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People v. McLaughlin9/25/2003
03(2).
MRE 803(2) provides an exception to the hearsay rule for 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.'" People v Smith , 456 Mich 543, 550; 581 NW2d 654 (1998), quoting 5 Weinstein, Evidence (2d ed), ยง 803.04 , p 803-19. The pertinent inquiry is not whether there has been time for the declarant to fabricate a statement, but whether the declarant is so overwhelmed that she lacks the capacity to fabricate. Id. at 551.
Before repeating the victim's statement, Officer John Marginean, one of the officers who responded to the victim's call to the police, testified that the victim appeared extremely upset or "frantic," and was having trouble breathing and speaking. Marginean also stated that he arrived within a minute or two of the victim's call. This testimony was consistent with that of the victim's daughter, who likewise testified that the victim was extremely upset and shaking at the time she called the police. Therefore, it can reasonably be inferred that the rape was the cause of the victim's stress, and that she was still under the influence of the stress when she made the statement. We reject defendant's argument that there was "no foundation made as to whether the statement had been triggered by the stress of the alleged sexual attack or by the stress of the police questioning," for the lapse of time between the alleged assault and the victim's statement was brief and there was no evidence that Marginean questioned the victim. The statement was, therefore, properly admitted under MRE 803(2).
5. Glemie Beasley
Defendant next contends that the trial court improperly allowed the prosecutor to question defense witness Beasley about religion. Specifically, on direct examination, Beasley testified that he knew defendant from church activities and a church singing group, and opined that defendant was not a violent man. On cross-examination, the prosecutor questioned Beasley regarding the spiritual component of the church singing group, and asked Beasley if he believed in God and in doing "the right thing." The prosecutor then asked Beasley if he agreed that spiritual people wanted to "do the right thing" and did not "want to harm people," and asked him if he considered a person to be spiritual if the person stole from his girlfriend and his daughter and used the proceeds from the theft to purchase crack. Beasley responded affirmatively to the first question, but negatively to the second question.
Defendant contends that MCL 600.1436 prohibits the questioning of a witness regarding his religious beliefs. We conclude that this unpreserved issue does not require reversal. Carines , supra .
MCL 600.1436 provides, "No person may be deemed incompetent as a witness, in any court, matter or proceeding, on account of his opinions on the subject of religion. No witness may be questioned in relation to his opinions on religion, either before or after he is sworn." Additionally, MRE 610 provides, "Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced."
Defendant relies on People v Bouchee , 400 Mich 253; 253 NW2d 626 (1977), where our Supreme Court held that a trial court's questions
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