People v. Hendrickson ( 1998 )

586 N.W.2d 906 (1998) 459 Mich. 229

PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Charles Emil HENDRICKSON, Defendant-Appellee.

Docket No. 110397, Calendar No. 10.

Supreme Court of Michigan.

Argued October 7, 1998. Decided December 28, 1998.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Gary L. Walker, Prosecuting Attorney, and Terrence E. Dean, Assistant Prosecuting Attorney, Marquette, MI, for the people.

Lynn M. Jovanovich, Marquette, MI, Mark Peter Stevens, Marquette, MI, and Stuart Friedman, Ann Arbor, MI for the defendant-appellee.

Norm Donker, President, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief, Research, Training and Appeals, Detroit, MI, amicus curiae for Prosecuting Attorneys Association of Michigan.

MARILYN J. KELLY, J.

We granted leave in this case to determine (1) whether independent evidence of a beating was required before a 911 audiotape recording about the beating could be admitted under the present sense impression exception to the rule barring hearsay, and (2) whether photographic evidence depicting the victim's injuries presented independent evidence of the beating.

We find that the photographs of the victim depicting injuries consistent with the allegations of assault provide independent evidence that the assault occurred. Therefore, we conclude that the recording of the victim's statement that defendant had just beaten her is admissible under the present sense impression exception to the rule barring hearsay. The trial court did not abuse its discretion in admitting the recording.

I. FACTUAL AND PROCEDURAL BACKGROUND

On the evening of October 8, 1994, defendant and his live-in girlfriend, the victim, met at a bar in Republic, Michigan. Apparently, the two began arguing after the intoxicated victim noticed defendant's former girlfriend in the bar. After hearing a slap, a waitress overheard defendant exclaim, "Please don't hit me again." As defendant and the victim prepared to leave, the victim told the waitress to "call 911." The waitress also noticed the victim's arm reappear in the doorway after she left, indicating that she may have fallen while leaving.

At 12:43 a.m., the victim telephoned 911 and stated, "I want someone to pick up Charles Hendrickson from Republic." After the dispatcher inquired regarding what defendant had done, the victim responded, "I have just had the living s—beat out of me." She also informed the dispatcher that defendant was "leaving the house now" and that she was leaving to seek medical treatment.

At approximately 7:00 a.m., a state trooper interviewed the victim regarding the 911 call. Visibly shaken, the victim informed the trooper that defendant had grabbed her around the neck, thrown her to the floor, and pummeled her. Consistent with the victim's allegations, the trooper observed bruising on the left side of her neck and swelling on the right side of her lip. There was bruising and swelling on her left eye and lacerations on her chin, left eye, and the inside of her lip. During the course of the interview, the trooper photographed the injuries. The prosecution charged defendant with one count of domestic violence under M.C.L. § 750.81(2); MSA 28.276(2).

The day after defendant had been charged, the victim recanted her statement to the police, asserting that she had made a mistake. She claimed the incident had been her fault and had occurred in the parking lot outside the bar rather than at her residence. Consistent with its "no drop" policy for domestic abuse cases, the prosecution proceeded with its case against defendant.

Some days afterward, the victim informed a victim/witness coordinator with the prosecutor's office that she had lied about the assault and was angry that authorities disbelieved her. She later informed the prosecutor's office, through counsel, that she intended to assert her Fifth Amendment privilege against self-incrimination^[1] if called to testify.

At trial, over defendant's objection, the district court permitted the prosecution to introduce the 911 audiotape as evidence of the assault. It concluded that the victim's statements fit within the present sense impression exception to the exclusionary hearsay rule. It also admitted the police photographs taken on October 9 showing the victim's injuries.

During her testimony, the victim/witness coordinator explained that the victim had contacted her regarding domestic violence incidents on two previous occasions. Although the victim informed the coordinator that defendant assaulted her on March 17, 1994, she later recanted. On April 7, 1994, the victim reported another assault and informed the coordinator that "she was tired of being [defendant's] punching bag." Defendant was convicted of assault and battery on the basis of the April 7 assault. The prosecution also introduced photographs of the victim taken after the assaults.

At the conclusion of trial, the jury found defendant guilty of domestic violence for the October 9 assault. However, the circuit court reversed the conviction, concluding that the district court had abused its discretion in admitting the 911 audiotape. It explained that the victim's statement could not be admitted as a present sense impression without independent evidence establishing the assault. Without the 911 audiotape, the circuit court ruled, there was no evidence of an assault.

The Court of Appeals affirmed, concluding that the victim's statements lacked sufficient indicia of reliability to qualify under the present sense impression exception to the rule barring hearsay. Noting the absence of independent evidence corroborating complainant's statements, the Court of Appeals concluded that the district court had abused its discretion by admitting the 911 audiotape.

Dissenting, Judge Markman stated that the present sense impression exception does not require corroborating evidence of the perceived event. Notwithstanding this determination, he reasoned that the photographs depicting the victim's injuries represented corroborating evidence that an assault had occurred. Therefore, he found that the district court did not abuse its discretion in admitting the 911 audiotape.

II. ANALYSIS

A. PRESENT SENSE IMPRESSION

We review a trial court's decision to admit evidence for an abuse of discretion. People v. Bahoda, 448 Mich. 261, 288-289, 531 N.W.2d 659 (1995). An abuse of discretion exists when "an unprejudiced person," considering "the facts upon which the trial court acted, [would] say that there was no justification or excuse for the ruling made." Detroit Tug & Wrecking Co. v. Gartner, 75 Mich. 360, 361, 42 N.W. 968 (1889).

In determining whether an abuse of discretion occurred, we consider if the 911 audiotape recording of the victim's statement that defendant had just beaten her constituted a present sense impression. Pursuant to MRE 803(1), a statement "describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter" is excepted from the rule barring hearsay evidence. MRE 803(1) is identical in its wording to the federal rule, FRE 803(1). The principle underlying this exclusion is that the "substantial contemporaneity of event and statement negate the likelihood of deliberate or conscious misrepresentation." FRE 803(1) advisory committee's note; see also United States v. Campbell, 782 F. Supp. 1258, 1260 (N.D.Ill., 1991).

Present sense impressions are presumed to be trustworthy because (1) the simultaneous event and description leave no time for reflection, (2) the likelihood for calculated misstatements is minimized, and (3) generally, the statement is made in the presence of another witness who has the opportunity to observe and verify its accuracy.^[2]United States v. Narciso, 446 F. Supp. 252, 288 (E.D.Mich., 1977); People v. Brown, 80 N.Y.2d 729, 732-733, 594 N.Y.S.2d 696, 610 N.E.2d 369 (1993).

The admission of hearsay evidence as a present sense impression requires satisfaction of three conditions: (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.

United States v. Mitchell, 145 F.3d 572, 576 (C.A.3, 1998); Campbell, supra at 1260.

In this case, the 911 audiotape recording contains the victim's statement that she had just been beaten. The first condition is satisfied because the victim explained the perceived event, the beating. The second condition is satisfied because the victim personally experienced the beating.

The third condition requires that the statement be substantially contemporaneous with the beating. MRE 803(1) provides that a statement may be admitted if made while "perceiving the event or condition, or immediately thereafter." However, the exception "recognizes that in many, if not most, instances precise contemporaneity is not possible and hence a slight lapse is allowable." FRE 803(1) advisory committee's note; Campbell, supra at 1260.

Consistent with this analysis, we have concluded that a four-minute interval between the perceived event and a declarant's statement satisfied the "immediately thereafter" condition. Johnson v. White, 430 Mich. 47, 56, 420 N.W.2d 87 (1988). In United States v. Mejia-Velez,^[3] a New York federal district court found that sixteen minutes between the perceived event and the statement satisfied the "substantially contemporaneous" condition.

In the case under consideration, the 911 recorded victim's statement was that the beating had just taken place; the defendant was in the process of leaving the house as the victim spoke. If true, the remarks were substantially contemporaneous with the actual beating. Federal authorities have concluded that similar language satisfies the federal standard. See United States v. Hawkins, 59 F.3d 723, 730 (C.A.8, 1995), vacated on other grounds 516 U.S. 1168, 116 S. Ct. 1257, 134 L. Ed. 2d 206 (1996). In Hawkins, the declarant telephoned 911 and stated, "[M]y husband just pulled a gun on me." In Campbell, supra at 1260, the declarant telephoned 911 and stated, "I just had a man shoot at another...." Therefore, we find that, in this case, as in Hawkins and Campbell, the contemporaneous requirement was satisfied.

The victim's statement satisfies the three conditions to constitute a present sense impression, but may it provide its own foundation for admissibility? The concurrence accurately states the three competing viewpoints regarding the necessity of corroboration: (1) the corroboration requirement should be rejected; (2) strict corroboration should be required, necessitating a percipient witness;^[4] and (3) corroboration should be required and will suffice if it assures the reliability of the statement. See People v. Brown, supra, pp. 735-736, 594 N.Y.S.2d 696, 610 N.E.2d 369. We adopt the third viewpoint and conclude that the sufficiency of the corroboration depends on the particular circumstances of each case. Id., at 737, 594 N.Y.S.2d 696, 610 N.E.2d 369.

We recognize that the "`present sense impression' exception is a close relative of the analytically similar `excited utterance' exception" to the rule barring hearsay. People v. Vasquez, 88 N.Y.2d 561, 574, 647 N.Y.S.2d 697, 670 N.E.2d 1328 (1996). In fact, "both are members of a larger category of exceptions that were formerly grouped together and classified, inaptly, as res gestae...." Id.

In People v. Burton,^[5] we held that an excited utterance could not establish its own underlying event. Because of our aversion to the "bootstrapping" of hearsay evidence, we concluded that an excited utterance was inadmissible without independent proof, direct or circumstantial, that the underlying event took place. Id., 282, 294, 445 N.W.2d 133. Given the analytical similarity between the present sense impression and excited utterance exceptions, we conclude that their independent evidence requirements are similarly analogous. Applying this rationale to the immediate case:

We turn now to the question whether the evidence which may be considered apart from the purported [present sense impression] proves by a preponderance of the evidence that the underlying event occurred.^[6] [Id., 295, 445 N.W.2d 133 (emphasis added).]

We conclude that admission of the recording requires independent evidence that the assault occurred before it may be admitted as a present sense impression.

B. INDEPENDENT PROOF

The question becomes did the photographs^[7] depicting the victim's injuries represent independent evidence that the assault occurred? In Burton, this Court examined whether hearsay statements were admissible as excited utterances under MRE 803(2) without independent evidence of the startling event. Id., 271, 445 N.W.2d 133. The excited utterances sought to be admitted were statements by the complainant, later recanted, alleging that the defendant had sexually assaulted her. Id. The independent evidence of the alleged sexual assault that was offered showed no more than a "stressful event with sexual connotations." Id., 299, 445 N.W.2d 133. It consisted of evidence that defendant attempted to remove the complainant's underwear and shoes from his home and a description of the complainant's physical appearance when making her allegations. Id., 297, 445 N.W.2d 133.

We find the present case distinguishable on the basis of the independent evidence establishing the assault. In this case, photographs showing the victim's injuries were taken near the time the beating is alleged to have occurred. In addition, the injuries depicted in the photographs were consistent with the type of injuries sustained after a beating. Therefore, we conclude that the photographs provide credible independent evidence of the assault, permitting the admission of the victim's statement as a present sense impression.

This analysis is consistent with that made in other jurisdictions. In People v. Brown,^[8] an anonymous 911 telephone call, admitted under the present sense impression exception, was found to have been sufficiently corroborated by testimony of police officers arriving shortly after the call. In People v. Chaparro,^[9] the testimony of a police officer provided adequate corroboration to permit admission of a 911 telephone call.

Therefore, the recording in this case was admissible as a present sense impression exception to the rule barring hearsay, because the injury photographs presented credible independent evidence of the assault. We note also that, because the admission was made "under a firmly rooted hearsay exception," it satisfied the constitutional requirement of reliability. Idaho v. Wright, 497 U.S. 805, 817, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990). Consequently, the trial court did not abuse its discretion.

III. CONCLUSION

We reverse the decision of the Court of Appeals and hold that the district court properly admitted the 911 audiotape recording. Defendant's conviction and sentence are hereby reinstated.

MALLETT, C.J., and MICHAEL F. CAVANAGH, J., concurred with MARILYN J. KELLY, J.

BOYLE, J. (concurring).

I agree with the lead opinion that the statement in this case is properly admissible under the present sense impression exception to the general ban on hearsay evidence.

I write separately, however, because I disagree that the present sense impression exception requires corroborative evidence of the underlying event as a prerequisite to admissibility. In my view, the reliability of the evidence is demonstrated by the contemporaneity between the event and the out-ofcourt statement. Therefore, I would reject any artificial imposition of additional requirements to the admissibility of evidence other than the requirements found in the evidentiary rule itself. The majority's imposition of an extrinsic corroboration requirement confuses the admissibility of the evidence with the weight to be given to the evidence, which is properly a determination for the trier of fact. More fundamentally, it reveals a distrust of the factfinder at odds with the philosophy underlying the rules to promote the discovery of truth by admitting all relevant evidence. MRE 102.

Relying on People v. Burton,^[1] the lead opinion states that, because the present sense impression exception and the excited utterance exception are "analytically" similar, "the `independent' evidence requirements are similarly analogous." Op. at 909. I continue to believe that Burton was erroneously decided, and the excited utterance exception requires no independent corroborative evidence. However, even if Burton is not reconsidered, it is unnecessary to impose a corresponding requirement on the present sense impression exception. Application of the narrowly drawn contemporaneity requirement for present sense impressions offers adequate assurances of reliability.

Under MRE 104(a), preliminary factual questions of admissibility are determined by the trial court utilizing a preponderance-of-the-evidence standard.^[2] In making a preliminary determination of admissibility, the trial judge may consider all available evidence, including otherwise inadmissible evidence.^[3] Furthermore, pursuant to MRE 1101(b)(1), the rules of evidence do not apply to determinations of preliminary fact under Rule 104(a). The role of the Rule 104(a) determination is not to determine the defendant's guilt; rather, the purpose is merely to determine whether the preliminary fact has been established by a preponderance of the evidence.

MRE 803(1), which is identical to its federal counterpart, states:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

I agree with the lead opinion regarding the elements required for a statement to be admissible as a present sense impression.^[4] However, in stark contrast to the explicit language contained in MRE 801(d)(2)(E) and 804(b)(3), the requirement of extrinsic corroboration is clearly and conspicuously absent from the language of the rule itself or the requisite elements. The contested statement made by the victim to the emergency dispatch operator, which on its face purports to have been contemporaneously made in conjunction with an assault, is itself evidence that the assault occurred.

The lead opinion errs in holding that the statement "requires independent evidence that the assault occurred before it may be admitted as a present sense impression." Under the majority view, other corroborating evidence of the existence of the perceived event is an absolute prerequisite to the admissibility of the evidence, not simply the weight properly given to it.^[5]

Professor McCormick, in discussing the parameters of the present sense impression exception, discredited the requirement of a corroboration requirement and observed:

The suggestion has been made that corroboration by an "equally percipient" witness should be a further requirement for admitting statements of present sense impression into evidence. The proposal represents a significant departure from the general pattern of exceptions to the hearsay rule. The only instance in which a requirement of corroboration is found is where a statement against penal interest by a third person—a third-party confession—is offered by way of exculpation of an accused person.... The present sense impression exception presents no such need. Its underlying rationale offers sufficient assurances of reliability without the additional requirement of corroboration, and neither the Federal Rule nor the decisions have required it.[^[6]]

Likewise, Professor Weinstein states that extrinsic corroboration is not a requirement for the admissibility of present sense impression evidence; the presence of corroborative evidence "is a factor the court may consider in determining whether a statement not exactly contemporaneous qualifies for admission."^[7]

The case cited by the lead opinion, People v. Brown,^[8] which involved an unidentified declarant, required corroborative evidence in order to "assure the court that the statements sought to be admitted were made spontaneously and contemporaneously with the events described."^[9] The court also stated that "when statements are admitted under the present sense exception without the assurance of reliability that excitement affords, it is reasonable and prudent to require some additional indicia of reliability."^[10] The opinion fails to acknowledge that excitement is not an element of the present sense impression exception; rather, it is an element of the excited utterance exception. If excitement were the only measuring stick of reliability, then all the hearsay exceptions, save the excited utterance exception, would be rendered unreliable. Each exception to the general ban on hearsay has its own characteristics and underlying rationale that lends sufficient assurances of reliability; no one exception, or element within the exception, stands as the exclusive index of reliability.

One commentator, discussing the justification of imposing an extrinsic corroboration requirement on the present sense impression exception, noted:

The present sense impression exception is a means to admissibility under the Federal Rules, and not a test of credibility. Credibility of these types of exclamations obviously affected the development of the various categories of exceptions, but now we have a categorical approach to ensure judicial economy concerning questions of admissibility. There is no theoretically sound reason for 803(1) to have an additional corroboration requirement. Proper care that the requirements of 803(1) are met, coupled with the guarantees built into other sections of the Rules, would ensure that the present sense impression does not become overly "capacious."... If a statement comes within the exception, and does not offend the other rules, it should be admitted.... [T]hese rules possess sufficient guarantees of trustworthiness within their contours such that an additional requirement of extrinsic corroboration is unnecessary. Casting the present sense impression exception aside by adding an additional element for admission has not been appropriately justified.[^[11]]

There are three competing viewpoints on the necessity of corroboration: the first group rejects a corroboration requirement,^[12] the second group finds that corroboration is a factor tending to assure trustworthiness,^[13] and the third group requires strict corroboration.^[14] Some jurisdictions that take the intermediate view of corroborative evidence as a reliability factor do not bar the admission of evidence on the basis of a lack of corroboration.^[15]

Admittedly, there is a divergence of opinion about the requirement of corroborating evidence as a prerequisite to the admissibility of present sense impressions. This Court has held that the Michigan Rules of Evidence are a codification of the rules of evidence; any common-law variances of the evidentiary rules have been superseded by the Michigan Rules of Evidence.^[16] Furthermore, at the time the Michigan Rules of Evidence were adopted, this Court was presumed to have had knowledge of the variance of opinion regarding extrinsic corroboration and chose not to require a corroboration requirement.^[17]

Certainly, corroborative evidence enhances the weight and reliability of an out-ofcourt statement. In addition, the trier of fact will have the benefit of an additional witness concerning the events surrounding the statement. However, while the existence of corroborative evidence may add more weight and reliability to the out-of-court statement, the converse does not hold true: A lack of corroborative evidence does not render the statement unreliable. Neither the plain language of the evidentiary rule nor the relevant treatises militate in favor of requiring corroboration as an absolute prerequisite to admissibility. The availability of extrinsic corroborative evidence is relevant to the weight, not the admissibility of the evidence. Moreover, the consequence of such an unfounded and unnecessary requirement is that many trustworthy statements would be excluded simply out of adherence to a formula premised on an unfounded distrust^[18] of the finder of fact.^[19]

Because I would hold that the evidence in this case was properly admitted under the present sense impression exception to the general ban on hearsay evidence, and that no extrinsic corroborative evidence was required, I concur with the majority.

WEAVER and TAYLOR, JJ., concurred with BOYLE, J.

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 N.W.2d 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, 445 N.W.2d 133.

I

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 content of the utterance itself. Id., p. 282, 445 N.W.2d 133. 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, 445 N.W.2d 133, quoting People v. Vega, 413 Mich. 773, 780, 321 N.W.2d 675 (1982), quoting Glasser v. United States, 315 U.S. 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, 445 N.W.2d 133, quoting People v. Cunningham, 398 Mich. 514, 519, 248 N.W.2d 166 (1976), citing Rogers v. Saginaw-Bay City Ry. Co., 187 Mich. 490, 493-494, 153 N.W. 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, 445 N.W.2d 133 (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 distinction between corroboration of the reliability of the statement itself, and corroboration that the statement was made under conditions that satisfy the hearsay exception.

II

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, 445 N.W.2d 133. 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] Op., p. 908, quoting FRE 803(1) advisory committee's note; citing United States v. Campbell, 782 F. Supp. 1258, 1260 (N.D.Ill., 1991).

Therefore, the extrinsic evidence requirement demands some showing, outside the contents of the disputed 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 hours before the statement was made.... In such an event, the element of spontaneousness is absent.'" Burton, supra, p. 280, 445 N.W.2d 133, quoting Rogers, supra, p. 494, 153 N.W. 784. 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, 445 N.W.2d 133.

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.

III

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 traditional 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 about 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 disputed 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, 445 N.W.2d 133. 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.

NOTES

[1] US Const, Am V.

[2] We recognize that, in this case, the 911 audiotape statement lacks this component of trustworthiness because the speaker was alone and made the statement to a dispatcher over the telephone. The dispatcher was unable to observe and verify the statement's accuracy.

[3] 855 F. Supp. 607 (E.D.N.Y., 1994).

[4] Contrary to the position of the dissent, we reject strict corroboration requiring a percipient witness, such as a neighbor or police officer. Op., p. 917.

[5] 433 Mich. 268, 445 N.W.2d 133 (1989).

[6] The position of the dissent appears to contradict the plain language of Burton when it states, "[The extrinsic evidence] requirement is not satisfied by evidence that the described act occurred." Op., p. 915.

[7] Generally, a perceived event is presumed to have occurred because a witness was present, observed, and can verify the statement's accuracy. Narciso, supra at 288; Brown, supra at 732-733, 594 N.Y.S.2d 696, 610 N.E.2d 369. Therefore, we recognize that independent evidence of the perceived event normally will be established by another witness who can testify about the accuracy of the declarant's statement.

[8] 80 N.Y.2d at 736, 594 N.Y.S.2d 696, 610 N.E.2d 369.

[9] 246 A.D.2d 339, 667 N.Y.S.2d 349 (1998).

[1] 433 Mich. 268, 445 N.W.2d 133 (1989).

[2] Bourjaily v. United States, 483 U.S. 171, 175, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987)("We are therefore guided by our prior decisions regarding admissibility determinations that hinge on preliminary factual questions. We have traditionally required that these matters be established by a preponderance of proof.... Thus, the evidentiary standard is unrelated to the burden of proof on the substantive issues, be it a criminal case... or a civil case.... The preponderance standard ensures that before admitting evidence, the court will have found it more likely than not that the technical issues and policy concerns addressed by the Federal Rules of Evidence have been afforded due consideration").

[3] MRE 104(a) states that "[i]n making its determination [the court] is not bound by the Rules of Evidence except those with respect to privileges."

[4] Op. at 908. See also Passannante, Res gestae, The present sense impression exception and extrinsic corroboration under federal Rule of Evidence 803(1) and its state counterparts, 17 Fordham Urb L J 89, 99 (1989).

[5] Justice Brickley's attempt to elevate an extrinsic evidence requirement to the status of a "rule" is premised on the holding in Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942). It should be noted that Glasser predated the enactment of the Federal Rules of Evidence. Furthermore, Bourjaily explicitly held that the holding in Glasser was superseded by the enactment of Rule 104(a). "We think that the Rule is sufficiently clear that to the extent that it is inconsistent with petitioner's interpretation of Glasser and Nixon, the Rule prevails." Bourjaily, supra, 483 U.S. at 178-179 n. 2, 107 S. Ct. 2775. See United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974).

[6] 2 McCormick, Evidence (4th ed), § 272, pp 214-215.

[7] 4 Weinstein, Evidence, ¶ 803(1)[01], p 803-92. Likewise, Graham, Federal Practice & Procedure, (interim ed) § 6752, pp 270-271, also states that extrinsic corroboration is not a prerequisite to the admissibility of evidence under the present sense impression exception. "Moreover the evidence establishing that the declarant actually made a statement describing or explaining an event or condition while perceiving the event or immediately thereafter may consist solely of the statement itself considered in light of surrounding circumstances, although hesitancy has been shown by courts in admitting such statements without more when the identity of the declarant is unknown." (Emphasis added.) See also the Advisory Committee Notes to FRE 803(1) ("If the witness is not the declarant, he may be examined as to the circumstances as an aid in evaluating the statement").

[8] 80 N.Y.2d 729, 594 N.Y.S.2d 696, 610 N.E.2d 369 (1993).

[9] Id. at 737, 594 N.Y.S.2d 696, 610 N.E.2d 369.

[10] Id. at 736, 594 N.Y.S.2d 696, 610 N.E.2d 369.

[11] Passannante, n 4 supra, pp 115-116.

[12] See United States v. Mejia-Valez, 855 F. Supp. 607 (E.D.N.Y.1994); State v. Jones, 311 Md. 23, 532 A.2d 169 (1987); United States v. Obayagbona, 627 F. Supp. 329 (E.D.N.Y., 1985); United States v. Medico, 557 F.2d 309 (C.A.2, 1977); State v. Flesher, 286 N.W.2d 215 (Iowa 1979); Commonwealth v. Coleman, 458 Pa. 112, 326 A.2d 387 (1974).

[13] See United States v. Blakey, 607 F.2d 779 (C.A.7, 1979), overruled in part on other grounds, Idaho v. Wright, 497 U.S. 805, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990); Robinson v. Shapiro, 484 F. Supp. 91 (S.D.N.Y., 1980), judgment affirmed and modified on other grounds by 646 F.2d 734 (C.A.2, 1981); United States v. Narciso, 446 F. Supp. 252 (E.D.Mich., 1977); MCA, Inc. v. Wilson, 425 F. Supp. 443 (S.D.N.Y., 1976), judgment affirmed and modified on other grounds by 677 F.2d 180 (C.A.2, 1981); State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995).

Among jurisdictions that look at corroboration as a factor tending to enhance reliability, there is a divergence regarding what must be corroborated. In Blakey, the court held that "[i]t is not necessary that the witnesses be in the same position to observe as the declarant; it is only necessary that the witnesses be able to corroborate the declarant's statement." Id. at 785. In this case, in addition to the dispatch operator hearing the statement, the statement was recorded; therefore, there is no doubt that the statements at issue in this case were actually made.

[14] See People v. Watson, 100 A.D.2d 452, 474 N.Y.S.2d 978 (1984) In re Japanese Electronic Products, 723 F.2d 238 (C.A.3, 1983), rev'd on other grounds sub nom Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986), abrogated on other grounds by Pfeiffer v. School Bd. for Marion Center Area School Dist., 917 F.2d 779 (C.A.3, 1990). While In re Japanese Electronic Products cites Weinstein for the proposition that the present sense impression exception requires corroboration, there is no requirement in the treatise. See Weinstein, Evidence § 803(1)[01], p 803-92. The other case cited in the opinion, Houston Oxygen Co. v. Davis, 139 Tex. 1, 161 S.W.2d 474 (1942), predated the adoption of the Federal Rules of Evidence.

[15] See State v. Phillips, supra at 579 n. 13, 461 S.E.2d 75. "Thus, we find that it is within the discretion of a trial court to consider corroborating evidence `in determining whether a statement not exactly contemporaneous qualifies for admission.' ... By adopting this corroboration element, we do not mean to suggest that a separate showing of trustworthiness is required for a statement to be admissible. A descriptive statement made by a percipient declarant contemporaneous with an event is sufficient to justify admissibility."

[16] People v. Kreiner, 415 Mich. 372, 329 N.W.2d 716 (1982). See also People v. Starr, 457 Mich. 490, 502, n. 12, 577 N.W.2d 673 (1998).

[17] Where this Court chose to deviate from the language of the Federal Rules of Evidence and impose an independent corroboration requirement, it did not hesitate to do so. Compare MRE 801(d)(2)(E) to FRE 801(d)(2)(E).

[18] Empirical studies refute the notion that jurors are incapable of distinguishing the relative strengths and weaknesses of hearsay evidence. See Kovera, Jurors' perceptions of eyewitness and hearsay evidence, 76 Minn L R 703, 719-722 (1992); Miene, Juror decision making and the evaluation of hearsay evidence, 76 Minn L R 683, 693-699 (1992); Rakos, Researching the hearsay rule: Emerging findings, general issues, and future directions, 76 Minn L R 655, 664 (1992). One commentator noted:

In sum, the "trustworthiness problem" with hearsay, the "danger of overvaluation," and the "four traditional hearsay risks" are all expressions of the same premise: There are problems in evaluating hearsay a jury cannot or will not comprehend, even after closing argument highlights those difficulties. To claim that such problems exist means one can think of a hearsay statement that jurors would mishandle for a reason they could not appreciate, even if it were explained to them. This reflects an eighteenth-century class arrogance sorely out of place in today's society. [Milich, Hearsay antimonies: The case for abolishing the rule and starting over, 71 Or L R 723, 771-772 (1992).]

[19] While I agree with Justice Brickley that some of the evidentiary rules operate to preclude the admission of otherwise competent and trustworthy statements, slip op. at 916, n. 3, his statement fails to acknowledge that the other rules, codified in the Michigan Rules of Evidence, were formulated out of concerns different from those present in this case. Those concerns are embodied in the language of the rule itself and the subsequent advisory committee notes. Here, there is no contention that present sense impressions, or any other hearsay exception, are on their face unduly untrustworthy, prejudicial, or inflammatory. If the drafters of the evidentiary rules had considered them to be so, then present sense impressions would undoubtedly be limited or precluded as well. The effort by my colleague to impose by judicial fiat an extrinsic evidence requirement on hearsay exceptions in direct contravention of the clear and unambiguous language of MRE 104(a) is based primarily on distrust of the factfinder and the trial court judge, rather than any deficit in the rule itself.

Requiring an extrinsic evidence requirement would mean that a trial court could not consider hearsay statements at all in determining preliminary questions of admissibility. Taken to its logical conclusion, the effect of this requirement would rob the hearsay exceptions of most, if not all of their utility. For example, one wonders what sort of extrinsic proofs would be necessary in order to admit a statement under MRE 803(8) (public records and reports), MRE 803(11) (records of religious organizations), or MRE 803(16) (statements in ancient documents).

[1] 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 declarant must personally perceive the event, (2) the explanation or description must be `substantially contemporaneous' with the event, and (3) the statement must provide an explanation or description of the perceived event." Op., p. 917, citing United States v. Mitchell, 145 F.3d 572, 576 (C.A.3, 1998), and United States v. Campbell, 782 F. Supp. 1258, 1260 (N.D.Ill., 1991); see concurring opinion of Boyle, J., p. 911.

The first and the third 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 second criterion has not been satisfied, however, as I discuss herein.

[2] 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).

[3] 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 distrust of the finder of fact." Op., p. 914. 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").

[4] 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 N.W.2d 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 F.3d 723, 730 (C.A.8, 1995) (neighbors placed a 911 call complaining of disturbance in complainant's apartment at 1:07 a.m.; complainant's 911 call, from which a present sense impression statement was taken, was made at 1:14 a.m.); United States v. Blakey, 607 F.2d 779, 785 (C.A.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 (E.D.N.Y., 1994) (confirming that both 911 calls in question were within two minutes of the shooting that they described); People v. Brown, 80 N.Y.2d 729, 730, 594 N.Y.S.2d 696, 610 N.E.2d 369 (1993) (taped 911 call described perpetrators and apprehension of them by the police; police arrived three minutes after call was initiated).