People v. Eady , 409 Mich. 356 ( 1980 )

409 Mich. 356 (1980) 294 N.W.2d 202

PEOPLE
v.
EADY

Docket No. 63696.

Supreme Court of Michigan.

Decided July 16, 1980.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Anne B. Wetherholt, Assistant Prosecuting Attorney, for the people.

State Appellate Defender Office, by Janet Tooley, Assistant Defender, for the defendant.

PER CURIAM:

At defendant's trial, a police officer testified to information he received over a police radio concerning a citizen's telephone call to the police. The admission of this hearsay evidence was error. There is no radio run exception to the hearsay rule.

I

On January 25, 1977, defendant was convicted by a jury of second-degree criminal sexual conduct^[1] and assault with intent to commit criminal sexual conduct not involving penetration.^[2] He was sentenced to a term of 5 to 15 years imprisonment.

At trial, the complaining witness testified that she picked up defendant hitchhiking and drove him to a street where he said he lived. She agreed to talk with him for a few minutes and turned off the ignition to the car. Within a few minutes, defendant began to assault her. She testified that she screamed, honked the car horn, and struggled with defendant for approximately one-half hour before the police arrived. Defendant testified that the complainant consented to his advances but became embarrassed and started honking the horn after the police arrived.

Over defendant's objection, one of the officers arriving on the scene testified that they were responding to a radio report from a dispatcher who repeated a telephone report of someone screaming and honking a car horn in that vicinity. The trial judge admitted this testimony into evidence on the basis that "[w]hat comes over the radio is an exception to the hearsay rule".

On appeal, the Court of Appeals reasoned that the admission of the testimony concerning the statements about screaming and a horn honking was an error because there is no "radio run" exception to the hearsay rule. However, the Court found that defendant waived any objection to the admissibility of this testimony by objecting to the prosecutor's midtrial attempt to indorse the person who telephoned the police. Accordingly, the conviction was affirmed.

II

An extrajudicial statement offered into evidence to prove the truth of the matter asserted is hearsay.^[3] The statement by the police dispatcher that a person called and reported screaming and a horn honking was admitted to prove that the complainant was screaming and honking the horn before the police arrived. Since this statement was offered to prove the truth of the matter asserted, it was hearsay.

Hearsay evidence is not admissible except as provided by the rules of evidence.^[4] There is no exception to the hearsay rules for statements transmitted by a police radio. These statements were not admissible merely because they were transmitted by a police radio.

Although there is no "radio run" exception to the hearsay rule, there are instances in which evidence of statements transmitted over the radio is offered for purposes other than to prove the truth of the matter asserted. Statements transmitted over a police radio may be admissible to demonstrate the listener's knowledge and motives if relevant to an issue in the case.^[5] Statements offered for such purposes are not hearsay. However, the statements in this case were not admissible on that basis. One can accept the prosecutor's contention that this evidence was introduced to demonstrate the basis for the officer's actions in arriving on the scene without agreeing that the substance of the radio call was admissible.

III

The admission of this hearsay testimony cannot be considered harmless error.^[6] Except for the admission of these hearsay statements, the only evidence on the determinative issue of consent was the testimony of the complainant and defendant. The issue of whether complainant screamed and honked the horn before the police arrived or only upon their arrival was crucial. The admission of the hearsay evidence placed unsworn statements before the jury. These statements supported the complainant's testimony and incriminated the defendant. Considering the evidence, the admission of these hearsay statements was not harmless.

Finally, unlike the Court of Appeals, we do not find persuasive the prosecutor's argument that defendant waived the right to object to the admission of this hearsay testimony by objecting earlier to the prosecutor's midtrial attempt to indorse the citizen who telephoned the police. Such an argument requires a defendant to give up his right to have witnesses properly indorsed, see MCL 767.40; MSA 28.980, in order to assert the right to have hearsay evidence excluded.

Accordingly, in lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we reverse defendant's conviction and remand for a new trial.

KAVANAGH, LEVIN, FITZGERALD, RYAN, and BLAIR MOODY, JR., JJ., concurred.

COLEMAN, C.J. (concurring in part; dissenting in part).

I agree that the testimony of an officer reporting a radio statement made by a police dispatcher who was repeating a telephone statement made by another is hearsay (double hearsay) under these facts.

I do not agree that the defendant should be permitted to object vigorously to the midtrial indorsement of the person (when she became known) who made the original call to the dispatcher, decline a continuance, and now complain that he was denied his right of confrontation, his right to a speedy trial, and his right to a verdict from the first jury impanelled. There is no showing that a speedy trial or a verdict by the first jury would have been denied.

The hearsay rule, MRE 801 et seq., is intended "to preserve the right to confront and cross-examine witnesses who make certain statements", as the Court of Appeals opinion noted. The fact that the person telephoning the police was present at the trial, albeit through a late indorsement, and available for examination by defendant is relevant to the determination of whether the admission of this evidence requires reversal. In this case, the fact that the person was available for interview and examination preserved defendant's right and opportunity to confront and cross-examine the witness. However, it is apparent that the defendant wished to prevent the testimony of the woman who allegedly reported hearing screams and a horn honking, and he now complains about a lack of confrontation. Admittedly, this strategy entailed good legal footwork, but I would not agree that we should permit form to prevail over substance.

I would affirm.

WILLIAMS, J., concurred with COLEMAN, C.J.

NOTES

[1] MCL 750.520c; MSA 28.788(3).

[2] MCL 750.520g; MSA 28.788(7). The trial judge vacated this second conviction as violating the prohibition of double jeopardy.

[3] MRE 801(c) provides:

"``Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."

Although this case was tried prior to the effective date of the Michigan Rules of Evidence, the rules considered in this case are based upon legal principles which predated the Michigan Rules of Evidence, see People v Wilkins, 408 Mich 69, 73; 288 NW2d 583 (1980).

[4] MRE 802.

[5] See Simpson v Burton, 328 Mich 557; 44 NW2d 178 (1950); People v Solomon, 47 Mich App 208; 209 NW2d 257 (1973), remanded on other grounds, 391 Mich 767; 214 NW2d 60 (1974); see, also, McCormick, Evidence (2d ed), §§ 249, 294, pp 588, 694; 6 Wigmore, Evidence (Chadbourn rev), § 1789, p 314. The list of permissible purposes in the text is not intended to be exhaustive.

[6] See People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972); MCL 769.26; MSA 28.1096; GCR 1963, 529.1.