People v. Smith

• Decision Date: 07 November 1978
• Docket Number: Docket Nos. 30126,30338
• Citation: 273 N.W.2d 573,87 Mich.App. 18
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ernest SMITH and Ronald Harvey Foster, Defendants-Appellants. 87 Mich.App. 18, 273 N.W.2d 573
• Court: Court of Appeal of Michigan — District of US

Page 573

273 N.W.2d 573

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ernest SMITH and Ronald Harvey Foster Defendants-Appellants.

Docket Nos. 30126, 30338.

87 Mich.App. 18, 273 N.W.2d 573

Court of Appeals of Michigan.

Nov. 7, 1978.

Released for Publication Jan. 12, 1979.

[87 MICHAPP 20] James R. Neuhard, State Appellate Defender by Terence R. Flanagan, Deputy State Appellate Defender, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James D. Norlander, Pros. Atty., T. P. Hentchel, Jr., Asst. Pros. Atty., for plaintiff-appellee.

Before ALLEN, P. J., and V. J. BRENNAN and CAVANAGH, JJ.

PER CURIAM.

Defendants were arrested and charged with armed robbery, M.C.L. § 750.529; M.S.A. § 28.797. After a joint trial, they were convicted by a jury of unarmed robbery, M.C.L. § 750.530; M.S.A. § 28.798. Defendants appeal as of right.

According to the trial testimony, defendants attempted to force the complainant, Mr. Francis Wilk, from his car while he was stopped at a streetlight. Mr. Wilk testified that he believed one defendant was armed. He resisted, and attracted the attention of a police officer in a nearby patrol car by leaning on his horn. Defendants fled, one of them taking a jar of loose change and bills from the floor of the car. The police officer pursued and apprehended defendant Smith soon afterward; defendant Foster subsequently appeared voluntarily and was placed under arrest at the Battle Creek police station.

[87 MICHAPP 21]

I

The first issue on appeal deals exclusively with defendant Smith.

After the prosecutor rested his case, Smith's counsel asked the prosecutor whether he intended to introduce defendant's 1968 misdemeanor convictions for unlawfully driving away a motor vehicle, M.C.L. § 750.414; M.S.A. § 28.646. The prosecutor responded that he planned to offer these prior convictions to show the defendant's intent or motive in connection with the present charge of armed robbery if the defendant testified. The prosecutor asserted M.C.L. § 768.27; M.S.A. § 28.1050, as the basis for the admission of this evidence:

"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."

Over objection, the trial court ruled that the evidence of the prior convictions fell within the statute and would be admitted on that basis. Defendant Smith did not testify and the evidence was never offered.

Defendant contends that the trial court's ruling was erroneous on essentially four grounds: (1) the evidence of like acts properly belonged only in the prosecutor's case-in-chief; (2) the 1968 misdemeanor convictions are not "like acts" within the [87 MICHAPP 22] meaning of M.C.L. § 768.27; M.S.A. § 1050, and are thus irrelevant to the charged offense of armed robbery; (3) the offered evidence is not material to this charge; and (4) the trial court either failed to recognize its discretion to exclude the evidence Or abused its discretion in admitting the evidence, on the grounds that its prejudicial impact far outweighed its probative value.

People v. Wilkins, 82 Mich.App. 260, 266 N.W.2d 781 (1978), comprehensively sets out the appropriate guidelines on the admissibility of prior bad act evidence under M.C.L. § 768.27; M.S.A. § 28.1050. These rules summarize the applicable Michigan precedent on this issue and will serve as the guide for our analysis in the instant case.

M.C.L. § 768.27; M.S.A. § 28.1050 is a legislatively created exception to the general rule that evidence of prior bad acts is inadmissible because of its inherent prejudice to the defendant. The statute permits proof of a defendant's intent, motive, plan or the absence of mistake or accident by evidence of "like acts", even if this shows the commission by the defendant of another prior or subsequent crime. However, this exception is governed by four requirements: (1) substantial evidence must show that the defendant actually committed the bad act; (2) some special circumstance about the act sought to be introduced tends to prove one of the statutory items; (3) the evidence is material, I. e., is probative of a matter "in issue"; and (4) even if all three of the above are satisfied, the trial court must still weigh the evidence's probative value against its prejudicial effect before deciding whether to admit it. People v. Wilkins, supra ; see also People v. Oliphant, 399 Mich. 472, 250 N.W.2d 443 (1976), People v. DerMartzex, 390 Mich. 410, 213 N.W.2d 97 (1973), People v. Henry, 129 Mich. [87 MICHAPP 23] 100, 88 N.W. 77 (1901), People v. Spillman, 63 Mich.App. 256, 234 N.W.2d 475 (1975), Rev'd on other grounds, 399 Mich. 313, 249 N.W.2d 73 (1976), People v. Bledsoe, 46 Mich.App. 558, 208 N.W.2d 545 (1973).

Our review of the above-cited precedent indicates that defendant's second contention, namely, that the evidence of the prior convictions was not relevant to the charged offense of armed robbery, in that those prior convictions specifically involved lack of intent to steal and were not similar to the present charge, is alone sufficient for a finding of error.

It is clear that before a prior bad act by the defendant is admissible, there must be a showing of some special circumstances about that act which are probative of one of the statutory items here, defendant's intent or motive. People v. Wilkins, supra 82 Mich.App. at 267, 266 N.W.2d 781, People v. Oliphant, supra, 399 Mich. at 488, 250 N.W.2d 443. These special circumstances form the logical connection between the past act and the present charge. United States v. Burkhart, 458 F.2d 201, 206 (CA10, 1972). Establishing this connection by showing factual similarities permits the evidence to meet the threshold requirement of relevancy. People v. Stander, 73 Mich.App. 617, 625, n.2, 251 N.W.2d 258, 262-263, n.2 (1976).

Absent this connection, admission of prior bad acts achieves the very result the general rule on nonadmissibility intends to avoid: the admission of evidence which is relevant only to the defendant's propensity to commit an offense. People v. DerMartzex, supra, People v. Dean, 253 Mich. 434, 235 N.W. 211 (1931). While proof of identical acts is not required to make this connection, People v. Streetman, 59 Mich.App. 49, 228 N.W.2d 539 (1975), Lv. den., 394 Mich. 798 (1975), it is nevertheless insufficient[87 MICHAPP 24] to show merely that a defendant had committed the same crime in the past. Rather, cases treating the "like acts" requirement speak in terms of a common thread of facts or circumstances between the past act and the offense for which defendant is on trial. See People v. Duncan, 402 Mich. 1, 260 N.W.2d 58 (1977) (use of an informer by defendants to obtain payoffs in exchange for police protection), People v. Oliphant, supra (orchestration of circumstances surrounding rapes to make proof of nonconsent difficult), People v. Lundberg, 364 Mich. 596, 111 N.W.2d 809 (1961) (subsequent burglary unrelated to prior homicide inadmissible), People v. Stander, supra (involvement in prior auto theft with identical coparticipant).

In the instant case, we fail to see the common thread between the defendant's prior convictions for unlawfully driving away a motor vehicle which would be probative of his intent with regard to the charged offense of armed robbery. The connection is particularly difficult to make in light of the fact that the prior convictions for unlawfully driving away an automobile did not involve intent to steal but are being offered to show the defendant's Intent to steal in the armed robbery charge. Aside from the fact that the offense for which the defendant is on trial incidentally also involved an automobile, there are no facts on the record to indicate any further similarities between the past acts and the current offense. In addition, the extreme remoteness in time of the former misdemeanors also weakens their already tenuous connection and tendency to establish the defendant's intent relative to the charged offense. People v. Henry, supra 129 Mich. at 101, 88 N.W. 77.

We note that when challenged on this absence of [87 MICHAPP 25] similarities, the prosecution argued that the prior convictions were admissible to show intent because "any criminal conviction requires a criminal intent". To admit prior bad acts into evidence on such grounds encourages a jury to convict a defendant merely because "he is a bad man". People v. Wilkins, supra 82 Mich.App. at 265, 266 N.W.2d 781. Avoiding this type of prejudice is precisely the purpose for the general exclusion of such evidence; the prosecutor cannot avoid this rule merely by invoking the statutory exception without the necessary showing of similarities.

The lack of similarity between the past and present offenses, coupled with the remoteness in time of the misdemeanors, thus prevents us from perceiving that "visible connection", United States v. Burkhart, supra at 206, n.8, necessary to find that the misdemeanors are "like acts" within the meaning of M.C.L. § 768.27; M.S.A. § 28.1050, admissible to prove the defendant's intent in the instant case. The trial court therefore erred in ruling in favor of their admissibility.

The prosecutor asserts that any error in this regard was harmless and directs our attention to the "overwhelming" evidence against the defendant. We agree it is substantial. It was not so overwhelming, however, to dissuade the prosecutor from insisting on introducing the prior convictions if the...