to contrive and misrepresent; and (3) the statement must relate to the circumstances of the occurrence preceding it.”

See also, People v Ivory Thomas, supra; FRE 803(2).

The rationale for this exception is stated by Dean McCormick to be "the special reliability which is regarded as furnished by the excitement suspending the declarant’s powers of reflection and fabrication”. McCormick on Evidence (2d ed), p 704.

Wigmore states: "Since this utterance is made * * * during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance is taken as particularly trustworthy * * * ”. 6 Wigmore on Evidence (Chadbourn rev), § 1747, p 195.

As Justice Levin recognized in People v Ivory Thomas, supra:

"Freed of the difficulty that can be caused by use of the terms ’res gestae’ and 'spontaneous,’ this exception, the 'excited utterance’ exception, stands clear as the simple principle which Wigmore originally enunciated, i.e., when a person participates in a startling or shocking experience, the emotional excitement generated in him may render him unable or unlikely to fabricate concerning his experience. Like so much else which seeks to explain human conduct, this cannot be stated as a certainty, but it can create a circumstantial probability of trustworthiness.” 14 Mich App at 655; 165 NW2d 879 (1968). (Levin, J., concurring.)

In this case decedent was attempting to explain to a police officer investigating a family fight why he had a loaded gun in his pocket. When measured against the criteria for admissibility as an excited utterance, and against the rationale for that hearsay exception, it is apparent that decedent’s statement was not admissible. It was not made immediately after a startling event to which it related. It was not "spontaneous and unreflecting”. It was made after there was time to contrive and misrepresent, and after time for consideration of self-interest.

"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, and where the time interval permitted such thought these factors might swing the. balance in favor of exclusion.” McCormick, supra, p 706. See also, People v Ivory Thomas, supra (Levin, J., concurring); Rice v Jackson, 1 Mich App 105; 134 NW2d 366 (1965).

This statement was made at a time and in such circumstances that it was not admissible as an excited utterance. The prosecution also argues that because the challenged statement of the decedent "was made not only in appellant’s presence, but also as part of a conversation and debate in which she herself took quite an active role, such statement was not hearsay evidence as to her”. We explicitly reject that argument.

Hearsay is an extrajudicial statement which is offered to prove the truth of the thing said. People v Hallaway, 389 Mich 265, 275; 205 NW2d 451 (1973) .

"One widely held myth about the hearsay rule is that an out-of-court statement is not hearsay if it was made in the presence of a party and hearsay if not made in his presence.” Robinson, Civil and Criminal Evidence, 20 Wayne L Rev, 391, 398 (1974) .

Judge Danhof pertinently recognized in People v Sixty-Eighth District Judge, 44 Mich App 553, 554, fn 1; 205 NW2d 608 (1973),

"the widespread and unfortunate misconception that the distinguishing factor of hearsay is the presence or absence of a party to the action at the time the statement is made. McCormick calls this idea a bit of courthouse folklore. McCormick, Evidence (2d ed), §246, p 586. Perhaps stronger language is in order.”

The testimony in question was clearly hearsay. In fact, it was "double hearsay”, consisting of the police officer testifying as to what the decedent told him concerning defendant’s threats.

Finally, the prosecutor argues that even if the statement was improperly admitted, any resulting error was harmless because defendant herself told the officer that she "might load this gun and shoot [the decedent]”. Thus, the testimony of the officer concerning decedent’s statement was merely cumulative or corroborative on the issue of defendant’s intent.

We disagree.

The statement was offered to show that defendant had threatened to shoot her husband, and thereby make it more believable that she murdered him.

The state has not demonstrated beyond a reasonable doubt that this inadmissible hearsay testimony concerning decedent’s statement did not contribute to defendant’s conviction. People v Robinson, 386 Mich 551; 194 NW2d 709 (1972); People v Liggett, 378 Mich 706, 717; 148 NW2d 784 (1967). The admission of this statement, with no opportunity in the presence of the jury for the defendant to challenge the person who made it, denied defendant a fair trial.

The conviction is reversed. The cause is remanded for further proceedings.

Levin and Ryan, JJ., concurred with Kavanagh, C. J.