Preview:

Michigan Supreme Court Lansing, Michigan 48909 _____________________________________________________________________________________________
C h i e f J u s ti c e

Maura D. Corrigan

J u s t ic e s

Opinion
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v TERRY LYNN KATT,
Defendant-Appellant.
___________________________________ BEFORE THE ENTIRE BENCH
KELLY, J.
The issue in this case is whether the

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED MAY 30, 2003


No. 120515


trial

court


properly admitted under MRE 803(24) the victim's hearsay
statement made to a social worker that defendant sexually
abused her. The statement did not qualify for admission under
MRE 803A, the tender-years rule.
We conclude that the trial court properly admitted the
statement. MRE 803(24) permits the admission of hearsay


statements that narrowly miss the categorical exceptions of


MRE 803, but satisfy the requirements of MRE 803(24), under
circumstances such as those present in this case.


Accordingly, we affirm the judgment of the Court of Appeals.
I. FACTUAL AND PROCEDURAL BACKGROUND


A jury convicted defendant of three counts of first degree criminal sexual conduct, sexual penetration of a victim
under thirteen years of age (CSC I). MCL 750.520b(1)(a). The
Court of Appeals affirmed the convictions.
A. THE TRIAL COURT


In the trial court, the prosecution charged defendant
with the sexual assaults of a seven-year-old boy (DD) and his
five-year-old sister (AD) in the autumn of 1998. lived in a home with the children, their Defendant
her


mother,

ex-husband, and another individual.
Before trial, the prosecutor moved to admit the testimony
of Angela Bowman, a child-protective-services specialist with
the Family Independence Agency (FIA). During the hearing,


Bowman testified that she had visited DD at his elementary
school after the FIA received an anonymous report that the
children's mother was physically abusing them.
In the course of their conversation, Bowman asked DD to
name the members of his household. He named defendant as a


relative and spontaneously told Bowman that defendant was
doing "nasty stuff" to him.
Bowman further testified that, when she asked DD what he
2


meant by nasty stuff, he was initially guarded, but, then,
made the following statement:
[Defendant] would come into his room, which
[DD] shared with his sister [AD] and dis--totally
disrobed, and take off his clothes, which would be
a shirt, an underwear--some underwear or pajamas
bottoms, if he were wearing them, and get on top of
[DD]. And I ask--I asked him to describe now--at
the time, because I wasn't prepared for this
interview, I didn't have any anatomically correct
dolls or anything, so I ask him to show--to
demonstrate to the best of his ability what he was
describing.
Bowman related the details of this and numerous other specific
instances of defendant's abuse as DD had revealed them to her.
The prosecution conceded that DD's statement to Bowman
was not admissible under the tender-years exception to the
hearsay rule, MRE 803A, because it was his second statement
about the abuse. Defendant argued that MRE 803A "covers the


field," meaning that, if a statement falls in the category of
a tender-years statement and is inadmissible under MRE 803A,
it cannot be admitted under MRE 803(24).
The trial court rejected defendant's argument and


admitted the evidence under MRE 803(24).

In ruling that DD's


statements satisfied the requirements of MRE 803(24), the
court stated:
[I]n the Court's opinion there are several
indicia of trustworthiness in the statements given
by [DD] to Miss Bowman. First is the spontaneity
of [DD's] first statements to Miss Bowman.
Recall--The Court's [sic] heard the testimony, that
Miss Bowman was not there to talk about sexual
abuse, she was there to talk about physical abuse.
3


I would also note that as far as this Court's
record is concerned [DD and AD's mother] did not
know that her child was going to be interviewed on
October 27. Accordingly, there doesn't appear to
be anything on the record here which would
establish that somehow [DD] was prepped by somebody
to mouth sentences to Miss Bowman that were not
true. Miss Bowman first inquired of [DD] about
physical abuse. Then, [DD,] and in this Court's
opinion this is important, not in response to any
questioning by Miss Bowman regarding sexual abuse,
spontaneously spoke about abuse--sexual abuse by
the defendant. It's clear that [DD] spoke from his
personal knowledge. And, as her duty as a
protective service worker, Miss Bowman inquired
further. Now, Miss Bowman's qualifications to
interview children were obvious from the record.
She is aware of how to . . . interview children.
She testified that she avoided leading questions
and avoided other pitfalls of questioning young
children. And the Court finds that she was totally
aware how to get truthful information from [DD].
The Court finds that the record and the dynamics of
this exchange between Miss Bowman and [DD] provided
a form [sic] that an accurate statement would be
uttered by [DD]. The Court finds no plan of
falsification by [DD] under the circumstances in
the record that I have before me, and no--and I do
find a lack of motive to fabricate on the child's
part. The Court also notes that Miss Bowman
testified, and I believe her testimony, she had no
preconceived notion that anything of a sexual
nature occurred when she walked into the room on
October 27, [19]97. Indeed, as I've stated before,
she was there to talk about physical abuse.
* * *
Accordingly, the Court finds--from the
totality of the circumstances here, I find the
required trustworthiness guarantees that [MRE]
803(24) requires.
B. THE COURT OF APPEALS


On appeal, defendant again contended that DD's statement
to Bowman was not admissible under MRE 803(24). He urged that


4


the Court adopt what has been dubbed the "near-miss" theory,
which "maintains that a hearsay statement that is close to,
but that does not fit precisely into, a recognized hearsay
exception is not admissible under [the residual hearsay


exception.]" 1994).


United States v Deeb, 13 F3d 1532, 1536 (CA 11,


The Court of Appeals rejected the near miss-theory and
defendant's narrow interpretation of MRE 803(24) and, instead,
adopted the approach taken by the United States Court of
Appeals for the Eighth Circuit in United States v Earles, 113
F3d 796 (CA 8, 1997):
The meaning of the catch-all's "specifically
covered" language has caused considerable debate.
See, e.g., McKethan v United States, 439 US 936; 99
S Ct 333; 58 L Ed 2d 333 (1978) (Justices Stewart
and Marshall dissenting from the Court's denial of
writs of certiorari and contending that the Court
should resolve the circuit split on this issue[.]).
However, the majority of circuit courts have held
that the phrase "specifically covered" means only
that if a statement is admissible under one of the
prior exceptions, such prior subsection should be
relied upon instead of [the residual hearsay
exception]. If, on the other hand, the statement
is inadmissible under the other exceptions, these
courts allow the testimony to be considered for
admission under [the residual hearsay exception].
[248 Mich App 282, 292; 639 NW2d 815 (2001),
quoting Earles, supra at 800 (emphasis in 248 Mich
App 292).]
Defendant next argued that DD's statement did not meet
two of the requirements of MRE 803(24). Specifically, (1) the
evidence did not possess "equivalent circumstantial guarantees
of trustworthiness" and (2) it was not more probative than
5


DD's first statement about the abuse, which was made to his
mother before the Bowman interview.
The Court of Appeals rejected the first challenge,


stating that it agreed with the trial court's "thorough and
well-reasoned assessment that DD's statement implicating


defendant in these crimes contained ample 'circumstantial
guarantees of trustworthiness' as required by MRE 803(24)."
248 Mich App 297. Regarding DD's statements to his mother,


the panel found that
there is no indication in the record that either DD
or AD recounted the circumstances of the assaults
with the same detail. Nor is there any indication
that their alleged statements to their mother
contained particularized guarantees of
trustworthiness similar to those regarding the
statement given to Bowman. Indeed, when defense
counsel inquired of the mother during trial
regarding her knowledge of the alleged sexual
abuse, she indicated only that AD had told the
children's uncle about the abuse, who in turn told
the mother . . . ." [Id. at 299-300.]
Accordingly, the Court of Appeals affirmed the trial court's
admission of the evidence.
II. STANDARD OF REVIEW


The decision whether to admit evidence is within a trial
court's discretion. This Court reverses it only where there
People v Lukity, 460 Mich
However, the decision


has been an abuse of discretion. 484, 488; 596 NW2d 607 (1999).

frequently involves a preliminary question of law, such as
whether a rule of evidence or statute precludes the admission


6


of the evidence.

We review questions of law de novo.

Id.;


People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998).
Therefore, when such preliminary questions are at issue, we
will find an abuse of discretion when a trial court admits
evidence that is inadmissible as a matter of law. III. ANALYSIS
Id.


The Michigan Rules of Evidence contain two residual
exceptions: MRE 803(24) and MRE 804(b)(7). MRE 803(24), the


exception at issue here, provides:
(24) Other Exceptions. A statement not
specifically covered by any of the foregoing
exceptions but having equivalent circumstantial
guarantees of trustworthiness, 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. However, a statement may
not be admitted under this exception unless the
proponent of the statement makes known to the
adverse party, sufficiently in advance of the trial
or hearing to provide the adverse party with a fair
opportunity to prepare to meet it, the proponent's
intention to offer the statement and the
particulars of it, including the name and address
of the declarant.
Thus, evidence offered under MRE 803(24) must satisfy
four elements to be admissible: (1) it must have


circumstantial guarantees of trustworthiness equal to the
categorical exceptions, (2) it must tend to establish a
material fact, (3) it must be the most probative evidence on


7


that fact that the offering party could produce through
reasonable efforts, and (4) its admission must serve the
interests of justice. Also, the offering party must give


advance notice of intent to introduce the evidence.
MRE 803(24) is nearly identical to FRE 807.1 "The


Michigan Rules of Evidence were based on the Federal Rules of
Evidence." People v Kreiner, 415 Mich 372, 378; 329 NW2d 716


(1982). As a result, Michigan courts have referred to federal
cases interpreting rules of evidence when there is a dearth of
related Michigan case law. See, e.g., People v VanderVliet,


444 Mich 52, 60 n 7; 508 NW2d 114 (1993); People v Welch, 226
Mich App 461, 466; 574 NW2d 682 (1997).


FRE 803(24) contained one of the Federal Rules' residual
exceptions until 1997. At that time, FRE 803(24) was combined
with FRE 804(b)(5) and moved to FRE 807. FRE 807 provides:
A statement not specifically covered by Rule
803 or 804 but having equivalent circumstantial
guarantees of trustworthiness, is not excluded by
the hearsay rule, 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 which 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. However, a statement may not be admitted
under this exception unless the proponent of it
makes known to the adverse party sufficiently in
advance of the trial or hearing to provide the
adverse party with a fair opportunity to prepare to
meet it, the proponent's intention to offer the
statement and the particulars of it, including the
name and address of the declarant.
8


1

Given that Michigan did not adopt residual exceptions to
its rules of evidence until 1996, there is little case law
interpreting them. Before this case, no Michigan court had


considered whether evidence that is similar to a categorical
hearsay exception could still be admitted under one of the
residual exceptions. Therefore, it is appropriate to consider
the federal courts' discussions of the issue.
A. THE RESIDUAL EXCEPTIONS AND THEIR APPLICATION
IN "NEAR MISS" SITUATIONS
The residual exceptions are designed to be used as
safety valves in the hearsay rules. They will allow evidence


to be admitted that is not "specifically covered" by any of
the categorical hearsay exceptions under circumstances


dictated by the rules. Differing interpretations of the words
"specifically covered" have sparked the current debate over
the admissibility of evidence that is factually similar to a
categorical hearsay exception, but not admissible under it.2
1. THE NEAR-MISS THEORY


"The Near Miss theory . . . states that a piece of
hearsay evidence may be offered only under the exception that
most nearly describes it. exception, it may not be If it is excluded under that
offered under the residual


There is no doubt, of course, that statements completely
alien to any of the categorical exceptions may be candidates
for admission under the residual exceptions.
9


2

exceptions."

In re Japanese Electronic Products Antitrust


Litigation, 723 F2d 238, 302 (CA 3, 1983), rev'd on other
grounds Matsushita Electric Industrial Co, Ltd v Zenith Radio
Corp, 475 US 574, 580; 106 S Ct 1348; 89 L Ed 2d 538 (1986).
Judge Easterbrook gave a concise statement of the rationale
behind the near-miss theory in his concurring opinion in
United States v Dent, 984 F2d 1453, 1465-1466 (CA 7, 1993):
[The residual exception] reads more naturally
if we understand the introductory clause to mean
that evidence of a kind specifically addressed
("covered") by one of the [categorical exceptions]
must satisfy the conditions laid down for its
admission, and that other kinds of evidence not
covered (because the drafters could not be
exhaustive) are admissible if the evidence is
approximately as reliable as evidence that would be
admissible under the [categorical exceptions].
The United States District Court for the Eastern District
of Pennsylvania described another basis for the theory in
Zenith Radio Corp v Matsushita Electric Industrial Co, Ltd,
505 F Supp 1190 (ED Penn, 1980):
The [near-miss theory] is also supported by a
basic principle of statutory construction, which we
find equally applicable to the Federal Rules of
Evidence: that the specific controls the general.
As the Supreme Court stated in Radzanower v Touche
Ross & Co, 426 US 148, 153, 48 L Ed 2d 540, 96 S Ct
1989 (1976):
"It is a basic principle of statutory
construction that a statute dealing with a narrow,
precise, and specific subject is not submerged by a
later enacted statute covering a more generalized
spectrum. 'Where there is no clear intention
otherwise, a specific statute will not be
controlled or nullified by a general one,
regardless of the priority of enactment.' Morton v
10


Mancari, 417 US 535, 550-551 (1974)." [Citations
omitted.]
In conformity with this rule we conclude that
the residual exceptions cannot be invoked when
there is a specific exception which sets forth
conditions governing the admissibility of a clearly
defined category of hearsay evidence. [Zenith,
supra at 1263 n 91 (discussing former FRE 803[24]
before the adoption of FRE 807).]
Thus, the near-miss theory is based on a broad reading of
the term "specifically covered." Evidence is "specifically


covered" if there is a categorical hearsay exception dealing
with the same subject matter or type of evidence.


Accordingly, under the near-miss theory, a party could never
use a residual exception to admit evidence that was


inadmissible under, but related to, a categorical exception.
For example, a strict application of this theory would
preclude admission of a business document unless it met the
requirements of MRE 803(6). The residual exception would not


be available for it under any circumstances.
Although the near-miss theory would simplify the


resolution of disputes regarding the admission of hearsay, few
courts in the nation have adopted it. have softened the rule.3 Those that have done so


Even the Zenith court declined to


See United States v Mejia-Valez, 855 F Supp 607, 617-618
(ED NY, 1994)(holding that defendant could not use the
residual exception to admit hearsay statements from an
available declarant when the covered exception required
unavailability); In re Fill, 68 BR 923, 931 (SD NY,
1987)(holding that "highly unusual case[s]" may be exempted
from the near-miss theory).
11


3

hold that the residual exception could never be used to admit
evidence that fell within a categorical exception, but was
inadmissible under it:
Some of the . . . specific hearsay exceptions
similarly apply to a clearly defined category of
evidence, and we would follow the "near miss"
doctrine with respect to them . . . if the evidence
before us were within those categories. E.g., Rule
803(18) (learned treatises); Rule 803(22) (judgment
of previous conviction.)
However, most of the hearsay exceptions which
plaintiffs invoke are not of this type. They do
not apply to a clearly defined category of
evidence, as the former testimony exception does.
Instead, they apply to a relatively amorphous
category of evidence which is delimited solely by
the requirements set forth in the rule itself. For
instance, the business records exception applies to
any "memorandum, report, record, or data
compilation, in any form" which satisfies certain
additional requirements. . . . We do not see how
the "near miss" doctrine which defendants urge
could practically be applied to those rules,
without negating the residual exceptions
altogether, a result which is plainly contrary to
the intent of Congress. [Id. at 1264 (emphasis
added), accord Acme Printing Ink Co v Menard, Inc,
812 F Supp 1498, 1527 (ED Wis, 1992).]
2. REJECTING THE NEAR-MISS THEORY


The great majority of courts have rejected the near-miss
theory by interpreting the residual exception to omit as
"specifically covered" only those hearsay statements


admissible under a categorical exception.

A statement not


admissible under the categorical exceptions would not be
"specifically covered" by those exceptions, and thus could be
a candidate for admissibility under the residual exceptions.


12


In

United States v Clarke,4 the United States Court of


Appeals for the Fourth Circuit explained the rationale for
rejecting the near-miss theory.
Appellant asks us to construe "not
specifically covered" narrowly, limiting [the
residual exceptions] to cases in no way touched by
one of the [categorical] exceptions. According to
appellant, admitting testimony that was a "near
miss" under 804(B)(1) would undermine the
protections of the evidentiary rules, as well as
violate the Sixth Amendment's Confrontation Clause.
We disagree. Appellant's view of "not
specifically covered" would effectively render [the
residual exception] a nullity. The plain meaning,
and the purpose, of [the residual exception] do not
permit such a narrow reading. We believe that
"specifically covered" means exactly what it says:
if a statement does not meet all of the
requirements for admissibility under one of the
prior exceptions, then it is not "specifically
covered." United States v. Fernandez, 892 F2d 976,
981 (11th Cir. 1989). This reading is consistent
with the purposes of [the residual exception].
That rule rejects formal categories in favor of a
functional inquiry into trustworthiness, thus
permitting the admission of statements that fail
the strict requirements of the prior exceptions,
but are nonetheless shown to be reliable. If we
were to adopt appellant's reading of the rule, we
would deprive the jury of probative evidence
relevant to the jury's truth-seeking role.
* * *
To adopt the "near miss" theory would create
an odd situation where testimony that was equally
trustworthy would be distinguishable based merely
on its proximity to a specified exception. For
instance, in United States v Ellis, 951 F.2d 580
(4th Cir. 1991), this circuit approved the
admission of the statement made by a later-deceased
witness pursuant to a plea agreement under


4

2 F3d 81 (CA 4, 1993).
13


804(b)(5), even though that statement was very
different from any of the specified exceptions.
Given our holding in Ellis, it would contradict
common sense to exclude equally reliable testimony
here simply because it fell closer to one of the
specified exceptions. We thus reject the "near
miss" theory of interpreting Fed. R. Evid. 803(24)
and 804(b)(5). [Clarke, 2 F3d 83-84 (emphasis
added) (discussing the former residual exceptions
before the adoption of FRE 807).]
The United States Court of Appeals for the Sixth Circuit
followed suit in United States v Laster,5 stating:
Although some courts have held that if
proffered evidence fails to meet the requirements
of the Fed. R. Evid. 803 hearsay exception, it
cannot qualify for admission under the residual
exception, the court declines to adopt this narrow
interpretation of Fed. R. Evid. 807 as suggested by
defendants. Rather, this court interprets Fed. R.
Evid. 807, along with the majority of circuits, to
mean that "if a statement is admissible under one
of the hearsay exceptions, that exception should be
relied on instead of the residual exception." 5
Jack B. Weinstein & Margaret A. Berger, Weinstein's
Federal Evidence

Download 20030530_S120515%2861%29_katt6dec02.op.PDF

Michigan Law