People v. Duncan

• Citation: 222 N.W.2d 261,55 Mich.App. 403
• Decision Date: 10 September 1974
• Docket Number: No. 1,Docket No. 17197,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert DUNCAN and Leon McIntosh, Defendants-Appellants
• Court: Court of Appeal of Michigan (US)

Page 261

222 N.W.2d 261

55 Mich.App. 403

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert DUNCAN and Leon McIntosh, Defendants-Appellants.

Docket No. 17197.

Court of Appeals of Michigan, Division No. 1.

Sept. 10, 1974.

Released for Publication Oct. 18, 1974.

John M. Barr, Ypsilanti, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, App. Div., Frederick R. Doetsch, Jr., Asst. Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and BRONSON and VanVALKENBURG,* JJ.

LESINSKI, Chief Judge.

Defendants Albert Duncan and Leon McIntosh were convicted by a jury of conspiracy to do a legal act in an illegal manner, M.C.L.A. § 750.157a; M.S.A. § 28.354(1), and solicitation of a bribe, M.C.L.A. § 750.505; M.S.A. § 28.773. They appeal as of right.

At the time of their arrest, both defendants were police officers with the city of Inkster. The information alleged defendants offered to return certain property of complainant Irving Broadnax, which was then being held in the property room of the Inkster Police Department pursuant to a burglary investigation, upon the payment of $800. The main witness for the prosecution was Betty Harris, an admitted heroin addict, convicted felon, and occasional police informant. She testified that the defendants had approached her and had her solicit the payment from Broadnax on their behalf. Following the making of a separate record out of the presence of the jury, the trial court allowed the prosecution to question Mrs. Harris on similar acts and solicitations by defendants. She testified that the defendants had previously used her as a conduit to obtain payments from local narcotics dealers in exchange for information on police activities and for protection. Defendants contend that the trial court committed reversible error in admitting this testimony of other criminal acts into evidence.

The general rule in this State is that in a criminal prosecution no reference may be made to the fact that defendant has committed other similar offenses. People v. Hatt, 384 Mich. 302, 181 N.W.2d 912 (1970). However, a statutory exception allowing the proof of similar acts has been provided when defendant's motive, intent, the absence of mistake, or defendant's scheme, plan or system of doing the act is material. M.C.L.A. § 768.27; M.S.A. § 28.1050 states:

'In any criminal case 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, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.'

In the case at bar, the trial court after hearing the testimony of similar acts out of the presence of the jury, held that this testimony was material and therefore admissible for these limited statutory purposes. Following the direct and cross-examination of Mrs. Harris, the trial court gave an extensive cautionary instruction as to the limited admissibility of the evidence of similar acts. The court stated in part:

'Now, I think I should just spell out to you in simple words, these similar acts are shown by the prosecutor on the theory that they tend to show or may tend to show on the part of these defendants either intent, scheme, plan, design, motive, that and that alone. You are to pass upon the guilt or innocence of these defendants, however only on the charge set forth in the information, namely the counts which I have indicated to you.'

The entire limiting instruction was again repeated by the trial court in its final charge to the jury.

As the Michigan Supreme Court recently stated in People v. Chism, 390 Mich. 104, 119, 211 N.W.2d 193, 199 (1973):

'The general proposition that the motive or intent of the defendant may be shown by prior acts, even though these acts would constitute commission of another crime is supported by numerous cases.'

In People v. Johnston, 328 Mich. 213, 43 N.W.2d 334 (1950), the Michigan Supreme Court recognized that intent is an essential element of the crime of bribery and that a defendant's intent may be proved by reference to a definite and continual course of conduct.

In People v. Ferguson, 45 Mich.App. 697, 206 N.W.2d 812 (1973), this Court stated that evidence of prior acts is admissible by statute, M.C.L.A. § 768.27; M.S.A. § 28.1050, to show motive, intent, scheme or plan on the part of defendant. This statute, however, does not provide carte blanche admissibility of evidence of prior acts, even when relevant to a showing of motive, intent, scheme or plan, when the 'probative value is outweighed by attendant prejudice to the defendant. The assessment of the relative weight of these two factors is within the discretion of the court.' People v. Shaw, 9 Mich.App. 558, 566, 157 N.W.2d 811, 815 (1968).

In People v. DerMartzex, 390 Mich. 410, 213 N.W.2d 97 (1973), the Michigan Supreme Court again reiterated the rule that it is within the trial court's discretion to determine whether evidence of prior acts should be admitted for this limited statutory purpose or whether its probative value is outweighed by the risk of unfair prejudice, confusion of issues, or where it would have the effect of misleading the jury.

Our extensive examination of the transcript in this case discloses that the alleged narcotic-related activities of defendants became a prominent issue at trial. Mrs. Harris was...