February 6, 2015
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
ERIC MICHAEL CHELMICKI, Defendant-Appellant
COA: 313708. Macomb CC: 2012-001750-FH.
Robert P. Young, Jr., Chief Justice. Stephen J. Markman, Mary Beth Kelly, Brian K. Zahra, Bridget M. McCormackMcCormack, David F. Viviano, Richard H. Bernstein, Justices.
On order of the Court, the application for leave to appeal the April 24, 2014 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
CONCUR BY: VIVIANO (In Part)
Viviano, J. ( concurring in part and dissenting in part ).
I concur in the order denying leave to appeal, except as to one issue raised in defendant's application. In particular, I agree with defendant that the Court of Appeals erred by affirming the trial court's decision to admit statements contained in the victim's written police statement under the present sense impression exception to the hearsay rule. I believe that the Court of Appeals has improperly expanded the present sense impression exception in a manner that is not supported by Michigan law and is inconsistent with the rationale underlying the exception. However, because the statements at issue were properly admitted as recorded recollections, I would vacate the portion of the Court of Appeals' opinion discussing present sense impressions and otherwise deny leave.
I. FACTUAL SUMMARY AND PROCEDURAL HISTORY
This case arises from a domestic violence incident between two intoxicated individuals at their apartment. The assault ended right before the police kicked down the door. After the police officers entered the apartment, they discovered that defendant had escaped through a bedroom window. The police officers then left the victim alone in the apartment to pursue defendant, whom they eventually found nearby. After the police officers arrested defendant and secured him in a patrol car, one officer sat with defendant for approximately 15 to 20 minutes while another went to the police station to get a camera. When the police officer returned with the camera, the other officer went into the apartment to have the victim and her neighbor handwrite statements. While the victim wrote her statement, she was engaged in a conversation with her neighbor, complaining about defendant. The victim's statement contained a description of the incident, including statements made by defendant.
Due to her intoxicated state during the incident, the victim had limited memory of the incident at trial. Therefore, the trial court [497 Mich. 961] admitted various hearsay statements contained in the victim's police statement as present sense impressions and recorded recollections.
Defendant appealed his resulting convictions of domestic violence and unlawful imprisonment. The Court of Appeals affirmed, holding that the statements were properly admitted under both hearsay exceptions. Regarding the issue of substantial contemporaneity, which is required for
the statements to be admissible as present sense impressions, the Court stated:
[T]he statement was made at a time " substantially contemporaneous" with the event, as the evidence showed, at most, a lapse of 15 minutes between the time police entered the apartment and the time the victim wrote the statement. MRE 803(1) " recognizes that in many, if not most, instances precise contemporaneity is not possible and hence a slight lapse is allowable." [ People v ] Hendrickson, 459 Mich. [229, 236; 586 N.W.2d 906 (1998)] (opinion by KELLY, J.) (noting an instance in which a 16-minute interval was held to satisfy the " substantially contemporaneous" requirement).
II. LEGAL ANALYSIS
Hearsay is " a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."  " Hearsay is generally prohibited and may only be admitted at trial if provided for in an exception to the hearsay rule."  The rule against the admission of hearsay evidence is deeply rooted in our common law. Hearsay is considered unreliable evidence because it is not subject to traditional testimonial safeguards and poses four main risks: (1) the declarant's flawed perception; (2) defects in the declarant's memory; (3) miscommunication, stemming [497 Mich. 962] from either the declarant misspeaking or the witness misunderstanding; and (4) a lack of sincerity or veracity in the declarant's statement. Excluding hearsay evidence minimizes these risks because witnesses are instead required to testify under oath, subject to cross-examination, in the presence of the jury so it can observe the witnesses' demeanor.
In this case, the statements contained in the victim's written police statement are hearsay because they are out-of-court statements used to prove the truth of the matter asserted, i.e., that the events described and the admissions made by defendant occurred as described in the statement. I agree with the Court of Appeals that the trial court did not abuse its discretion by admitting the statements as recorded recollections. However, for the
reasons below, I believe that the Court of Appeals erred by holding that the statements were admissible as present sense impressions.
Under MRE 803(1), a present sense impression is " [a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." A present sense impression has been deemed " reliable enough to warrant an exception to the hearsay rule" because it eliminates (or substantially alleviates) two of the dangers posed by hearsay: insincerity and memory loss. To be admissible as a present sense impression, hearsay evidence must satisfy 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."  The statements at [497 Mich. 963] issue in this case meet the first two conditions because the victim's statements provided a description of the domestic violence and, as the victim of the assault, she personally perceived the event. Only the third requirement--substantial contemporaneity--is at issue in this case.
Although present sense impressions are deemed reliable because they eliminate or substantially alleviate the hearsay dangers of insincerity and memory loss, these dangers only dissipate if the statement is " made while the declarant was perceiving the event or condition, or immediately thereafter."  And while the present sense impression exception " 'recognizes that in many, if not most, instances precise contemporaneity is not possible and hence a slight lapse is allowable,'"  a close reading of the holdings in this area of the law reveals that Michigan courts have adhered to a limited view of the phrase " immediately thereafter."
Recognizing the importance of substantial contemporaneity, in Hewitt v Grand Trunk W R Co, the Court of Appeals stated that " [t]he purpose and intent of [the present sense impression exception] can be served most effectively by limiting the scope of that exception to statements made while describing the event or condition or instantly thereafter."  Applying
this rule, the Court excluded statements made to a police officer " at least several, and possibly as many as 30, minutes" after the incident.
Two years later, the Court of Appeals began to equivocate on the meaning of " immediately thereafter." For example, in Johnson v White, the Court of Appeals initially held that " immediately thereafter" does not mean " instantly thereafter" and affirmed the trial court's admission of a statement made " sometime between less than a minute, or as long as four [497 Mich. 964] minutes, after the accident occurred."  On remand, the Court changed course and reapplied the Hewitt panel's more restrictive interpretation of " immediately thereafter" to hold that the statement, made several minutes after the perceived event, was not admissible as a present sense impression. On further appeal, this Court affirmed the first Court of Appeals' holding, stating that Hewitt took a " restrictive view of the phrase 'immediately thereafter . . . .'"  But this Court distinguished Hewitt because, in the Johnson case, the testimony " indicated that the time frame could have been less than four minutes, [and therefore] the trial court could properly find, after hearing and observing the witness, that the declarant's statement was made immediately after he perceived the accident."  Notably, however, we did not overrule Hewitt or indicate that it incorrectly stated the law.
This Court revisited this area of the law 10 years later in People v Hendrickson, which involved a 911 call placed by the victim just after an assault had taken place. Although it had previously been recognized by the Court of Appeals in Hewitt, this Court for the first time adopted the " substantial contemporaneity" test, citing two passages from the advisory committee notes to FRE 803(1).
First, Hendrickson observed [497 Mich. 965] that " [t]he principle underlying [the present sense impression] exclusion is that the 'substantial contemporaneity of event and statement negate the likelihood of deliberate or conscious misrepresentation.'"  However, it also explained that " the exception 'recognizes that in many, if not most, instances precise contemporaneity is not possible and hence a slight lapse is allowable.'"  Next, citing Johnson v White, this Court observed that " [c]onsistent with this analysis, we have concluded that a four-minute interval between the perceived event and a declarant's statement satisfied the 'immediately after' condition."  It then noted that in United States v Mejia-Velez, " a New York federal district court found that sixteen minutes between the perceived event and the statement satisfied the 'substantially contemporaneous' condition."  Hendrickson then stated that the contemporaneity requirement was satisfied given that " 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." 
In this case, the Court of Appeals concluded that " a lapse of 15 minutes between the time police entered the apartment and the time the victim wrote the statement" was contemporaneous enough for the statements to be admitted as present sense impressions. However, I believe the Court of Appeals' holding is erroneous for the following reasons.
First, the Court of Appeals' conclusion is inconsistent with the limited scope of the exception recognized under prior Michigan law. Before the Court of Appeals' decision in this case, no published opinion from the Court of Appeals or this Court had allowed a statement made more than, at most, four minutes after a perceived event to be admitted as a present sense impression.
[497 Mich. 966] Second, in reaching its conclusion, the Court of Appeals gave only cursory treatment
to the issue and relied on multiple layers of dicta. The only authority cited in support of the Court of Appeals' decision was Hendrickson 's citation to Mejia-Velez. But the rationale for Hendrickson 's citation to that case is unclear since Hendrickson concluded that the contemporaneity requirement was satisfied given that " the 911 recorded victim's statement was that the beating had just taken place. . . ."  Thus, the citation to Mejia-Velez was plainly dicta, given that contemporaneity was not actually at issue in Hendrickson  and, even if it had been, there really was no question regarding contemporaneity since the victim's statement occurred just after the event took place.
Finally, the Court of Appeals' conclusion is completely at odds with the rationale that justifies the exception in the first place. The rationale underlying the present sense impression has been described as follows:
" Underlying [FRE] 803(1) is the assumption that statements of perception substantially contemporaneous with an event are highly trustworthy because: (1) the statement being simultaneous with the event there is no memory problem; (2) there is little or nor [sic] time for calculated misstatement; and (3) the statement is usually made to one who has equal opportunity to observe and check misstatements." 
[497 Mich. 967] Applying these factors to this case shows that the statements at issue do not possess sufficient indicia of trustworthiness to justify their admission.
With regard to the first factor, the lapse in time between the perceived event and
the victim's statements was of sufficient duration to raise concerns about the accuracy of the victim's memory. In this case, the victim did not write her statements while she was perceiving the event, or even " immediately" after the violence ended. Rather, a series of events occurred between the perceived event and the victim's statement: the police entered the apartment; a search ensued; defendant was located, arrested, and secured in the patrol car; and then an officer waited with defendant for 15 to 20 minutes in the patrol car before finally obtaining the victim's statement. Therefore, although the precise timeline is unclear, the record indicates that the lapse in time between the perceived event and the victim's statement was at least 15 minutes, which is more than enough time to raise doubts about the victim's memory. Moreover, when she wrote the requested statement, the victim and her neighbor were complaining about defendant. The fact that the victim was engaged [497 Mich. 968] in a conversation with another person about defendant while she wrote her statement further undermines the trustworthiness of the victim's statement.
As to the second factor, the lapse in time between the perceived event and the victim's statements left ample time for calculated misstatements. In this case, the victim was left alone in her apartment for at least 15 minutes, which provided her ample opportunity to engage in reflective thought about what she was going to say to the police officers. In addition, the victim's statements were not made spontaneously--instead, they were made at the request of the police. But statements solicited by the police are far from the impulsive, unpremeditated statements contemplated by the present sense impression exception; rather, those statements are, by their very nature, deliberate and reflective. " A declarant who . . . provides statements for a particular reason" --here for a police investigation--" creates the possibility that the statements are not contemporaneous, and, more likely, are calculated interpretations of events rather than
near simultaneous perceptions."  Because the victim's statements here [497 Mich. 969] were made at the request of police, the statements were more likely to have been purposeful and the product of reflective thought, which further undermines their trustworthiness.
The third factor also weighs against admission because the statements were not made in the presence of a third party who also observed the event and could verify their accuracy. Rather, the victim provided her statement to a police officer who was not present during the incident. During the assault, the victim's neighbor heard noises indicating that a fight was occurring and was told by the victim that defendant had turned on the gas stove to blow up the apartment complex; however, the neighbor was not an eyewitness to the assault and could not verify the details of the assault that were contained in the victim's statements. Therefore, neither the police officer nor the neighbor had an independent basis to verify the veracity of the victim's statements, which also undermines the trustworthiness of her statements.
The Court of Appeals erred by concluding that the victim's written statement provided to a police officer 15 to 20 minutes after the event was properly admitted as a present sense impression. Prior Michigan law does not support such an expansive interpretation. Nor does the Court of Appeals' conclusion square with the rationale behind the rule, i.e., that the substantial contemporaneity of the statement with the perceived event provides the requisite guarantees of trustworthiness to justify a departure from the general rule excluding hearsay.
For these reasons, I would hold that the victim's statements were not admissible as present sense impressions because they were not substantially contemporaneous with the perceived event. But because the statements were admissible on an alternative ground as recorded recollections, I would simply vacate the portion of the Court of Appeals' opinion discussing present sense impressions and otherwise deny leave to appeal.
[497 Mich. 970] Bridget M. McCormack, McCormack, J., joins the statement of Viviano, J.
Bernstein, J., took no part in the disposition of this matter, which the Court considered before he assumed office and in which his vote would not be result-determinative, in order to avoid unnecessary delay to the parties.