People v. Katt

662 N.W. 2d 12 (2003)

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Nature of the Case

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Facts

D was charged with the sexual assaults of a seven-year-old boy (DD) and his five-year-old sister (AD). D lived in a home with the children, their mother, her ex-husband, and another individual. P moved to admit the testimony of Angela Bowman, a child-protective-services specialist. Bowman testified that she had visited DD at his elementary school and asked DD to name the members of his household. He named D as a relative and spontaneously told Bowman that D was doing 'nasty stuff' to him. DD then described a sexual encounter with D. P 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. D claimed 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 admitted the evidence under MRE 803(24). The court analyzed the trustworthiness in the statements from the spontaneity of [DD's] first statements and that the mother did not know that her child was going to be interviewed. There was no evidence of prepping. Bowman was there to talk about physical abuse and not sexual abuse. 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 of how to get truthful information from [DD]. D was found guilty and appealed. On appeal, D contended that DD's statement to Bowman was not admissible under MRE 803(24). D advocated 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.]' The Court of Appeals rejected the near miss-theory and D’s narrow interpretation of MRE 803(24). If the statement is inadmissible under the other exceptions, these courts allow the testimony to be considered for admission under [the residual hearsay exception]. D also claimed the evidence did not possess 'equivalent circumstantial guarantees of trustworthiness' and it was not more probative than DD's first statement about the abuse, which was made to his mother before the Bowman interview. The Court of Appeals held that DD's statement contained ample 'circumstantial guarantees of trustworthiness' as required by MRE 803(24). It affirmed. D appealed.