People v. Williams, Docket No. 66518

• Decision Date: 02 August 1984
• Docket Number: Docket No. 66518
• Citation: 351 N.W.2d 878,134 Mich.App. 639
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Terry Lynn WILLIAMS, Defendant-Appellant. 134 Mich.App. 639, 351 N.W.2d 878
• Court: Court of Appeal of Michigan — District of US

Page 878

351 N.W.2d 878

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Terry Lynn WILLIAMS, Defendant-Appellant.

Docket No. 66518.

134 Mich.App. 639, 351 N.W.2d 878

Court of Appeals of Michigan.

Submitted Feb. 16, 1984.

Decided May 15, 1984.

Released for Publication Aug. 2, 1984.

[134 MICHAPP 640] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., G. Scott Stermer, Pros. Atty., and Leonard J. Malinowski, Asst. Atty. Gen., for the People.

James R. Neuhard, State Appellate Defender by P.E. Bennett, Lansing, for defendant-appellant on appeal.

Before DANHOF, C.J., and HOOD and SHEPHERD, JJ.

[134 MICHAPP 641] PER CURIAM.

Defendant was convicted after a jury trial of two counts of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548. The victims, Leon and Betty Coward, were the parents of defendant's deceased wife. The Cowards had won a custody dispute with defendant and were the guardians of defendant's two small children. Defendant was sentenced to life imprisonment on each count and presently appeals as of right.

Defendant argues on appeal that the trial court erred in admitting a copy of a circuit court order terminating defendant's rights of visitation with his children. We find no error. The evidence was relevant on the issue of defendant's motive for the killings and was admissible under MRE 404(b). Defendant also argues that the order violates his right to confrontation and constitutes impermissible hearsay. We find People v. Patton, 411 Mich. 490, 308 N.W.2d 163 (1981), reh. den. 411 Mich. 1158 (1981), relied upon by defendant, to be distinguishable. In Patton, the Supreme Court found an affidavit prepared by defendant's murdered wife preparatory to issuance of a preliminary injunction in their divorce proceeding to be hearsay and erroneously admitted at defendant's trial. The affidavit alleged that defendant drank to excess, beat the affiant and had a violent temper. The Supreme Court also found defendant's right to confrontation had been violated. Here, unlike the affidavit in Patton, the evidence offered was a circuit court order. M.C.L. Sec. 600.2106; M.S.A. Sec. 27A.2106 expressly allows the introduction of a copy of an order of any court of record in this state as prima facie evidence of all facts recited therein. The order contains no impermissible hearsay statements. This Court has held that the use of certified court records in accordance with M.C.L. Sec. 600.2106; M.S.A. Sec. 27A.2106 does not violate a defendant's right [134 MICHAPP 642] of confrontation. People v. Green, 112 Mich.App. 655, 317 N.W.2d 212 (1981).

Defendant next argues that the trial court erred by disallowing testimony as to specific instances of defendant's good conduct pursuant to MRE 405(b). Although defendant's former brother-in-law testified generally as to defendant's good character, the prosecutor's objection to specific examples of good conduct was sustained.

The trial judge did not err in excluding the proffered testimony. MRE 405(b) allows proof of specific instances of conduct to show character only where character "is an essential element of a charge, claim, or defense". Defendant here was charged with two counts of first-degree murder. His defense was that he was not present and had not committed the crimes. Neither the charge nor the defense employed make character an essential element. It is only in the narrow situation where character is an element of the offense that specific acts of conduct are admissible to show character under MRE 405(b). The present case is not within that narrow class.

Defendant also contends that the trial judge abused his discretion by asking the jury to reconsider its request to rehear testimony. During deliberations, the jury requested that the testimony of defendant be read back to them. The trial judge pointed out that defendant's testimony had consumed in excess of five hours and asked the jury to consider whether there was a particular portion of the testimony that it wished to rehear and if it could recall, "you might specify the topic, the area, the type of questioning that was involved, was it on direct, recross, redirect, or whatever, if you can recall". The judge concluded:

"You're in charge. ...