PEOPLE OF MI V JOANNE HILL
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 3, 2002
Plaintiff-Appellee,
v
No. 234545
Wayne Circuit Court
LC No. 00-007868
JOANNE HILL,
Defendant-Appellant.
Before: O’Connell, P.J., and White and B. B. MacKenzie*, JJ.
PER CURIAM.
Following a jury trial, defendant Joanne Hill was convicted of larceny, MCL
750.356(2)(a) ($20,000 or more). She was sentenced to two years’ probation and restitution of
$95,000. Defendant appeals as of right. We affirm.
In this case, the prosecution alleged that defendant stole $95,000 from the safe of the
complainant, George Goodwin. Defendant was the complainant’s girlfriend or friend for over
twenty years, and cared for the homebound complainant for almost two years before he died. In
anticipation of his death, the complainant withdrew $98,000 from his bank account to distribute
to his family. The complainant’s son, Major Goodwin, testified that soon afterward, he went to
his father’s house, where defendant was sitting on the floor counting $98,000 in cash with the
complainant seated nearby. The complainant then gave defendant $3,000, and asked his son and
defendant to put the remaining $95,000 in the safe, for which they knew the combination. They
did so, but when the complainant’s son returned another day and opened the safe at the
complainant’s request, the safe was empty. The complainant testified that defendant initially
denied taking the money, but admitted to it in the presence of witnesses. According to the
prosecution, defendant said that she deserved the money for her long length of service to the
complainant. Soon after the complainant reported the incident as a theft, he died of natural
causes.
First, defendant argues that the interviewing police officer’s testimony regarding the
complainant’s statement to police was hearsay. We agree.
We review a trial court’s evidentiary rulings for an abuse of discretion. People v
Howard, 226 Mich App 528, 542; 575 NW2d 16 (1997). MRE 801(c) provides: “[‘]Hearsay[’]
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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is a statement, other than one made by the declarant while testifying at the trial or hearing,
offered into evidence to prove the truth of the matter asserted.” See also MRE 802 (“[h]earsay is
not admissible . . . ”).
The challenged testimony, consisting of the testifying police officer reading his previous
exchange with the complainant into the record, is as follows:
[Prosecutor]: Officer, could you read the questions and answers you got
with . . . Mr. Goodwin [the complainant] in to the record?
[Witness]: [Interviewer]: Who is Joanne Hill to you?
[Complainant]: She was a friend. I had known for 21 to 22 years. We
started dating in 1998.
She has never lived here but has a key to my house. She did stay here for
a year, maybe in 1998, but not in 1999. She had rented her house to her
daughter.
[Prosecutor]: Go ahead. Please continue.
[Witness]: [Interviewer]: Who placed it in the safe?
[Prosecutor]: What was that question in reference to?
[Witness]: The money, the $95,000.
[Prosecutor]: Okay. Go ahead.
[Witness]: [Complainant]: Joanne did. I told her to put the money in the
safe and for her to take $3,000 for herself. It was $98,000 altogether; $95,000
after she took the $3,000 I gave her.
I checked behind her to make sure it was there and it was.
[Interviewer]: When did you check the safe?
[Complainant]: I checked the safe as soon as I got up, seen the money
was missing. I asked Joanne if she took it. At first she said, no, then she said,
yes.
[Interviewer]: Was anything else missing from the safe?
[Complainant]: Two titles to the vehicles and the deed to my house. She
gave the deed back to my son, Major. She said she wasn’t going to take the
house, but that she had taken the title to the van and changed it into her name.
This was a few days ago. The vehicle –
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At that point, I wrote down the vehicle information, to two different
vehicles.
* * *[1]
[Prosecutor]: Okay. So, the next question and answer.
[Witness]: [Interviewer]: How much money was taken?
[Complainant]: Ninety-five thousand dollars. Because the $3,000 I had
given to her.
[Interviewer]: Do you want to press charges?
[Complainant]: Yes, I do.
At the outset, we note that the parties agreed to admit the first portion of the statement –
the portion regarding the length of the complainant’s relationship with defendant. Thus,
defendant’s agreement to admit that portion waived the issue and extinguished any error. See
People v Carter, 462 Mich 206, 214, 215-216; 612 NW2d 144 (2000).
Defendant contends that the trial court erred in admitting the majority of the statement as
evidence of the complainant’s state of mind under MRE 803(3). We agree.
MRE 803(3) provides that the following is not precluded by the hearsay rule:
Then Existing Mental, Emotional, or Physical Condition. A statement of
the declarant’s then existing state of mind, emotion, sensation, or physical
condition (such as intent, plan, motive, design, mental feeling, pain, and bodily
health), but not including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the execution, revocation,
identification, or terms of declarant’s will.
This exception is applicable only when the state of mind of the declarant is at issue, i.e., relevant.
McCallum v Dep’t of Corrections, 197 Mich App 589, 605; 496 NW2d 361 (1992); see also
MRE 401 (“definition of [‘]relevant evidence[’]”).
The remaining portion of the statement contains the complainant’s outright accusation
that defendant stole the money and other property. The complainant’s state of mind on this
matter was simply not relevant. See McCallum, supra at 605. As a result, we cannot conclude
that this portion of the statement was not offered to prove the truth of the matter asserted. See
MRE 801(c). Rather, the statement tended to prove facts remembered or believed by the
declarant in violation of MRE 803(3).
1
The material omitted here was not part of the complainant’s statement sought to be introduced
into evidence; it consists of direct questioning of the officer witness. Therefore, it is not hearsay.
See MRE 801(c).
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Although the statement was inadmissible hearsay, a review of the testimony otherwise
admitted at trial reveals that the statement was cumulative of other evidence properly admitted.
See People v Van Tassel (On Remand), 197 Mich App 653, 655; 496 NW2d 388 (1992), and
People v Hunt, 170 Mich App 1, 13; 427 NW2d 907 (1988) (otherwise hearsay testimony is
admissible if it is cumulative of other properly admitted evidence). The complainant’s son
testified to the majority of the statement’s factual content, including the confrontation between
the complainant and defendant, the missing deed and vehicle titles, and the amount of money
stolen. Furthermore, with regard to the last two sentences of the statement, it was already
obvious to the jury by the nature of the trial that charges were filed against defendant. Thus,
admission of the statement in its entirety was not error requiring reversal because it was
cumulative. See also, People v Lukity, 460 Mich 484, 492-493; 596 NW2d 607 (1999).
The second issue on appeal is whether the prosecution elicited testimony from its
witnesses that defendant asserted her right to remain silent, in violation of the due process and
self-incrimination protections of the United States and Michigan Constitutions. See US Const,
Am V, XIV; Const 1963, art 1, § 17; People v Dennis, 464 Mich 567, 573; 628 NW2d 502
(2001); People v Sutton (After Remand), 436 Mich 575, 592; 464 NW2d 276, amended in part on
other grounds 437 Mich 1208 (1990). Defendant waived her objection regarding this issue by
explicitly agreeing on the record to admission of trial testimony regarding her voluntary
statement to police. See Carter, supra at 214, 215-216; see also People v Carines, 460 Mich
750, 763-764; 597 NW2d 130 (1999). Therefore, review of this issue is precluded.
Affirmed.
/s/ Peter D. O’Connell
/s/ Helene N. White
/s/ Barbara B. MacKenzie
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