People v. Hall, Docket Nos. 81912

• Decision Date: 31 October 1989
• Docket Number: Docket Nos. 81912,81913
• Citation: 433 Mich. 573,447 N.W.2d 580
• Parties: PEOPLE of the State of Michigan Plaintiff-Appellant, v. Edward Darnell HALL, Defendant-Appellee. 433 Mich. 573, 447 N.W.2d 580
• Court: Michigan Supreme Court

Page 580

447 N.W.2d 580

PEOPLE of the State of Michigan Plaintiff-Appellant, v. Edward Darnell HALL, Defendant-Appellee.

Docket Nos. 81912, 81913.

433 Mich. 573, 447 N.W.2d 580

Supreme Court of Michigan.

Argued Oct. 6, 1988.

Decided Oct. 31, 1989.

Frank J. Kelley, Atty. Gen., Louis Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Counsel by Graham K. Crabtree, Asst. Pros. Atty., Pontiac, for plaintiff-appellant.

Charles T. Burke, Livonia, for defendant-appellee.

OPINION

BOYLE, Justice.

Defendant Hall was convicted of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, following a jury trial. He claims error in the admission of a sawed-off shotgun seized from him at the time of his arrest and of testimony by various witnesses to the circumstances surrounding his arrest. We hold that, as direct physical evidence of the commission of the armed robbery, the shotgun was properly admitted notwithstanding the fact that mere possession of it was a distinct criminal offense. We also hold that the testimony of the various witnesses to the circumstances surrounding the defendant's arrest was admissible to establish the defendant's possession and control of both the shotgun and a vehicle similar to the one used in the charged robbery. In both instances, admissibility is governed by MRE 401 and not, as defendant claims, by MRE 404(b).

I

On November 23, 1984, the Video Bin, a video tape rental store owned by Thomas Grosman, was robbed by two men, one of whom was armed with a sawed-off shotgun. At the time of the robbery, the store was being operated by Mr. Grosman's two daughters, Tami and Tawni Grosman.

Tami Grosman testified that at approximately 1:50 p.m., two men entered the store. She identified the defendant as the person who carried a large brown grocery bag. The two men walked about the store for several minutes examining tapes and asking questions. After approximately ten minutes, defendant removed a sawed-off shotgun from the bag he was carrying, pointed it at the two girls, and told them to step away from the counter or they would be killed. The girls were ordered by defendant to a back room while the other man remained in the front of the store.

In the back room defendant replaced the gun in the grocery bag to conceal it from a customer who had entered the store. He then ordered the girls to walk back to the service area, and to give him all the cash from the cash register. The three then returned to the front of the store, where Tami removed the cash from the register and gave it to defendant. Tami then waited on the customer who had previously entered the store. At this point Thomas Grosman arrived, and was met at the door by defendant. As defendant passed Mr. Grosman, who was standing in the doorway, he pointed the shotgun at him and ordered him to get out of the way.

Tami positively identified the defendant as the man who had pointed the gun at her. Tawni Grosman also identified the defendant as the gunman. Thomas Grosman, the owner of the store, testified that upon arriving at the store on the day of the robbery he found a car parked in his parking space behind the store. He identified the vehicle as a rust-colored, mid-sized vehicle which was "[v]ery weathered and ratty." The vehicle had a vinyl top and temporary license sticker in the back window. He thought that the vehicle was either a Chevrolet Nova or Dodge Volare.

Mr. Grosman's testimony concerning the events inside the store corroborated the testimony of his daughters. He also identified the defendant as the man who pointed the gun at him. When the two men left the store, Mr. Grosman instructed Tami to telephone the police. He then went outside, where he saw the car that had been parked in his parking space hurriedly leave the parking lot. Seated in the vehicle were two men. He noticed that the vehicle had no license plates, but that a temporary sticker was affixed to the back window.

The customer who had entered the store during the robbery also testified at the trial. His version of events was substantially the same as that of the other witnesses, except that he identified defendant as the accomplice rather than the gunman.

Following the testimony of these witnesses, the prosecutor presented testimony concerning the defendant's arrest on an unrelated charge on June 26, 1985. ¹ On that day the defendant was observed standing next to a dry cleaners store in a shopping center. In defendant's hand was a large brown bag. The state's first witness, Judge Henry, ² testified that from his observation of defendant he surmised that the bag held by him contained a large pistol. Mr. Henry watched defendant approach a tan or rust-colored car. Mr. Henry then entered the dry cleaning store to drop off his laundry. He discussed his observations with the store manager. Upon leaving, he observed defendant sitting in the car and looking into the rearview mirror.

The store manager, Karen Hoffman, testified that she also observed the defendant approach the car, and place what appeared to be a bag into it through an open window. Defendant then left his vehicle and headed toward a fast-food store, at which time Mrs. Hoffman's husband suggested that she call the police. Robert Hoffman's testimony was substantially the same as his wife's.

Detective Sergeant James Babbish of the Oak Park Police Department also testified against the defendant. He indicated that upon being dispatched to the shopping center he spoke with Mr. Hoffman, who pointed out a 1972 Chevrolet Nova. Defendant was at this time not in custody, and the vehicle in which he had been seated was unoccupied. Officer Babbish indicated that he looked through the open passenger-side window, where he discovered and seized a black plastic bag lying on the floor of the car. Inside this bag was a large brown grocery bag containing a sawed-off shotgun. A subsequent LEIN check of the vehicle indicated that it was registered to defendant. A business card from the Video Bin was found on the front seat of the vehicle.

Following his conviction for armed robbery, defendant argued in the Court of Appeals that the trial judge erred by allowing the introduction of the shotgun and the testimony of witnesses relating the circumstances of his arrest. Defendant claimed this was improper character evidence which did not qualify as a similar crime under MRE 404(b). A divided Court of Appeals agreed, and reversed his conviction. ³ Because this conviction was used to establish defendant's guilt on the supplemental habitual offender charge, that conviction was similarly reversed. This Court has granted leave to appeal. 430 Mich. 857, 420 N.W.2d 567 (1988).

II

Evidence of extrinsic crimes, wrongs, or acts of an individual generally is inadmissible in a criminal prosecution to prove that the defendant possessed a propensity to commit such acts. MRE 404(b). This rule stems from the concern that a jury will convict a defendant because of his bad character rather than on the strength of the state's evidence concerning the crime charged. People v. Golochowicz, 413 Mich. 298, 308, 319 N.W.2d 518 (1982).

This rule of exclusion, however, is not universal. Evidence of extrinsic crimes, wrongs, or acts of the accused is admissible as substantive evidence under some circumstances. 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, acts are contemporaneous with, or prior or subsequent to the crime charged."

To test the admissibility of extrinsic-act evidence under MRE 404(b), the proof must satisfy a four-part evidentiary safeguard established in Golochowicz, supra. The prosecutor first must offer substantial proof that the defendant committed the extrinsic act. Second, the prosecutor must identify the "special quality or circumstance" of the extrinsic act which tends to prove the fact or issue in dispute and thereby assures that the evidence is probative of some fact other than the defendant's bad character. ⁴ Third, the prosecutor must indicate in what way the extrinsic-act evidence is material to the case. Finally, the trial judge must conclude that the probative value of the evidence is not outweighed by the potential for unfair prejudice to the defendant.

The Court of Appeals in this case found error on the part of the trial court in admitting the shotgun, together with the "circumstances of its seizure," because it concluded that the "other bad act" of possession of a concealed, short-barreled shotgun that the gun and the testimony established did not meet the "signature crime" standard of admissibility described in Golochowicz for proof of identity under MRE 404(b). We disagree that the trial court erred in admitting this evidence. While we do not dispute the Court of Appeals determination that the prosecution failed to establish a "signature crime" relationship between the evidence sought to be admitted and the charged offense, in our view both the gun and the testimony were relevant and admissible evidence under MRE 401, without reference to MRE 404(b). ⁵

A

Evidence of a defendant's possession of a weapon of the kind used in the offense with which he is charged is routinely determined by courts to be direct, relevant evidence of his commission of that offense. For example, in United States v. Woods, 613 F.2d 629, 636 (CA 6, 1980), the United States Court of Appeals for the Sixth Circuit held that where the testimony of witnesses to a bank robbery indicated that when they entered the bank the robbers had a pistol and a sawed-off shotgun, and the confession of an accomplice...