People v. Golochowicz

Decision Date17 May 1982
Docket NumberNo. 62949,62949
Citation319 N.W.2d 518,413 Mich. 298
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerome J. GOLOCHOWICZ, Defendant-Appellant. 413 Mich. 298, 319 N.W.2d 518
CourtMichigan Supreme Court

L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Asst. Pros. Atty., and Michael J. Modelski, Asst. Pros. Atty., Pontiac, for the people.

Faintuck, Shwedel, Wolfram, McDonald & Zipser by William G. Wolfram, Farmington Hills, for defendant-appellant.

RYAN, Justice.

We address once again an area of the law of evidence with which the bench and bar appear to have continuing difficulty: the so-called similar acts rule. 1

Defendant was convicted by a jury on May 6, 1977, of first-degree murder and sentenced to life imprisonment. The Court of Appeals affirmed the conviction in a published opinion, 2 prompting the defendant to file a request for review. 3 In response, by order dated November 2, 1979, this Court appointed counsel to prepare and file an application for leave to appeal.

The single issue meriting attention is whether the trial court erred in admitting evidence of a separate and uncharged crime. After careful consideration we have concluded that the admission of the evidence was prejudicially unfair to the defendant and, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we reverse the decision of the Court of Appeals.

On November 1, 1976, a neighbor found Donald Mitchell's body in the den of Mitchell's condominium in the City of Novi. A 49-year old bachelor, Mitchell had been strangled with his own bathrobe tie. He had been seen alive by his employer on October 29, 1976. Several items were missing from the condominium including a barometer, Fisher stereo speakers, a checkbook, and a credit card. Mitchell's 1976 yellow Lincoln Continental automobile was also gone. The house was not in disarray, there was no sign of a break in, and the neighbor who discovered the body had to use a key to enter the premises.

On October 30, 1976, the defendant, Golochowicz, appeared in Detroit at the home of Paul O'Clare and his brother Dennis. Defendant was driving Mitchell's yellow Lincoln Continental and was also in possession of a pair of Fisher stereo speakers, a barometer and a checkbook, all identified at trial as belonging to the victim. The defendant later sold the year-old Lincoln Continental for $175. He also sold the vehicle's spare tire, the stereo tape deck from the vehicle, the Fisher speakers and the barometer. He wrote three personal checks on the victim's account and used the victim's credit card to purchase a clock-radio.

The O'Clares both testified that on October 30, 1976, the day of his visit to them, the defendant offered to sell a Quasar television set and a Fisher stereo set to the O'Clares if they would accompany him to obtain the items. Paul O'Clare testified that the defendant claimed the items were in a condominium in the "Pontiac-Novi" area. The O'Clares declined the invitation.

At the time Mitchell's body was discovered, a Fisher stereo set and Quasar television set were in the condominium. There was expert opinion testimony at the trial that fingerprints found in Mitchell's home were the defendant's.

On the basis of the so-called similar-acts statute, M.C.L. Sec. 768.27; M.S.A. Sec. 28.1050, the Michigan Rules of Evidence not having been adopted at the time of the trial, the prosecutor was able to introduce, over defense objection, the following testimony of Dennis O'Clare: On about November 4, 1976, the defendant contacted O'Clare and inquired whether he was interested in purchasing a Sony television set. O'Clare said he was interested. That prompted numerous telephone calls from defendant through the course of the night, encouraging O'Clare to obtain transportation so that the two of them could go to a certain location to examine the television set. Finally, at about 5 a. m., O'Clare took his roommate's car and drove to the defendant's home, and the two proceeded to a house on Muirland Street in Detroit where the defendant claimed the television set was located. After parking the car in the garage at defendant's direction, O'Clare followed defendant to the back door of the house. Defendant opened the door without a key and told O'Clare testified that he went into the kitchen, turned on a light and, looking into the basement, saw a pool of blood at the bottom of the stairs. He went downstairs and discovered a man's body lying face down with an electrical cord "coming from either side of his neck". O'Clare further testified:

O'Clare to sit down in the living room, not to touch anything, and not "to go roaming" about. Defendant then went upstairs.

"Uhmmm, I went back upstairs. I yelled for Jerry and he couldn't hear me. He was up on the second floor. So, like, I met him on the staircase of the second floor, just off the second floor landing, and he was carrying some--he had some guns he had taken out of a gun rack. I told him to set them on the floor. I told him, 'Come here. I saw a man lying on the floor.' I said, 'I see someone on the floor. Somebody's been killed on the floor.' He just looked at me. I said, 'Come on. Just leave the stuff. Come here. I want to show you.' We went back down the staircase and went down. We got halfway down the stairs and I leaned over to show him. You could see the man's legs halfway down the stairway--that's when I first noticed him--but you couldn't see any further than the man's legs. He leaned over and said, 'Oh, let's get out of here.' " 4

The pair did not leave the home immediately. At defendant's insistence, he and O'Clare removed the television set, some guns and calculators, lamps, and a number of other items from the home and put them in their car before finally leaving.

O'Clare testified further that the next day, while he and the defendant were driving to a pawn shop to sell some of the stolen goods, the defendant admitted that he had killed the man on Muirland Street and described how he had done so by beating the man over the head and then strangling him with an electrical cord from a coffee pot. Then, almost immediately, according to O'Clare, defendant denied that he had done it.

I

The question presented is whether the trial court committed reversible error in allowing into evidence Dennis O'Clare's testimony concerning the Muirland Street homicide and related events, including defendant's admission. The prosecutor offered this testimony pursuant to M.C.L. Sec. 768.27; M.S.A. Sec. 28.1050, which provides:

"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."

At the outset it should be recognized that this statute and its successor, MRE 404(b), stand as exceptions to the general rule of inadmissibility of evidence of a defendant's other crimes. The policy consideration underlying general exclusion of similar bad-acts evidence for substantive purposes is the desire to avoid the danger of conviction based upon a defendant's history of other misconduct rather than upon the evidence of his conduct in the case in issue. 5

Given the potential for prejudice which inheres in the admission against a defendant of evidence of similar uncharged bad acts, the statutory and decisional exceptions to the general rule of exclusion of such evidence have been confined to a few narrowly defined circumstances and are required to meet a number of evidentiary safeguards to warrant proper admission into evidence. Those safeguards, accurately summarized by the Court of Appeals in People v. Wilkins, 82 Mich.App. 260, 266 N.W.2d 781 (1978), and adequately supported by citation to precedent from this Court, required at the time of trial that before evidence of the defendant's other misconduct may be admitted: (1) there must be substantial evidence that the defendant actually perpetrated the bad act sought to be introduced; 6 (2) there must be some special quality or circumstance of the bad act tending to prove the defendant's identity or the motive, intent, absence of mistake or accident, scheme, plan or system in doing the act and, in light of the slightly different language of MRE 404(b) we add, opportunity, preparation and knowledge; (3) one or more of these factors must be material to the determination of the defendant's guilt of the charged offense; and (4) the probative value of the evidence sought to be introduced must not be substantially outweighed by the danger of unfair prejudice.

A

Applying the first of these safeguards to the present case, we find that there was substantial evidence that defendant killed the man found at the Muirland address. Testimony concerning the defendant's familiarity with the premises, the fact that he was aware that he could enter the Muirland home without a key, his instructions to witness Dennis O'Clare not to touch anything and not to roam about the house, his reaction upon being confronted with the fact that a dead man was lying in the basement, the subsequent removal of the deceased's possessions, and finally the defendant's admission, all combine to create a strong inference that defendant had previously been on the premises and had killed the man found in the basement.

B

The second and third of the safeguards described above present a more difficult problem.

The "special circumstance" of the second requirement refers to the relationship between the charged and uncharged offenses which supplies the link between them...

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  • People v. Waclawski
    • United States
    • Court of Appeal of Michigan (US)
    • 29 Diciembre 2009
    ......Golochowicz, 413 Mich. 298, 309, 319 N.W.2d 518 (1982), 780 N.W.2d 349 remains valid to show logical relevance where similar-acts evidence is offered to show ......
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    • 1 Octubre 1999
    ...a high level of similarity between the proffered other acts evidence and the act charged. This approach misreads [People v] Golochowicz, [413 Mich. 298, 319 N.W.2d 518 (1982) ] Engelman, and other precedent of this Court.[35] [VanderVliet, supra at 70, 508 N.W.2d While not specifically over......
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    • United States
    • Court of Special Appeals of Maryland
    • 1 Septiembre 1993
    ...that the issue on which "other crimes" evidence is offered must be the subject of a genuine controversy. One is People v. Golochowicz, 413 Mich. 298, 319 N.W.2d 518, 524 (1982), where the Michigan Supreme Court [E]vidence of other misconduct is not admissible in this state to negate mistake......
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2 books & journal articles
  • § 11.03 DETERMINING "MATERIALITY" UNDER RULE 401
    • United States
    • Carolina Academic Press Understanding Evidence (CAP) Title Chapter 11 Other-acts Evidence
    • Invalid date
    ...of Litigation, Emerging Problems Under the Federal Rules of Evidence, Rule 404, at 58 (3d ed. 1998). See also People v. Golochowicz, 319 N.W.2d 518, 523-24 (Mich. 1982) ("The prosecutor's first duty is to identify, with specificity, the purpose for which the evidence is admissible. Prosecut......
  • § 11.03 Determining "Materiality" Under Rule 401
    • United States
    • Carolina Academic Press Understanding Evidence (2018) Title Chapter 11 Other-Acts Evidence
    • Invalid date
    ...of Litigation, Emerging Problems Under the Federal Rules of Evidence, Rule 404, at 58 (3d ed. 1998). See also People v. Golochowicz, 319 N.W.2d 518, 523-24 (Mich. 1982) ("The prosecutor's first duty is to identify, with specificity, the purpose for which the evidence is admissible. Prosecut......

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