People v. Hendrickson 459 Mich. 229

Kelly, J.

We granted leave in this case to determine (1) whether independent evidence of a beating was required before a 911 audiotape recording about the beating could be admitted under the present sense impression exception to the rule barring hearsay, and (2) whether photographic evidence depicting the victim’s injuries presented independent evidence of the beating.

We find that the photographs of the victim depicting injuries consistent with the allegations of assault provide independent evidence that the assault occurred. Therefore, we conclude that the recording of the victim’s statement that defendant had just beaten her is admissible under the present sense impression exception to the rule barring hearsay. The *232trial court did not abuse its discretion in admitting the recording.

I. FACTUAL AND PROCEDURAL BACKGROUND

On the evening of October 8, 1994, defendant and his live-in girlfriend, the victim, met at a bar in Republic, Michigan. Apparently, the two began arguing after the intoxicated victim noticed defendant’s former girlfriend in the bar. After hearing a slap, a waitress overheard defendant exclaim, “Please don’t hit me again.” As defendant and the victim prepared to leave, the victim told the waitress to “call 911.” The waitress also noticed the victim’s arm reappear in the doorway after she left, indicating that she may have fallen while leaving.

At 12:43 A.M., the victim telephoned 911 and stated, “I want someone to pick up Charles Hendrickson from Republic.” After the dispatcher inquired regarding what defendant had done, the victim responded, “I have just had the living s— beat out of me.” She also informed the dispatcher that defendant was “leaving the house now” and that she was leaving to seek medical treatment.

At approximately 7:00 A.M., a state trooper interviewed the victim regarding the 911 call. Visibly shaken, the victim informed the trooper that defendant had grabbed her around the neck, thrown her to the floor, and pummeled her. Consistent with the victim’s allegations, the trooper observed bruising on the left side of her neck and swelling on the right side of her lip. There was bruising and swelling on her left eye and lacerations on her chin, left eye, and the inside of her lip. During the course of the interview, the trooper photographed the injuries. The prosecu*233tion charged defendant with one count of domestic violence under MCL 750.81(2); MSA 28.276(2).

The day after defendant had been charged, the victim recanted her statement to the police, asserting that she had made a mistake. She claimed the incident had been her fault and had occurred in the parking lot outside the bar rather than at her residence. Consistent with its “no drop” policy for domestic abuse cases, the prosecution proceeded with its case against defendant.

Some days afterward, the victim informed a victim/witness coordinator with the prosecutor’s office that she had lied about the assault and was angry that authorities disbelieved her. She later informed the prosecutor’s office, through counsel, that she intended to assert her Fifth Amendment privilege against self-incrimination1 if called to testify.

At trial, over defendant’s objection, the district court permitted the prosecution to introduce the 911 audiotape as evidence of the assault. It concluded that the victim’s statements fit within the present sense impression exception to the exclusionary hearsay rule. It also admitted the police photographs taken on October 9 showing the victim’s injuries.

During her testimony, the victim/witness coordinator explained that the victim had contacted her regarding domestic violence incidents on two previous occasions. Although the victim informed the coordinator that defendant assaulted her on March 17, 1994, she later recanted. On April 7, 1994, the victim reported another assault and informed the coordinator that “she was tired of being [defendant’s] *234punching bag.” Defendant was convicted of assault and battery on the basis of the April 7 assault. The prosecution also introduced photographs of the victim taken after the assaults.

At the conclusion of trial, the jury found defendant guilty of domestic violence for the October 9 assault. However, the circuit court reversed the conviction, concluding that the district court had abused its discretion in admitting the 911 audiotape. It explained that the victim’s statement could not be admitted as a present sense impression without independent evidence establishing the assault. Without the 911 audiotape, the circuit court ruled, there was no evidence of an assault.

The Court of Appeals affirmed, concluding that the victim’s statements lacked sufficient indicia of reliability to qualify under the present sense impression exception to the rule barring hearsay. Noting the absence of independent evidence corroborating complainant’s statements, the Court of Appeals concluded that the district court had abused its discretion by admitting the 911 audiotape.

Dissenting, Judge Markman stated that the present sense impression exception does not require corroborating evidence of the perceived event. Notwithstanding this determination, he reasoned that the photographs depicting the victim’s injuries represented corroborating evidence that an assault had occurred. Therefore, he found that the district court did not abuse its discretion in admitting the 911 audiotape.

II. ANALYSIS

A. PRESENT SENSE IMPRESSION

We review a trial court’s decision to admit evidence for an abuse of discretion. People v Bahoda, 448 Mich *235261, 288-289; 531 NW2d 659 (1995). An abuse of discretion exists when “an unprejudiced person,” considering “the facts upon which the trial court acted, [would] say that there was no justification or excuse for the ruling made.” Detroit Tug & Wrecking Co v Wayne Circuit Judge, 75 Mich 360, 361; 42 NW 968 (1889).

In determining whether an abuse of discretion occurred, we consider if the 911 audiotape recording of the victim’s statement that defendant had just beaten her constituted a present sense impression. Pursuant to MRE 803(1), a statement “describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter” is excepted from the rule barring hearsay evidence. MRE 803(1) is identical in its wording to the federal rule, FRE 803(1). The principle underlying this exclusion is that the “substantial contemporaneity of event and statement negate the likelihood of deliberate or conscious misrepresentation.” FRE 803(1) advisory committee note; see also United States v Campbell, 782 F Supp 1258, 1260 (ND Ill, 1991).

Present sense impressions are presumed to be trustworthy because (1) the simultaneous event and description leave no time for reflection, (2) the likelihood for calculated misstatements is minimized, and (3) generally, the statement is made in the presence of another witness who has the opportunity to observe and verify its accuracy.2 United States v *236 Narciso, 446 F Supp 252, 288 (ED Mich, 1977); People v Brown, 80 NY2d 729, 732-733; 610 NE2d 369 (1993).

The admission of hearsay evidence as a present sense impression requires satisfaction of three conditions: (1) the statement must provide an explanation or description of the perceived event, (2) the declar-ant must personally perceive the event, and (3) the explanation or description must be “substantially contemporaneous” with the event. United States v Mitchell, 145 F3d 572, 576 (CA 3, 1998); Campbell, supra at 1260.

In this case, the 911 audiotape recording contains the victim’s statement that she had just been beaten. The first condition is satisfied because the victim explained the perceived event, the beating. The second condition is satisfied because the victim personally experienced the beating.

The third condition requires that the statement be substantially contemporaneous with the beating. MRE 803(1) provides that a statement may be admitted if made while “perceiving the event or condition, or immediately thereafter.” However, the exception “recognizes that in many, if not most, instances precise contemporaneity is not possible and hence a slight lapse is allowable.” FRE 803(1) advisory committee note; Campbell, supra at 1260.

Consistent with this analysis, we have concluded that a four-minute interval between the perceived event and a declarant’s statement satisfied the “immediately thereafter” condition. Johnson v White, 430 Mich 47, 56; 420 NW2d 87 (1988). In United States v Mejia-Velez,3 a New York federal district court found *237that sixteen minutes between the perceived event and the statement satisfied the “substantially contemporaneous” condition.

In the case under consideration, the 911 recorded victim’s statement was that the beating had just taken place; the defendant was in the process of leaving the house as the victim spoke. If true, the remarks were substantially contemporaneous with the actual beating. Federal authorities have concluded that similar language satisfies the federal standard. See United States v Hawkins, 59 F3d 723, 730 (CA 8, 1995), vacated on other grounds 516 US 1168 (1996). In Hawkins, the declarant telephoned 911 and stated, “[M]y husband just pulled a gun on me.” In Campbell, supra at 1260, the declarant telephoned 911 and stated, “I just had a man shoot at another . . . .” Therefore, we find that, in this case, as in Hawkins and Campbell, the contemporaneous requirement was satisfied.

The victim’s statement satisfies the three conditions to constitute a present sense impression, but may it provide its own foundation for admissibility? The concurrence accurately states the three competing viewpoints regarding the necessity of corroboration: (1) the corroboration requirement should be rejected; (2) strict corroboration should be required, necessitating a percipient witness;4 and (3) corroboration should be required and will suffice if it assures the reliability of the statement. See Brown, supra at 735-736. We adopt the third viewpoint and conclude that the suffi*238ciency of the corroboration depends on the particular circumstances of each case. Id. at 737.

We recognize that the “ ‘present sense impression’ exception is a close relative of the analytically similar ‘excited utterance’ exception” to the rule barring hearsay. People v Vasquez, 88 NY2d 561, 574; 647 NYS2d 697; 670 NE2d 1328 (1996). In fact, “both are members of a larger category of exceptions that were formerly grouped together and classified, inaptly, as res gestae . . . .’’Id.

In People v Burton, 5 we held that an excited utterance could not establish its own underlying event. Because of our aversion to the “bootstrapping” of hearsay evidence, we concluded that an excited utterance was inadmissible without independent proof, direct or circumstantial, that the underlying event took place. Id. at 282, 294. Given the analytical similarity between the present sense impression and excited utterance exceptions, we conclude that their independent evidence requirements are similarly analogous. Applying this rationale to the immediate case:

We turn now to the question whether the evidence which may be considered apart from the purported [present sense impression] proves by a preponderance of the evidence that the underlying event occurred. 6 [Id. at 295 (emphasis added).]

We conclude that admission of the recording requires independent evidence that the assault occurred before it may be admitted as a present sense impression.

*239B. INDEPENDENT PROOF

The question becomes did the photographs7 depicting the victim’s injuries represent independent evidence that the assault occurred? In Burton, this Court examined whether hearsay statements were admissible as excited utterances under MRE 803(2) without independent evidence of the startling event. Id. at 271. The excited utterances sought to be admitted were statements by the complainant, later recanted, alleging that the defendant had sexually assaulted her. Id. The independent evidence of the alleged sexual assault that was offered showed no more than a “stressful event with sexual connotations.” Id. at 299. It consisted of evidence that defendant attempted to remove the complainant’s underwear and shoes from his home and a description of the complainant’s physical appearance when making her allegations. Id. at 297.

We find the present case distinguishable on the basis of the independent evidence establishing the assault. In this case, photographs showing the victim’s injuries were taken near the time the beating is alleged to have occurred. In addition, the injuries depicted in the photographs were consistent with the type of injuries sustained after a beating. Therefore, we conclude that the photographs provide credible independent evidence of the assault, permitting the admission of the victim’s statement as a present sense impression.

*240This analysis is consistent with that made in other jurisdictions. In Brown, supra, 8 an anonymous 911 telephone call, admitted under the present sense impression exception, was found to have been sufficiently corroborated by testimony of police officers arriving shortly after the call. In People v Chaparro,9 the testimony of a police officer provided adequate corroboration to permit admission of a 911 telephone call.

Therefore, the recording in this case was admissible as a present sense impression exception to the rule barring hearsay, because the injury photographs presented credible independent evidence of the assault. We note also that, because the admission was made “under a firmly rooted hearsay exception,” it satisfied the constitutional requirement of reliability. Idaho v Wright, 497 US 805, 817; 110 S Ct 3139; 111 L Ed 2d 638 (1990). Consequently, the trial court did not abuse its discretion.

m. CONCLUSION

We reverse the decision of the Court of Appeals and hold that the district court properly admitted the 911 audiotape recording. Defendant’s conviction and sentence are hereby reinstated.

Mallett, C.J., and Cavanagh, J., concurred with Kelly, J.

Boyle, J.

(concurring). I agree with the lead opinion that the statement in this case is properly admissible under the present sense impression exception to the general ban on hearsay evidence. I write separately, *241however, because I disagree that the present sense impression exception requires corroborative evidence of the underlying event as a prerequisite to admissibility. In my view, the reliability of the evidence is demonstrated by the contemporaneity between the event and the out-of-court statement. Therefore, I would reject any artificial imposition of additional requirements to the admissibility of evidence other than the requirements found in the evidentiary rule itself. The majority’s imposition of an extrinsic corroboration requirement confuses the admissibility of the evidence with the weight to be given to the evidence, which is properly a determination for the trier of fact. More fundamentally, it reveals a distrust of the factfinder at odds with the philosophy underlying the rules to promote the discovery of truth by admitting all relevant evidence. MRE 102.

Relying on People v Burton, 1 the lead opinion states that, because the present sense impression exception and the excited utterance exception are “analytically” similar, the “independent evidence requirements are similarly analogous.” Ante at 238. I continue to believe that Burton was erroneously decided, and the excited utterance exception requires no independent corroborative evidence. However, even if Burton is not reconsidered, it is unnecessary to impose a corresponding requirement on the present sense impression exception. Application of the narrowly drawn contemporaneity requirement for present sense impressions offers adequate assurances of reliability.

Under MRE 104(a), preliminary factual questions of admissibility are determined by the trial court utiliz*242ing a preponderance-of-the-evidence standard.2 In making a preliminary determination of admissibility, the trial judge may consider all available evidence, including otherwise inadmissible evidence.3 Furthermore, pursuant to MRE 1101(b)(1), the rules of evidence do not apply to determinations of preliminary fact under Rule 104(a). The role of the Rule 104(a) determination is not to determine the defendant’s guilt; rather, the purpose is merely to determine whether the preliminary fact has been established by a preponderance of the evidence.

MRE 803(1), which is identical to its federal counterpart, states:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

I agree with the lead opinion regarding the elements required for a statement to be admissible as a present sense impression.4 However, in stark contrast to the explicit language contained in MRE 801(d)(2)(E) and *243804(b)(3), the requirement of extrinsic corroboration is clearly and conspicuously absent from the language of the rule itself or the requisite elements. The contested statement made by the victim to the emergency dispatch operator, which on its face purports to have been contemporaneously made in conjunction with an assault, is itself evidence that the assault occurred.

The lead opinion errs in holding that the statement “requires independent evidence that the assault occurred before it may be admitted as a present sense impression.” Under the majority view, other corroborating evidence of the existence of the perceived event is an absolute prerequisite to the admissibility of the evidence, not simply the weight properly given to it.5

Professor McCormick, in discussing the parameters of the present sense impression exception, discredited the requirement of a corroboration requirement and observed:

The suggestion has been made that corroboration by an “equally percipient” witness should be a further requirement for admitting statements of present sense impression into evidence. The proposal represents a significant departure from the general pattern of exceptions to the hearsay rule. *244The only instance in which a requirement of corroboration is found is where a statement against penal interest by a third person — a third-party confession — is offered by way of exculpation of an accused person. . . . The present sense impression exception presents no such need. Its underlying rationale offers sufficient assurances of reliability without the additional requirement of corroboration, and neither the Federal Rule nor the decisions have required it.6

Likewise, Professor Weinstein states that extrinsic corroboration is not a requirement for the admissibility of present sense impression evidence; the presence of corroborative evidence “is a factor the court may consider in determining whether a statement not exactly contemporaneous qualifies for admission.” 7

The case cited by the lead opinion, People v Brown, 8 which involved an unidentified declarant, required corroborative evidence in order to “assure the court that the statements sought to be admitted were made spontaneously .and contemporaneously with the events described.”9 The court also stated that “when statements are admitted under the present sense exception without the assurance of reliability *245that excitement affords, it is reasonable and prudent to require some additional indicia of reliability.”10 The opinion fails to acknowledge that excitement is not an element of the present sense impression exception; rather, it is an element of the excited utterance exception. If excitement were the only measuring stick of reliability, then all the hearsay exceptions, save the excited utterance exception, would be rendered unreliable. Each exception to the general ban on hearsay has its ,own characteristics and underlying rationale that lends sufficient assurances of reliability; no one exception, or element within the exception, stands as the exclusive index of reliability.

One commentator, discussing the justification of imposing an extrinsic corroboration requirement on the present sense impression exception, noted:

The present sense impression exception is a means to admissibility under the Federal Rules, and not a test of credibility. Credibility of these types of exclamations obviously affected the development of the various categories of exceptions, but now we have a categorical approach to ensure judicial economy concerning questions of admissibility. There is no theoretically sound reason for 803(1) to have an additional corroboration requirement. Proper care that the requirements of 803(1) are met, coupled with the guarantees built into other sections of the Rules, would ensure that the present sense impression does not become ovferly “capacious.” ... If a statement comes within the exception, and does not offend the other rules, it should be admitted. . . . [Tjhese rules possess sufficient guarantees of trustworthiness within their contours such that an additional requirement of extrinsic corroboration is unnecessary. Casting the present sense impression exception aside *246by adding an additional element for admission has not been appropriately justified.!11

There are three competing viewpoints on the necessity of corroboration: the first group rejects a corroboration requirement,12 the second group finds that corroboration is a factor tending to assure trustworthiness,13 and the third group requires strict corroboration.14 Some jurisdictions that take the intermediate view of corroborative evidence as a reliability factor *247do not bar the admission of evidence on the’basis of a lack of corroboration.15

Admittedly, there is a divergence of opinion about the requirement of corroborating evidence as a prerequisite to the admissibility of present sense impressions. This Court has held that the Michigan Rules of Evidence are a codification of the rules of evidence; any common-law variances of the evidentiary rules have been superseded by the Michigan Rules of Evidence.16 Furthermore, at the time the Michigan Rules of Evidence were adopted, this Court was presumed to have had knowledge of the variance of opinion regarding extrinsic corroboration and chose not to require a corroboration requirement.17

Certainly, corroborative evidence enhances the weight and reliability of an out-of-court statement. In addition, the trier of fact will have the benefit of an additional witness concerning the events surrounding the statement. However, while the existence of corroborative evidence may add more weight and reliability to the out-of-court statement, the converse does not hold true: A lack of corroborative evidence does not render the statement unreliable. Neither the plain *248language of the evidentiary rule nor the relevant treatises militate in favor of requiring corroboration as an absolute prerequisite to admissibility. The availability of extrinsic corroborative evidence is relevant to the weight, not the admissibility of the evidence. Moreover, the consequence of such an unfounded and unnecessary requirement is that many trustworthy statements would be excluded simply out of adherence to a formula premised on an unfounded distrust18 of the finder of fact.19

*249Because I would hold that the evidence in this case was properly admitted under the present sense impression exception to the general ban on hearsay evidence, and that no extrinsic corroborative evidence was required, I concur with the majority.

Weaver and Taylor, JJ., concurred with Boyle, J.

Brickley, J.

(concurring in part and dissenting in part.) I concur in the lead opinion’s conclusion that the hearsay statement at issue in this case cannot be admitted without corroborating evidence extrinsic to the contents of the hearsay statement itself. This result is compelled by our holding in People v Burton, 433 Mich 268; 445 NW2d 133 (1989). I dissent from that portion of the lead opinion that holds that corroboration of the event described in the statement is sufficient to satisfy the extrinsic evidence requirement. The extrinsic evidence rule of Burton demands that evidence other than the disputed statement itself be used to establish the conditions for admitting a hearsay statement under the excited utterance or present sense impression exceptions to the hearsay rule. Id., pp 280-282.

i

In Burton, we held that an excited utterance could not be admitted, where the only evidence of the “startling event” underlying the excited utterance was the *250content of the utterance itself. Id., p 282. This holding was based upon our belief that “ ‘[a]ny other rule would “lift [hearsay] by its own bootstraps to the level of competent evidence.” ’ ” Id., pp 281-282, quoting People v Vega, 413 Mich 773, 780; 321 NW2d 675 (1982), quoting Glasser v United States, 315 US 60, 75; 62 S Ct 457; 86 L Ed 680 (1942).

We quoted the three conditions that must be satisfied before a hearsay statement could come within the excited utterance exception to the rule excluding hearsay:

“(1) it must arise out of a startling occasion; (2) it must be made before there has been time to contrive and misrepresent; and (3) it must relate to the circumstances of the startling occasion.” [Burton, supra, p 280, quoting People v Cunningham, 398 Mich 514, 519; 248 NW2d 166 (1976), citing Rogers v Saginaw B C R Co, 187 Mich 490, 493-494; 153 NW 784 (1915) (emphasis supplied).]

We then stated the main question in the case: “whether a proffered excited utterance, standing alone, may be used to satisfy the conditions for its own admissibility." Burton, supra, p 280 (emphasis supplied).

The question in Burton was not whether the disputed statement was deemed reliable, and hence admissible, because there was independent evidence that the described event actually occurred. Rather, the question was whether the disputed statement could be “used to satisfy the conditions for its own admissibility.” Id. One of these conditions was that a “startling event” gave rise to the disputed statement. While the distinction between these two questions is clouded because the “startling event” and the criminal act were the same in Burton, the distinction is nevertheless crucial. My dissent is compelled by this dis*251tinction between corroboration of the reliability of the statement itself, and corroboration that the statement was made under conditions that satisfy the hearsay exception.

n

Independent evidence of the “startling event” was necessary in Burton because “[i]t is the presence of a startling event that lends the utterance emanating therefrom its special reliability.” Id, p 295. Unlike an excited utterance, however, a present sense impression gains its “special reliability” from the fact that it is made during, or very shortly after, the event described. The statement is likely to be reliable because it is made before the declarant has an opportunity to fabricate, embellish, or forget what is being described. As the lead opinion recognizes, “the ‘substantial contemporaneity of event and statement negate the likelihood of deliberate or conscious misrepresentation.’ 1 Ante, p 235, quoting FRE 803(1) advisory committee’s note; citing United States v Campbell, 782 F Supp 1258, 1260 (ND Ill, 1991).

Therefore, the extrinsic evidence requirement demands some showing, outside the contents of the *252disputed statement, that the 911 call was likely made at about the same time as the criminal act. This requirement is not satisfied by evidence that the described act occurred. “ ‘For aught that appears beyond the statement itself, the injury may have occurred three or four horns before the statement was made .... In such an event, the element of spontaneousness is absent.’ ” Burton, supra, p 280, quoting Rogers, supra, p 494. Extrinsic evidence of the underlying criminal act supports the general reliability of a disputed hearsay statement describing that act.2 This is not, however, the purpose of the extrinsic evidence rule. That rule prohibits the use of a hearsay statement “to satisfy the conditions for its own admissibility.” Id., p 280.

In this case, there was no evidence before the trial court showing the substantial contemporaneity of the disputed statement and the events it describes, other than the disputed statement itself. Therefore, the extrinsic evidence rule was not satisfied, and the trial court abused its discretion by admitting the disputed statement.

m

The extrinsic evidence requirement serves the purpose of assuring that the present sense impression exception to the hearsay rule is used in conformity with its underlying purposes. Hearsay statements are excluded from evidence because they lack the tradi*253tional indicia of credibility: the statement was not made under oath, the declarant is often not personally present at trial, and is often not subject to cross-examination. The present sense impression exception to the hearsay rule allows the admission of statements that are made under circumstances tending to support their reliability, despite their lack of the traditional indicia of credibility.3

The extrinsic evidence rule prevents the “bootstrapping” of hearsay statements into evidence, by demanding some independent proof that they were actually made under conditions justifying their admission. This requirement could have been satisfied here, for example, if the prosecution had produced a witness who saw the defendant leaving the house at *254about the same time as the 911 call; if a neighbor had heard the defendant and the complainant fighting at about the same time as the call; if the victim had, as she stated she would on the taped 911 call, immediately sought medical treatment and the time of treatment could be verified; or if the police had arrived at the scene shortly after the call. With such evidence, a trial judge would not have to rely on circular reasoning to determine that the hearsay statement was made “substantially contemporaneously” with the described event.4

Any argument that the extrinsic evidence requirement makes 911 recordings useless for prosecution purposes utterly misses the point of this rule. The Rules of Evidence exist largely to assure that evidence admitted at trial is relevant and reasonably reliable. Only if a statement is made under certain conditions may it be admitted in evidence without the benefit of cross-examination and oath. The necessary conditions in this case were shown only by the dis*255puted statement. Therefore that statement was improperly admitted.

IV

Because the only evidence that the taped statement was made substantially contemporaneously with the event it described was the statement itself, the extrinsic evidence rule was not satisfied. Burton, supra, p 294. Therefore, the trial court abused its discretion in admitting the taped statement.

Because the admission of this statement is not harmless error, see MCR 2.613(A), I would affirm the decision of the Court of Appeals, and remand this case for a new trial.