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April 30, 2008
Startling Opinion: Michigan Supreme Court Reverses Trial Court's Excited Utterance Ruling
The Michigan Supreme Court's recent opinion in People v. Barrett, 2008 WL 1701889 (Mich. 2008), contains an important discussion of what factual predicate must be established before a hearsay exception is applied. In Barrett, Suzanne Bartel, the longtime, live-in girlfriend of the defendant, David Carl Barrett, pounded on her neighbors' door, said that Barrett was chasing her with an ax, and asked to use their phone. Bartel was hysterical and crying, and her hysteria continued as she reported to the 911 operator that defendant had kicked the door in, beaten her, tried to strangle her, and brandished a hatchet.
When the first responding officer arrived, Bartel similarly told him that Barrett had punched a hole in the bedroom door, pinned her to the bed, began hitting her face, picked up a hatchet, grabbed her around the neck, raised the hatchet, and said he was going to kill her. The officer observed that Bartel was so agitated that she could not sit down and that it was apparent that Bartel had been crying. When he and other officers searched Bartel's house, they found the hatchet in the house and a 12-inch hole in one of the doors. The officers observed marks on Bartel's shoulders and one arm and a cut on the inside of her mouth.
Barrett was charged with domestic assault and felonious assault, but at the preliminary examination, Bartel refused to testify. Faced with the prospect of a dismissal of the charges because of insufficient proof, the prosecuting attorney attempted to have the statements Bartel made to the 911 operator, one of the neighbors, and the police officer admitted as excited utterances under Michigan Rule of Evidence 803(2). This rule is an exception to the rule against hearsay and allows for the admission of statements relating to startling events and conditions made while the declarant was under the stress of the startling event or condition.
According to defense counsel, however, the triggering startling event must be established by evidence solely apart from an excited utterance before the excited utterance can be admitted. The examining magistrate agreed with defense counsel and found that sufficient independent evidence of the alleged assault had not been presented and thus dismissed the charges against Barrett. The prosecution's appeal eventually reached the Michigan Supreme Court, which found that the question of whether the elements of the excited utterance exception have been established is a preliminary question of fact to be resolved under Michigan Rule of Evidence 104(a).
The Michigan Supreme Court noted that older Michigan cases indeed held that an alleged excited utterance itself could not be used as evidence that a startling event or condition occurred. The Court, however, noted that this was all changed by the United States Supreme Court's decision in United States v. Bourjaily, 483 U.S. 171 (1987), where it was determined in the context of co-conspirator's admissions that the alleged admission itself could be used as evidence that the person making the admission was in fact a co-conspirator of the defendant. The Michigan Supreme Court found that this same analysis applies to excited utterances and thus should have allowed for the admission of Bartel's statements as excited utterances, a decision which I think is proper and consistent with precedent from across the country.
April 30, 2008 | Permalink
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How do you thing this decision meshes with the Crawford decisions?
Posted by: Crawford Question | Apr 30, 2008 7:24:16 PM
I think that the statements to the neighbors were definitely not testimonial, but it's a much tougher question for the statements to the 911 operator and the statements to the police officer. I'm not sure why the court failed to address the Crawford issue.
Posted by: Colin Miller | May 1, 2008 8:48:05 AM
I practice in Michigan and regard the Michigan appellate courts as highly results-oriented. Excluding the excited utterance if there is no other evidence to prove the sartling event occasionally results in cases not being prosecuted, or in convictions not being obtained, and is therefore, in esults-oreinted jurisprudence, a bad rule. Forget the theory, look at the results.
Posted by: | May 2, 2008 2:26:41 PM