People v. Wilkins

• Decision Date: 03 April 1978
• Docket Number: Docket No. 31149
• Citation: 82 Mich.App. 260,266 N.W.2d 781
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Nathaniel WILKINS, Defendant-Appellant. 82 Mich.App. 260, 266 N.W.2d 781
• Court: Court of Appeal of Michigan — District of US

Page 781

266 N.W.2d 781

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Nathaniel WILKINS, Defendant-Appellant.

Docket No. 31149.

82 Mich.App. 260, 266 N.W.2d 781

Court of Appeals of Michigan.

April 3, 1978.

Released for Publication June 27, 1978.

[82 MICHAPP 263] Charles T. Burke, Livonia, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, App. Chief Asst. Pros. Atty., Anne B. Wetherholt, Asst. Pros. Atty., for plaintiff-appellee.

Before RILEY, P. J., and WALSH and MILLER, ^* JJ.

WALSH, Judge.

Defendant was convicted by a jury of carrying a pistol in a motor vehicle, M.C.L.A. § 750.227; M.S.A. § 28.424, and sentenced to 41/2 to 5 years imprisonment. He appeals as of right.

According to the trial testimony, at 8 p. m. on the day of the incident, one of the arresting officers was informed that a black male fitting the defendant's description would be at a certain address carrying a gun that the informer had seen in the defendant's possession. The tipster also gave a description of the defendant's car and its license number. Acting on this information, three officers watched the address until the defendant came out and entered his car. As the defendant was pulling away, the police drew alongside his car and identified themselves. A short chase ensued during which the defendant threw an automatic pistol out the window of his car.

The prosecution also presented testimony concerning an unsigned statement made by the defendant shortly after his arrest. Therein the defendant stated that he had obtained the gun from an acquaintance for approximately $65. He also said that he and a friend had test fired the pistol, but that it was defective in failing to eject the spent shell. Defendant did not sign the statement, [82 MICHAPP 264] telling the interrogating officer that he was "talking as a man" and not making a formal statement.

During its case in chief, the prosecution was permitted to introduce evidence that the defendant had been arrested previously for carrying a concealed weapon and had pleaded guilty to a lesser offense. The trial court allowed the evidence, over objection, as probative of intent, absence of mistake, and knowledge that the gun was in the car in the instant case. M.C.L.A. § 768.27; M.S.A. § 28.1050.

The prosecution also was allowed to cross-examine the defendant regarding a 1976 incident in which he was arrested for carrying a concealed weapon. In that instance, the defendant was driving an automobile and was stopped for speeding. As his passenger exited the car, one pistol fell from the passenger side of the car and another was discovered in the passenger's waistband. She claimed possession of both guns. The two were arrested on the weapons charge, but a warrant against the defendant was refused and the charge against him was dropped.

Defendant makes four claims of error in his appeal: (1) that the trial court erred in admitting the police officer's testimony regarding the information received from the anonymous informant; (2) that the trial court erred in admitting testimony concerning defendant's previous conviction; (3) that the trial court erroneously permitted cross-examination of the defendant about the 1976 incident; (4) that the sentence imposed violated the indeterminate sentencing act. M.C.L.A. § 769.8; M.S.A. § 28.1080.

The basis of the defendant's objection to the admission of testimony concerning the tipster's information is that is was inadmissible hearsay. His argument falls with its premise. Hearsay is an [82 MICHAPP 265] extrajudicial statement offered to prove the truth of the matter asserted. People v. Cunningham, 398 Mich. 514, 248 N.W.2d 166 (1976), McCormick, Evidence (2d ed), § 246. In the case at bar, the jury was instructed that the testimony was not offered to prove the truth of the informant's statements but only to illustrate the basis for the officers' subsequent actions. Thus, the testimony was not hearsay and its admission was not error.

Defendant's second and third claims of error involve the admission of evidence of other bad acts under M.C.L.A. § 768.27; M.S.A. § 28.1050. In view of the lack of a comprehensive appellate statement defining the limited circumstances under which such evidence is admissible, we are constrained to discuss and delineate the similar acts doctrine.

In Michigan, evidence of a defendant's other bad acts is generally inadmissible because its probative value is outweighed by the likelihood that it will prejudice the jury against the defendant, preventing an objective determination of the disputed factual issues. People v. Oliphant, 399 Mich. 472, 250 N.W.2d 443 (1976); People v. DerMartzex, 390 Mich. 410, 213 N.W.2d 97 (1973).

"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 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). Prevention of that type of prejudice has been of continual concern to our courts for over a century. See, e. g., People v. Dean, 253 Mich. 434, 235 N.W. 211 (1931); People v. Schweitzer, 23 Mich. 301 (1871).

[82 MICHAPP 266] "From the time of Lightfoot v. People, 16 Mich. 507 (1868), and People v. Schweitzer, 23 Mich. 301 (1871), we have excluded proofs of other unrelated crimes unless they fall within the limited exceptions recognized by statute or our decisions." People v. Lundberg, 364 Mich. 596, 603, 111 N.W.2d 809 (1961).

As indicated by the above quotation, there have developed a limited number of statutory and judicial exceptions to the above exclusionary rule. The case at bar involves the exceptions enumerated in M.C.L.A. § 768.27; M.S.A. § 28.1050: ¹

"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."

Even given this judicially approved statutory directive, the degree of prejudice inherent in evidence of other bad acts dictates that it be admitted only in narrowly described circumstances. Accordingly,[82 MICHAPP 267] we hold that such evidence is inadmissible unless it satisfies the following requirements.

First, there must be substantial evidence that the defendant actually perpetrated the bad act sought to be introduced. People v Davis, 343 Mich. 348, 72 N.W.2d 269 (1955); McCormick, Evidence (2d ed.), § 190. ²

Second, there must be some special circumstances of the prior bad act which tend to prove one of the statutory items. People v. Lundberg, supra; People v. Padgett, 306 Mich. 545, 11 N.W.2d 235 (1943). For example, if a defendant were charged with robbery, another robbery committed by the defendant would not be admissible to prove intent merely because it also involved specific intent to rob. The law requires an additional showing that the facts or circumstances of the other bad acts are probative of the defendant's motive, intent, absence of mistake or accident, scheme, plan or system in committing the charged offense. ³ See, People v. Locke, 275 Mich. 333, 266 N.W. 370 (1936); Slough and Knightly, Other Vices, Other Crimes, 41 Iowa L.Rev. 325 (1956). In the absence of such a connection, the evidence would be inadmissible. ⁴

[82 MICHAPP 268] The third requirement is that the defendant's motive, intent, absence of mistake or accident, scheme, plan or system must be material to the determination of the defendant's guilt of the charged offense. People v. Oliphant, supra, People v. Riddle, 322 Mich. 199, 33 N.W.2d 759 (1948); People v. Stander, 73 Mich.App. 617, 251 N.W.2d 258 (1977). In discussing materiality in the context of similar acts evidence, the Supreme Court in People v. Oliphant, supra, cited with approval McCormick, Evidence (2d ed.). We follow its example:

"The remarks of Lord Sumner in Thompson v. The King, (1918) App.C. 221, 232 are pertinent: 'Before an issue can be said to be raised, which would permit the introduction of such evidence so obviously prejudicial to the accused, it must have been raised in substance if not in so many words, and the issue so raised must be one to which the prejudicial evidence is relevant. The mere theory that a plea of not guilty puts everything material in issue is not enough for this purpose. The prosecution cannot credit the accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice.' " McCormick, Evidence (2d ed.), § 190, at 452, n 54. (Emphasis added.)

Thus, the general rule is that evidence of other bad acts may be introduced only when the matter which they tend to prove is disputed. People v. Duncan, 402 Mich. 1, 260 N.W.2d 58 (1977); People v. Stander, supra; see People v. Corbeil, 77 Mich.App. 691, 259 N.W.2d 193 (1977).

A defendant may dispute matters, and thus [82 MICHAPP 269] place them in issue, by raising them in opening argument, by cross-examining prosecution witnesses or by presenting affirmative evidence on them. Until an issue is thus disputed it is not a proper subject for proof by other bad acts.

The decisions of our Supreme Court indicate three exceptions to the requirement that a matter be disputed before other bad acts may be introduced concerning that matter.

The first exception is that the prosecution may introduce in its case in chief evidence probative of a design, scheme or plan, ⁵ see, ...