PEOPLE OF MI V JARRON DONTI GEORGE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 20, 2007
Plaintiff-Appellee,
v
No. 271892
Oakland Circuit Court
LC No. 2005-205374-FC
JARRON DONTI GEORGE,
Defendant-Appellant.
Before: Kelly, P.J., and Meter and Gleicher, JJ.
GLEICHER, J. (dissenting).
I respectfully dissent from the portion of the majority opinion holding that the hearsay
evidence provided by the victim’s mother and sister was properly admitted. Further, the error
was not harmless.
In a sexual assault prosecution, MRE 803A permits the introduction of a single
corroborative hearsay statement to bolster the credibility of a child witness. The trial court here
permitted two witnesses to provide corroborative hearsay evidence. In my view, neither
witness’s testimony fulfilled the foundational requirements of MRE 803A. I also conclude that
this error was so prejudicial that reversal and remand for a new trial are required.
I. Factual and Procedural Background
The victim initially disclosed the alleged sexual assault almost one year after it occurred.
At the preliminary examination, she testified that defendant, her uncle, put his “private” into her
“private,” but denied that she was afraid of defendant, or that he hit her, put his hand over her
mouth, told her to be quiet, or did anything to prevent her from revealing the assault. The victim
stated that she tried to tell her mother about the assault the day after it occurred, but “[t]he door
was closed.” She did not know who closed the door, and reiterated that no one stopped her from
revealing the assault. At the preliminary examination, the prosecutor did not offer any additional
evidence to explain the victim’s delay in reporting the incident.
Before the trial, the prosecutor notified defense counsel that she would introduce the
testimony of the victim’s sister, Marquayla, pursuant to MRE 803A. The notice stated that the
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content of Marquayla’s testimony could be found in the transcript of the preliminary examination
and a police report.1 Defense counsel filed objections to the introduction of this evidence,
including that the prosecutor’s notice did not establish the “criteria under” MRE 803A. The
prosecutor did not file a response.
On the first day of trial, defense counsel sought to argue regarding the admissibility of the
MRE 803A evidence. The prosecutor stated, “In my opinion it’s a foundational question. Either
I lay the foundation to admit 803A or I don’t . . . .” The trial court heard argument regarding the
adequacy of the prosecutor’s notice of her intent to present MRE 803A evidence, and ruled that
the notice was adequate. Defense counsel attempted to bring up other issues related to MRE
803A, but the trial court prohibited him from doing so.2
At the trial, the victim, then eight years of age, testified as the first prosecution witness.
She recounted that defendant vaginally penetrated her. Consistent with her preliminary
examination testimony, the victim repeatedly denied that defendant put his hand on her mouth,
told her to be quiet, hit her, or instructed her not to tell anyone about what happened, and also
denied that she feared defendant. The victim recalled that she first reported the assault to her
older sister, Marquayla.
Marquayla, aged 17 at the time of trial, testified next. On direct examination, Marquayla
stated that she first learned of the sexual assault in 2005 from a friend of the victim, then aged
10. According to Marquayla, the victim and the friend were talking “upstairs,” and the victim
told the friend “what happened.” Marquayla apparently overheard this conversation and called
the victim downstairs. Marquayla testified that she asked the victim whether “that really
happen[ed],” and told the victim that “if she was lying that she was going to be in trouble. . . .
So then I asked her what happened and I said I’m going to give you one last time. If you’re lying
you ain’t goin [sic] get in trouble.”
Marquayla admitted that she could not recall the victim’s exact words describing the
sexual assault. At first, Marquayla testified that the victim told her that defendant had “raped”
her. Marquayla then clarified that the victim did not use the word “rape.” Marquayla testified
that after she learned of the assault, she told a friend of the family about it, and later told her
mother.
The victim’s mother also testified for the prosecution. The prosecutor asked her, “[D]id
[the victim] ever tell you that she began crying when this happened with –.” Defense counsel
objected on the basis that the mother was not the first person told of the assault. The trial court
allowed the answer, explaining that the prosecutor had “a right to rehabilitate the witness by a
1
Marquayla did not testify at the preliminary examination and the police report is not part of the
trial court record.
2
Defense counsel stated, “Your Honor, I know you’ve ruled but what about the other -- .” The
court interposed, “I don’t want to hear another word from you.” Defense counsel again asked to
say something, and the court replied, “No, you may not. Sir, once the Court rules it’s over. You
do not have a right to challenge me.”
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prior consistent statement under Rule 801 of the Michigan Rules of Evidence.” In response to
questions by the prosecutor, the mother then testified in detail regarding statements made by the
victim related to the alleged assault.
On cross-examination, the mother confirmed Marquayla’s testimony that the first person
informed of the assault was a young friend of the victim, not Marquayla. The mother explained
that the victim and her friend were “in the closet and they was discussing – the little girl had
been molested and so [the victim] told the little girl that her uncle had molested her.” The
mother then reiterated that the victim talked to a friend before telling Marquayla of the assault.
Defense counsel moved to strike Marquayla’s testimony, arguing that Marquayla was not the
first person told of the incident. The prosecutor admitted that it was “unclear” whom the victim
first told of the assault. The trial court recognized that there was conflicting testimony as to
whom the victim first told, and ruled that this conflict “only presents an issue of fact for the trier
of fact.”
II.
The Admissibility of Marquayla’s Testimony
Our law generally prohibits the admission of hearsay evidence, as well as testimony
intended solely to bolster the credibility of a witness. Motivated by “the unique evidentiary
problems which arise in the prosecution of child criminal sexual conduct cases,” People v
Straight, 430 Mich 418, 432; 424 NW2d 257 (1988), the Michigan Supreme Court crafted MRE
803A as a narrow exception to these venerable evidentiary doctrines. The rule allows the
introduction of corroborative hearsay that has certain indicia of trustworthiness, including: (1)
that the statement be “shown to have been spontaneous and without indication of manufacture,”
MRE 803A(2); (2) that the declarant made the statement “immediately after the incident or any
delay is excusable as having been caused by fear or other equally effective circumstance,” MRE
803A(3), and (3) that if the declarant made more than one corroborative statement, “only the first
is admissible.”
Both Marquayla and her mother testified that the victim made the first statement
regarding the alleged assault to a friend. The testimony of the adult witnesses concerning the
victim’s initial report of the assault was consistent and detailed. The prosecuting attorney
admitted that she herself was “unclear” whether the victim first told Marquayla or the friend of
the sexual assault. Having refused to consider the admissibility of the evidence offered under
MRE 803A before the trial, the trial court then improperly ruled that this critical foundational
question represented a jury question.
Under MRE 104, the trial court was obligated to make a preliminary determination of the
admissibility of the proffered hearsay evidence before submitting it to the jury. Preliminary
questions concerning the admissibility of evidence are to be decided by the trial court, and not
the jury. People v Burton, 433 Mich 268, 302; 445 NW2d 133 (1989). Had the trial court
conducted an inquiry into whether the testimony of the victim’s sister met the requirements of
MRE 803A, it would have recognized that two predicate factual issues required judicial
determination: (1) whether Marquayla was the first person told of the event; and (2) whether the
statement made by the victim to Marquayla was “spontaneous.” These questions demanded
consideration and evidentiary analysis by the trial court before it permitted the introduction of
corroborative hearsay evidence.
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The majority correctly recognizes that the trial court need not hold a separate hearing on
the admissibility of hearsay testimony in every case. In this case, however, an 11-month delay
preceded the victim’s report of the assault, and defense counsel made two pretrial attempts to
advise the court of potential problems with the MRE 803A evidence. Contrary to the majority’s
conclusion that “[t]he trial court considered the evidence and ruled that it was admissible,” the
trial court refused to “consider the evidence” until after it had been admitted. The trial court did
not exercise discretion in ruling on the admissibility of the evidence offered under MRE 803A;
the trial court instead elected not to make a preliminary determination of the admissibility of this
evidence.
Pursuant to MRE 104(c), hearings on preliminary matters relating to the admissibility of
evidence “shall . . . be conducted” out of the presence of the jury “when the interests of justice
require . . . .” This was such a case. The testimony of the victim’s sister and mother cast
enormous doubt on the victim’s statement that the first person with whom she spoke was
Marquayla, and on whether the statements to which both testified were spontaneous.
The majority points out that the eight-year-old victim testified that Marquayla was the
first person with whom she spoke about the assault. The trial court did not make a specific
finding that this testimony was more credible than that of Marquayla and her mother. Nor is it
clear from the record that the trial court would have decided that the victim’s testimony was
more credible than that of her mother and older sister, particularly in light of the prosecutor’s
inability to make that argument when she herself conceded that she felt “unsure” as to what
actually occurred.
Indeed, in admitting Marquayla’s testimony the trial court disregarded the victim’s
testimony on another essential foundational question. The victim testified at both the trial and
the preliminary examination that defendant did nothing to make her fearful of reporting the
assault. Because the victim’s first report of the assault was made eleven months after it allegedly
occurred, Marquayla’s testimony could be admitted under MRE 803A only if the victim’s delay
in making the statement was “excusable as having been caused by fear or other equally effective
circumstance.” MRE 803A(3). If the trial court believed the victim’s testimony that she was not
in fear of her uncle, it could not have admitted Marquayla’s testimony under MRE 803A.
Additionally, the evidence did not support a finding that the victim spontaneously made
her statement to Marquayla. Both Marquayla and the mother testified that the victim’s report to
Marquayla was not spontaneous, but was made in response to questioning. Marquayla’s
testimony reflects that the questioning included threats about “lying” and “getting into trouble.”
The victim did not supply any other information regarding the circumstances of the statement she
claimed to have made to Marquayla. The absence of a showing of spontaneity reinforces the
need, in this case, for a pretrial determination as to the admissibility of the hearsay evidence
pursuant to MRE 104.
III.
The Hearsay Evidence Offered by the Victim’s Mother
The majority recognizes that the trial court erred by admitting the victim’s mother’s
testimony as a prior consistent statement under MRE 801(d)(1). According to the majority,
however, the hearsay evidence provided by the mother was admissible “for impeachment
purposes.” This conclusion reflects a misapprehension of both the nature of impeachment and
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the actual purpose for which the mother’s testimony was used. Impeachment is an evidentiary
effort to attack a witness’s credibility. The prosecutor did not utilize the mother’s testimony to
impeach the credibility of the victim, but to provide substantive, extrinsic evidence of the sexual
assault and a substantive, extrinsic explanation for the victim’s delay in reporting the incident.
There was no proper basis – impeachment or otherwise – for the admission of bolstering
hearsay testimony regarding the sexual assault itself.3 This portion of the mother’s testimony
was inadmissible under MRE 803A, and it did not “impeach” the victim’s testimony in any
respect. The admission the mother’s hearsay testimony regarding the incident itself was plain
error.
The majority asserts that the mother’s testimony “was properly used to demonstrate that
the victim made the prior inconsistent statement regarding defendant’s actions that could explain
why the victim was afraid to disclose the incident sooner,” and as such constituted impeachment.
However, “[t]he purpose of extrinsic impeachment evidence is to prove that a witness made a
prior inconsistent statement – not to prove the contents of the statement.” People v Jenkins, 450
Mich 249, 256; 537 NW2d 828 (1995). Although a prosecutor may impeach her own witness,
the prosecutor in the instant case did not introduce extrinsic evidence of the victim’s statements
to “impeach” the victim. The mother’s testimony was introduced to prove the truth of the matter
asserted: that the victim feared defendant. The prosecutor in the instant case introduced
extrinsic evidence of the victim’s hearsay statements in the guise of impeachment, which served
the improper purpose of providing substantive evidence of both the sexual assault and the
victim’s fear. During her closing argument, the prosecutor placed great reliance on the
substantive aspect of the mother’s testimony, and, not surprisingly, never once called into
question the credibility of the victim.
This error is particularly egregious in light of the fact that both the prosecutor and the
trial court knew that the mother could not provide hearsay evidence under MRE 803A. “As time
goes on, a child’s perceptions become more and more influenced by the reactions of the adults
with whom the child speaks. It is for that reason that the tender-years rule prefers a child’s first
statement over later statements.” People v Katt, 468 Mich 272, 296; 662 NW2d 12 (2003). The
mother was at best the second person to whom the victim spoke about the assault, and there was
no foundation that the victim’s statements to her mother were spontaneous.4 Her testimony
regarding the victim’s statement bore none of the indicia of trustworthiness required under MRE
803A, and its admission as “impeachment” was disingenuous at best.
3
The mother testified that the victim told her that defendant pulled his pants down, “put his
thang in her,” and began “humping” her.
4
Nor was this testimony likely to be admissible under MRE 803(24), as the prosecutor did not
disclose the nature and “the particulars” of the mother’s testimony before the trial, and the record
reveals absolutely no “circumstantial guarantees of trustworthiness” attending the statement to
which she testified.
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IV.
Harmless Error Analysis
Preserved nonconstitutional error is harmless “unless the defendant demonstrates that the
error was outcome determinative.” People v Schaefer, 473 Mich 418, 443; 703 NW2d 774
(2005), modified on other grounds in People v Derror, 475 Mich 316, 334, 341-342; 715 NW2d
822 (2006). The defendant must demonstrate that “it is more probable than not that the error was
outcome determinative.” Id. (internal quotation omitted). An error is not outcome determinative
unless it “undermined the reliability of the verdict.” Id. (internal quotation omitted).
The erroneous admission of the corroborative hearsay testimony of Marquayla and the
victim’s mother was, in my judgment, outcome determinative. Without this evidence, the sole
witness against defendant was the eight-year-old victim. The prosecutor realized the substantial
weakness of her testimony, and it is for this reason, and this reason alone, that she elicited the
corroborative hearsay testimony by Marquayla and the mother.
Further, the improper admission of the mother’s testimony, standing alone, was outcome
determinative. During her closing argument, the prosecutor began by discussing “two moments”
in the trial that “were very knowing and very powerful.” The first involved the “body language”
of the victim. The second, the prosecutor argued, was the testimony of the mother, which was
“just as powerful.” The prosecutor asked the jury,
I mean is there any doubt in your mind from listening to [the mother] that
when [the victim] was telling her those things, that she wasn’t feeling them too,
that she didn’t believe her daughter 100 percent? Is there any doubt in your mind,
the emotion that she felt? I saw a couple of you moved by that, a couple that are
mothers, you know.
As explicitly recognized by the prosecutor, the mother’s testimony was introduced to
prove its substance, and was certain to have played a major role in the jury’s verdict. In
analyzing a similar harmless error issue in People v Stanaway, 446 Mich 643, 695; 521 NW2d
557 (1994), the Michigan Supreme Court determined that “[a]ny nagging doubts the jury may
have had about whether these sexual incidents took place between the complainant and the
defendant were likely erased by the words he purportedly uttered to his nephew.” In the instant
case, any doubts about the victim’s report of a sexual encounter that allegedly took place 11
months earlier were eliminated by the testimony of the mother, with or without Marquayla’s
corroboration.
Because the improperly admitted corroborative hearsay permeated this trial and
undermined the reliability of the jury’s verdict, I would reverse defendant’s conviction and
remand for a new trial. Given my determination that a new trial is required, I would not reach
the other issues presented by defendant.
/s/ Elizabeth L. Gleicher
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