People v. Rockwell

• Decision Date: 02 April 1991
• Docket Number: Docket No. 123768
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Hal ROCKWELL, Jr., Defendant-Appellant. 188 Mich.App. 405, 470 N.W.2d 673
• Court: Court of Appeal of Michigan — District of US

Page 673

470 N.W.2d 673

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Hal ROCKWELL, Jr., Defendant-Appellant.

Docket No. 123768.

188 Mich.App. 405, 470 N.W.2d 673

Court of Appeals of Michigan.

Submitted Feb. 19, 1991, at Lansing.

Decided April 2, 1991, at 9:35 a.m.

Released for Publication June 21, 1991.

[188 MICHAPP 406] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Richard Thompson, Pros. Atty., Michael J. Modelski, Chief, Appellate Div., and Robert C. Williams, Asst. Pros. Atty., for the people.

Charles M. Sibert, Rochester, for defendant-appellant.

Before SAWYER, P.J., and HOOD and MURPHY, JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of conspiracy to commit murder, M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1), and assault with intent to commit murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278. Defendant was sentenced to seven to twenty years' imprisonment for the assault conviction and life imprisonment for the conspiracy conviction, with a request and recommendation, "if possible, that the defendant be eligible for parole concurrent with the assault with intent to murder offense." Defendant appeals as of right. We affirm.

Defendant first argues that the trial court erred [188 MICHAPP 407] in determining that sufficient independent proof of the alleged conspiracy had been presented by the prosecutor to justify the admission of defendant's statements and those of the coconspirators in support of the conspiracy charge. We agree with defendant that the corpus delicti of a crime must be established by evidence independent of an accused's confession. People v. Barron, 381 Mich. 421, 424, 163 N.W.2d 219 (1968); People v. Mumford, 171 Mich.App. 514, 517, 430 N.W.2d 770 (1988). This rule is limited, however, to admissions which are confessions, and not to admissions of fact which do not amount to confessions of guilt. People v. Porter, 269 Mich. 284, 289-291, 257 N.W. 705 (1934). See also People v. Oliver, 111 Mich.App. 734, 740-741, 314 N.W.2d 740 (1981), and the cases cited therein. We conclude that neither defendant's statement to the police nor the statements attributed to him by other witnesses amounted to confessions of guilt. Rather, the statements were admissions of fact which by themselves did not constitute an admission of guilt. Defendant's statements were admissible to establish the corpus delicti of the conspiracy. We find no error requiring reversal in the trial court's decision to admit defendant's admissions of fact. Moreover, no error occurred in the admission of conversations in which defendant participated regarding a plan to electrocute the victim in a bathtub. MRE 803(3); People v. Oaks, 94 Mich.App. 745, 751, 290 N.W.2d 70 (1980). See also People v. Hamp, 110 Mich.App. 92, 98, 312 N.W.2d 175 (1981). The conversations themselves were admissible to establish the element of agreement and were not so remote as to render them irrelevant. See People v. DeRushia, 109 Mich.App. 419, 424-427, 311 N.W.2d 374 (1981); People v. Randall, 42 Mich.App. 187, 191, 201 N.W.2d 292 (1972).

We also reject defendant's argument that there [188 MICHAPP 408] was insufficient independent evidence of the existence of a conspiracy to permit the introduction of statements made by the coconspirators. We have reviewed the record regarding this issue and conclude that the prosecutor proved the existence of the conspiracy by a preponderance of the evidence, despite the perceived misstatement by the trial court regarding the required burden of proof. People v. Vega, 413 Mich. 773, 782, 321 N.W.2d 675 (1982). Having established independent proof of the conspiracy, the statements of the coconspirators made during the course and in furtherance of the conspiracy were properly admitted under MRE 801(d)(2)(E). Vega, supra, at p. 780, 321 N.W.2d 675. Accordingly, the trial court did not err in submitting the conspiracy charge to the jury.

Defendant also argues on appeal that the trial court should have ordered separate trials when it decided to admit the coconspirators' statements. We note, however, that defendant never moved for a separate trial below, and thus failed to preserve this issue on appeal. People v. Ryckman, 307 Mich. 631, 643, 12 N.W.2d 487 (1943); People v. Santana, 139 Mich App 484, 500, 363 N.W.2d 702 (1984). Regardless, we find no error in the trial court's failure to order sua sponte a separate trial where the statements forming the basis of defendant's argument were properly admitted.

Defendant next argues that the trial court abused its discretion in precluding defendant from presenting evidence of the victim's prior sexual assaults of him and others. Codefendant Greene, one of the parties who actually struck the victim, claimed he did so in self-defense as a result of the victim's attempted sexual assault. Greene contended that the victim had made sexual comments to him and then grabbed his testicles and would not let go. In response, Greene claimed he struck [188 MICHAPP 409] the victim twice in the head with a baseball bat. Accordingly, Greene sought to introduce evidence that the victim had been sexually molesting his children and others over a period of years to support Greene's claim that his fear was justified and his response was in self-defense. Because defendant was charged with aiding and abetting Greene's assault, defendant similarly sought to introduce this evidence. Defendant argued that if the jury believed Greene's defense of self-defense, then it could not convict him of aiding and abetting a felonious assault.

We agree with defendant that evidence of prior acts under MRE 404(b) is not limited only to prior acts of a defendant, but may include those of the victim as well. At the time of defendant's trial, MRE 404(b) provided:

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 crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the crime charged in the case.

By its terms, MRE 404(b) applies to the admissibility of evidence of other acts of "a person"; it does not specifically refer to criminal defendants. We recognize that this rule generally has been applied where the prosecution attempts to offer evidence of other wrongs committed by a criminal defendant. Nevertheless, we believe that MRE 404(b) applies to the admissibility of evidence of other acts of any person, such as a defendant, a [188 MICHAPP 410] plaintiff, or a witness. This conclusion is further supported by the recent amendment of MRE 404, which deleted "the crime charged" and substituted "the conduct at issue in the case" in subrule (b). Accordingly, we conclude that evidence of the type sought to be admitted would not be precluded under MRE 404(b).

In this case, however, we find that the trial court did not abuse its discretion in refusing to admit such evidence. We will find an abuse of discretion only if an unprejudiced person, considering the facts on which the trial court made its decision, would conclude that there was no justification for the ruling made. People v. Watkins, 176 Mich.App. 428, 430, 440 N.W.2d 36 (1989). Immediately prior to the trial, the court granted the prosecutor's motion in limine which sought to preclude the prior acts evidence which he anticipated would be offered by defendant and his codefendants. We have reviewed the record upon which the court based its decision and conclude that defendant failed to present a sufficient offer of proof or foundation to justify the admission of the evidence. See MRE 103(a)(2). Although defendant averred generally to sexual molestation, there was no...