People v. Smith

581 N.W.2d 654 (1998)

456 Mich. 543

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry Donnell SMITH, Defendant-Appellant.

Docket No. 103833, Calendar No. 4.

Supreme Court of Michigan.

Argued October 9, 1997.

Decided March 17, 1998.

*655 Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, and Timothy K. McMorrow, Chief Appellate Attorney, for the People.

State Appellate Defender (by Richard B. Ginsberg) for the defendant.

William Forsyth, President, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief, Research Training and Appeals, amicus curiae for Prosecuting Attorneys Association of Michigan.

Opinion

WEAVER, Justice.

We granted leave in this case to determine whether a hearsay statement, made approximately ten hours after an event, was properly admitted under MRE 803(2) as an excited utterance. Further, we address whether defendant was denied the effective assistance of counsel because his attorney was charged with a felony pending in the same county. We hold that the hearsay statement was admissible as an excited utterance and that defendant was not denied effective assistance of counsel. The defendant's conviction and sentence are affirmed.

I

The complainant was a sixteen-year-old high school sophomore when he joined the gym where he met defendant. Complainant joined the gym to improve his chances of making the varsity baseball team. Defendant was a thirty-one-year-old bodybuilder, from whom others, including complainant, sought weightlifting advice. At some point, defendant and complainant exchanged telephone numbers. Complainant testified that, at that time, defendant had told him that he "expected" complainant to call him. Shortly thereafter, in January 1991, complainant telephoned the defendant to invite him out for a movie and pizza. Defendant picked the complainant up and then picked up defendant's roommate to join them. Defendant testified that he and his roommate had been in a homosexual relationship for two years. That evening, the conversation revolved around baseball and bodybuilding. Complainant testified that he did not understand why defendant's roommate had come along.

One week later, complainant called defendant to ask if defendant wanted to go bowling. Defendant suggested they watch a movie at defendant's house instead. Defendant again picked complainant up and they returned to defendant's house. Complainant testified that while watching the movie defendant said that he found complainant interesting and asked complainant if he was open-minded. Sometime later defendant asked him, "What do you think about getting your dick sucked?" Complainant responded, "I'm not funny, if that's what you mean."

Soon thereafter, two women stopped by for directions to a party. Defendant led them by car to the party with complainant in the front passenger seat. Complainant testified to a growing uneasiness. In response to this uneasiness, defendant said he would take complainant home. Defendant briefly went into the party and came out with a man whom he drove to the store for more beer. *656 When complainant attempted to move to the backseat of the car, defendant said to him, "You don't have to take the backseat for nobody." After going to the store, the three went back to the party, where defendant and complainant stayed for a brief time. After leaving the party, defendant took complainant back to defendant's house.

Upon return to defendant's house, complainant testified that defendant offered to involve him in a business venture if complainant would allow defendant to perform fellatio on him. Complainant testified that he told defendant that the proposition was "sick." Complainant testified that at this point the defendant got very angry, that the defendant would not allow him to leave, and that the options offered by defendant became increasingly violent. Complainant testified further that defendant told him to leave and then would not allow him to go, and that complainant became increasingly frightened. Defendant then promised to take complainant home after defendant smoked a joint, but instead of taking him home at that point, defendant offered complainant other choices. Defendant gave the complainant the choice between fighting defendant, who outsized complainant by eight inches and one hundred pounds, or allowing defendant to perform fellatio on him. When complainant asked to use the telephone, defendant said, "You're just going to call your mom.... I'll just beat her up. I'll beat up whoever comes over, or I'll just call my friends to beat them up." Complainant testified that defendant then pushed him and hit him in the chest and leg.

At that point, a group of people came to the door and defendant told complainant to be quiet because they had guns. After the people left, complaintant testified that defendant gave him another option: either let defendant perform fellatio or he would give him over to the people who were coming by again later and who were "sicker" than defendant and into "S & M." Complainant testified that defendant then held scissors to his neck to force compliance with defendant's request. When complainant assented, defendant first told him that he was not gay and would take complainant home. But minutes later, defendant reiterated his threat. Again, complainant assented and defendant told him that he would stop on complainant's request. Defendant then performed fellatio on complainant. After about one minute, and at complainant's request, defendant stopped.

Although defendant testified that there was a conversation regarding open-mindedness and his homosexuality, he denied that he became violent or forced complainant to allow him to perform fellatio. He denied any sexual contact with complainant.

The defendant then drove the complainant home at approximately 1:45 in the morning. Complainant's mother testified that she came to the door when complainant returned home because he was having a difficult time getting the door unlocked. She inquired if anything was wrong and testified that his response was, "Oh, mom, leave me alone." She observed that complainant seemed tearful and emotional. Without answering his mother's second inquiry, complainant abruptly left the room and took a bath with the water running continually for approximately one hour. The mother observed complainant pacing the floor and punching his hand into his fist. She testified further that at approximately 5:30 a.m., complainant was uncharacteristically sleeping on the livingroom couch, though his bedroom was adjacent to the livingroom, and that his eyelashes appeared wet.

At 11 o'clock the next morning complainant awoke. He testified that he asked his father for a weightlifting bench, and that his father responded, "Maybe later." Later he asked his mother, who said she would buy him a bench for his birthday in June. His mother testified that at that moment complainant stated, "Mom, I can't wait that long," and started crying and rocking back and forth. She further testified that when she asked him what was wrong, he responded, "Oh, mom, I had to be sucked off last night before I can [sic] even come home."

It is this statement to which defense counsel objected. However, the court ruled that the statement was admissible as an excited utterance. The jury ultimately convicted defendant of first-degree criminal sexual conduct. Defendant appealed, challenging among other issues, the admission of the hearsay statement. Further, defendant claimed that he was denied his Sixth Amendment right to counsel, because, at the time of *657 trial, his attorney had been charged with a criminal offense in the same county.

The Court of Appeals affirmed the conviction for different reasons. It held that the statement did not qualify as an excited utterance, but that the admission of the statement was harmless error because it was cumulative, given complainant's testimony. With respect to the effective assistance of counsel argument, the Court found no conflict of interest because the judge and the prosecutor involved in counsel's case were not the same as those in defendant's case. This Court granted leave limited to these issues. 454 Mich. 872, 562 N.W.2d 781 (1997).

II

We generally review a trial court's determination of evidentiary issues for an abuse of discretion. People v. Adair, 452 Mich. 473, 482, 550 N.W.2d 505 (1996), citing People v. Perkins, 424 Mich. 302, 308, 379 N.W.2d 390 (1986). Close questions arising from the trial court's exercise of discretion on an evidentiary issue should not be reversed simply because the reviewing court would have ruled differently. People v. Bahoda, 448 Mich. 261, 289, 531 N.W.2d 659 (1995), quoting People v. Golochowicz, 413 Mich. 298, 322, 319 N.W.2d 518 (1982). The trial court's decision on a close evidentiary question ordinarily cannot be an abuse of discretion. Id.

MRE 803(2) defines an excited utterance as "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." The rule allows hearsay testimony that would otherwise be excluded because it is perceived that a person who is still under the "sway of excitement precipitated by an external startling event will not have the reflective capacity essential for fabrication so that any utterance will be spontaneous and trustworthy." 5 Weinstein, Evidence (2d ed.), § 803.04[1], p. 803-19.

In People v. Straight, 430 Mich. 418, 424, 424 N.W.2d 257 (1988), this Court cited the two primary requirements for excited utterances: 1) that there be a startling event, and 2) that the resulting statement be made while under the excitement caused by the event. Straight clarified People v. Gee, 406 Mich. 279, 282, 278 N.W.2d 304 (1979), which had split the second requirement into two inquiries: whether the statement was made before there was time to contrive and misrepresent, and whether it related to the circumstances of the startling occasion. Straight explained:

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. [Id., p. 425, 424 N.W.2d 257.]

This explanation clarified that it is the lack of capacity to fabricate, not the lack of time to fabricate, that is the focus of the excited utterance rule. The question is not strictly one of time, but of the possibility for conscious reflection. 5 Weinstein, supra, § 803.04[4], p. 803-23.

In this case, the Court of Appeals found that, although the complainant was still under the stress of the assault, "the statement did not qualify as an excited utterance because ... the statement was made after there was sufficient time to permit reflective thought." Unpublished opinion per curiam, decided July 11, 1995 (Docket No. 148757). This reasoning is flawed. Though the time that passes between the event and the statement is an important factor to be considered in determining whether the declarant was still under the stress of the event when the statement was made, it is not dispositive. It is necessary to consider whether there was a plausible explanation for the delay. Gee, p. 283, 278 N.W.2d 304. Unlike MRE 803(1), the present sense impression exception, which requires that the "statement describing or explaining an event or condition [be] made while the declarant was perceiving the event or condition, or immediately thereafter," there is no express time limit for excited utterances. "Physical factors, such as shock, unconsciousness, or pain, may prolong the period in which the risk of fabrication is reduced to an acceptable minimum." *658 5 Weinstein, supra, § 803.04[4], p. 803-24.[1] The trial court's determination whether the declarant was still under the stress of the event is given wide discretion. McCormick, Evidence (3d ed.), § 297, p. 857.

There can be no question that the sexual assault in this case was a startling event. The question is whether the complainant was still under the stress of the assault when he stated to his mother ten hours later, "I had to be sucked off last night before I can [sic] even come home." The circumstances preceding and surrounding the statement convince us that the statement was made while the complainant was still under the overwhelming influence of the assault and, therefore, that the statement was reliable and admissible.

We find that the complainant's actions upon arriving home were extraordinary. When he arrived home at approximately 1:45 a.m., he took an hour-long bath and let the water run that entire time. Afterward, he paced the living room and his mother observed him punching his fist into his hand. At approximately 5:30 a.m., complainant uncharacteristically slept on the couch, though his bedroom adjoined the living room. His mother observed that he appeared to have been crying. At approximately 11 o'clock the next morning, the complainant asked his father and mother separately for a weight bench. His father said maybe, and later, when his mother said yes, but not for three months, complainant broke into tears. When his mother asked what was wrong, complainant made the statement in question. We agree with the trial court that these circumstances describe a continuing level of stress arising from the assault that precluded any possibility of fabrication.

The defense cites not only the time lapse between the event and the statement, but also the fact that the statement was made in response to questioning. Like the question of elapsed time, whether a statement made in response to questioning should be excluded under MRE 803(2) depends on the circumstances of the questioning and whether it appears that the statement was the result of reflective thought. McCormick, supra, p. 857. In Straight, the Court found that the stress caused by parents suggestive questioning of their four year old immediately after the child's pelvic area had been examined for evidence of molestation may well have supplanted any residual stress from an alleged assault. Id., p. 426, 424 N.W.2d 257. Though acknowledging that the questioning was not grounds for automatic exclusion, the Court could not be sure that the stress of the alleged assault was continuing. Unlike the questioning in Straight, the mother's inquiries of the complainant when he arrived home and the following morning were not suggestive, nor can the two inquiries be characterized as persistent and insistent. Contrasted with the questioning in Straight during which the four-year-old complainant's parents repeatedly asked the child to tell them what happened until she answered,[2] there is nothing about the mother's inquiries in the present case that undermines confidence in the conclusion that the complainant's statement resulted from the stress of the assault and not from the "stress" of his mother's inquiries. Further, the lapse of time between the event and the statement was shorter in this case than it was in Straight, and we find no evidence suggesting that the stress arising from the assault had abated.[3]

One final rationale for excluding the statement is that complainant's request for a weight bench might appear self-serving or at least to exemplify rational thought. However, from our review of the circumstances surrounding the statement, fabrication seems a remote possibility. It appears that the "dam simply broke" after complainant realized that in order to keep weightlifting, he *659 would have to go to the gym where he would be faced with seeing defendant. Thus, we hold that the trial court did not abuse its discretion by admitting the statement because we find that statement was admissible as an excited utterance.[4]

Even if we were to agree with the Court of Appeals that it was error to admit complainant's statement, we would affirm the Court of Appeals ruling that the error was harmless. The Court of Appeals concluded that the error was harmless because the statement was cumulative to the victim's own in-court testimony. We clarify that the fact that the statement was cumulative, standing alone, does not automatically result in a finding of harmless error. Harmless error review requires reversal only if the error is prejudicial. People v. Mateo, 453 Mich. 203, 215, 551 N.W.2d 891 (1996) (summarizing the articulations of harmful error in M.C.L. § 769.26; M.S.A. § 28.1096, MCR 2.613(A), and MRE 103). The inquiry into prejudice "focuses on the nature of the error and assesses its effect in light of the weight and strength of the untainted evidence." Id. The reviewing court must consider the entire record. Id., p. 217, 551 N.W.2d 891. Although the statement in question is certainly alarming in content, we find no prejudice requiring reversal in light of the entire record. Complainant had already testified regarding the escalating threats and forced fellatio. Further, the mother's testimony, which was replete with evidence of the complainant's distress upon his arrival home, corroborated complainant's testimony. Nor can we say, given the entire testimony of the mother and complainant, that the defendant's theory, his denial of the threats and forced fellatio, was eroded by admission of the statement.[5]

III

Defendant argues that he was denied the effective assistance of counsel in violation of his Sixth Amendment rights because his attorney was charged with a felony pending in the same county. Defendant asks that we presume a conflict of interest exists whenever an attorney is being prosecuted in the same county as a criminal defendant whom he represents. We decline to create such a rule and hold instead that in order to demonstrate that a conflict of interest has violated his Sixth Amendment rights, a defendant "must establish that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980).[6]

In People v. Pickens, 446 Mich. 298, 521 N.W.2d 797 (1994), this Court adopted the ineffective assistance of counsel standard articulated by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To prove a claim of ineffective assistance of counsel under Pickens and Strickland, a defendant must show that counsel's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense so as to deny defendant a fair trial. Strickland, 466 U.S. at 688-689, 104 S. Ct. 2052. In dicta however, Strickland cited Cuyler's rule for cases involving ineffective assistance of counsel claims premised on an actual conflict of interest. Id., 466 U.S. at 692, 104 S. Ct. 2052. Cuyler calls for a heightened standard in conflict of interest claims. In circumstances involving a conflict of interest, Cuyler stated that "counsel breaches the duty of *660 loyalty, perhaps the most basic of counsel's duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests." Strickland, 466 U.S. at 692, 104 S. Ct. 2052. This heightened standard is not a rule of prejudice per se; rather, "[p]rejudice is presumed only if the defendant demonstrates that counsel `actively represented conflicting interests' and that `an actual conflict of interest adversely affected his lawyer's performance.' " Id., quoting Cuyler, supra, 446 U.S. at 348-350, 100 S. Ct. 1708.

Cuyler involved an alleged conflict of interest arising from an attorney's representation of codefendants. Defendant argues that a potential conflict of interest between an attorney and his client is more serious than the representation of codefendants and, therefore, claims that a rule of prejudice per se is necessary. However, we find our reasoning in People v. Pubrat, 451 Mich. 589, 548 N.W.2d 595 (1996), persuasive in this case. In Pubrat, we held that an attorney's suspension from the practice of law does not create a presumption of ineffective assistance of counsel. We reasoned, "[a]ttorneys may be suspended from the practice of law for a multitude of reasons ... [and] there is no necessary correlation between an attorney's suspension and competency...." Id., p. 598, 548 N.W.2d 595. Similarly, we find that there is no automatic correlation between an attorney's theoretical self-interest and an ability to loyally serve a defendant. As in Pubrat, we recognize the potential for an attorney's self-interest to conflict with the representation of a defendant and that in such a case a finding of ineffective assistance of counsel would be warranted. If a convicted defendant believes that his attorney's representation was below an objective standard of reasonableness, the appropriate procedure is to seek a Ginther hearing. People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973).

We find that a rule per se is inappropriate and favor the reasoned approach of Cuyler, supra. In this case, defendant has cited no evidence to suggest that defense counsel actively lessened his defense as a result of his pending felony charge, nor do we find evidence of an actual conflict of interest on the record. To the contrary, defense counsel vigorously pursued his objections and presented a strong case.

IV

The defendant's conviction and sentence are affirmed.

MALLETT, C.J., and BOYLE and TAYLOR, JJ., concurred with WEAVER, J.

BRICKLEY, Justice (concurring in part and dissenting in part).

I dissent from that part of the lead opinion upholding the admission of the complainant's hearsay statement to his mother approximately ten hours after the alleged assault. First, I believe that the majority erroneously concluded that the statement was admissible as an excited utterance under MRE 803(2). Second, I believe that the error was not harmless under the reasoning of this Court in People v. Straight, 430 Mich. 418, 424 N.W.2d 257 (1988). For these reasons, I would reverse the decision of the Court of Appeals and remand the case for a new trial.

I

Hearsay is "a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." MRE 801(c). Generally, hearsay evidence is inadmissible unless it fits within one of the established exceptions to the hearsay rule. MRE 802. Exceptions to the hearsay rule are based on factors that provide assurances of testimonial reliability sufficient to dispense with the usual means of purging testimony of error and falsehood, i.e., an oath, cross-examination, and the trier of fact's assessment of the declarant's veracity. McCormick, Evidence (3d ed.), § 245, pp. 726-727.

As the lead opinion correctly recognizes, the rationale for the excited utterance exception to the hearsay rule is based on the perception that a person who is still under the "sway of excitement precipitated by an external startling event will not have the reflective capacity essential for fabrication so that any utterance will be spontaneous and *661 trustworthy." 5 Weinstein, Federal Evidence (2d ed.), § 803.04[1], p. 803-19. The lead opinion also correctly observes that it is the lack of capacity to fabricate, not the lack of time to fabricate, that is the focus of the exception. However, I believe the majority is unfaithful to the important principles that it espouses.

The majority sets forth the following "extraordinary" facts to support its conclusion that the complainant's statement was made while still under the continuing stress of the alleged sexual assault:

When he arrived home at approximately 1:45 a.m., he took an hour-long bath and let the water run that entire time. Afterward, he paced the living room and his mother observed him punching his fist into his hand. At approximately 5:30 a.m., complainant uncharacteristically slept on the couch, though his bedroom adjoined the living room. His mother observed that he appeared to have been crying. At approximately 11 o'clock the next morning, the complainant asked his father and mother separately for a weight bench. His father said maybe, and later, when his mother said yes, but not for three months, complainant broke into tears. When his mother asked what was wrong, complainant made the statement in question. We agree with the trial court that these circumstances describe a continuing level of stress arising from the assault that precluded any possibility of fabrication. [Op, p. 658.]

I disagree that these circumstances demonstrate a level of continuing stress sufficient to satisfy the threshold for admission of the complainant's statement as an excited utterance. While profound hysteria is not required, something more than unusual or "extraordinary" behavior must be evident before one can reasonably conclude that a hearsay declarant spoke under what Wigmore called the "immediate and uncontrolled domination of the senses ...." 6 Wigmore, Evidence (Chadbourn rev.), § 1747, p. 195.[1] I believe the fact that the complainant took a long bath and paced for hours while slamming a fist into his hand is indicative of a person deep in thought, reflecting on the earlier assault. Moreover, the complainant was able to calm himself enough to sleep for several hours. Finally, when he did wake up, he asked his parents to buy him a weight bench. This simple question is persuasive evidence of a reflective thought process: if the complainant could convince his parents to buy him a weight bench, he would no longer need to work out in the same establishment as the defendant. Thus, contrary to the majority, I believe these circumstances provide overwhelming proof of the complainant's reflective capacity.

I also believe that the majority grossly understates the importance of the ten-hour time lapse between the alleged event and hearsay statement in this case. The Court of Appeals found that, although the complainant was still under the stress of the assault, the "statement did not qualify as an excited utterance because ... the statement was made after there was sufficient time to permit reflective thought." Unpublished opinion per curiam, decided July 11, 1995 (Docket No. 148757). The majority concludes that this reasoning is "flawed" because "[t]hough the time that passes between the event and the statement is an important factor to be considered in determining whether the declarant was still under the stress of the event when the statement was made, it is not dispositive." Op., p. 657.

*662 While I agree that the Court of Appeals analysis was overly simplistic, I do not believe it can be said that its analysis was "flawed." Although not dispositive, temporal proximity is certainly the most important factor of the analysis, for, as time passes, the justification for the excited utterance exception disappears as the emotional excitement of the declarant subsides and his capacity for reflection revives. However, as Weinstein explains, "[P]hysical factors, such as shock, unconsciousness, or pain, may prolong the period in which the risk of fabrication is reduced to an acceptable minimum." Id., § 803.04[5], p. 803-24. There being no evidence in the record that the complainant suffered from any of these factors, I am compelled to agree with the Court of Appeals that the statement was inadmissible because it was made after there was more than sufficient time to permit reflective thought. This is in accord with the case law of this state, from which today's ruling drastically departs. See People v. Gee, 406 Mich. 279, 278 N.W.2d 304 (1979); People v. Straight, supra; People v. Creith, 151 Mich.App. 217, 390 N.W.2d 234 (1986); People v. Petrella, 124 Mich.App. 745, 336 N.W.2d 761 (1983).[2]

Also militating against the admissibility of the complainant's statement is the fact that the statement was made in response to his mother's persistent questioning. Like the question of elapsed time, whether a statement made in response to questioning should be excluded under MRE 803(2) depends on the circumstances of the questioning and whether it appears that the statement was the result of reflective thought. McCormick, supra, § 297, p. 857. As was stated in Straight:

"Evidence that the statement was ... made in response to an inquiry, while not justification for automatic exclusion, is an indication that the statement was the result of reflective thought, and where the time interval permitted such thought these factors might swing the balance in favor of exclusion." [Id., p. 426, n. 6, 424 N.W.2d 257, quoting McCormick, supra, p. 857.]

The record reflects the following scenario. Complainant returned home around 1:45 a.m., but seemed to have a hard time getting in the door. Once inside his mother asked, "Joel, what's wrong?" to which he replied, "Oh, mom, leave me alone." Moments later she asked, "Well, Joel, do you want to talk to me?" to which he responded, "No, I can't." A short time later she assured him that "[w]hen you want to talk, I'm here." The following morning, after complainant asked for the weight bench, his mother once again asked him, "what's wrong?" In response to this question complainant made the hearsay statement in issue, "Oh, mom, I had to be sucked off last night before I can [sic] even come home."

Had the complainant blurted out the statement immediately after returning home, I might agree, as the majority put it, that the "dam simply broke." Op., p. 658. However, this is not what happened. The complainant's mother, observing the complainant's apparent distress, began questioning him as soon as he got home. He was, however, sufficiently in control of himself to refuse to answer her questions. By the time he finally responded, he had had more than nine hours to formulate his eventual response to her persistent questioning. His behavior during that time suggests overwhelmingly that he possessed the capacity to do so, and that his *663 response was, therefore, the product not of the "uncontrolled domination of the senses," but rather of reflective thought.[3] Thus, I conclude that the statement did not possess sufficient indicia of reliability to justify its admission as an excited utterance under MRE 803(2).

II

I also disagree with the majority's conclusion that the admission of the complainant's statement was harmless error. The Court of Appeals concluded that the error was harmless because it was cumulative to the complainant's in-court testimony. The majority correctly points out that the fact that a statement is cumulative, standing alone, does not result in a finding of harmless error. Rather, error requires reversal only if it is prejudicial. People v. Mateo, 453 Mich. 203, 215, 551 N.W.2d 891 (1996). The prejudice inquiry "focuses on the nature of the error and assesses its effect in light of the weight and strength of the untainted evidence." Id., p. 217, 551 N.W.2d 891.

In People v. Straight, supra, the defendant was convicted of second-degree criminal sexual conduct involving a four-year-old girl. This Court held that the trial judge had erroneously permitted the parents of the four-year-old victim to testify under the excited utterance exception regarding statements made by the victim one month after the alleged assault. In evaluating the prejudicial effect of the improperly admitted hearsay, we stated:

The admission of this evidence being erroneous, we must determine whether a miscarriage of justice has resulted. M.C.L. § 769.26; M.S.A. § 28.1096. Our inquiry is to the "effect the error had or reasonably may be taken to have had upon the jury's decision." Kotteakos v. United States, 328 U.S. 750, 764, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946). To determine whether the defendant was so prejudiced that reversal is required, we evaluate the prejudicial effect of testimony in the light of other competent evidence. People v. Kregger, 335 Mich. 457, 56 N.W.2d 349 (1953). In light of the emphasis placed on this evidence by the prosecution, we cannot safely conclude that the error did not have substantial influence on the jury's result. Although the child testified at trial regarding the facts related by her parents, these facts were denied by the defendant. When viewed as a one-to-one credibility contest between the child and defendant, the reinforcement provided by the people's hearsay evidence may have tipped the scales toward a guilty verdict. In any event, upon *664 review of the whole record, we conclude that the error was such that failure to grant the requested relief would be inconsistent with substantial justice. [Straight, supra, pp. 427-428, 424 N.W.2d 257 (emphasis added).]

I believe that our reasoning in Straight applies with equal force to the present case. First, like Straight, this case came down to a one-against-one credibility contest, there being no corroborating evidence of the alleged sexual assault independent of the complainant's testimony. The majority concludes that the statement was merely cumulative because "[t]he mother's testimony was replete with other evidence of the complainant's distress upon his arrival home." Op., p. 659. However, the statement was not offered to prove that the complainant was distressed when he arrived at home. Instead, it was offered to prove the truth of the matter asserted, that is, that the sexual assault actually occurred. The complainant's mother was not present and thus could not testify about the circumstances surrounding the alleged assault. Thus, the statement was not merely cumulative to the rest of her properly admitted in-court testimony.

Second, also as in Straight, the prosecution in the present case used the hearsay testimony to bolster the complainant's credibility.[4] The majority concludes that the statement was merely corroborative of the complainant's in-court testimony because he "had already testified regarding the escalating threats and forced fellatio." op., p. 659. However, it is well established that the rule of harmless error with respect to hearsay statements is in no way related to the availability of the hearsay declarant as a witness at trial. People v. Hallaway, 389 Mich. 265, 278, 205 N.W.2d 451 (1973); People v. Kregger, supra. Rather, the harmless error rule is applied only in those instances where the out-of-court statement has no significant bearing on a disputed question of fact. Hallaway, supra, p. 278, 205 N.W.2d 451.

When viewed as a pure credibility contest, it strains reason to suggest that the complainant's hearsay statement had no significant bearing on the main disputed question of fact in this casethe occurrence or nonoccurrence of the alleged sexual assault. The majority's conclusion that "the defendant's theory, his denial of the threats and forced fellatio, was [not] eroded by admission of the statement," op., p. 659, discounts the sensationally prejudicial nature, as well as the likely effect on the jury, of a statement by a sixteen-year-old boy to his mother that "I had to be sucked off last night before I can [sic] even come home."[5] This graphically descriptive statement converted the case from a one-against-one credibility contest into a two-against-one contest, the second witness being the complainant's mother who, by sole virtue of her motherhood, took the stand cloaked with an aura of reliability that *665 likely moved the jury to conclude that, if the complainant told his mother that the defendant assaulted him, then it must be true. The reinforcement provided by the people's hearsay evidence likely tipped the scales in favor of a guilty verdict, especially in light of the fact that excited utterance statements are likely to have greater evidentiary value to the trier of fact than in-court statements to the same effect. In holding that the excited utterance exception does not violate the federal Confrontation Clause, Chief Justice Rehnquist made this very point:

But those same factors that contribute to the statements' reliability cannot be recaptured even by later in-court testimony. A statement that has been offered in a moment of excitementwithout the opportunity to reflect on the consequences of one's exclamationmay justifiably carry more weight with a trier of fact than a similar statement offered in the relative calm of the courtroom. [White v. Illinois, 502 U.S. 346, 355-356, 112 S. Ct. 736, 116 L. Ed. 2d 848 (1992).]

Upon review of the entire record, I cannot safely conclude that complainant's statement did not have a substantial effect on the jury's decision. I believe the error to be of a kind that the failure to grant relief has resulted in a miscarriage of justice, and, thus, would reverse the defendant's conviction and remand for a new trial.

MICHAEL F. CAVANAGH and MARILYN J. KELLY, concurred with BRICKLEY, J.

NOTES

[1] Instead of treating physical conditions as a factor to consider in excited utterance analysis, the dissent would create a new rule which makes physical factors such as shock, unconsciousness, or pain a prerequisite for the admission of an excited utterance after a lapse of time.

[2] See Straight, supra at 421, n. 1, 424 N.W.2d 257.

[3] In Straight, the statement was not made until approximately one month after the incident. Id. at 421, 424 N.W.2d 257.

[4] We acknowledge that this statement is nearing the outer limits of admissibility under the excited utterance exception, and trial courts should be so cautioned.

[5] The dissent relies on Straight, supra, to support its conclusion that admission of the statement was not harmless error. In Straight, Justice Boyle concluded that, when viewed as a "one-to-one credibility contest between the child and defendant," this Court could not conclude that the parents' testimony regarding the complainant's statements did not influence the jury's decision. Id. at 427-428, 424 N.W.2d 257. However, Straight is distinguishable because it involved the testimony of a five-year-old complainant, while the present case involves the testimony of a sixteen-year-old complainant whom the defense had full opportunity to cross-examine. Thus, in light of all the evidence, we conclude that the admission of the statement did not tip the scales in favor of a guilty verdict.

[6] Const. 1963, art. 1, § 20 provides no greater protection than the Sixth Amendment of the federal constitution. People v. Pickens, 446 Mich. 298, 326, 521 N.W.2d 797 (1994).

[1] The classic statement of the reason underlying this exception is that of Wigmore:

This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or at least as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker's belief as to the facts just observed by him; and may therefore be received as testimony to those facts. Id.

[2] The prosecution cites several cases from other jurisdictions that have upheld as excited utterances statements made quite long after the startling event. However, in each of these cases the declarant possessed certain "physical factors, such as shock, unconsciousness or pain," which Weinstein states are a prerequisite for admission of an excited utterance after a significant lapse of time. See, e.g., State v. Starcevich, 139 Ariz. 378, 678 P.2d 959 (1983) (a statement by a rape victim made approximately nine hours after the sexual assault was properly admitted where the victim was severely injured in the assault); State v. Crowhurst, 470 A.2d 1138 (R.I., 1984) (a rape victim's statement three hours after an assault was properly admitted where the victim was crying, bruised, disheveled, and in shock); Mills v. State, 626 S.W.2d 583 (Tex.App., 1981) (a prosecutrix' statement was admissible as an excited utterance six to eight hours after a rape where the statement was made almost immediately after she had left the presence of the armed defendant). Today's ruling is beyond the outer fringe of excited utterance cases in terms of its admission of a statement made approximately ten hours after the startling event where there is no evidence of serious physical or emotional trauma.

[3] The majority's attempt to distinguish Straight is unavailing: "Unlike the questioning in Straight, the mother's inquiries of the complainant when he arrived home and the following morning were not suggestive." Op., p. 658. However, our reversal in Straight was not predicated on the suggestiveness of the questioning, but, rather, on the one-month time lapse, and, as in the present case, the frequency of the mother's questioning. In fact, the mother's questioning in Straight was no more suggestive than in this case:

"Q. Could you tell us how this developed, who said what and when?

"A. First I started in on her about, `[R _____(the child) ], what is wrong with you? Why do you keep throwing up? Why do you keep waking up and shaking. Tell me what is wrong with you.'

"So she just, you know, kept on looking up at me really scared and she wouldn't say anything and I just looked over at [her father] and I said, `[G_____], you've got to do something with her. I can't find out what's wrong with her.' And so he looked at her and said, `[R _____], tell us what happened right now.' And that is when she come out and said something and I said, `Did Bill do anything to you?,' and she said yesdo you want me to go ahead and say it?

"Q. That is right. We are all adults here, we want to hear it.

"A. She said, `Yes, Bill put his fingers inside me,' and I said, `What else did he do?,' and she said, `he told [T _____ (another child) ], to go get a fork so that he could eat me.' And [T_____] was downstairs when I came home that night so she said that [T _____] went and got a fork out of the cupboard so that he could eat [R_____].

"Q. Okay. Is that basically what she told you in front of your husband?

"A. Yes." [People v. Straight, supra, p. 421, n. 1, 424 N.W.2d 257.]

The majority loses sight of the crucial question, which is whether the declarant was still under the stress of the event so that his statement could not possibly be the result of fabrication, intervening actions, or the exercise of choice or judgment. Whether the declarant in fact fabricated his statement, or whether he at least possessed the motive to fabricate, is irrelevant to the MRE 803(2) excited utterance determination.

[4] Michigan law has long proscribed the use of a prior consistent statement to bolster the credibility of a witness. As Justice Brennan wrote in People v. Hallaway:

Hearsay is defined as an extra-judicial statement which is offered for the purpose of proving the truth of the thing said. While some writers have suggested that the hearsay rule need not be applied to the extra-judicial statements of a declarant who later testifies as a witness, this Court has not recognized such an exception to the hearsay rule. Of course, prior inconsistent statements of a witness can be shown for impeachment purposes. But this is not properly an exception to the hearsay rule. Prior inconsistent statements are not admissible to prove the truth of the thing said. They are offered, rather, to prove that the inconsistent statement was in fact made, irrespective of its truth, for the purpose of impeaching contrary testimony from the witness stand. Where the prior extra-judicial statement of a witness agrees with his testimony, the out-of-court remark is self-serving, and is nor generally permitted under any established exception to the hearsay rule. [389 Mich. 265, 275-276, 205 N.W.2d 451 (1973) (emphasis supplied); see also Stewart v. People, 23 Mich. 63 (1871).]

Where, as in the present case, the occurrence of the event described by the hearsay statement was a hotly contested issue of fact, the people should not have been permitted to bolster the testimony of their witness with his extrajudicial statement to his mother. Hallaway, supra, p. 279, 205 N.W.2d 451; see also People v. Cunningham, 398 Mich. 514, 522, 248 N.W.2d 166 (1976). The admission of the complainant's prior consistent statement was prejudicial and constituted error requiring reversal. Id.

[5] The prosecutor conceded at oral argument that this was the single most extraordinary statement he had ever heard uttered in a criminal case.