People v. Bolden, Docket No. 78-664
| Decision Date | 19 September 1979 |
| Docket Number | Docket No. 78-664 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clifton BOLDEN, Defendant-Appellant. 92 Mich.App. 421, 285 N.W.2d 210 |
| Court | Court of Appeal of Michigan — District of US |
[92 MICHAPP 423] Raymond L. Miller, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., Frank J. Bernacki, Asst. Pros. Atty., for plaintiff-appellee.
Before CYNAR, P. J., and HOLBROOK and RILEY, JJ.
Defendant was charged with armed robbery, contrary to M.C.L. § 750.529; M.S.A. § 28.797, and two counts of criminal sexual conduct in the second degree, contrary to M.C.L. § 750.520c(1); M.S.A. § 28.788(3)(1). A Detroit Recorder's Court jury found the defendant guilty of armed robbery only, and he was sentenced to a prison term of from 20 to 30 years. Defendant now appeals as of right.
The complaining witness was unable to identify defendant as her assailant, though his fingerprints were found on a green box in her apartment. This inability to identify her assailant occurred because her assailant removed her glasses, which left her unable to see clearly. The prosecution, in order to prove that defendant was the same individual that accosted the complaining witness, utilized the testimony of two other individuals who testified that defendant had previously sexually assaulted and robbed them utilizing the same Modus operandi that was used in the present robbery and criminal sexual conduct. This testimony was received into evidence over defendant's objection, the trial court ruling that it was permitted under the similar acts statute, M.C.L. § 768.27; M.S.A. § 28.1050.
[92 MICHAPP 424] Defendant initially contends that it was error for the trial judge to admit the "similar acts" evidence. He notes that he was acquitted of charges arising out of the incident about which one of the witnesses testified. He further claims that the probative value of the evidence was outweighed by its prejudicial effect.
M.C.L. § 768.27; M.S.A. § 28.1050 permits the introduction of evidence of similar acts of a defendant "where the defendant's motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing an act, is material". In People v. Wilkins, 82 Mich.App. 260, 267-269, 266 N.W.2d 781 (1978) a panel of this Court set forth the requirements for admission of evidence under this statute. There must be substantial evidence that defendant committed the act sought to be introduced, there must be some special circumstances of the prior act which tend to prove defendant's plan, scheme, intent, etc. and the defendant's plan, scheme intent, etc., must be material to the determination of defendant's guilt of the charged offense.
We conclude that these requirements are satisfied in the present case. The two witnesses testified from first-hand knowledge as to defendant's perpetration of the prior acts. The fact of defendant's acquittal on charges arising out of one of the prior incidents does not act to bar its admission. People v. Oliphant, 399 Mich. 472, 495-500, 250 N.W.2d 443 (1976). The similarity between these acts and the sexual assault alleged in the present case is striking. In each instance, an elderly woman, living alone in the same area of Detroit, was robbed of money and jewelry, tied to her bed in a spread-eagle position, and sexually assaulted. The materiality of this evidence and its propensity to show a [92 MICHAPP 425] scheme and the disputed identity of the assailant in the present case is obvious.
The question remains, however, whether the probative value of this evidence outweighed its prejudicial effect. Such a...
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People v. Nabers
...does not automatically bar the admission of such evidence. 3 Oliphant, supra, 399 Mich. 499-500, 250 N.W.2d 443, People v. Bolden, 92 Mich.App. 421, 424, 285 N.W.2d 210 (1979). However, we take this opportunity to express our support for Judge Allen's partial concurrence and partial dissent......
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People v. Bolden
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...Jackson to the judge's determination of admissibility of evidence of a defendant's prior bad acts. This Court in People v. Bolden, 92 Mich.App. 421, 425, 285 N.W.2d 210 (1979), held that where the record is silent it will not be presumed that the lower court did not conduct the required bal......
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