People v. Cramer

• Decision Date: 23 April 1980
• Docket Number: Docket No. 78-4254
• Citation: 293 N.W.2d 744,97 Mich.App. 148
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward Norman CRAMER, Jr., Defendant-Appellant. 97 Mich.App. 148, 293 N.W.2d 744
• Court: Court of Appeal of Michigan — District of US

Page 744

293 N.W.2d 744

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward Norman CRAMER, Jr., Defendant-Appellant.

Docket No. 78-4254.

97 Mich.App. 148, 293 N.W.2d 744

Court of Appeals of Michigan.

April 23, 1980.

Released for Publication July 11, 1980.

[97 MICHAPP 150] James R. Neuhard, State App. Defender, Ronald J. Bretz, Asst. State App. Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Ian J. Redpath, Pros. Atty., Thomas C. Nelson, Pros. Attys. App. Section, for plaintiff-appellee.

Before J. H. GILLIS, P. J., and ALLEN and KELLY, JJ.

[97 MICHAPP 151] PER CURIAM.

On June 19, 1978, defendant was convicted by a jury of first-degree felony murder. M.C.L. § 750.316; M.S.A. § 28.548. He was sentenced to mandatory life imprisonment without parole and appeals as of right.

During his opening statement in the trial on the charge of first-degree murder, the prosecutor stated that he would present, inter alia, evidence to show that defendant had committed an assault on another woman, Karen Erickson, earlier the same evening that defendant killed his victim, Laura Allinger. Defense counsel did not object to this remark but, after reserving his opening statement, objected outside the presence of the jury to the introduction of any testimony concerning the alleged assault on Karen Erickson:

"This incident, in the opinion of the defense, has absolutely nothing to do with the current charge involving the charge of murder * * * It is clearly a separate incident and there is no tie-in that can be seen by the defense with the present situation * * * (W)e would object to the incidents involving Karen Erickson being utilized as evidentiary matters in the trial of this case because of the fact that they are not relevant or material, and even, if so, are too highly prejudicial to be utilized as evidence."

The prosecutor responded that evidence of the prior assault would show a "plan scheme, motive, purpose, for the offense charged". The trial court overruled the defense objection and found the evidence of the assault admissible. In so ruling, the lower court judge acknowledged the possible prejudice to defendant but felt that the applicable statute and court rule had been satisfied. In addition, the trial judge noted that he would give a limiting instruction at the time the evidence was admitted and would also consider reversing his [97 MICHAPP 152] ruling, "because of other intervening things that may come to my attention, but as of this time, I am satisfied that the prosecution may use such evidence as to what happened earlier that evening".

The following day, defense counsel renewed his motion to exclude evidence of defendant's prior assault on Karen Erickson. The trial judge again rejected the motion and ruled that the evidence was admissible pursuant to MRE 404(b) and 403.

"I find that the evidence is clearly probative. It clearly is relevant it occurred within a relatively short period of time. It would go, certainly, to the element of the state of mind of the Defendant, and I understand that the state of mind of the Defendant is indeed going to be a significant issue in this case."

Alternatively, the judge held that the evidence "could be considered part of the res gestae".

"It was certainly close in time to the offense charged in the information. The whereabouts of the Defendant during the evening in question, the other contacts that he had made during the evening in question, all seem to have a probative value which should be able to be considered by the jury."

Subsequently, Karen Erickson testified during the prosecutor's case in chief. She stated that while living with her cousin, Rebecca Badge, she went to sleep on the evening of September 28, 1977, to be awakened one hour later by someone with the smell of alcohol on his breath lying in bed next to her. Upon realizing that the person in bed with her was not her cousin, she became startled and jumped out of bed. The other person also jumped out of bed, grabbed Miss Erickson by the shoulders and warned her to "cool it, Becky". [97 MICHAPP 153] Miss Erickson testified that she told the intruder that she was Becky's cousin, that the intruder threatened her with a knife and that he told her to stay in the bedroom and not to turn on any lights. Eventually, after taking a small amount of money from the witness's purse and a bread knife from the kitchen, the intruder fled the premises in a "green or brown" Chrysler automobile. Miss Erickson was able to identify the license plate number of the vehicle and subsequently identified the defendant's voice as that of the intruder. The car was later determined to be that of defendant's fianceee. It was undisputed that defendant drove the car on the night in question. ¹

At the conclusion of Miss Erickson's testimony, and again in its final charge to the jury, the trial court instructed the jury concerning the limited purpose for which the testimony could be considered in accordance with CJI 4:10:01.

The main issue on appeal is whether the trial judge abused his discretion by admitting evidence of an allegedly similar act committed by the defendant two to four hours before the murder of Laura Allinger. Defendant contends that the evidence was inadmissible because it was not probative of defendant's motive, scheme or plan, or the absence of mistake or accident. In addition, defendant claims that the prejudicial impact of this evidence outweighed its probative value. The prosecution counters by arguing that, where proof of defendant's intent rests solely on circumstantial evidence in a case of first-degree murder, it is not error to admit evidence of a prior criminal incident[97 MICHAPP 154] reflective of defendant's state of mind which was part of an uninterrupted pattern of behavior and which occurred a short time prior to the homicide.

Evidence of defendant's assault on Karen Erickson was admitted on the authority of MRE 404(b), which supersedes the long-standing similar acts statute found at M.C.L. § 768.27; M.S.A. § 28.1050. MRE 404(b) 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." (Emphasis supplied.)

Generally, evidence tending to show that a defendant has committed crimes or bad acts other than those charged is inadmissible because its probative value is outweighed by the likelihood of impermissible prejudice, preventing an objective determination of the disputed factual issue. People v. Flynn, 93 Mich.App. 713, 287 N.W.2d 329 (1979); People v. Bates, 91 Mich.App. 506, 510, 283 N.W.2d 785 (1979); People v. Wilkins, 82 Mich.App. 260, 265, 266 N.W.2d 781 (1978); People v. Gibson, 66 Mich.App. 531, 536, 239 N.W.2d 414 (1976), and authorities cited therein.

"There are, however, instances in which such evidence is admissible to establish other, legally recognized matters, so long as the evidence is not offered as mere circumstantial evidence to prove the bad character of [97 MICHAPP 155] the defendant, and hence, the probability of his guilt for the crime charged. Thus, if evidence of other bad acts of the defendant is being introduced for some purpose other than to raise the inference of a probability that the accused committed the crime charged, the rule excluding the evidence is simply inapplicable. People v. Spillman, 399 Mich. 313, 319, 249 N.W.2d 73 (1976). It is for this reason that the law recognizes exceptions to the general exclusionary rule regarding evidence of defendant's prior bad acts or crimes." People v. Flynn, supra, 93 Mich.App. 718, 287 N.W.2d 332.

MRE 404(b) and the similar acts statute are perfect examples of attempts by the Supreme Court and Legislature to codify both the rule and some of its exceptions.

However, the list of exceptions to the general rule found in MRE 404(b) is not exhaustive. No mechanical or fixed rule can encompass all of the possible reasons for which evidence of the defendant's other bad acts might be admissible at the trial on an unrelated charge. Indeed, the language used in MRE 404(b) makes clear that the evidence may be admissible for purposes other than to prove the character of a person in order to show that he acted in conformity therewith. The list of those "other purposes", e. g., motive, opportunity, intent, preparation, etc., must be viewed as examples, and not the exclusive grounds on which such evidence is rendered admissible as an exception to the general rule. People v. Fisher, 77 Mich.App. 6, 11, 257 N.W.2d 250 (1977), lv. den. 402 Mich. 811 (1977). See e. g., People v. Nawrocki, 376 Mich. 252, 255, 136 N.W.2d 922 (1965). In short:

"The rule is that the prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is substantially relevant for some other purpose than to show a probability that he committed [97 MICHAPP 156] the crime on trial because he is a man of criminal character." McCormick on Evidence (2d), § 190, p. 447.

Bearing in mind the high degree of prejudice inherent in evidence of an accused's other bad acts, our courts have traditionally required that the prosecution meet somewhat higher standards of admissibility for such evidence than is ordinarily required for other types of evidence. The leading case on point is People v. Wilkins, 82 Mich.App. 260, 267-271, 266 N.W.2d 781 (1978), lv. den. 406 Mich. 857 (1979). In essence, to admit evidence under the so-called "similar acts" doctrine it is necessary that the evidence of the defendant's other bad acts be substantial, relevant,...