People v. Goddard

• Decision Date: 20 January 1988
• Docket Number: Docket No. 74750,No. 6,6
• Citation: People v. Goddard, 418 N.W.2d 881, 429 Mich. 505 (Mich. 1988)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth Allan GODDARD, Defendant-Appellant. 429 Mich. 505, 418 N.W.2d 881 Calendar
• Court: Michigan Supreme Court

Page 881

418 N.W.2d 881

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Kenneth Allan GODDARD, Defendant-Appellant.

Docket No. 74750.

429 Mich. 505, 418 N.W.2d 881

Calendar No. 6.

Supreme Court of Michigan.

Argued Nov. 12, 1986.

Decided Jan. 20, 1988.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol.Gen., Eugene Malanyn, Pros.Atty., Thomas C. Johnson, Asst. Atty. Gen., Dept. of Atty. Gen., Pros.Attys.Appellate Service, Lansing, for plaintiff-appellee.

State Appellate Defender Office by Richard B. Ginsberg, Asst. Defender, Detroit, for defendant-appellant.

LEVIN, Justice.

Kenneth Goddard was convicted of felony murder for the shooting death of George Wissmiller.At the trial, the judge admitted in evidence the testimony of Michael Koski, who stated that six months before Wissmiller's death, in the course of one night, he and Ken had committed five breakings and enterings into various hunting lodges and cabins.Koski testified that during one of these breakings and enterings Ken drew a pistol and shot several times at a television set, and then said that if they"were ever approached that he'd fire once into the air and then fire at the people."The question presented is whether Koski's testimony was improperly admitted in evidence.We hold that it was, reverse the decision of the Court of Appeals, and remand for a new trial.

I

On August 17, 1980, a friend discovered Wissmiller's body.Wissmiller died from a single gunshot which passed through his chest, piercing his heart.Wissmiller was the longtime caretaker of the Quart family's vacation residence and sometimes ranch.The property comprises approximately 850 acres in Alcona County.Wissmiller's body was discovered in the general vicinity of the caretaker's residence and the family's home.

Both Wissmiller's residence and the Quart family home had been burglarized.Quantities of clothing, bedding, and sporting equipment were missing.The telephone in Wissmiller's residence had been ripped out of the wall.

In determining responsibility for Wissmiller's death, the jury faced a narrow question of credibility.DefendantKen Goddard and his father, Grant Goddard, Jr.,--the state's chief witness--told conflicting stories.Each accused the other of shooting Wissmiller.

According to Grant, Ken accidentally shot Wissmiller and then initiated the breakings and enterings.Grant testified that on August 13, 1980, Ken came to his father's home to go deer hunting.The two left Grant's home a little after noon, and drove to a deserted area to engage in target practice with Ken's .308 caliber rifle.Grant was armed with a .22 magnum rifle and a .38 caliber pistol.After practicing with the rifle and driving around for a bit without spotting any deer, they decided to go to the Quart property.The caretaker's residence and the family home looked deserted, and the two pulled into a trail that led into the Quart land.They decided to hunt deer across an open field.Grant testified that after he and Ken stepped out of Ken's Scout, they discussed the possibility of breaking into and entering the buildings if they found no one there.¹

Upon reaching the vicinity of the caretaker's residence and the family home, Grant testified that he and Ken climbed on top of a root cellar--effectively a small hill covered with tall grass--to observe the area.They decided that if no one was home, they would break and enter.They observed the area for about fifteen minutes, and had just decided to move in when they heard a tractor approaching.

Grant testified that he recognized George Wissmiller--for whom he had worked some years ago--as the tractor's driver.Wissmiller parked the tractor and let one of his dogs, a small terrier, loose.The dog ran up to the root cellar and began circling and barking.Grant testified that Wissmiller walked past the root cellar, called his dog to him, and continued on several hundred yards to a small lake.He stayed by the lake for several minutes, and then began walking back along a different route.

Grant testified that as soon as Wissmiller appeared, he told Ken that he wanted to "get out of here."When Wissmiller began coming back from the lake, Ken said, according to Grant, that he wanted to see what he was doing.So, lying prone on top of the root cellar, and with both hands on the gun's forestock, Ken peered through the .308 rifle's telescopic scope.The rifle accidentally discharged, and Ken exclaimed "I didn't mean to do it.The safety must have been off."Grant testified that Ken's hands were never near the trigger.

According to Grant, Wissmiller, who was then approximately one-hundred yards from the root cellar, took several staggering steps and collapsed.By the time Grant and Ken reached him, he was already dead.The two dragged his body approximately thirty feet to a less conspicuous location.

Grant testified that Ken, upon discovering that Wissmiller was dead, suggested that the two continue with their plans to break and enter.Ken, with his father right behind, entered the caretaker's residence through an unlocked door.After taking a number of items, the two continued to the family home, which they broke into and searched.

Grant testified that he and Ken loaded the stolen items into Wissmiller's old pickup, and then drove it over to Ken's Scout.² The number of items necessitated two trips.Grant and Ken then returned to Grant's home.³

An initial confession by Ken corresponded exactly with his father's version of events.⁴ Ken subsequently claimed that the confession was part of an agreed-upon plan with his father whereby Ken would shift blame from his father, who was then a fugitive from federal charges, to himself, who had no prior criminal record.⁵ Ken testified that in fact it was his father who shot Wissmiller, and that his father told him two different versions of the shooting.First, that the shooting was accidental, the father fired unintentionally from the top of the root cellar.Second, the father shot Wissmiller after Wissmiller discovered and recognized him.

According to Ken, the afternoon began as his father had testified.The two intended to go deer hunting and first engaged in target practice with Ken's .308 rifle.They next visited the Quart property.Here the stories diverge.According to Ken, there was no talk of breaking and entering.Ken had hunted deer on the Quart land a number of times previously, and had even constructed a deer blind near the property line.According to Ken, he and his father split up.Ken stayed in the blind with his dad's .22 magnum, while his dad took the .308 and moved down toward the residence area.Ken testified that several hours after his dad left he heard a single shot, which he assumed was his dad shooting at a deer.After waiting for some forty minutes, Ken began moving toward the area from which the shot had come.Upon reaching the residence area, he observed his father carting items out of the family residence.

His dad initially waved him away.When Ken came up to him, he said that there had been an accident, and that Wissmiller was dead.At that point, Ken told his father that he, Ken, would take the blame and that his father should run off.Ken testified that he and his father argued.Ken wanted to report Wissmiller's death; his father refused.Ken went into the caretaker's residence to call the police, and his father tore the phone off the wall.

According to Ken, he refused to help his father move Wissmiller's body, and his father moved it himself.Ken covered the body with a blanket, and his dad was the one who removed Wissmiller's keys and wallet.Ken testified that he had nothing to do with the breaking and entering--his father had already loaded Wissmiller's pickup truck with stolen items when Ken arrived, and Ken testified that after he learned of Wissmiller's death he was in such shock that all he wanted to do was leave.Ken blew up when his father insisted upon taking some guns.His dad had a large collection of guns--over one hundred--and Ken saw no reason to add to it.⁶They made only one trip with the pickup truck.Ken helped his dad transfer the stolen items to the Scout, and the two returned to Grant's home.

In summary, the jury was faced with a narrow question of credibility.In this context, the prejudice caused to Ken by Koski's testimony of Ken's prior breakings and enterings, his shooting at the television set, and his statement may well have tipped the balance against Ken.

II

The prosecution persuaded the trial judge to admit Koski's testimony in evidence under MRE 404(b), which authorizes admission of a defendant's prior conduct to show "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...."⁷Koski testified that on the night of February 15, 1980, he and Ken had committed at least five separate breakings and enterings.⁸In testifying to the particulars of their breaking into and entering the Silver Wolf Lodge, Koski stated that while they were in the lodge, Ken pulled out a pistol and shot two or three shots at a television set, and then said that if they"were ever approached that he'd fire once into the air and then fire at the people."The judge admitted Koski's testimony to show malice--to show that if Ken did shoot Wissmiller, he intended to do so.

We make an initial distinction between Koski's testimony regarding the prior breakings and enterings, and the shooting at the television set, and his testimony concerning Ken's statement.A statement of general intent is not a prior act for purposes of MRE 404(b).As the statement of a party opponent, the admissibility analysis involves instead first determining whether the statement was relevant, and second whether its probative value outweighed its possible prejudicial effect.⁹

We first consider whether, under MRE 404(b), Koski's testimony concerning the...