Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  February 6, 2015                                                                  Robert P. Young, Jr.,
                                                                                               Chief Justice

  149472                                                                             Stephen J. Markman
                                                                                         Mary Beth Kelly
                                                                                          Brian K. Zahra
                                                                                  Bridget M. McCormack
                                                                                        David F. Viviano
  PEOPLE OF THE STATE OF MICHIGAN,                                                  Richard H. Bernstein,
            Plaintiff-Appellee,                                                                     Justices

  v                                                       SC: 149472
                                                          COA: 313708
                                                          Macomb CC: 2012-001750-FH
  ERIC MICHAEL CHELMICKI,
            Defendant-Appellant.

  _________________________________________/

        On order of the Court, the application for leave to appeal the April 24, 2014
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.

         VIVIANO, J. (concurring in part and dissenting in part).

         I concur in the order denying leave to appeal, except as to one issue raised in
  defendant’s application. In particular, I agree with defendant that the Court of Appeals
  erred by affirming the trial court’s decision to admit statements contained in the victim’s
  written police statement under the present sense impression exception to the hearsay rule.
  I believe that the Court of Appeals has improperly expanded the present sense impression
  exception in a manner that is not supported by Michigan law and is inconsistent with the
  rationale underlying the exception. However, because the statements at issue were
  properly admitted as recorded recollections, I would vacate the portion of the Court of
  Appeals’ opinion discussing present sense impressions and otherwise deny leave.

                I. FACTUAL SUMMARY AND PROCEDURAL HISTORY

         This case arises from a domestic violence incident between two intoxicated
  individuals at their apartment. The assault ended right before the police kicked down the
  door. After the police officers entered the apartment, they discovered that defendant had
  escaped through a bedroom window. The police officers then left the victim alone in the
  apartment to pursue defendant, whom they eventually found nearby. After the police
  officers arrested defendant and secured him in a patrol car, one officer sat with defendant
  for approximately 15 to 20 minutes while another went to the police station to get a
  camera. When the police officer returned with the camera, the other officer went into the
  apartment to have the victim and her neighbor handwrite statements. While the victim
  wrote her statement, she was engaged in a conversation with her neighbor, complaining
  about defendant. The victim’s statement contained a description of the incident,
  including statements made by defendant.
                                                                                        2

       Due to her intoxicated state during the incident, the victim had limited memory of
the incident at trial. Therefore, the trial court admitted various hearsay statements
contained in the victim’s police statement as present sense impressions 1 and recorded
recollections. 2

       Defendant appealed his resulting convictions of domestic violence and unlawful
imprisonment. The Court of Appeals affirmed, holding that the statements were properly
admitted under both hearsay exceptions. 3        Regarding the issue of substantial
contemporaneity, which is required for the statements to be admissible as present sense
impressions, the Court stated:

          [T]he statement was made at a time “substantially contemporaneous” with
          the event, as the evidence showed, at most, a lapse of 15 minutes between
          the time police entered the apartment and the time the victim wrote the
          statement. MRE 803(1) “recognizes that in many, if not most, instances
          precise contemporaneity is not possible and hence a slight lapse is
          allowable.” [People v] Hendrickson, 459 Mich [229, 236 (1998)] (opinion
          by KELLY, J.) (noting an instance in which a 16-minute interval was held to
          satisfy the “substantially contemporaneous” requirement).[4]

                                     II. LEGAL ANALYSIS

       Hearsay is “a statement, other than the one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” 5
“Hearsay is generally prohibited and may only be admitted at trial if provided for in an
exception to the hearsay rule.” 6 The rule against the admission of hearsay evidence is
deeply rooted in our common law. 7 Hearsay is considered unreliable evidence because it
1
    MRE 803(1).
2
    MRE 803(5).
3
    People v Chelmicki, 305 Mich App 58, 63 (2014).
4
    Id.
5
    MRE 801(c).
6
    People v Gursky, 486 Mich 596, 606 (2010), citing MRE 802.
7
  5 Wigmore, Evidence (Chadborn rev), § 1364, p 28 (stating that by the beginning of the
1700s, the rule against hearsay achieved “general and settled acceptance . . . as a
fundamental part of [Anglo-American] law”). Despite its deeply rooted tradition, the
hearsay rule has received much criticism in recent decades, and some commentators
argue that the rule should be replaced entirely or drastically reduced, as it has been in
most common law jurisdictions outside the United States. See, e.g., Sklansky, Hearsay’s
Last Hurrah, 2009 Sup Ct Rev 1, 1-2 (2009).
                                                                                         3

is not subject to traditional testimonial safeguards and poses four main risks: (1) the
declarant’s flawed perception; (2) defects in the declarant’s memory; (3)
miscommunication, stemming from either the declarant misspeaking or the witness
misunderstanding; and (4) a lack of sincerity or veracity in the declarant’s statement. 8
Excluding hearsay evidence minimizes these risks because witnesses are instead required
to testify under oath, subject to cross-examination, in the presence of the jury so it can
observe the witnesses’ demeanor. 9

       In this case, the statements contained in the victim’s written police statement are
hearsay because they are out-of-court statements used to prove the truth of the matter
asserted, i.e., that the events described and the admissions made by defendant occurred as
described in the statement. I agree with the Court of Appeals that the trial court did not
abuse its discretion by admitting the statements as recorded recollections. 10 However, for
the reasons below, I believe that the Court of Appeals erred by holding that the
statements were admissible as present sense impressions.

        Under MRE 803(1), a present sense impression is “[a] statement describing or
explaining an event or condition made while the declarant was perceiving the event or
condition, or immediately thereafter.” A present sense impression has been deemed
“reliable enough to warrant an exception to the hearsay rule” because it eliminates (or
substantially alleviates) two of the dangers posed by hearsay: insincerity and memory
loss. 11 To be admissible as a present sense impression, hearsay evidence must satisfy
three conditions: “(1) the statement must provide an explanation or description of the
perceived event, (2) the declarant must personally perceive the event, and (3) the

8
    Graham & Graham, Federal Practice & Procedure, Evidence (1st ed), § 6324.
9
    2 McCormick, Evidence (7th ed), § 245, p 179-181.
10
  The recorded recollection exception, MRE 803(5), allows for the admission of hearsay
evidence when the following three requirements are met:
                (1) The document must pertain to matters about which the declarant
         once had knowledge; (2) [t]he declarant must now have an insufficient
         recollection as to such matters; [and] (3) [t]he document must be shown to
         have been made by the declarant or, if made by one other than the
         declarant, to have been examined by the declarant and shown to accurately
         reflect the declarant’s knowledge when the matters were fresh in his
         memory. [People v Dinardo, 290 Mich App 280, 293 (2010) (quotation
         marks and citation omitted) (alterations in original).]
11
  McFarland, Present Sense Impressions Cannot Live in the Past, 28 Fla St U L Rev 907,
914 (2001) (“While dangers of misperception and mistransmission remain, the dangers of
memory loss and insincerity are eliminated or greatly reduced.”).
                                                                                          4

explanation or description must be ‘substantially contemporaneous’ with the event.” 12
The statements at issue in this case meet the first two conditions because the victim’s
statements provided a description of the domestic violence and, as the victim of the
assault, she personally perceived the event. Only the third requirement—substantial
contemporaneity—is at issue in this case.

       Although present sense impressions are deemed reliable because they eliminate or
substantially alleviate the hearsay dangers of insincerity and memory loss, these dangers
only dissipate if the statement is “made while the declarant was perceiving the event or
condition, or immediately thereafter.” 13 And while the present sense impression
exception “ ‘recognizes that in many, if not most, instances precise contemporaneity is
not possible and hence a slight lapse is allowable,’ ” 14 a close reading of the holdings in
this area of the law reveals that Michigan courts have adhered to a limited view of the
phrase “immediately thereafter.”

        Recognizing the importance of substantial contemporaneity, in Hewitt v Grand
Trunk W R Co, the Court of Appeals stated that “[t]he purpose and intent of [the present
sense impression exception] can be served most effectively by limiting the scope of that
exception to statements made while describing the event or condition or instantly
thereafter.” 15 Applying this rule, the Court excluded statements made to a police officer
“at least several, and possibly as many as 30, minutes” after the incident. 16


12
     People v Hendrickson, 459 Mich 229, 236 (1998) (opinion by KELLY, J.).
13
     MRE 803(1) (emphasis added).
14
     Hendrickson, 459 Mich at 236, quoting FRE 803(1), advisory committee note.
15
   Hewitt v Grand Trunk W R Co, 123 Mich App 309, 317-318 (1983) (emphasis added),
citing FRE 803(1), advisory committee note, and United States v Narciso, 446 F Supp
252, 288 (ED Mich, 1977). This interpretation has the added benefit of being consistent
with the plain meaning of the relevant phrase “or immediately thereafter.” See Craig v
Oakwood Hosp, 471 Mich 67, 78 (2004) (stating that, as with statutes, rules of evidence
are interpreted according to their plain meaning). “Thereafter” simply means “after that.”
Merriam-Webster        Dictionary       <http://merriam-webster.com/dictionary/thereafter>
(accessed February 3, 2015) [http://perma.cc/5RDD-D4AR]. In the temporal context,
“immediately” means “without interval of time: STRAIGHTWAY . . . .” Merriam-
Webster Dictionary <http://merriam-webster.com/dictionary/> (accessed February 3,
2015) [http://perma.cc/AM37-YUGM]. Thus, the rule encompasses statements “made
while the declarant was perceiving the event,” or statements made “immediately
thereafter”—i.e., statements made without an interval of time after the declarant
perceived the event.
16
     Hewitt, 123 Mich App at 317.
                                                                                         5

        Two years later, the Court of Appeals began to equivocate on the meaning of
“immediately thereafter.” For example, in Johnson v White, the Court of Appeals
initially held that “immediately thereafter” does not mean “instantly thereafter” and
affirmed the trial court’s admission of a statement made “sometime between less than a
minute, or as long as four minutes, after the accident occurred.” 17 On remand, the Court
changed course and reapplied the Hewitt panel’s more restrictive interpretation of
“immediately thereafter” to hold that the statement, made several minutes after the
perceived event, was not admissible as a present sense impression. 18 On further appeal,
this Court affirmed the first Court of Appeals’ holding, stating that Hewitt took a
“restrictive view of the phrase ‘immediately thereafter . . . .’ ” 19 But this Court
distinguished Hewitt because, in the Johnson case, the testimony “indicated that the time
frame could have been less than four minutes, [and therefore] the trial court could
properly find, after hearing and observing the witness, that the declarant’s statement was
made immediately after he perceived the accident.” 20 Notably, however, we did not
overrule Hewitt or indicate that it incorrectly stated the law.

       This Court revisited this area of the law 10 years later in People v Hendrickson,
which involved a 911 call placed by the victim just after an assault had taken place. 21
Although it had previously been recognized by the Court of Appeals in Hewitt, this Court
for the first time adopted the “substantial contemporaneity” test, 22 citing two passages

17
  Johnson v White, 144 Mich App 458, 468-469 (1985); see also Duke v American Olean
Tile Co, 155 Mich App 555, 570-571 (1986) (holding that a statement made
approximately three minutes after the perceived event qualified as a present sense
impression, citing Johnson and noting that “the phrase ‘immediately thereafter’ is not
synonymous with ‘instantly thereafter’ ”).
18
 Johnson v White (On Remand), 154 Mich App 425, 429 (1986), citing Johnson, 144
Mich App at 471-474 (M. J. KELLY, J., concurring).
19
  Johnson v White, 430 Mich 47, 57 (1988). Note that the Hewitt Court acknowledged
that its interpretation could be viewed as “unduly restrictive,” but it opined that “a more
expansive interpretation would only serve to further blur the distinction between the
‘present sense impression’ exception and the ‘excited utterance’ exception . . . .” Hewitt,
123 Mich App at 317.
20
     Johnson, 430 Mich at 57.
21
     Hendrickson, 459 Mich at 234 (opinion by KELLY, J.).
22
   Id. at 236 (“The admission of hearsay evidence as a present sense impression requires
satisfaction of three conditions: (1) the statement must provide an explanation or
description of the perceived event, (2) the declarant must personally perceive the event,
and (3) the explanation or description must be ‘substantially contemporaneous’ with the
event.”) (citations omitted) (emphasis added).
                                                                                           6

from the advisory committee notes to FRE 803(1). 23 First, Hendrickson observed that
“[t]he principle underlying [the present sense impression] exclusion is that the
‘substantial contemporaneity of event and statement negate the likelihood of deliberate or
conscious misrepresentation.’ ” 24 However, it also explained that “the exception
‘recognizes that in many, if not most, instances precise contemporaneity is not possible
and hence a slight lapse is allowable.’ ” 25 Next, citing Johnson v White, this Court
observed that “[c]onsistent with this analysis, we have concluded that a four-minute
interval between the perceived event and a declarant’s statement satisfied the
‘immediately after’ condition.” 26 It then noted that in United States v Mejia-Velez, “a
New York federal district court found that sixteen minutes between the perceived event
and the statement satisfied the ‘substantially contemporaneous’ condition.” 27
Hendrickson then stated that the contemporaneity requirement was satisfied given that
“the 911 recorded victim’s statement was that the beating had just taken place; the
defendant was in the process of leaving the house as the victim spoke.” 28

        In this case, the Court of Appeals concluded that “a lapse of 15 minutes between
the time police entered the apartment and the time the victim wrote the statement” was
contemporaneous enough for the statements to be admitted as present sense
impressions. 29 However, I believe the Court of Appeals’ holding is erroneous for the
following reasons.
        First, the Court of Appeals’ conclusion is inconsistent with the limited scope of the
exception recognized under prior Michigan law. Before the Court of Appeals’ decision
in this case, no published opinion from the Court of Appeals or this Court had allowed a
statement made more than, at most, four minutes after a perceived event to be admitted as
a present sense impression. 30

23
  Id. at 235-236. Because the “Michigan Rules of Evidence were based on the Federal
Rules of Evidence,” People v Kreiner, 415 Mich 372, 378 (1982), and the wording of
MRE 803(1) is nearly identical to its federal counterpart, the advisory committee notes
and federal cases and commentary can be persuasive authority in interpreting the
Michigan Rules of Evidence. See People v Katt, 468 Mich 272, 280 (2003).
24
     Hendrickson, 459 Mich at 235, quoting FRE 803(1), advisory committee note.
25
     Hendrickson, 459 Mich at 236, citing FRE 803(1), advisory committee note.
26
     Hendrickson, 459 Mich at 236, citing Johnson, 430 Mich at 56.
27
  Hendrickson, 459 Mich at 236-237, citing United States v Mejia-Velez, 855 F Supp 607
(ED NY, 1994).
28
     Hendrickson, 459 Mich at 237 (emphasis added).
29
     Chelmicki, 305 Mich App at 63.
30
    In Hendrickson, this Court read Johnson as “conclud[ing] that a four-minute
interval . . . satisfied the ‘immediately after’ condition.” Hendrickson, 459 Mich at 236.
                                                                                         7


        Second, in reaching its conclusion, the Court of Appeals gave only cursory
treatment to the issue and relied on multiple layers of dicta. The only authority cited in
support of the Court of Appeals’ decision was Hendrickson’s citation to Mejia-Velez.
But the rationale for Hendrickson’s citation to that case is unclear since Hendrickson
concluded that the contemporaneity requirement was satisfied given that “the 911
recorded victim’s statement was that the beating had just taken place . . . .” 31 Thus, the
citation to Mejia-Velez was plainly dicta, given that contemporaneity was not actually at
issue in Hendrickson 32 and, even if it had been, there really was no question regarding
contemporaneity since the victim’s statement occurred just after the event took place.

       Finally, the Court of Appeals’ conclusion is completely at odds with the rationale
that justifies the exception in the first place. The rationale underlying the present sense
impression has been described as follows:

         “Underlying [FRE] 803(1) is the assumption that statements of perception
         substantially contemporaneous with an event are highly trustworthy
         because: (1) the statement being simultaneous with the event there is no
         memory problem; (2) there is little or nor [sic] time for calculated

However, this is an imprecise reading of Johnson. In Johnson, we distinguished Hewitt
(which, as noted, excluded statements made “at least several, and possibly as much as
thirty, minutes” after the incident) because in Johnson, the testimony “indicated that the
time frame could have been less than four minutes, [and therefore] the trial court could
properly find, after hearing and observing the witness, that the declarant’s statement was
made immediately after he perceived the accident.” Johnson, 430 Mich at 57 (emphasis
added). Thus, far from establishing four minutes as any sort of bright-line rule, Johnson
stands for the unremarkable proposition that while a statement made more than several
minutes after an incident may not satisfy the “immediately after” requirement, when the
time frame is delimited as “less than four minutes,” it is possible for a trial judge to
conclude that the statement was made “immediately after” the declarant perceived the
event. Regardless, even assuming arguendo that Johnson created a general rule that
statements made four minutes after an event are admissible as present sense impressions,
that rule would not justify the 15-minute interval allowed in this case.
31
     Hendrickson, 459 Mich at 237 (emphasis added).
32
   The primary issue in Hendrickson was whether independent evidence of the underlying
event was required before admitting a statement as a present sense impression. Id. at 238.
Ironically, the legal principle from Mejia-Velez that Hendrickson referred to was itself
arguably dicta since the federal court provided an alternative basis for admission of the
statement. See Mejia-Velez, 855 F Supp at 614 (stating that even if the statements at
issue were not admissible under the present sense impression exception, they were still
admissible as excited utterances).
                                                                                          8

       misstatement; and (3) the statement is usually made to one who has equal
       opportunity to observe and check misstatements.”[33]

Applying these factors to this case shows that the statements at issue do not possess
sufficient indicia of trustworthiness to justify their admission.

       With regard to the first factor, the lapse in time between the perceived event and
the victim’s statements was of sufficient duration to raise concerns about the accuracy of
the victim’s memory. In this case, the victim did not write her statements while she was
perceiving the event, or even “immediately” after the violence ended. Rather, a series of
events occurred between the perceived event and the victim’s statement: the police
entered the apartment; a search ensued; defendant was located, arrested, and secured in
the patrol car; and then an officer waited with defendant for 15 to 20 minutes in the patrol
car before finally obtaining the victim’s statement. Therefore, although the precise
timeline is unclear, the record indicates that the lapse in time between the perceived event
and the victim’s statement was at least 15 minutes, which is more than enough time to
raise doubts about the victim’s memory. 34 Moreover, when she wrote the requested

33
   Narciso, 446 F Supp at 288, quoting 5 Weinstein & Berger, Evidence, ¶ 803(1)[01]
(1975). In Hendrickson, this Court stated these factors in a slightly different manner: “(1)
the simultaneous event and description leave no time for reflection, (2) the likelihood for
calculated misstatements is minimized, and (3) generally, the statement is made in the
presence of another witness who has the opportunity to observe and verify its accuracy.”
Hendrickson, 459 Mich at 235, citing Narciso, 446 F Supp at 288, and People v Brown,
80 NY2d 729, 732-733 (1993). However, I believe that Narciso presents a more accurate
description of the considerations underlying the exception. When determining whether a
statement is admissible as a present sense impression, “the appropriate inquiry is whether
sufficient time elapsed to have permitted reflective thought.” McCormick, § 271, p 362.
But reflective thought affects both the declarant’s memory on a subconscious level and
the declarant’s ability to fabricate on a conscious level. See Duke, 155 Mich App at 570
(explaining that a statement made three minutes after a perceived event “was made soon
enough after the event and under circumstances which negate the likelihood of memory
problems and calculated distortions of the event”); State v Tucker, 205 Ariz 157, 165-166
(Ariz, 2003) (“The more time that elapses between the event and the statement, the
stronger the possibility that a declarant will attempt, either consciously or
subconsciously, to alter his or her description of the event.”). Thus, the lack of
opportunity to engage in reflective thought protects against both lapses in memory and
calculated misstatements, which are the first two trustworthiness factors articulated in
Narciso. For these reasons, I will use the Narciso factors to analyze the statements at
issue in this case.
34
   Present Sense Impressions, 28 Fla St U L Rev at 914 (noting that “[p]eople, including
testifying witnesses and hearsay declarants, forget quickly”).
                                                                                         9

statement, the victim and her neighbor were complaining about defendant. The fact that
the victim was engaged in a conversation with another person about defendant while she
wrote her statement further undermines the trustworthiness of the victim’s statement. 35

        As to the second factor, the lapse in time between the perceived event and the
victim’s statements left ample time for calculated misstatements. In this case, the victim
was left alone in her apartment for at least 15 minutes, which provided her ample
opportunity to engage in reflective thought about what she was going to say to the police
officers. In addition, the victim’s statements were not made spontaneously—instead,
they were made at the request of the police. 36 But statements solicited by the police are
far from the impulsive, unpremeditated statements contemplated by the present sense
impression exception; rather, those statements are, by their very nature, deliberate and
reflective. 37 “A declarant who . . . provides statements for a particular reason”—here for
a police investigation—“creates the possibility that the statements are not
contemporaneous, and, more likely, are calculated interpretations of events rather than
near simultaneous perceptions.” 38 Because the victim’s statements here were made at the

35
   Id. at 915 (noting that “ ‘[i]nformation presented after an event can change a person’s
report of that event’ ”) (citation omitted); see also Davis v State, 133 P3d 719, 728-729
(Alas App, 2006) (concluding that a statement made to police officers 5 to 10 minutes
after an accident was not admissible as a present sense impression when, among other
things, the declarant had engaged in conversations with other eyewitnesses).
36
   See FRE 803(1), advisory committee note (stating that “[s]pontaneity is the key factor”
in determining whether a statement is admissible as a present sense impression); see also
United States v Boyce, 742 F3d 792, 797-798 (CA 7, 2014) (observing that “answering
questions rather than giving a spontaneous narration could increase the chances that the
statements were made with calculated narration”).
37
   Compare Edwards v State, 736 So 2d 475, 478-479 (Miss App, 1999) (“For a witness
to give a response to an officer’s question is by definition not ‘spontaneous,’ no matter
how soon it is made after the event that is the focus of the questioning.”), and United
States v Green, 556 F3d 151, 157 (CA 3, 2009) (holding that a statement was disqualified
as a present sense impression due to a 50-minute lapse in time and after the declarant had
been questioned by officials, which “affirmatively indicate[d] that [the declarant] made
his statement after he was expressly asked to reflect upon the events in question”), with
People v Cross, 202 Mich App 138, 141-142 (1993) (admitting a statement made to a
police officer as a present sense impression when the interval between the event and the
statement was less than a minute and the statement was “unsolicited”).
38
   United States v Woods, 301 F3d 556, 562 (CA 7, 2002) (holding that “narrative
statements . . . clearly addressed to the FBI agents listening in via the microphone” were
not present sense impressions because “[t]hese statement were made for the benefit of the
agents—i.e., were calculated and provided for a reason”); see also Consol Environmental
Mgt, Inc—Nucor Steel Louisiana v Zen-Noh Grain Corp, 981 F Supp 2d 523, 531 (ED
                                                                                        10

request of police, the statements were more likely to have been purposeful and the
product of reflective thought, which further undermines their trustworthiness.

       The third factor also weighs against admission because the statements were not
made in the presence of a third party who also observed the event and could verify their
accuracy. Rather, the victim provided her statement to a police officer who was not
present during the incident. During the assault, the victim’s neighbor heard noises
indicating that a fight was occurring and was told by the victim that defendant had turned
on the gas stove to blow up the apartment complex; however, the neighbor was not an
eyewitness to the assault and could not verify the details of the assault that were
contained in the victim’s statements. Therefore, neither the police officer nor the
neighbor had an independent basis to verify the veracity of the victim’s statements, which
also undermines the trustworthiness of her statements. 39

                                   III. CONCLUSION

       The Court of Appeals erred by concluding that the victim’s written statement
provided to a police officer 15 to 20 minutes after the event was properly admitted as a
present sense impression. Prior Michigan law does not support such an expansive
interpretation. Nor does the Court of Appeals’ conclusion square with the rationale
behind the rule, i.e., that the substantial contemporaneity of the statement with the




La, 2013) (“When a statement is made for a specific purpose such as litigation, it lacks
the indicia of reliability that motivate the rule.”).
39
   See People v Bowman, 254 Mich App 142, 145 (2002) (holding that a statement was
not admissible as a present sense impression because, among other things, it was made
“in a separate conversation with someone not present during the first conversation”);
Hewitt, 123 Mich App at 317 (holding that the present sense impression exception did not
apply because, among other things, the statement was made to a police officer who could
not corroborate the truth of the statement because he was not present during the incident).
                                                                                                               11

perceived event provides the requisite guarantees of trustworthiness to justify a departure
from the general rule excluding hearsay.

       For these reasons, I would hold that the victim’s statements were not admissible as
present sense impressions because they were not substantially contemporaneous with the
perceived event. But because the statements were admissible on an alternative ground as
recorded recollections, I would simply vacate the portion of the Court of Appeals’
opinion discussing present sense impressions and otherwise deny leave to appeal.

       MCCORMACK, J., joins the statement of VIVIANO, J.

       BERNSTEIN, J., took no part in the disposition of this matter, which the Court
considered before he assumed office and in which his vote would not be
result-determinative, in order to avoid unnecessary delay to the parties.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         February 6, 2015
       s0203
                                                                             Clerk
