PEOPLE OF MI V GREG LEWIS HERBAN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 4, 2002
Plaintiff-Appellee,
v
No. 239118
Eaton Circuit Court
LC No. 01-020026-FH
GREG LEWIS HERBAN,
Defendant-Appellant.
Before: Whitbeck, C.J., and Sawyer and Kelly, JJ.
PER CURIAM.
Defendant Greg Lewis Herban appeals by delayed leave granted his plea-based
conviction of criminal sexual conduct in the fourth degree (CSC IV).1 We affirm. We decide
this appeal without oral argument pursuant to MCR 7.214(E).
I. Basic Facts
The police began investigating Herban after learning that the complainant, his daughter,
reported to a counselor that he touched her in an inappropriate manner. The police interviewed
the complainant on two separate occasions on the same day. The interviews, which were tape
recorded, took place in an automobile in the driveway of the complainant’s home. In the first
statement the complainant denied that Herban engaged in any inappropriate contact. In the
second interview, which took place after the police interviewed the complainant’s mother, the
complainant stated that Herban penetrated her vagina with his finger on one occasion when she
was sixteen years old. The complainant stated that she initially denied that the conduct occurred
because she loved her father and did not want to see him jailed.
The prosecutor charged Herban with criminal sexual conduct in the third degree (CSC
III), the victim being related to the actor by blood or affinity in the third degree.2 The prosecutor
also moved to admit the complainant’s statements pursuant to MRE 804(b)(7).3 MRE 804(b)(7)
provides that a statement that does not fall under any of the other exceptions to the rule against
1
MCL 750.520e.
2
MCL 750.520d(1)(d).
3
Formerly MRE 804(b)(6).
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hearsay is admissible if the statement has “equivalent circumstantial guarantees of
trustworthiness,” if the statement’s proponent gives appropriate advance notice of the intent to
use the statement, and if
the court determines that (A) the statement is offered as evidence of a material
fact, (B) the statement is more probative on the point for which it is offered than
any other evidence that the proponent can procure through reasonable efforts, and
(C) the general purposes of these rules and the interests of justice will best be
served by admission of the statement into evidence. . . .
At a pretrial hearing, the complainant unequivocally stated that she would refuse to
testify against Herban at trial. She also refused to answer certain questions regarding her
truthfulness when making the statements. The trial court subsequently ruled that the
complainant’s out-of-court statements were admissible. In ruling, the trial court found that
complainant was unavailable as a witness because she refused to testify against Herban.4 The
trial court determined the statements met the criteria enumerated in MRE 804(b)(7) and showed
particularized guarantees of trustworthiness. In particular, the trial court noted that the
complainant was reluctant to speak to the police and refused to testify because she loved her
father and did not want him to be prosecuted, which the trial court believed made the statements
more trustworthy.
Herban pleaded guilty of a reduced charge of CSC IV, and reserved the right to challenge
on appeal the trial court’s ruling admitting the complainant’s statements. The trial court
sentenced Herban to one year of non-reporting probation, and imposed costs and fees.
II. Standard Of Review
We review a trial court’s decision to admit evidence for an abuse of discretion.5
However, to the extent that this case involves the preliminary legal issue whether the statements
were sufficiently trustworthy to meet the constitutional and evidentiary standard, we apply de
novo review.6
III. The Catchall Exception
To be admissible under MRE 804(b)(7), the “catchall” hearsay exception, a statement
must qualify under the rules of evidence and admitting the statement must be consistent with the
rights embodied in the Sixth Amendment’s Confrontation Clause.7 This constitutional standard
requires proof that admitting the statement is necessary because the declarant is unavailable and
4
MRE 804(a)(2).
5
See People v Schutte, 240 Mich App 713, 715; 613 NW2d 370 (2000).
6
See People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999); see also People v Smith, 243
Mich App 657, 682; 625 NW2d 46 (2000), remanded 465 Mich 928; 639 NW2d 255 (2001), on
remand 249 Mich App 728; 643 NW2d 607 (2002).
7
See Smith, supra at 688, citing Idaho v Wright, 497 US 805, 814; 110 S Ct 3139; 111 L Ed 2d
638 (1990).
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that the statement has “‘particularized guarantees of trustworthiness’” if it does not fall “within a
firmly rooted hearsay exception.”8 We do not believe that MRE 804(b)(7) states a firmly rooted
hearsay exception because, in comparison to substantive exceptions identified in MRE 804(b),
subsection (7) attempts to cover unanticipated, and therefore unarticulated, circumstances.
Nevertheless, we note that the complainant is unavailable because she refuses to testify and that
the court rule incorporates this trustworthiness standard in its plain language. Thus, we consider
whether the statements were trustworthy and met the criteria identified in MRE 804(b)(7).
Herban argues that the statements are not trustworthy because the complainant only made
the statements at the behest of the police and because the statements were inconsistent. In
determining whether a hearsay statement is sufficiently trustworthy to admit in evidence,
appropriate factors to consider include:
(1) the spontaneity of the statements; (2) the consistency of the statements; (3)
lack of motive to fabricate or lack of bias; (4) the reason the declarant cannot
testify; (5) the voluntariness of the statements, i.e., whether they were made in
response to leading questions or made under undue influence; (6) personal
knowledge of the declarant about the matter on which he spoke; (7) to whom the
statements were made, e.g., a police officer who was likely to investigate further;
and (8) the time frame within which the statements were made.[9]
Additionally, a statement may be sufficiently trustworthy if cross-examining the declarant would
be only marginally useful.10
The record indicates that the police did not compel the complainant in any way to make
the statements.11 Nor is there other evidence that she was unduly influenced to make the
statements. Plainly, the facts of the assault are matters of which the complainant would have
personal rather than second-hand knowledge. Herban is correct that the statements were
inconsistent in that complainant first denied and then asserted that Herban had committed the
crime. However, the complainant lacked a motive to fabricate her allegations against her father.
If she did testify at trial, the complainant could not plausibly deny the second statement given
that she said that she loved Herban and did not want to see him prosecuted. With these feelings
toward Herban, the complainant had no reason to accuse him falsely. Further, these feelings
explain the complainant’s initial hesitance at admitting what had happened. In this particular
case, as the trial court observed, the inconsistencies in the statements do not diminish their
trustworthiness. Additionally, cross-examining the complainant would have provided Herban
with no additional benefit because the contradiction in the two statements offered him a full
opportunity to impeach her allegation that he committed the crime.
8
Wright, supra at 814-815, quoting Ohio v Roberts, 448 US 56, 65-66; 100 S Ct 2531; 65 L Ed
2d 597 (1980).
9
People v Lee, 243 Mich App 163, 178; 622 NW2d 71 (2000).
10
Id. at 181.
11
Compare Smith, supra at 688-689 (declarant had a reason to implicate the defendant in the
crime because she was under threat of prosecution).
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As for the criteria identified in the court rule itself, Herban does not contend that the
statements were admissible pursuant to any of the other exceptions to the rule against hearsay,
which would make the statements inadmissible under the catchall provision.12 The prosecutor
offered the complainant’s statements as evidence that Herban committed the crime itself, which
is undoubtedly a material fact.13 The statements were more probative of the point for which the
prosecutor offered them than any other evidence the prosecution could procure with reasonable
effort.14 In our view, the statements served the general purposes of the hearsay exception and the
interests of justice.15 Under the circumstances, the trial court did not err in ruling that the
statements were admissible.
Affirmed.
/s/ William C. Whitbeck
/s/ David H. Sawyer
/s/ Kirsten Frank Kelly
12
See MRE 804(b)(7) (The catchall provision applies to a “statement not specifically covered by
any of the foregoing exceptions . . . .”).
13
MRE 804(b)(7)(A).
14
MRE 804(b)(7)(B).
15
MRE 804(b)(7)(C).
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