People v. Handley

• Citation: 352 N.W.2d 343,135 Mich.App. 51
• Decision Date: 02 August 1984
• Docket Number: Docket No. 69162
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph HANDLEY, Jr., Defendant-Appellant. 135 Mich.App. 51, 352 N.W.2d 343
• Court: Court of Appeal of Michigan — District of US

Page 343

352 N.W.2d 343

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph HANDLEY, Jr., Defendant-Appellant.

Docket No. 69162.

135 Mich.App. 51, 352 N.W.2d 343

Court of Appeals of Michigan.

Submitted Jan. 21, 1983.

Decided June 4, 1984.

Rehearing Denied July 25, 1984.

Released for Publication Aug. 2, 1984.

[135 MICHAPP 54] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Chief Appellate Asst. Pros. Atty., Appeals, and Anne B. Wetherholt, Asst. Pros. Atty., for the People.

Robert E. Slameka, Detroit, for defendant-appellant on appeal.

Before MAHER, P.J., and BRONSON and CYNAR, JJ.

MAHER, Presiding Judge (On Remand).

On June 14, 1978, defendant was convicted after a jury trial of first-degree murder, MCL 750.316; MSA 28.548, and felony firearm, MCL 750.227b; MSA 28.424(2), and was subsequently sentenced to life imprisonment. He appealed as of right. On October 24, 1980, this Court reversed his conviction. 101 Mich.App. 130; 300 N.W.2d 502 (1980). This Court's decision was eventually reversed by the Supreme Court and defendant's case was remanded to this Court so that we might "consider whether any of the defendant's remaining issues constitute reversible error". 415 Mich. 356, 361; 329 N.W.2d 710 (1982).

Defendant was convicted of the murder of Ira Marie Hesterley. The full facts may be found in this Court's first opinion. Briefly, Hesterley's body was found in a deserted area near Leland and Russell streets in Detroit on February 8, 1978. She had been shot twice. Defendant's ring and watch were found nearby. Defendant was arrested with Caroline Pegram (who later pled guilty to second-degree murder, MCL 750.317; MSA 28.549, and [135 MICHAPP 55] felony firearm, MCL 750.227b; MSA 28.424 ) later that night at a motel. Hesterley's car was parked outside. Before the shooting, defendant, Pegram, Hesterley, and a Renee Smithson had been living together.

After reviewing the record, we believe that two errors combined to deny defendant a fair trial. The first error involves the trial court's decision not to suppress defendant's prior record for impeachment purposes. The second error involves the use of defendant's past criminal record at trial, even though he did not testify.

Approximately a week before trial, defendant requested that his prior convictions for armed robbery and assault with intent to commit great bodily harm less than murder be suppressed should he testify. Defendant strongly intimated that he would not testify if the trial court declined to suppress the prior record. The trial court responded by saying, "Motion is denied". No other opinion on this issue was ever rendered, and defendant did not testify at trial.

In People v. West, 408 Mich. 332, 340, 291 N.W.2d 48 (1980), the Supreme Court ruled:

"The law in Michigan is clear that the trial judge must recognize that he has the discretion to exclude reference to prior convictions for impeachment purposes. Jackson, supra, 391 Mich. 336 . When defendant moves to exclude reference to the convictions, the trial court 'must positively indicate and identify its exercise of discretion'. Cherry, supra. In this case the words 'Motion in limine denied' do not comply with the dictates of Cherry and Jackson."

The same error was later found to require reversal in People v. Carner, 117 Mich.App. 560, 573, 324 N.W.2d 78 (1982):

[135 MICHAPP 56] "On request, a trial judge must exercise his discretion in deciding whether to exclude reference to a prior conviction record. People v. Jackson, 391 Mich 323; 217 NW2d 22 (1974). In order to comply with the rule in Jackson, the trial court must positively indicate and identify its exercise of discretion. People v Cherry, 393 Mich 261; 224 NW2d 286 (1974). Although counsel for both sides here argued the probative effect versus the prejudicial impact of the prior conviction, the trial court merely stated that the motion in limine was denied. The situation in the instant case is quite similar to that in People v West, 408 Mich 332; 291 NW2d 48 (1980), and, therefore, we hold that the trial court erred by not positively indicating and identifying its exercise of discretion in denying the defense motion to suppress the prior conviction."

We therefore conclude that the trial court's failure to "positively indicate and identify its exercise of discretion" constituted error.

The second error, as stated earlier, involves the use of evidence of defendant's previous criminal activity although defendant did not testify at trial. Defendant has subdivided this issue into two parts. We find that the trial court erred as to one of these subissues.

Defendant first claims that a prosecution witness, Mitchell Sanders, was improperly permitted to testify that defendant had told him that "Marie [Hesterley] and somebody else, Tracy [Caroline Pegram], or whoever, suppose [sic] to have jumped on some girl and, you know, pulled her in his car" while defendant was present. Sanders also testified that defendant had told him that he was afraid Hesterley would go to the police and that "[h]e didn't want to go back to the penitentiary", and therefore was not sure if he should "take her out", meaning "kill her". Defendant's second claim stems from the testimony, later in the trial, of [135 MICHAPP 57] Officer Joseph Harris and Sergeant Bernard Brantley, who stated that after the murder they arrested defendant for armed robbery, not for murder. Brantley also read a police report to the jury which alleged that defendant, Pegram, and a woman believed to be Hesterley had committed an armed robbery. ¹ On appeal, the prosecution states that it sought to introduce the officers' testimony, along with that of Sanders, to prove that defendant had intentionally killed Hesterley because she, Pegram, and defendant had committed an armed robbery (the crime described by Sanders) and because defendant feared Hesterley would report that crime and so send defendant back to prison. This evidence was critical to the prosecution's case because the issue at trial was whether defendant had intended to kill Hesterley or had merely been present when Pegram committed the murder for her own reasons.

Generally, "[w]hen a defendant does not testify, evidence of former convictions is inadmissible unless relevant and material to the issue being tried". People v. Kenneth Smith, 39 Mich.App. 575, 577, 197 N.W.2d 842 (1972). See also, People v. Fleish, 321 Mich. 443, 461, 32 N.W.2d 700 (1948), and People v. DerMartzex, 390 Mich. 410, 413, 213 N.W.2d 97 (1973). Our Courts have strictly followed the general rule because "there is a high degree of probability that a jury will infer [a defendant's] guilt of the offense charged on the basis of his past record". People v. Andrews # 1, 52 Mich.App. 719, 721, 218 N.W.2d 379 (1974), modified on other grounds 392 Mich. 775, 220 N.W.2d 36 (1974). See also People v. Matthews, 17 Mich.App. 48, 52, 169 N.W.2d 138 (1969).

[135 MICHAPP 58] Defendant correctly argues that neither piece of evidence was properly admitted as "similar acts" evidence under MRE 404(b), as construed by People v. Golochowicz, 413 Mich. 298, 319 N.W.2d 518 (1982), and People v. Major, 407 Mich. 394, 285 N.W.2d 660 (1979). The prosecution clearly failed to establish any similarity whatsoever between the shooting of Marie Hesterley and any of defendant's alleged prior offenses.

However, the inadmissibility of evidence of a particular prior offense as a "similar act" does not necessarily preclude its admission for nonimpeachment purposes. An example occurred in People v. Mauch, 23 Mich.App. 723, 179 N.W.2d 184 (1970), lv. den. 384 Mich. 765 (1970), where the defendant was on trial for prison escape. The prosecution was permitted to show the fact of defendant's imprisonment for another crime, even though there was no similarity between that crime and the escape charge, because the evidence was relevant (and necessary) as an element of the crime charged.

In this case, the prosecution argues that the testimony of Mitchell Sanders and of the two police officers was properly admitted to show defendant's motive for the murder. Generally, "[w]here the prior crime was a necessary preliminary to the successful commission of the ultimate crime, the preliminary crime may be shown". 1 Wharton's Criminal Evidence (13th ed.), Sec. 242, p. 545. Specifically,

"Evidence of motive which suggests the doing of the act charged is always admissible, and this is true even though such evidence shows or tends to show the commission of another crime. Thus, where the motive for the crime charged is the concealment of some other [135 MICHAPP 59] crime, as by killing a police officer or a witness, the evidence of such other crime is admissible to show motive." 1 Wharton's Criminal Evidence (13th ed.), Sec. 247, pp. 561-564. (Footnotes omitted.)

This principle has been accepted in Michigan since at least Templeton v. People, 27 Mich. 501 (1873), and has been codified in MRE 404b. It was applied in People v. Ascher, 126 Mich. 637, 86 N.W. 140 (1901), where the defendant was a spiritualistic medium who had fraudulently induced his victim to wear a gold belt and then allegedly murdered the victim for the belt. At the murder trial, the prosecution was permitted to show that the victim's belt was missing when he was found. It was again applied in People v. Flynn, 93 Mich.App. 713, 287 N.W.2d 329 (1979), lv. den. 409 Mich. 852 (1980), where the defendant was on trial for felonious assault and felony firearm for allegedly assaulting a police officer. The prosecution was permitted to show that the defendant had had illicit drugs in his home when the police arrived to arrest him because the evidence provided the motive for the defendant's assault on the officer. Other examples may be found in People v. Melvin, 70 Mich.App. 138, 245 N.W.2d 178 (1976), lv. den. 399 Mich. 817 (1977), and People v. Averill, 59...