People v. Spillman

• Decision Date: 12 August 1975
• Docket Number: Docket No. 20945
• Citation: 63 Mich.App. 256,234 N.W.2d 475
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alfred SPILLMAN, Defendant-Appellant. 63 Mich.App. 256, 234 N.W.2d 475
• Court: Court of Appeal of Michigan — District of US

Page 475

234 N.W.2d 475

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alfred SPILLMAN, Defendant-Appellant.

Docket No. 20945.

63 Mich.App. 256, 234 N.W.2d 475

Court of Appeals of Michigan.

Aug. 12, 1975.

Released for Publication Nov. 4, 1975.

[63 MICHAPP 257] Leithauser & Grossbart by Julius M. Grossbart, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief Asst. Pros. Atty., Robert A. Reuther, Asst. Pros. Atty., for plaintiff-appellee.

Before ALLEN, P.J., and BRONSON and KAUFMAN, JJ.

BRONSON, Judge.

Defendant was convicted by jury verdict on April 3, 1974 of assault with intent to rob while armed, M.C.L.A. § 750.89; M.S.A. § 28.284, and unlawfully driving away a motor vehicle, M.C.L.A. § 750.413; M.S.A. § 28.645. He was sentenced on April 18, 1974 to prison terms of 20 to 40 years and 3 to 5 years, respectively.

The error asserted in this appeal concerns testimony given by the complainant, and elicited by the prosecutor, to the effect that defendant had robbed complainant's bar some two weeks prior to the incident upon which the present charges are [63 MICHAPP 258] based. The testimony was offered and admitted because, in the words of the prosecutor:

'(T)hat evidence is certainly relevant to identification of the defendant by the complainant. I believe it also would be covered by the scheme, plan or pattern * * * statute because the intent of the defendant is a relevant factor in this case.'

The statute referred to by the prosecutor is M.C.L.A. § 768.27; M.S.A. § 28.1050, which provides:

'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.'

I.

Evidence tending to show that the defendant committed crimes other than those charged is generally inadmissible 'because it has been decided that whatever probative value such evidence has is outweighed by the disadvantage of diverting the trier of fact from an objective appraisal of the defendant's guilt or innocence'. People v. DerMartzex, 390 Mich. 410, 413, 213 N.W.2d 97, 99 (1973). In other words:

'This rule of law guards against convicting an accused person because he is a bad man. Barring such evidence prevents the trier of fact from inferring that [63 MICHAPP 259] the accused person is guilty of the charged offense because he has committed other similar acts or crimes.' People v. Matthews, 17 Mich.App. 48, 52, 169 N.W.2d 138, 140 (1969).

The statutory exception ¹ to this general rule bespeaks a legislative determination 'that the probative value of such evidence may outweigh the disadvantages where the people seek to use such evidence to show the defendant's 'motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing the act, (sic) in question'. (Citation omitted.)' People v. DerMartzex, supra, 390 Mich. at 413, 243 N.W.2d at 99.

Accordingly, whenever a trial judge is asked to allow the jury ² to consider so-called 'other crimes', he must perform a two-step analysis. ³ First, he must decide whether the statutory requirements for admission are met. That is, he must decide 1) whether the defendant's 'motive, intent * * *' is 'material' to the case and 2) whether the evidence offered is that of 'LIKE ACTS OR OTHER ACTS * * * WHICH MAY TEnd to show' motive, intent, etc. if the evidence does not satisfy the statutory criteria, it must not be admitted, no matter how probative it is of defendant's guilt.

If the trial judge decides that the proffered evidence satisfies this threshold standard, then he must go on to the second step of the analysis and [63 MICHAPP 260] determine whether the 'probative value is outweighed by attendant prejudice to the defendant'. People v. Shaw, 9 Mich.App. 558, 566, 157 N.W.2d 811, 815 (1968); People v. DerMartzex, supra, 390 Mich. at 413, 213 N.W.2d 97. That is, even if the evidence meets the statutory requirements for admissibility, it still may be unacceptable if it is unduly prejudicial, insufficiently probative, or unnecessary in light of the other evidence.

We must apply these principles to the circumstances of the instant case to ascertain whether the trial judge erred in admitting the challenged testimony.

The prosecutor maintains that the evidence of the alleged prior robbery was admissible to show defendant's intent in committing th assault with intent to rob. It is true that the two offenses are similar enough to warrant the application of the statute, since the fact that defendant possessed the intent to rob complainant on an earlier occasion 'tends to show' that he had a similar intent on the night in question. See People v. Streetman, 59 Mich.App. 49, 228 N.W.2d 539 (1975), compare People v. Locke, 275 Mich. 333, 266 N.W. 370 (1936).

However, that the prior act tends to prove intent satisfies only one of the statutory requirements. The other is that intent must be 'material' to the case. This requirement is not fulfilled merely by showing that intent is an element of the crime charged. If that were enough, then evidence of other crimes would invariably meet the statutory test, since intent--in one form or another--must virtually always be proved by the presecutor. The statute would then cease to be what the Legislature intended it to be--a 'limited exception' to the general rule excluding such evidence. People v. Matthews, supra, 17 Mich.App. at 52, 169 N.W.2d 138.

[63 MICHAPP 261] 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, see People v. Wright, 315 Mich. 81, 23 N.W.2d 213 (1946); People v. Simmons, 42 Mich.App. 400, 202 N.W.2d 575 (1972), or because it is necessary to establish identity, I.e., 'to show that defendant was the one who intended to do the act'. People v. Chism, 390 Mich. 104, 118, 211 N.W.2d 193, 199 (1973).

Intent was not an important issue in the instant case. Defendant's claim was that though he was present at the scene of the crime, the assault was committed by a companion. He did not dispute the fact that his companion possessed the requisite intent. Nor did he maintain that if the jury found that he committed the assault, they should also find that he did not possess the requisite intent to rob.

Moreover, use of the evidence for identification purposes was improper. Where there is only circumstantial evidence implicating defendant, and where the evidence of prior crimes is part of that crucial circumstantial evidence, admission is proper. See People v. Chism, supra. That is not the case here, however. Though the complainant quite clearly did rely on his prior experience with defendant in identifying defendant as the assailant, ⁴ reference to this fact during trial was unnecessary. The complainant claimed to be certain that defendant assaulted him because he had gotten a 'good look' at defendant's face during the assault. That he also Recognized defendant's face could not [63 MICHAPP 262] buttress the reliability of the eyewitness identification. Use of evidence of a prior crime to establish identity where, as here, there is eyewitness testimony identifying defendant as the culprit is error. ⁵

Balancing probative value agianst the 'risks of unfair prejudice, confusion of issues or misleading the jury'. People v. DerMartzex, supra, 390 Mich. at 415, 213 N.W.2d at 100, forcefully supports our conclusion that the evidence of the alleged prior crime in this case was not material to the issue of intent. Because the evidence was unnecessary to prove intent--an unimportant issue--or to establish identity--given other eyewitness identification--the jury was being asked, in effect, to infer that defendant was guilty of the charged offense because he had committed an earlier, similar crime. Moreover, because the earlier act was entirely a 'separate and distinct transaction', People v. Lewis, 264 Mich. 83, 86, 249 N.W. 451 (1933), it had little tendency 'to prove anything but the earlier offense, for which defendant was not on trial'. Lightfoot v. People, 16 Mich. 507, 510--511 (1868). Because its probative value was slight, its importance to the prosecutor's case minimal, and its prejudicial impact great, the evidence that defendant committed a prior armed robbery should have been excluded.

[63 MICHAPP 263]

II.

It remains to be determined whether the error complained of was prejudicial. Unless we can say that the error was 'harmless beyond reasonable doubt', we must reverse. ⁶ People v. Swan, 56 Mich.App. 22, 33, 223 N.W.2d 346 (1974). The test has been recently stated as follows:

'We must determine...