Excited-utterance hearsay exception; MRE 803(2); People v Smith; Effect of elapsed time; People v Gee; Continuing emotional shock; People v Layher; Right to an impartial jury; Extraneous influences; People v Budzyn; Waiver; People v Carter; Ineffective assistance of counsel; Failure to request a mistrial or an evidentiary hearing; People v Armstrong; People v Carbin; Reasonableness & proportionality of departure sentences; People v Steanhouse; Sentencing factors; People v Snow; People v Lampe; OVs 4 & 10; Lack of remorse versus assertions of innocence; People v Dobek; Age at parole eligibility; People v Purdle; People v Kelly

The court held that the trial court did not abuse its discretion by admitting statements the victim’s mother made to a hospital technician as excited utterances. Defendant was convicted of second-degree murder and first-degree child abuse for abusing and killing his girlfriend’s two-year-old daughter, JM. He received respective sentences of 55 to 90 years and 30 to 60 years. The mother was crying and blurting out statements after bringing JM’s lifeless body to the hospital. Although three days separated the assault and her statements, “‘there is no express time limit for excited utterances.’” Her distress reflected the assault, discovering JM’s lifeless body that morning, and defendant’s threats to kill her family during the hospital trip. These events were “a series of related happenings that built on top of each other” and supported an inference that she remained in a continuing state of emotional shock. Defendant waived his challenge to the lack of an evidentiary hearing on two outsiders’ contacts with a juror by accepting the trial court’s inquiry and its conclusion that she remained impartial. Even apart from waiver, he failed to establish a real and substantial possibility of an effect on the verdict. The contacts involved only greetings and a thank-you, not the trial’s substance. His ineffective assistance of counsel claim also failed because he did not identify what further inquiry was needed. The court discerned “nothing more counsel could or should have done” concerning any potential effect on the verdict. Finally, the departure sentences were proportionate. The trial court appropriately considered the Snow factors, the crimes’ severity, factors inadequately considered by OVs 4 and 10, and defendant’s lack of remorse. It relied on “evidence of a lack of remorse,” rather than penalizing his assertions of innocence. His age of 86 at first parole eligibility did not render his term-of-years sentence disproportionate. Affirmed.