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 ...