People v. Johnson

• Decision Date: 17 May 1983
• Docket Number: Docket No. 53591
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Phillip Carl JOHNSON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 585

333 N.W.2d 585

124 Mich.App. 80

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Phillip Carl JOHNSON, Defendant-Appellant.

Docket No. 53591.

Court of Appeals of Michigan.

Submitted May 11, 1982.

Decided March 10, 1983.

Released for Publication May 17, 1983.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Deputy Chief, Asst. Pros. Atty., and Larry Roberts, Asst. Pros. Atty., for the People.

State Appellate Defender by Susan J. Smith, Detroit, for defendant-appellant on appeal.

Before BEASLEY, P.J., and HOLBROOK and RILEY, JJ.

PER CURIAM.

On April 11, 1980, defendant, Phillip Carl Johnson, was convicted by a jury of armed robbery, in violation of M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, and possession of a firearm in the commission of a felony, in violation of M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). After being sentenced to not less than 6 years nor more than 15 years in prison on the armed robbery count, plus two years on the felony-firearm count, defendant appeals as of right.

Our review of the record discloses that on the morning of February 9, 1980, defendant, accompanied by a female companion, robbed a Payless Shoe Store in Lincoln Park of money and merchandise at gunpoint. Shortly thereafter, while travelling in an automobile, defendant and his female accomplice were stopped by two River Rouge police officers. Examination of the vehicle's trunk disclosed the merchandise and money taken in the armed robbery.

Following the recitation of Miranda ¹ warnings at the River Rouge Police Department, defendant admitted his involvement in the offense to one of the arresting officers, Norman Meita.

On appeal, defendant raises three issues. First, he maintains that the trial court erred by holding that proof of another armed robbery would be admissible to rebut an intoxication defense, without first having determined if the other bad act satisfied the evidentiary requirements for admission.

After presenting six of his ten witnesses at trial, the prosecutor informed defense counsel and the trial judge that, if defendant raised an intoxication defense, he intended to call rebuttal witnesses who would testify concerning a similar armed robbery which allegedly was committed by defendant. Inasmuch as defense counsel had reserved her opening statement, the prosecutor was uncertain whether defendant was planning on invoking an intoxication defense. Defendant's counsel objected to the introduction of the prospective rebuttal testimony on the grounds that the rebuttal witnesses were unendorsed and that the prejudicial impact of the evidence outweighed its probative value.

In ruling that testimony regarding the other armed robbery was proper rebuttal testimony to an intoxication defense, the trial court stated:

"THE COURT: The Court has to determine whether or not the testimony offered is truly rebuttal testimony. Apparently the leeway to do that or the range of discretion to do that is somewhat wider in civil matters than it is in criminal matters, and I suppose I understand that. But the question is whether or not--there seems to be some justification in the case law for the use of such evidence in anticipation or in response to a defense raised by the defense. That is what the case talks about, I think.

"I have read Parker and reread Parker [ People v. Parker, 65 Mich.App. 592; 237 NW2d 572 (1975) ], and at first this case was quoted as a proposition or quoted as precedent for the proposition that scheme and plan testimony can never be offered as rebuttal evidence. That was the headnote kind of conclusion. But then it goes on to say it may only be introduced when it tends to directly prove--disprove the exact testimony given by a witness.

"I would find under those circumstances that it is proper rebuttal testimony if it satisfies all the other requirements." (Emphasis added.)

Defendant contends that the trial court abused its discretion by ruling that evidence of the other bad act would be admissible to rebut an intoxication defense, for the prosecutor had not established that the other bad act was probative of demonstrating defendant's intent in committing the charged offense.

MRE 404(b), the evidentiary rule relating to other bad acts, 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, or acts are contemporaneous with, or prior or subsequent to the crime charged."

In People v. Cobb, ² this Court upheld the trial court's admission of evidence of the defendant's prior bad act because the defense of an accident was claimed by defendant and, thus, his intent was a material issue in the case.

In People v. Spillman, ³ we discussed the materiality requirement regarding the introduction of evidence of a prior bad act to demonstrate intent:

"The materiality requirement, then, is designed to cover those cases where intent--or any of the other items on the statutory list--is an important issue in the case either because it is contested by defendant, * * * or because it is necessary to establish identity, i.e., 'to show that defendant was the one who intended to do the act'." (Citations omitted.)

In the within matter, the prosecutor was prohibited from introducing evidence of the other armed robbery until defendant raised the issue of lack of a specific intent to commit armed robbery. ⁴ A prosecutor properly may introduce evidence of other bad acts during the rebuttal stage of his case as, in instances similar to the within matter, he cannot use the evidence until the matter which it tends to disprove, repel, or contradict is in issue. ⁵

In People v. Wright, ⁶ the Supreme Court discussed this issue:

"The instant case is materially different. Here the defendant admitted everything essential to the people's case, except his intent to rob. In appellant's reply brief it is stated: 'The defense was negation of intent to rob the gasoline station.' After defendant testified the only controverted issue was that of intent, which defendant denied, and in negativing intent claimed the homicide was an accident. The prosecuting attorney could not and did not know that the prosecution of the case would take on that aspect until defendant had testified. Thereupon it was proper for the prosecutor in rebuttal of defendant's testimony to show intent by cross-examination or any other competent testimony, including defendant's admissions or confessions, if lawfully obtained. Under the circumstances of this case, the fact, stressed by appellant, that from the inception of and throughout the trial the prosecution had the burden of proving defendant committed a robbery or had the intent to rob, did not deprive the prosecution of its right to rebut defendant's testimony. We are in accord with the State's contention in this particular, as stated in its brief:

" 'Defendant * * * states that the only proof necessary and admissible in the case at bar was proof of the robbery, and that such proof carries with it an implication or presumption of the necessary criminal intent, and, therefore, we are barred from offering proof of similar crimes. This theory is partially true. * * * But, when defendant took the stand and admitted the killing but denied the robbery and stated the killing was accidental, we were then permitted to rebut his theory of accident to show criminal intent by his admissions that he has committed other similar crimes. At this point, our statutes (above quoted) permit the introduction of evidence of similar offenses.' "

Professor Wigmore, in his treatise on evidence, elaborated on the rationale of using other bad acts to negate the defense of lack of intent: ⁷

"It will be seen that the peculiar feature of this process of proof is that the act itself is assumed to be done,--either because (as usually) it is conceded, or because the jury are instructed not to consider the evidence from this point of view until they find the act to have been done and are proceeding to determine the intent. This explains what is a marked feature in the rulings of the courts, namely, a disinclination to insist on any feature of common purpose or general scheme as a necessary requirement for the other acts evidentially used. It is not here necessary to look for a general scheme or to discover a united system in all the acts; the attempt is merely to discover the intent accompanying the act in question; and the prior doing of other similar acts, whether clearly a part of a scheme or not, is useful as reducing the possibility that the act in question was done with innocent intent. The argument is based purely on the doctrine of chances, and it is the mere repetition of instances, and not their system or scheme, that satisfies our logical demand." (Footnote omitted, emphasis added.)

The similarity of other acts to display that the act on trial was not inadvertent, accidental, unintentional, or without guilty knowledge is not required to be as great as in instances where a common scheme, plan, or design is sought to be proved. ⁸

In the instant case, the trial judge recognized that evidence of the armed robbery could be introduced only if it satisfied the requirements of MRE 404(b). While it would have been preferable for the prosecutor to make an offer of proof concerning the other offense, ⁹ we do not find error occurred owing to the lack of details of the other offense, as the intoxication defense was not raised and the defendant's counsel did not insist on a ruling or an offer of proof.

Because of the foregoing facts, this case is distinguishable from People v. Torrez ¹⁰ ...