People v. Duncan

• Decision Date: 01 January 1976
• Docket Number: No. 7,7
• Citation: 402 Mich. 1,260 N.W.2d 58
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert DUNCAN and Leon McIntosh, Defendants-Appellants. ,
• Court: Michigan Supreme Court

Page 58

260 N.W.2d 58

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

No. 7, Jan. Term, 1976.

402 Mich. 1, 260 N.W.2d 58

Supreme Court of Michigan.

Nov. 28, 1977.

William L. Cahalan, Pros. Atty., Wayne County, Patricia J. Boyle, Principal Atty., Research, Training and Appeals, Maura D. Corrigan, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

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

RYAN, Justice.

Defendants Duncan and McIntosh were found guilty 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. Their convictions were affirmed by the Court of Appeals. 55 Mich.App. 403, 222 N.W.2d 261 (1974). We granted leave to appeal by order filed December 23, 1974. 393 Mich. 773 (1974).

The defendants are charged with offering to return to Irving Broadnax, upon payment to them of $800, certain property held in the Inkster Police Department property room which was confiscated from Mr. Broadnax in connection with an earlier burglary investigation. The People's principal witness was Betty Harris, a former drug addict, convicted felon, and sometime informer.

The People offered Ms. Harris' testimony that she had acted as the go-between when defendants made their initial proposals to Mr. Broadnax. Over the objection of defendants' counsel, Ms. Harris further testified that she had acted as intermediary between the defendants and three local drug dealers in connection with payments for protection and information on police activities. ¹

The testimony concerning Ms. Harris' contact with the three drug dealers was offered and received as bearing upon the defendants' criminal intent in the transaction involving Mr. Broadnax.

I

The first issue is the admissibility of the so-called "similar acts" evidence under M.C.L.A. § 768.27; M.S.A. § 28.1050, which reads:

"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."

Defendants raise four points with regard to the applicability of the statute in their case.

First, they challenge the relevancy of an alleged drug protection racket to the charges of conspiracy to do a legal act in an illegal manner and solicitation of a bribe.

Despite certain factual distinctions, the common thread which connects all the incidents was the use of Betty Harris by the defendants to obtain payoffs in return for the use of their official position to protect or benefit illegal activities. The focus of the analysis is on the nature of defendants' activities, not on the criminal acts of the persons from whom the defendants solicited bribes. The fact that the identities of the benefited criminals or the nature of the criminal activities protected varied is not a bar to the admissibility of the evidence. The prior incidents of bribery offered by the People were sufficiently similar to the bribery alleged in the information to qualify as admissible evidence within the meaning of the statute. The statute requires "like acts", not identical acts. See, e.g., State v. Firestone, 68 Ohio App. 359, 41 N.E.2d 277, app. dismd. 139 Ohio St. 216, 38 N.E.2d 1023 (1942), and cases collected in Anno, Admissibility, in prosecution for bribery or accepting bribes, of evidence tending to show the commission of other bribery, or acceptance of bribe, 20 A.L.R.2d 1012, 1034-35. But cf., People v. Fiore, 34 N.Y.2d 81, 356 N.Y.S.2d 38, 312 N.E.2d 174 (1974).

Defendants next challenge the materiality of the evidence.

The "similar acts" were offered to show defendants' intent with regard to the solicitation and conspiracy. Before any proofs were offered, defense counsel's opening statement informed the jury that "our testimony will show along with the prosecution's testimony that there was talk of a bribe". The proofs did show numerous conversations between Mr. Duncan, Mr. McIntosh, Ms. Harris and Mr. Broadnax in varying combinations, discussing the sum of $800 to be paid to defendants for the return of Mr. Broadnax's property from the police station. The crucial differences in testimony were that Mr. Broadnax and Ms. Harris testified that the defendants initiated the scheme. The defendants testified that Mr. Broadnax and Ms. Harris initiated the scheme and that the defendants only went along with it so as to catch Mr. Broadnax in a crime. With regard to the conspiracy count, the evidence of the four principal witnesses showed the discussions and apparent agreement to return the property for $800. The disputed issue was the intent of the defendants at the time.

By pleading not guilty and disputing intent by their proofs at trial, defendants placed their intent in issue. People v. Reading, 307 Mich. 616, 12 N.W.2d 482 (1943); People v. McElheny, 221 Mich. 50, 190 N.W. 713 (1922). We have previously held that the prosecution may prove intent by offering evidence of a continuing course of conduct. People v. Johnston, 328 Mich. 213, 43 N.W.2d 334 (1950).

Johnston involved payments to a prosecuting attorney for protection of houses used for gambling and prostitution. Evidence of other payments to defendant for the same purpose from the same and other individuals received during the four years prior to the incident alleged in the information was held properly admitted as bearing on the issue of intent. In the case at bar the People offered three other incidents of bribery as bearing on the intent of defendants in their relations with Broadnax. The evidence of a repeated course of conduct tended to show the intent of defendants in doing the acts alleged and was therefore material and admissible under the statute.

Defendants also contend that the similar acts were not "proved" in the manner required by the statute. It is argued that although the People need not prove the alleged similar acts beyond a reasonable doubt, the proofs must at least convince the jury of the probability of the defendant's actions. The evidence of similar acts in this case is attacked as mere uncorroborated testimony of a witness who had expressed a desire "to get the defendants in trouble." Defendants cite People v. Davis, 343 Mich. 348, 72 N.W.2d 269 (1955) in support of their argument. We do not read the relevant language of Davis ² to require any further proof than was presented here. People v. Allen, 351 Mich. 535, 88 N.W.2d 433 (1958), also cited by appellants, requires only that the proofs be sufficient to convince the jury of the probability of defendants' actions. The People were not required to offer corroboration of Ms. Harris' testimony when she was testifying as to transactions in which she was an active participant. It was within the province of the jury to believe or disbelieve the witness.

Finally, defendants argue that the probative value of the similar acts testimony was outweighed by its unduly prejudicial impact. It is well settled that the determination of whether the probative value of similar acts testimony is substantially outweighed by its unfairly prejudicial effect is within the sound discretion of the trial judge. See People v. DerMartzex, 390 Mich. 410, 213 N.W.2d 97 (1973) and authority cited therein.

Like the Court of Appeals, we recognize the potentially inflammatory impact of testimony linking police officers with narcotics dealers. However, we also recognize the relevance of this testimony as tending to show a continuing course of conduct involving payoffs. As noted by the Court of Appeals below, the trial judge carefully considered the matter and, when he concluded that the testimony could be presented to the jury, carefully controlled the proceedings and specifically instructed the jury on the permissible uses of the testimony. ³

We find no abuse of discretion by the trial judge in allowing the similar acts testimony to be presented to the jury in this case.

II

Defendants' second major contention on appeal is that they were denied a fair trial because of improper argument by the prosecutor. The People's closing argument is alleged to contain at least three instances of impropriety sufficient to require reversal.

Because no objection was made to any of the prosecutor's closing arguments at trial, appellate review is foreclosed unless our failure to consider the issue would result in a miscarriage of justice. People v. Alcala, 396 Mich. 99, 237 N.W.2d 475 (1976); People v. Hancock, 326 Mich. 471, 40 N.W.2d 689 (1950); People v. Zesk, 309 Mich. 129, 14 N.W.2d 808 (1944); People v. Connors, 251 Mich. 99, 230 N.W. 931 (1930); People v. Goldberg, 248 Mich. 553, 227 N.W. 708 (1929); M.C.L.A. § 769.26; M.S.A. § 28.1096.

We examine the prosecutor's remarks in the context in which they were made. People v. Allen, 351 Mich. 535, 88 N.W.2d 433 (1958). ⁴ The prosecutor's remarks in this case were either proper argument based upon the evidence presented or responses to matters raised by the defendants in their proofs and closing argument. Certain of the latter remarks, although if standing alone could be seen as improper, do not constitute reversible error in this case because of their responsive nature, People v. Dersa, 42 Mich.App. 522, 202 N.W.2d 334 (1972), lv. den. 388 Mich. 803 (1972); People v. Green,34 Mich.App. 149, 190 N.W.2d 686 (1971), lv. den. 386 Mich. 769 (1971), and because any unduly prejudicial effect could have been eliminated by a curative instruction if one...