PEOPLE OF MI V JOHNNIE EUGENE CHOATE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
Plaintiff-Appellee,
v
No. 183553
Sanilac Circuit Court
LC No. 94-004144-AR
JOHNNIE EUGENE CHOATE,
Defendant-Appellant.
Before: Jansen, P.J., and Young and R.I. Cooper*, JJ.
COOPER, J. (concurring).
I respectfully disagree with that portion of the majority opinion which holds that the trial court
erred when it admitted into evidence testimony from the school principal and the police officer that the
deceased victim had told them the morning after the incident that “his father beat him.” In particular, the
majority argument that Robert had time to “contrive and misrepresent” under People v Gee, 406 Mich
279; 278 NW2d 304 (1979), does not negate the concept stated in People v Straight, 430 Mich 418;
424 NW2d 257 (1988), wherein Justice Boyle stated as follows:
Logically there is always time to contrive whether the statement begins as the event is
observed or is made ten minutes later. Properly understood, Gee’s requirement that the
statement must “be made before there has been time to contrive and misrepresent” is
simply a reformulation of the inquiry as to whether the statement was made when the
witness was still under the influence of an overwhelming emotional condition. [Straight,
supra, pp 424-425.]
Our situation involves a statement made the next morning at school some fourteen hours after
the eleven-year-old victim had been hit eight to ten times. The mother was only nine feet away. She
was attempting to sleep on a living room couch. She did not bother to look and see what was going on
while the boy was being hit. The boy had been punished a half-year earlier when defendant used a belt
on him. At school the next morning, the victim was upset enough to approach the principal in the
hallway and interrupt the principal who was speaking to another teacher and say he had been beaten.
* Circuit judge, sitting on the Court of Appeals by assignment.
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The police were called. Photographs verify the severity of the beating. The police officer described the
boy as being determined and almost defiant.
I do not agree that the trial court abused its discretion when it concluded that the victim was still
under the stress of the incident when he made the statement. Obviously he could not obtain solace from
his mother the evening before. He interrupted the principal in the school hallway when the victim saw
the principal the next morning. Being determined and defiant does not mean he was composed. It may
indicate a state of fear, anger, and/or fixed distress. As stated in People v Verburg, 170 Mich App
490, 495; 430 NW2d 775 (1988), in its analysis of MRE 803(2):
Obviously, time lapse is a factor bearing on admissibility, but the standard under the
latter rule’s express language is that time lapse will not alone render an excited utterance
inadmissible so long as the declarant is still under the stress of the excitement caused by
the event.
The boy easily could have been still feeling the pain of the beating the next morning when he
spotted the principal. The photographs revealed identifiable marks on his buttocks. This may well have
been the first person to whom he could express his distress. If he and his sister had not died some three
days later in a fire, they could have testified regarding the event. Apparently, the school principal and
the officer would be capable neutral witnesses as to what they were told. Interestingly, under current
MRE 804(b)(6) (other exceptions), effective April 1, 1996, where the declarant is unavailable, the
matter would quite probably be presently admissible as a “material fact having circumstantial guarantees
of trustworthiness.” The majority opinion legitimately and understandingly applies its interpretation
under Gee, but I do not find that the trial court abused its discretion under the conceptual developing
state of law indicated in Straight and Verburg.
/s/ Richard I. Cooper
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