                          STATE OF MICHIGAN

                            COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     June 28, 2018
               Plaintiff-Appellee,

v                                                                    No. 331962
                                                                     Jackson Circuit Court
RILEY ANDREW SPITLER,                                                LC No. 14-005198-FJ

               Defendant-Appellant.


                                          ON REMAND

Before: SWARTZLE, P.J., and O’CONNELL and CAMERON, JJ.

PER CURIAM.

        This case returns to this Court on remand from our Supreme Court with instructions to
consider whether the trial testimony of three witnesses was admissible under MRE 803(3). We
conclude that the trial court erred by admitting the evidence and reaffirm the relief set forth in
our prior opinion.

                                       I. BACKGROUND

        The facts underlying this dispute were set forth in detail in our prior opinion and need not
be recalled at length. See People v Spitler, unpublished per curiam opinion of the Court of
Appeals, issued June 20, 2017 (Docket No. 331962), p 2-3. Defendant admitted that he shot his
older brother in the chest, killing him nearly instantaneously. Id. at 1. When the police
investigated the murder, they found several guns in defendant’s bedroom and a mason jar
containing marijuana. Id. at 2. Defendant was charged with open murder, MCL 750.316,
delivering the controlled substance of marijuana, MCL 3337401(2)(d)(iii), and two counts of
possession of a firearm during commission of a felony (felony firearm), MCL 750.227b. See id.
at 1.

       Regarding the open-murder charge, defendant “claimed that the shooting was an
accident, and that he believed the gun to be unloaded at the time of the killing.” Id. “The
prosecution disagreed, arguing that the killing was not only intentional, but premeditated.” Id.
A jury found defendant guilty of second-degree murder, MCL 750.317, delivering the controlled
substance of marijuana, MCL 3337401(2)(d)(iii), and two counts of felony firearm, MCL
750.227b. Id.

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        In our prior opinion, we concluded that the trial court committed several errors which
required us to reverse defendant’s conviction for second-degree murder. First, “the trial court
improperly admitted testimony from a detective presented as an expert in ‘linguistic statement
analysis’ without properly determining that his testimony was based upon ‘reliable principles and
methods’ as required by MRE 702.” Second, the trial court “improperly admitted hearsay
statements from three of the victim’s friends under exceptions for present sense impression,
MRE 803(1), excited utterance, MRE 803(2), as well as the residual hearsay exception, MRE
803(24).” Id. The detective’s testimony and the challenged hearsay statements tended to show
defendant’s intent to kill the victim. Id. at 8. Therefore, because defendant’s state of mind “was
one of the dispositive issues at trial,” we were unable to conclude that the errors were harmless
and reversed defendant’s conviction of second-degree murder. Id. Because defendant admitted
that he shot his brother, and the errors related to defendant’s state of mind, we concluded that
“the appropriate remedy is to remand the matter with instructions for the trial court to enter a
judgment of conviction for involuntary manslaughter and to resentence defendant accordingly.”
Id. at 8-9. If the prosecution was “persuaded that the ends of justice would be better served by
proceeding to trial on the second-degree murder charge,” then the prosecution could notify the
trial court of that intent and proceed to a new trial on the second-degree murder charge and the
related felony-firearm charge. Id. (internal citation and quotation marks omitted). We affirmed
defendant’s controlled-substance conviction and the related felony-firearm conviction because
defendant had shown no error undermining the reliability of those convictions. Id. at 9.

       Following our opinion, the prosecution sought leave to appeal from the Supreme Court,
arguing that the testimony we deemed inadmissible hearsay was in fact admissible under an
exception urged at trial but not considered by the trial court, MRE 803(3), relating to the
declarant’s then-existing mental, emotional, or physical condition. The Supreme Court, in lieu
of granting leave to appeal, remanded this case to this Court “for plenary consideration of the
admissibility of each proffered statement under MRE 803(3).” People v Spitler, ___ Mich ___;
905 NW2d 603 (Docket No. 156281, decided January 24, 2018). In all other respects, the
Supreme Court left our prior opinion intact. Thus, on remand, the sole issue before this Court is
whether the challenged testimony was admissible under MRE 803(3).

        The challenged testimony is as follows. Kalyn Madery, the victim’s friend, testified that
nearly two months before his death the victim “confided in me that [defendant] had pulled out a
gun on him in some type of argument in an angry way. He was just talking about being worried,
being concerned not knowing what to do.” Dalton Dueck, also the victim’s friend, explained that
victim had stated “[t]hat his brother had kind of told him a secret about having a gun and [the
victim] was pretty shocked by that . . . and concerned.” Joshua Foote, another of the victim’s
friends, explained that, on the day before the victim died, the victim pulled him aside and stated
that defendant had a gun. Continuing, Foote stated, “I thought this . . . is a big deal. And . . . I
could tell he did too.” Foote added, “I could really tell in his tone of voice and the way he
presented himself that he was scared.”

                                          II. ANALYSIS

       We “review the trial court’s decision to admit evidence for an abuse of discretion.”
People v Moorer, 262 Mich App 64, 67; 683 NW2d 736 (2004). MRE 803(3) is commonly
known as the hearsay exception for statements regarding the declarant’s then-existing mental,

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emotional, or physical condition. Under MRE 803(3), “A statement of the declarant’s then
existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive,
design, mental feeling, pain, and bodily health)” is not excluded by MRE 802’s hearsay
prohibition. Nonetheless, “a statement of memory or belief to prove the fact remembered or
believed” remains inadmissible hearsay “unless it relates to the execution, revocation,
identification, or terms of declarant’s will.” Id.

       In Moorer, 262 Mich App at 66-75, this Court addressed the distinction between
statements related to the declarant’s then-existing state of mind or emotion and statements of
memory or belief to prove the fact remembered or believed. The Moorer court reasoned:

               Statements of mental, emotional, and physical condition, offered to prove
       the truth of the statements, have generally been recognized as an exception to the
       hearsay rule because special reliability is provided by the spontaneous quality of
       the declarations when the declaration describes a condition presently existing at
       the time of the statement. The special assurance of reliability for statements of
       present state of mind rests upon their spontaneity and resulting probable sincerity.
       When such declarations include assertions other than state of mind, such as events
       leading to the state of mind, additional considerations must be addressed in
       deciding whether the statements are admissible:

              For example, a victim may assert that the defendant’s acts caused
              the state of mind. The truth of those assertions may coincide with
              other issues in the case, as where the defendant is charged with
              acts similar to those described. In such circumstances, the normal
              practice is to admit the statement and direct the jury to consider it
              only as proof of the state of mind and to disregard it as evidence of
              the other issues. Compliance with this instruction is probably
              beyond the jury’s ability and almost certainly beyond their
              willingness. Where substantial evidence has been admitted on the
              other act, probably little harm results. However, where the mental
              state is provable by other available evidence and the danger of
              harm from improper use by the jury of the offered declarations is
              substantial, the trial judge should exclude the statements or
              prohibit the witness from giving the reasons for the state of mind.
              [Id. at 68-69 (internal citations and notation omitted); see also 2
              McCormick, Evidence (5th ed), Spontaneous Statements, § 273, p
              214.]

The Moorer court also noted the similarities between its application of MRE 803(3) and federal
courts’ application of the similarly worded FRE 803(3):

       MRE 803(3) is identical to the federal rule for state of mind exceptions to hearsay
       evidence, FRE 803(3). Comments accompanying the federal rule make it clear
       that the general use of statements of mind that are based on past events, as in this
       case, violate the purpose of the rule. The exclusion of statements of memory or
       belief to prove the fact remembered or believed is necessary to avoid the virtual

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       destruction of the hearsay rule which would otherwise result from allowing state
       of mind, provable by a hearsay statement, to serve as the basis for an inference of
       the happening of the event which produced the state of mind. [Id. at 73-74
       (internal citations and quotation marks omitted).]

As instructed by the Supreme Court, we now address each of the challenged statements in turn,
parsing the admissible and inadmissible statements in each.

         First, Madery testified that the victim “confided in me that [defendant] had pulled out a
gun on him in some type of argument in an angry way. He was just talking about being worried,
being concerned not knowing what to do.” The second sentence of Madery’s challenged
testimony was admissible under MRE 803(3). The victim’s statement that he was worried and
concerned is clearly a statement regarding the defendant’s then-existing emotion. In contrast, the
first sentence concerns the victim’s recall of defendant’s action in threatening the victim with a
gun. The prosecution essentially urges this Court to conclude that the first sentence and second
sentence of Madery’s testimony were inextricably intertwined, i.e., that the victim’s statement
that defendant pulled a gun on him was essential to understanding why the victim was scared of
defendant. See Moorer, 262 Mich App at 69. Assuming that is true, however, under MRE
803(3), the jury still could not consider the statement for its substantive value and defendant
would be entitled to an instruction to that effect. Id. Because the trial court erroneously
admitted the statement under other hearsay exceptions, the pertinent instruction was not
provided.

        Moreover, we conclude that the prejudice inherent in this statement required the trial
court to admit only Madery’s testimony that the victim was worried and concerned and exclude
the victim’s statement that defendant threatened him with a gun. See id. In this case, the jury
was presented with two explanations of the shooting. The prosecution argued that defendant
pulled a gun on the victim, threatened him, and shot him in cold blood; defendant argued that the
shooting was accidental. The victim’s statement that defendant had previously threatened him
with a gun so closely mirrors the prosecution’s version of events that it is unlikely that a
reasonable juror could separate the victim’s fear of the defendant from defendant’s actions—
considering only the former and ignoring the latter. Accordingly, the trial court erred by
admitting Madery’s testimony that the victim confided in her that defendant threatened him with
a gun.

          Next, the same problem exists with Dueck’s testimony that the victim said “[t]hat his
brother had kind of told him a secret about having a gun and [the victim] was pretty shocked by
that . . . and concerned.” Again, the victim’s statement that he was “shocked” and “concerned”
is an admissible statement of then-existing emotion. The victim’s statement that defendant had a
gun is a statement of memory tending to prove the fact remembered. While the statement of
memory does explain why the victim was scared of defendant, the trial court did not provide the
jury with an instruction that it could only consider the statement as evidence of the victim’s fear.

        A different, but related problem exists with Foote’s testimony. Foote testified that, the
day before the shooting, the victim pulled Foote aside and stated that defendant had a gun. Foote
also testified, “I thought this . . . is a big deal. And . . . I could tell he did too.” Foote added, “I
could really tell in his tone of voice and the way he presented himself that he was scared.”

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Foote’s statements regarding the victim’s emotional state were not hearsay and were therefore
admissible. It is notable that Foote did not testify that the victim told him that he was scared but
that Foote “could tell” by “the way he presented himself” that the victim was scared. Therefore,
because Foote did not testify to the victim’s statement of the victim’s then-existing mental or
emotional state, Foote’s testimony regarding the victim’s fear does not implicate MRE 803(3).
This leaves us with only the victim’s statement that defendant had a gun, which is plainly
hearsay and inadmissible under MRE 802.

        Finally, we conclude that the trial court’s errors were not harmless. The cumulative
effect of the three errors was that the jury was presented with evidence that defendant had a gun
and had previously threatened the victim with it. The trial court’s failure to provide limiting
instructions presented a serious risk that the jury would consider this evidence substantively,
rather than limiting its consideration of the evidence to the tendency of the evidence to show the
victim’s fear of defendant. As noted in our prior opinion, these errors tended to touch on
defendant’s state of mind, which was one of the dispositive issues at trial. Considering that the
errors not subject to this remand also touched on defendant’s state of mind, it is clear that the
cumulative effect of all the errors seriously undermined the fairness of the proceedings before the
trial court. Accordingly, we reverse defendant’s conviction of second-degree murder and
remand for further proceedings consistent with this opinion and our prior opinion. See Spitler,
unpub op at 1, 7-8. We do not retain jurisdiction.




                                                             /s/ Brock A. Swartzle
                                                             /s/ Peter D. O'Connell
                                                             /s/ Thomas C. Cameron




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