Hearsay; MRE 803A; Ineffective assistance of counsel

Rejecting defendant’s claims of alleged hearsay admitted in violation of MRE 803A and concluding that he failed to show that trial counsel’s performance was deficient or that he was prejudiced by any evidentiary error, the court affirmed his convictions of CSC I and II, conspiracy to commit CSC I, and assault with intent to commit CSC involving sexual penetration. He contended that there were “six instances of alleged hearsay in one way or another” that violated MRE 803A. As to three of the statements, nothing in the record indicated that they “were manufactured or not spontaneous.” The court rejected defendant’s apparent assertion “that the statements were automatically unspontaneous and manufactured because they were made during forensic interviews.” He additionally argued that “the statements were not made immediately after the sexual abuse and that ‘[n]othing in the record excuse[d] the delay as having been caused by fear.’” Under MRE 803A(3), the declarant must “have made the statement immediately after the incident unless a delay was excusable ‘as having been caused by fear or other equally effective circumstance[.]’” However, to the extent the victim (AA) did not make the statements right after the sexual abuse, the record clearly supported a finding “that any delay was excusable because AA was terrified of defendant. AA’s teacher . . . testified that AA once ‘curled up into a fetal position’ and begged not to be sent home. AA’s therapist . . . testified that AA ‘was terrified to go home.’ And AA’s adoptive mother . . . testified that AA was still suffering from anxiety related to the abuse at the time of trial—11 years after the sexual assaults.” Next, the court noted that “the prohibition against more than one corroborative statement relates to a singular ‘incident.’ Defendant’s own reference to the alleged hearsay statements reflects that they did not all pertain to the same incident.” He appeared to believe, wrongly, “that any and all incidents of sexual abuse committed against a young child are treated as a singular incident for purposes of MRE 803A and the bar against multiple corroborative statements. Examining the six specific instances of alleged hearsay upon which defendant relies, while there are similarities between some of the disclosed sexual acts, even then there are variations in what AA told the witnesses.”