Hearsay; MRE 801(c); Present sense impression; MRE 803(1); “Personal perception”; Excited utterance; MRE 803(2); Lay opinion; MRE 701

In this interlocutory appeal, the court concluded that the trial court abused its discretion by allowing the admission of Officer P’s statement, reversed “the trial court’s order denying in part the prosecution’s motion in limine” and remanded. Defendant sought to admit P’s “statement to establish the truth of the matter asserted, i.e., that the decedent attacked her.” It was also clear that P’s “statement qualifies as an unsworn, ‘out-of-court’ statement.” Thus, the prosecutor correctly represented that the statement was “inadmissible hearsay unless the statement falls under one of the recognized hearsay exceptions.” The court noted that “approximately 30 minutes after the altercation occurred, [P] made his statement when viewing an accelerated playback of a security camera recording. Therefore, he did not personally perceive the event; he only perceived a video of the event.” Consequently, the court found that “his statement was not the product of his own perceptions of the altercation, but rather a product of viewing the video’s content that was being played back at an accelerated speed.” Additionally, when P “initially arrived at the scene, he assisted an officer on the third floor before obtaining the surveillance footage. Considering that the officer he assisted was the officer who helped medical personnel load the decedent onto a stretcher, it is likely that [P] knew that the decedent was seriously injured or deceased at the time that he obtained the surveillance footage.” Accordingly, P’s “impression of the video may have been impacted by the knowledge that he gleaned at the scene before watching the video.” The court concluded that under “these circumstances, the trial court abused its discretion to the extent that it found that the statement was admissible as a present sense impression.” Also, it noted that “the startling event was the altercation. [P] was not present when the startling event occurred. Rather, he merely viewed an accelerated video of the event after assisting an officer at the crime scene.” Because P “was not present at the startling event, he cannot have been under the stress or excitement caused by the event when he made his statement. Under these circumstances, the trial court abused its discretion to the extent that it found that the statement was admissible as an excited utterance.” Finally, the statement that P “made in the body-camera recording would not assist the jury in determining who the aggressor was in the altercation. [P’s] statement was made when viewing the security video at an accelerated speed, and there was no indication that he ever viewed the video at a normal speed. But on retrial, the jury will be able to view the original recording, which the trial court noted clearly portrayed the event, to determine each party’s actions. Under these circumstances, [P’s] statement would not be helpful to the determination of a fact in issue.” Thus, the court found that “the trial court abused its discretion to the extent it found that the statement was admissible under MRE 701.”