People v. Barker

• Decision Date: 19 August 1987
• Docket Number: Docket No. 89618
• Citation: 161 Mich.App. 296,409 N.W.2d 813
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Jude BARKER, Defendant-Appellant. 161 Mich.App. 296, 409 N.W.2d 813
• Court: Court of Appeal of Michigan — District of US

Page 813

409 N.W.2d 813

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Jude BARKER, Defendant-Appellant.

Docket No. 89618.

161 Mich.App. 296, 409 N.W.2d 813

Court of Appeals of Michigan.

Submitted Dec. 9, 1986.

Decided July 7, 1987.

Released for Publication Aug. 19, 1987.

[161 MICHAPP 298] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Jon W. Newman, Pros. Atty., and R.L. Koenigsknecht, Chief Asst. Prosecutor, for people.

Robert B. Bellgowan, Jr., St. Johns, for defendant-appellant.

Before MacKENZIE, P.J., and ALLEN and SHAMO, JJ.

ALLEN, Judge.

Defendant was found guilty by a jury of possession of less than fifty grams of cocaine, M.C.L. Sec. 333.7212(1)(a) and (b); M.S.A. Sec. 14.15(7212)(1)(a) and (b), M.C.L. Sec. 333.7214(a) and (b); M.S.A. Sec. 14.15(7214)(a) and (b), and possession of marijuana, M.C.L. Sec. 333.7401(1) and (2)(c); M.S.A. Sec. 14.15(7401)(1) and (2)(c). Defendant was sentenced on October 28, 1985, to concurrent terms of from 1 1/2 to 4 years in prison on the cocaine conviction and to 1 year imprisonment on the marijuana conviction. Defendant appeals as right, raising two issues. We affirm.

On May 5, 1984, pursuant to a search warrant, United States Secret Service agents, Michigan state police officers and Clinton County deputy [161 MICHAPP 299] sheriffs cooperated in a search of defendant's premises on Bancroft Road in Grand Ledge. The search was conducted for the purpose of seizing any counterfeit currency that was on the premises. Defendant was not at home at any time during the search but had been there earlier that day. The police seized counterfeit currency, a small quantity of cocaine and about 3 1/2 pounds of marijuana from the home. At the time of trial, defendant was serving two years probation for a separate federal counterfeit currency conviction.

The search occurred because defendant and Michael Langdon were being investigated for possession of counterfeit currency. Langdon had just been released from prison a few weeks prior to the search. Defendant testified that Langdon had lived at defendant's house for approximately two weeks before the search. Earlier on the day of May 5, 1984, defendant and Langdon had been involved in an altercation with federal agents. The agents had planned to arrest the two on counterfeit currency charges, but defendant and Langdon had evaded the agents in an encounter in which there were collisions and shots exchanged between the agents and defendant and Langdon. The search of defendant's premises was then conducted.

At trial, defendant's defense was that he did not have possession of the controlled substances, because he had not been living at the house for the two weeks prior to the search due to the fact that he did not want to be around Langdon. Consequently, defendant claimed that he did not know the controlled substances were on the premises. A scale was found in defendant's bedroom, but defendant claimed he used the scale to reload shotgun shells.

At trial, evidence of the altercation between defendant and federal agents on May 5, 1984, was [161 MICHAPP 300] brought out, over defendant's objection, on redirect examination of United States Secret Service Agent Joseph Viviano. The prosecutor was allowed to elicit this testimony to counter defendant's claim that he was not at his house and, therefore, did not know about the controlled substances. Prior to Viviano's redirect examination testimony, defense counsel had asked every prosecution witness who was present at defendant's house during the search if they had ever seen defendant there. The trial court permitted the redirect testimony on the theory that the testimony was relevant to show the jury why defendant was not at home during the search.

Later in the trial, the prosecutor asked Michigan State Police Trooper David Emerson if he had found anything in the house indicating who was the owner or occupier of the house. The following exchange took place:

"Q: [By the prosecutor ] All right. And while you were in that house, did you find or observe or see anything that would indicate who the owner was, the person occupying that house?

"A: The original--first room I started to check was the kitchen area, the cupboard of the kitchen, and there's a small cupboard up above the place where the refrigerator is built in. On top of the refrigerator I seen an envelope addressed to Mr. Barker.

"Q: From whom?

"A: I don't remember from whom on the envelope. We did read the contents of the envelope, though.

"Q: Who was that letter from?

"A: My understanding or impression after I read it was from his wife.

"Q: So apparently--did you get any feel from that particular letter whether or not she was living in that house at that time?

[161 MICHAPP 301] "A: I--from what the letter stated, I got the impression she was not living there. It was a letter addressed to him referencing, I guess, coming down on him. She was accusing him in the letter of turning their son into a dope dealer. The school he was attending--

"Q: And she wasn't going to let him see the child anymore or something?

"A: Right."

Defense counsel did not object to the question or answer in which Emerson made reference to defendant's turning his son into a dope dealer. Instead, defense counsel waited a short time until his cross-examination of Emerson to ask for a conference with the trial court off the record. After the prosecutor rested the people's case, the trial court held a conference out of the jury's presence in which it became clear that defense counsel, at the off-the-record conference during his cross-examination of Emerson, had brought a motion for a mistrial on the basis of the "dope dealer" reference. The trial court denied the motion for mistrial, holding that defense counsel should have objected to the question since it called for a hearsay response.

On appeal two claims of error are raised: (I) Did admission of testimony concerning defendant's prior conduct on the day of the search constitute an abuse of the trial court's discretion mandating reversal? (II) Did the trial court abuse its discretion in denying defendant's motion for a mistrial, or motion for a new trial, based on a prosecution witness's statement concerning "turning [defendant's] son into a dope dealer?"

I.

Defendant contends that the trial court erred in [161 MICHAPP 302] permitting, over objection, testimony about the attempt to arrest defendant and the ensuing exchange of gunfire between defendant and federal agents on May 5, 1984, the day of the search of his house. The trial court permitted the testimony because it tended to show why defendant was not at home at the time of the search. Defense counsel had previously inquired of prosecution witnesses whether they had seen defendant at the house.

The testimony of defendant's shoot-out with federal agents was evidence of other bad acts. Admission of such evidence is prohibited unless permitted under MRE 404(b), which provides:

"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crime, wrongs, or acts are contemporaneous with, or prior or subsequent to the crime charged."

In order to admit evidence under MRE 404(b), the following four requirements must be met:

"(1) [T]here must be substantial evidence that the defendant actually perpetrated the bad act sought to be introduced; (2) there must be some special quality or circumstance of the bad act tending to prove the defendant's identity or the motive, intent, absence of mistake or accident, scheme, plan or system in doing the act and, in light of the slightly different language of MRE 404(b) we add, opportunity, preparation and knowledge; (3) one or more of these factors must be material to the determination of the defendant's guilt of the charged offense; and (4) the probative value of the evidence sought to be introduced must not be [161 MICHAPP 303] substantially outweighed by the danger of unfair prejudice." People v. Golochowicz, 413 Mich. 298, 309, 319 N.W.2d 518 (1982).

In general, the admission or exclusion of evidence is within the trial court's discretion and will not be overturned absent a clear abuse of that discretion. People v. Solak, 146 Mich.App. 659, 673, 382 N.W.2d 495 (1985). A trial court's improper admission or exclusion of evidence must result in a miscarriage of justice for an appellate court to find error requiring reversal. M.C.L. Sec. 769.26; M.S.A. Sec. 28.1096.

However, in the instant case the disputed testimony was not introduced for the purpose of proving the bad character of the defendant. Instead, it was introduced for the relevant purpose of explaining why the defendant was not home when his house was searched. It was also relevant to refute defendant's explanation that the reason he was not home for two weeks before the search was that he did not want to be around Langdon. Testimony that earlier on the day of the search Langdon and defendant exchanged shots with federal agents and escaped arrest clearly refuted defendant's claim. The testimony was relevant to an issue in controversy and under MRE 401 was "relevant." As such it was admissible. People v. McKinney, 410 Mich. 413, 418-419, 301 N.W.2d 824 (1981). For these reasons we find no abuse of the trial court's discretion and no miscarriage of justice. Admission of evidence of a prior bad act is not violative of MRE 404(b) if the evidence is relevant and probative of an issue raised at trial. People v. Freeman, 149 Mich.App. 119, 121-122, 385 N.W.2d 617 (1985).

II.

The question of whether Trooper Emerson's "dope [161 MICHAPP 304] dealer" statement so prejudiced the jury...