Michigan Supreme Court
Lansing, Michigan 48909
______________________________________________________________________
Syllabus
Chief Justice
Conrad L. Mallett, Jr.
Justices
James H. Brickley
Michael F. Cavanagh
Patricia J. Boyle
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
______________________________________________________________________
This syllabus was prepared by the Reporter of Decisions.
Reporter of Decisions
William F. Haggerty
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PEOPLE v CRAWFORD
Docket No. 104696. Argued November 4, 1997 (Calendar No. 1).
Decided July 28, 1998.
Oakland Circuit Court, Gene Schnelz, J.
Court of Appeals, Hoekstra, P.J., and Wahls and G. S. Buth, JJ.
(Docket No. 165956).
Michigan Supreme Court
Lansing, Michigan 48909
______________________________________________________________________
Opinion
Chief Justice
Conrad L. Mallett, Jr.
Justices
James H. Brickley
Michael F. Cavanagh
Patricia J. Boyle
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
______________________________________________________________________
FILED JULY 28, 1998
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 104696
DOUGLAS L. CRAWFORD,
Defendant-Appellant.
_________________________________
BEFORE THE ENTIRE BENCH
BRICKLEY, J.
I
Douglas L. Crawford was convicted following a jury trial
of possession with intent to deliver 50 to 225 grams of
cocaine. MCL 333.7401(2)(a)(iii); MSA 14.15(7401)
(2)(a)(iii). He claims error in the admission of evidence of
his prior conviction for delivery of 225 to 650 grams and
conspiracy to commit the same offense. Specifically, he
contends that the evidence of his prior conviction should have
been excluded under MRE 404(b) as improper evidence of his
character or propensity to commit the charged offense. We
agree that the defendant's prior conviction was improperly
admitted in this case and that his conviction, therefore,
should be reversed.
II
On September 22, 1992, Oak Park police officer Rene
Gobeyn was patrolling Eight Mile Road. He noticed a man,
later identified as the defendant, placing something in the
trunk of a car in the parking lot of the Embassy Motel. The
motel's reputation apparently caused Officer Gobeyn to suspect
that criminal activity might be afoot.
Officer Gobeyn did not immediately confront the
defendant, however. Instead, he watched as the car left the
motel parking lot and headed west on Eight Mile Road. Gobeyn
estimated that the car drove off at a speed in excess of the
posted speed limit, and he tried to catch up in his patrol
car. Before he could do so, he saw the defendant turn left at
a "turn around lane" and head south on an intersecting street.
There was a stop sign in the turn around lane, but the
defendant did not heed it. Officer Gobeyn decided to stop the
defendant for this violation.
On request, the defendant presented his driver's license,
registration, and proof of insurance. Gobeyn returned to his
patrol car to verify those documents. As Gobeyn sat in his
patrol car, he observed the defendant leaning over to the
passenger side of his car. All he could see was the top left
portion of the defendant's shoulder. Fearing that the
defendant might be reaching for a gun, Gobeyn radioed for
backup assistance.
When a second officer arrived, the two ordered the
defendant to get out of the car with his hands in plain view.
A patdown search produced only a beeper. Gobeyn asked the
defendant if there were any drugs or weapons in the vehicle.
The defendant responded, "No, go ahead and look." While the
second officer detained the defendant outside, Gobeyn looked
around the car's front-seat area, and found a jacket in which
he found a plastic baggie that contained several smaller
baggies. Gobeyn thought, and this was later confirmed by
stipulation at trial, that the large baggie contained cocaine
residue. Further, as Gobeyn was leaving the car, he noticed
a box beneath the driver's seat. Inside the box he found a
digital scale.
Gobeyn arrested the defendant on the basis of the
discovery of the suspected cocaine residue in the baggie.
Defendant was taken to the Oak Park police station and his car
was towed and impounded there. An Oak Park police officer
searched the defendant's car early the next morning and found
a yellow baggie that contained more than one hundred grams of
cocaine hidden in the dashboard adjacent to the glove
compartment. A subsequent, more careful search, found another
baggie with a smaller amount of cocaine in the same area.
Defendant was charged with possession with intent to
deliver 50 to 225 grams of cocaine. Before trial, the
prosecutor advised defense counsel by letter of his intent to
introduce evidence of a prior drug crime on an MRE 404(b)
"other bad acts" theory.1 Defendant moved
to suppress the evidence, citing People v Golochowicz,
413 Mich 298; 319 NW2d 518 (1982),2 arguing that it was
irrelevant and that, if found to be relevant, it was unfairly
prejudicial. In response, the prosecutor argued that the
prior conviction was relevant to show defendant's knowledge of
the presence of the cocaine and his intent to deliver it, and
that the probative value of the evidence was not substantially
outweighed by the danger of unfair prejudice. The trial judge
agreed and ruled that the prosecution could introduce evidence
of defendant's prior conviction, and announced his intention
to read a limiting instruction to cushion the prejudicial
effect on the defendant.
A four-day jury trial was held on May 17-21, 1993.
Officer Gobeyn described the circumstances surrounding the
defendant's arrest. The officer who located the cocaine in
the dashboard of the car described how he made that discovery.
Over defense objection, a third officer testified in
great detail about the defendant's 1988 crime.3
He testified that he had waited with a
codefendant in that earlier case until the defendant and a
codefendant appeared on the scene. He said that the defendant
and the third man got out of their car and entered an
apartment building. The defendant was carrying a distinctive
plastic bag. After a few moments, the officer was invited
into the apartment. Cocaine was taken from the bag and handed
to the officer. After field testing it, the officer handed
$5,000 to the defendant. He then gave a prearranged signal
that brought in other officers to arrest all the participants.
The defendant was discovered hiding in a bedroom closet.
The defendant did not testify, but his wife did. She
said that both she and the defendant were employed. They were
engaged but not yet married when the defendant was arrested.
The defendant had been living in the Embassy Motel
temporarily, after being evicted by a grandparent with whom he
had been living. Further, she provided the testimonial basis
for the defense theory that the defendant had been unaware of
the cocaine hidden in the car's dashboard. She testified that
she had never seen the defendant use or sell drugs. He had
purchased the old car in which he was arrested just five to
ten days before his arrest and had loaned the car to others
during that time. She had ridden in the car, but had never
noticed anything hanging down from behind the dashboard.
The only other defense witness was an Oak Park police
officer who searched the glove compartment and trunk of the
defendant's car while it was impounded. He found no
incriminating evidence. The trunk contained several garbage
bags full of men's clothing. His testimony, therefore, was
consistent with the defense theory that the defendant had been
residing at the Embassy Motel temporarily.
The jury found the defendant guilty as charged of
possessing with intent to deliver 50 to 225 grams of cocaine.
The trial judge imposed a mandatory life sentence without the
possibility of parole on June 17, 1993. The Court of Appeals
affirmed in an unpublished memorandum opinion, holding merely
that under People v Mouat, 194 Mich App 482; 487 NW2d
494 (1992), "the trial court did not abuse its discretion in
allowing the prosecution to present evidence of prior
convictions involving cocaine delivery where defendant's
intent to deliver cocaine in the instant case was an
issue."4 The defendant has appealed to
this Court. We reverse.
III
In this case we once again consider the admissibility of
other acts evidence under MRE 404(b). The general rule is
more easily stated than applied: evidence of other crimes,
wrongs, or acts of an individual is inadmissible to prove a
propensity to commit such acts. MRE 404(b). Such evidence
may be admissible, however, for other purposes under MRE
404(b)(1), which provides:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a person
in order to show action 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 conduct at
issue in the case.
The decision whether such evidence is admissible is within the
trial court's discretion and will only be reversed where there
has been a clear abuse of discretion. People v Bahoda,
448 Mich 261; 531 NW2d 659 (1995).
The character evidence prohibition is deeply rooted in
our jurisprudence. Far from being a mere technicality, the
rule "reflects and gives meaning to the central precept of our
system of criminal justice, the presumption of innocence."
United States v Daniels, 248 US App DC 198, 205; 770
F2d 1111 (1985). Underlying the rule is the fear that a jury
will convict the defendant inferentially on the basis of his
bad character rather than because he is guilty beyond a
reasonable doubt of the crime charged. Evidence of extrinsic
bad acts thus carries the risk of prejudice, for it is
antithetical to the precept that "a defendant starts
his life afresh when he stands before a jury . . . ."
People v Zackowitz, 254 NY 192, 197; 172 NE 466 (1930).
As the United States Supreme Court recently noted in Old
Chief v United States, 519 US 172; 117 S Ct 644; 136 L Ed
2d 574 (1997), the problem with character evidence
generally and prior bad acts evidence in particular is not
that it is irrelevant, but, to the contrary, that using bad
acts evidence can "weigh too much with the jury and . . . so
overpersuade them as to prejudge one with a bad general record
and deny him a fair opportunity to defend against a particular
charge." Quoting Michelson v United States, 335 US
469, 476; 69 S Ct 213; 93 L Ed 168 (1948). The
fundamental principle of exclusion, codified by MRE 404(b), is
woven into the fabric of Michigan jurisprudence:
There can be little doubt that an individual
with a substantial criminal history is more likely
to have committed a crime than is an individual
free of past criminal activity. Nevertheless, in
our system of jurisprudence, we try cases, rather
than persons, and thus a jury may look only to the
evidence of the events in question, not defendant's
prior acts in reaching its verdict. See United
States v Mitchell, 2 US (2 Dall) 348, 357; 1 L
Ed 410 (1795). [People v Allen, 429 Mich
558, 566-567; 420 NW2d 499 (1988).]
This Court's most recent formulation of the MRE 404(b)
test appears in People v VanderVliet, 444 Mich 52; 508
NW2d 114 (1993). In that case, we rejected a rigid, bright-
line approach to other acts evidence and directed the bench
and bar to employ the evidentiary safeguards already present
in the Rules of Evidence, as identified by the United States
Supreme Court in Huddleston:5
First, that the evidence be offered for a
proper purpose under Rule 404(b); second, that it
be relevant under Rule 402 as enforced through Rule
104(b); third, that the probative value of the
evidence is not substantially outweighed by unfair
prejudice; fourth, that the trial court may, upon
request, provide a limiting instruction to the
jury. [VanderVliet, supra at 55.]
Under this formulation, the prosecution bears the initial
burden of establishing relevance of the evidence to prove a
fact within one of the exceptions to the general exclusionary
rule of MRE 404(b). Where the only relevance is to character
or the defendant's propensity to commit the crime, the
evidence must be excluded. Where, however, the evidence also
tends to prove some fact other than character, admissibility
depends upon whether its probative value outweighs its
prejudicial effect, taking into account the efficacy of a
limiting instruction in cushioning the prejudicial effect of
the evidence.
Thus, the first question that must be addressed is
whether the prosecutor has articulated a proper noncharacter
purpose for admission of the defendant's prior drug
conviction.6 The prosecutor offers two
theories of admissibility to support the admission of the
defendant's 1988 drug conviction. The first is to show that
the defendant knew the cocaine was hidden in the dashboard of
his car. The second is to show that he intended to deliver
drugs in 1992. "Knowledge" and "intent" are indeed included
among MRE 404(b)'s laundry list of proper purposes. However,
a common pitfall in MRE 404(b) cases is the trial courts'
tendency to admit the prior misconduct evidence merely because
it has been "offered" for one of the rule's enumerated proper
purposes. Mechanical recitation of "knowledge, intent,
absence of mistake, etc.," without explaining how the evidence
relates to the recited purposes, is insufficient to justify
admission under MRE 404(b). If it were, the prosecutor could
routinely admit character evidence by simply calling it
something else. Relevance is not an inherent characteristic,
Huddleston, 485 US 689, nor are prior bad acts
intrinsically relevant to "motive, opportunity, intent,
preparation, plan," etc. Relevance is a relationship between
the evidence and a material fact at issue that must be
demonstrated by reasonable inferences that make a material
fact at issue more probable or less probable than it would be
without the evidence. United States v Sampson, 980 F2d
883, 888 (CA 3, 1992). In order to ensure the defendant's
right to a fair trial, courts must vigilantly weed out
character evidence that is disguised as something else. The
logical relationship between the proffered evidence and the
ultimate fact sought to be proven must be closely
scrutinized.7
Logical relevance, the "touchstone" of the admissibility
of prior acts evidence, is determined by the application of
Rules 401 and 402.
MRE 401 provides:
"Relevant evidence" means evidence having any
tendency to make the existence of any fact that is
of consequence to the determination of the action
more probable or less probable than it would be
without the evidence.
MRE 402 provides:
All relevant evidence is admissible, except as
otherwise provided by the Constitution of the
United States, the Constitution of the State of
Michigan, these rules, or other rules adopted by
the Supreme Court. Evidence which is not relevant
is not admissible.
Pursuant to MRE 401, evidence is relevant if two components
are present, materiality and probative value. Materiality is
the requirement that the proffered evidence be related to "any
fact that is of consequence" to the action. "In other words,
is the fact to be proven truly in issue?" Wade & Strom,
Michigan Courtroom Evidence (rev ed), Rule 401, p 71. A fact
that is "of consequence" to the action is a material fact.
People v McKinney, 410 Mich 413; 301 NW2d 824 (1981).
"Materiality looks to the relation between the propositions
for which the evidence is offered and the issues in the case.
If the evidence is offered to help prove a proposition which
is not a matter in issue, the evidence is immaterial."
McCormick, Evidence (4th ed), § 185, p 773.
It is well established in Michigan that all elements of
a criminal offense are "in issue" when a defendant enters a
plea of not guilty. People v Mills, 450 Mich 61, 69;
537 NW2d 909 (1995). Because the prosecution must carry the
burden of proving every element beyond a reasonable doubt,
regardless of whether the defendant specifically disputes or
offers to stipulate any of the elements, the elements of the
offense are always "in issue" and, thus, material. See Old
Chief, supra. The elements of the charge of possession
with intent to deliver cocaine, as applied to this case, are
as follows: (1) the defendant knowingly possessed a
controlled substance; (2) the defendant intended to deliver
this substance to someone else; (3) the substance possessed
was cocaine and the defendant knew it was cocaine; and (4) the
substance was in a mixture that weighed between 50 and 225
grams. See also CJI2d 12.3.
Because the prosecution was obligated under the statute
to prove that the defendant knowingly possessed cocaine and
that he did so with the specific intent of distributing it,
knowledge and intent were "in issue." The first step on the
ladder of relevance, materiality, is thus reached.
The probative force inquiry asks whether the proffered
evidence tends "to make the existence of any fact that is of
consequence to the determination of the action more probable
or less probable than it would be without the evidence." The
threshold is minimal: "any" tendency is sufficient probative
force. MRE 401. See Beaubien v Cicotte, 12 Mich 459,
484 (1864), and Collins v Beecher & Marquette & Pacific
Rolling Mill Co, 45 Mich 436, 438; 8 NW 97 (1881). In the
context of prior acts evidence, however, MRE 404(b) stands as
a sentinel at the gate: the proffered evidence truly must be
probative of something other than the defendant's
propensity to commit the crime. If the prosecutor fails to
weave a logical thread linking the prior act to the ultimate
inference, the evidence must be excluded, notwithstanding its
logical relevance to character.8
Turning to the present case, the question becomes whether
the prosecutor carried its burden of demonstrating that the
defendant's prior conviction establishes some intermediate
inference, other than the improper inference of character,
which in turn is probative of the ultimate issues in this
case, the defendant's knowledge of the presence of cocaine and
his intent to deliver it.9 We agree with
the defendant that no such intermediate inference has been
established.10
To establish the probativeness of the evidence, the
prosecutor invokes the "doctrine of chances," also known as
the "doctrine of objective improbability."11
This theory, which is attributed to
Professor Wigmore, is widely accepted, although its
application varies with the issue for which it is offered.
Where material to the issue of mens rea, as here, it rests on
the premise that "the more often the defendant commits an
actus reus, the less is the likelihood that the defendant
acted accidentally or innocently." Imwinkelried, Uncharged
Misconduct Evidence, § 3:11, p 45. Consequently, the
forbidden intermediate inference to defendant's subjective
character is not implicated:
[T]his theory of logical relevance does not
depend on a character inference. The proponent is
not asking the trier of fact to infer the
defendant's conduct (entertaining a particular mens
rea) from the defendant's personal, subjective
character. The intermediate inference is an
objective likelihood under the doctrine of chances
rather than a subjective probability based on the
defendant's character. [Id., § 5:05, p
12.]
However, Imwinkelried cautions against the routine admission
of prior misconduct evidence under the doctrine of chances
because the theory is prone to abuse and may result in the
admission of character evidence in disguise:
[The doctrine of chances theory] can easily be
abused. . . . [I]ntent is an essential element of
every true crime. Whenever the prosecutor has
evidence of an uncharged crime similar to the
charged offense, the prosecutor can attempt to
invoke Wigmore's doctrine of chances; the
prosecutor can always argue that a similar
uncharged crime triggers the doctrine of chances
and is, therefore, logically relevant on a
noncharacter theory both to disprove accident and
thereby to prove mens rea. If the courts accept
these arguments uncritically, the prosecutor may be
able to introduce bad character evidence in
disguise. . . . To counter this tendency, the
courts should clearly enunciate and rigorously
enforce the foundational requirements applicable
when the prosecutor relies on the doctrine of
chances to establish mens rea. [Imwinkelried,
The use of evidence of an accused's uncharged
misconduct to prove mens rea: The doctrines which
threaten to engulf the character evidence
prohibition, 51 Ohio St L J 575, 595 (1990).]
Elaborating on the foundational requirements for triggering
the doctrine of chances to prove mens rea, Imwinkelried
explains that the prosecutor must "make persuasive showings
that each uncharged incident is similar to the charged offense
and that the accused has been involved in such incidents more
frequently than the typical person."12 Id. at 602.
We find this reasoning to be sound. The applicability of the
doctrine of chances depends on the similarity between the
defendant's prior conviction and the crime for which he
stands charged.13
We conclude that there is an insufficient factual nexus
between the prior conviction and the present charged offense
to warrant admission of the evidence under the doctrine of
chances. The arresting officer from the 1988 offense
testified at length about how he had waited with a codefendant
in that earlier case until the defendant and a codefendant
appeared on the scene. He said that the defendant and the
third man got out of their car and entered an apartment
building. The defendant was carrying a distinctive plastic
bag. After a few moments, the officer was invited into the
apartment. Cocaine was taken from the bag and handed to the
officer. After field testing it, the officer handed $5,000 to
the defendant. He then gave a prearranged signal that brought
in other officers to arrest all the participants.
In this case, however, the defendant was not caught in
the act of selling drugs. Rather, he was stopped for a
routine traffic violation, which ultimately led to the
discovery of cocaine hidden in the dashboard of his car.
There was evidence at trial that the defendant had purchased
the car just five to ten days before his arrest, and that the
car had been in the possession of others during that time,
lending support to the defense theory that the prior owner or
someone else left the drugs in the car, unwittingly or in an
attempt to frame the defendant. The plausibility of this
defense was to be determined by the jury on the basis of its
assessment of the credibility of the witnesses. However, the
factual relationship between the 1988 crime and the charged
offense was simply too remote for the jury to draw a
permissible intermediate inference of the defendant's mens
rea in the present case. The facts of the 1988 drug offense
simply do not bear out the prosecutor's contention that the
defendant "obviously knew" the drugs were in his dashboard and
that he intended to deliver them. The prior conviction only
demonstrates that the defendant has been around drugs in the
past and, thus, is the kind of person who would knowingly
possess and intend to deliver large amounts of cocaine. To
the extent that the 1988 conviction is logically relevant to
show that the defendant was also a drug dealer in 1992, we
believe it does so solely by way of the forbidden intermediate
inference of bad character that is specifically prohibited by
MRE 404(b). Thus, the defendant's prior conviction was mere
character evidence masquerading as evidence of "knowledge" and
"intent." Because MRE 404(b) expressly prohibits the use of
prior bad acts to demonstrate a defendant's propensity to form
a certain mens rea, we hold that the trial court abused its
discretion in admitting evidence of the defendant's prior
conviction and reverse and remand the case for a new
trial.14
IV
Even if we were to find that the evidence of the
defendant's prior conviction had some logical relevance
distinct from the impermissible character inference, we would
nevertheless conclude that it should have been excluded by MRE
403 because the danger of unfair prejudice substantially
outweighed whatever marginal probative value it might have
had. Rule 403 does not prohibit prejudicial evidence; only
evidence that is unfairly so. Evidence is unfairly
prejudicial when there exists a danger that marginally
probative evidence will be given undue or preemptive weight by
the jury. In the context of prior bad acts, that danger is
prevalent. When a juror learns that a defendant has
previously committed the same crime as that for which he is on
trial, the risk is severe that the juror will use the evidence
precisely for the purpose that it may not be considered, that
is, as suggesting that the defendant is a bad person, a
convicted criminal, and that if he "did it before he probably
did it again." People v Johnson, 27 F3d 1186, 1193 (CA
6, 1994). Because prior acts evidence carries with it a high
risk of confusion and misuse, there is a heightened need for
the careful application of the principles set forth in MRE
403.15 Id.
Applying the important principles of MRE 403 to the
present case, we cannot escape the conclusion that the most
powerful, if not the only, inference that the jury was likely
to make from the prior conviction is the forbidden one: that
because the defendant was convicted of selling cocaine in
1988, he must be guilty here. Thus, the specter of
impermissible character evidence is likely to have
significantly overshadowed any legitimate probative value. To
use Justice Cardozo's expression, we believe the
"reverberating clang" of the evidence that the defendant sold
drugs in 1988 drowned the "weaker sound" of the other evidence
properly before the jury, leaving the jury to hear only the
inference that if the defendant did it before, he probably did
it again. Shepard v United States, 290 US 96, 104; 54
S Ct 22; 78 L Ed 196 (1933); United States v
Merriweather, 78 F3d 1070, 1077 (CA 6, 1996). We hold
that the evidence was substantially more prejudicial than
probative and should not have been admitted.16
V
Finally, we consider whether the introduction of the
defendant's prior conviction constituted harmless error.
Error requires reversal only if it is prejudicial. People
v Mateo, 453 Mich 203, 215; 551 NW2d 891 (1996).
The prejudice inquiry "focuses on the nature of the error and
assesses its effect in light of the weight and strength of the
untainted evidence." Id. Our analysis in the
foregoing section leads us to the inescapable conclusion that
admission of the defendant's prior conviction was not
harmless.17 People v Gearns, 457 Mich 170;
577 NW2d 422 (1998).
CONCLUSION
We hold that on the facts of this case the trial court
abused its discretion by admitting evidence of the defendant's
prior conviction because the prosecution failed to establish
a proper purpose under MRE 404(b). We further hold that the
error was not harmless. We therefore reverse the defendant's
conviction and remand the case to the trial court for further
proceedings consistent with this opinion.
Mallett, C.J., and Cavanagh and Kelly, JJ., concurred with
Brickley, J.
FOOTNOTES
1 In 1988, events that predate this 1992
case, the defendant participated in the delivery of a pound of
cocaine to an undercover Oakland County police officer. The
defendant ultimately pleaded guilty of delivering 225 to 650
grams of cocaine and conspiracy to commit the same offense.
These were his first adult or juvenile offenses. His arrest
in the present case occurred ten months after he was paroled
on November 12, 1991.
2 The defendant's trial in this case predated People v
VanderVliet, 444 Mich 52; 508 NW2d 114 (1993), in which we
articulated a clarified standard for determining the admission
of prior acts evidence under MRE 404(b).
3 In an effort to preclude detailed testimony about the prior
conviction, defense counsel offered at trial to stipulate to
the prior conviction, as well as to the amounts and substance.
The prosecutor persuaded the trial judge that the jury needed
to hear the details of the prior crime in order to utilize MRE
404(b) properly. The suggested stipulation about the prior
conviction also was read to the jury.
4 Issued October 10, 1995 (Docket No. 165956).
5 Huddleston v United States, 485 US 681; 108 S Ct
1496; 99 L Ed 2d 771 (1988).
6 The dissent vociferously objects to the proposition that the
prosecutor must bear the burden of articulating a proper
noncharacter purpose for the admission of prior acts evidence
under MRE 404(b). However, the principle that the proponent
of evidence bears the burden of establishing relevance and
admissibility is a matter of basic hornbook law. See 22
Wright & Graham, Federal Practice & Procedure, § 5166, pp
65-76. Instead of fashioning an argument why the prosecutor
should be relieved of this burden in MRE 404(b) cases, the
dissent accuses the majority of somehow shifting or
heightening the prosecutor's burden under MRE 404(b). Our
requirement that the prosecutor articulate a proper
noncharacter purpose comports not only with the plain language
of MRE 404(b), but also with the approach utilized by the
majority of federal circuits. In United States v
Sampson, 980 F2d 883 (CA 3, 1992), for example, the Third
Circuit reversed the defendant's conviction and remanded the
case for a new trial because the government had failed to meet
its burden of establishing a sufficient noncharacter purpose
for admission of the defendant's prior drug convictions.
After expressing its concern that, although the proponents of
Rule 404(b) evidence "will hardly admit it, the reasons
proffered to admit prior act evidence may often be [P]otemkin
village, because the motive, we suspect, is often mixed
between an urge to show some other consequential fact as well
as to impugn the defendant's character," id. at 886,
the court described the contours of the government's burden
when seeking the admission of prior crimes:
If the government offers prior offense
evidence, it must clearly articulate how that
evidence fits into a chain of logical inferences,
no link of which can be the inference that because
the defendant committed drug offenses before, he
therefore is more likely to have committed this
one. . . . Thus, the burden on the government is
not onerous. All that is needed is some showing of
a proper relevance. Whereupon the trial court must
judge the government's proffered reason, the
potential for confusion and abuse, and the
significance of the evidence, and decide whether
its probative value outweighs its prejudicial
effect. [980 F2d 887-888.]
Federal circuits similarly requiring the government to
articulate, in a clear and logical manner, at least one proper
noncharacter purpose for admission of prior acts evidence
include: United States v Rackstraw, 7 F3d 1476, 1478-
1479 (CA 10, 1993) ("When offering 404(b) evidence, the
government 'must articulate precisely the evidential
hypothesis by which a fact of consequence may be inferred from
the evidence of other acts.' . . . Concomitantly, the trial
court must identify specifically the purpose for which the
evidence is admitted. . . . There must be a clear and logical
connection between the 'other acts' evidence and the case
being tried"); United States v Mayans, 17 F3d 1174,
1181 (CA 9, 1994) ("the government 'must articulate precisely
the evidential hypothesis by which a fact of consequence may
be inferred from the other acts evidence'"); United States
v Yeagin, 927 F2d 798, 803 (CA 5, 1991)("A trial judge
faced with the problem of admissibility of other crimes
evidence should exercise caution and should require the
government to explain why the evidence is relevant and
necessary on a specific element that the government must
prove"); United States v Arias-Montoya, 967 F2d 708,
713 (CA 1, 1992) (admission of prior acts evidence "'is by no
means a routine exercise and should not be accepted unless the
government articulates with suitable precision the "special"
ground for doing so'"); United States v Mothershed, 859
F2d 585, 589 (CA 8, 1988); United States v Zelinka, 862
F2d 92, 99 (CA 6, 1988).
7 Weinstein notes that although "courts on occasion have
admitted other-acts evidence almost automatically, without any
real analysis, if they find it fits within one of the
categories specified in Rule 404(b). . . . Rule 404(b) does
not authorize automatic admission, and the proponent of the
evidence must demonstrate its relevance." 2 Weinstein,
Federal Evidence, § 404.20[3], pp 404-41 to 404-42.
8 We do not quarrel with the dissent's assertion that
VanderVliet embraced the "inclusionary" approach to
prior misconduct evidence. However, the term "inclusionary"
can be deceptive. The distinction between MRE 404(b) as a
rule of "inclusion" as opposed to a rule of "exclusion" does
not signify a shift to a more liberal policy toward the
admission of prior act evidence. The "inclusionary" theory
merely recognizes that similar acts can be admissible despite
the inference to character so long as there is at least one
proper noncharacter-based inference linking the prior act to
the ultimate inference, and that, contrary to the position
taken at common law, Rule 404(b)'s list of proper purposes is
nonexclusive. As Wright and Graham explain in their
influential treatise on the Federal Rules of Evidence:
The common law rule has been described as "an
unctuous, but easily circumvented rule of
exclusion." Wigmore stated it this way: "The doing
of another criminal act, not a part of the issue,
is . . . not admissible as evidence of the doing of
the criminal act charged, except when offered for
the specific purpose of evidencing Design, Plan,
Motive, Identity, Intent, or other relevant fact
. . . distinct from Moral Character." While the
general rule of exclusion is often
applauded—and occasionally enforced—it is
the exceptions that are of most practical
significance. Courts have found it difficult to
distinguish the rule from the exceptions and
Professor Stone, in two influential articles,
argued that the true rule was the reverse of the
one stated by Wigmore; i.e., evidence of other
crimes is admissible except when it proves nothing
but the propensity of the defendant to engage in
criminal conduct. Professor Stone's version of
the rule—usually referred to as the
"inclusionary" or "positive" rule as against
Wigmore's "exclusionary" or "negative" formulation
—has been favored by many commentators and
adopted by some courts, but the majority rule at
common law took the form stated by Wigmore. [22
Wright & Graham, Federal Practice & Procedure,
§ 5239, pp 428-432.]
The "inclusionary" theory thus recognizes the rule's
restrictive application to evidence offered solely to prove
criminal propensity, a point that was settled before
VanderVliet, but does not require courts to err on the
side of admission, or to admit evidence that would not have
been admissible before VanderVliet. See United
States v Figueroa, 618 F2d 934, 939, n 2 (CA 2, 1980)
("The exclusionary approach to similar act evidence obliges
the trial court to determine whether the issue sought to be
proved is among the traditional exceptions to the rule barring
prior act evidence; the inclusionary approach permits the
evidence to be used to prove any issue other than propensity,
but the trial court is still obliged to ask, 'Is the evidence
in any way relevant to a fact in issue otherwise than by
merely showing propensity?'" Stone, The rule of exclusion of
similar fact evidence: America, 51 Harv L R 988, 1004 [1938]).
9 Imwinkelried, whom the dissent, slip op at 23, ironically
accuses the majority of citing selectively, expressly rejects,
as contrary to the plain language of the rule, the dissent's
contention that "an intermediate noncharacter inference is
required only where the prior act is offered to prove
conduct":
The second sentence of Rule 404(b) refers to
"identity" as a permissible use of uncharged
misconduct evidence. However, no one would suggest
that Rule 404(b) permits the prosecutor to invite
the jury to reach the conclusion of identity
through an intermediate inference of character.
The second sentence also alludes to "intent." By
parity urging of reasoning, the rule should be
construed as prohibiting the prosecutor from urging
the jury to reach that conclusion through an
intermediate inference of the defendant's
disposition of a certain mens rea. The better-
reasoned cases require the prosecutor to reach the
ultimate inference of mens rea without relying on
an intermediate inference of character.
[Imwinkelried, Uncharged Misconduct Evidence,
§ 5:01.50, p 4.]
Under the dissent's view, prior convictions offered to prove
a defendant's state of mind are admissible as a matter of
course, subject only to MRE 403 balancing. Given that MRE 403
already applies to all offers of evidence, however, it strains
logic to suggest that MRE 404(b) erects no barrier to the
admission of such evidence.
10 The rationale for the exclusion of character evidence to
establish mens rea, as described by Imwinkelried, is
twofold:
One is that if the jury must consciously focus
on the issue of the defendant's character, there is
a grave risk that at a subconscious level, they
will be tempted to punish the defendant for his or
her uncharged misconduct. That risk is certainly
present when the jury addresses the question of
whether the defendant has a propensity for forming
a mens rea. The jury might be repulsed by the
defendant's "criminal mind." The other probative
danger underpinning the character evidence
prohibition is the risk that the jurors will
overestimate the probative value of character as a
predictor of conduct. That risk is also applicable
when the jury reasons from the defendant's
propensity for a mens rea to the conclusion that
the defendant had a guilty state of mind on the
charged occasion. The cognitive and volitional
aspects of conduct account in large part for the
unpredictability of human behavior. [Imwinkelried,
n 9 supra, § 5:01.50, pp 3-4. See
People v Schweitzer, 23 Mich 301, 304 (1871).]
11 We infer the prosecution's reliance on the doctrine of
chances from his opening and closing statements. In his
opening statement, the prosecutor explained the relevance of
the defendant's prior conviction as follows:
An additional piece of evidence that you're
going to hear, ladies and gentlemen, will be
testimony from other officers, other officers who
came into contact with the Defendant in 1988. And
at that time, you will hear testimony from Oakland
County Narcotics Enforcement Team officers who
purchased one-half kilogram or 500 grams of cocaine
from the Defendant in June of 1988. . . . [T]hat
evidence is going to show that the Defendant
obviously knew that the cocaine was in his car,
that somebody didn't leave this valuable amount,
this much cocaine in his car without his knowing
it. And it will show that the defendant, at the
time he possessed this cocaine, intended to deliver
it, that he intended to deliver the cocaine in
1988.
And in closing argument:
[D]id [Defendant] know the cocaine was there?
In 1988, he delivered a half kilogram of cocaine to
Deputy Moore at the Diplomat Towers Apartments in
Southfield, Michigan. It's common sense, ladies
and gentlemen. Based upon these facts that are
admitted into evidence, they clearly show that the
Defendant knew the cocaine was there.
And later:
[T]he fact that he was convicted in 1988 for
delivery of a half kilogram of cocaine, 500 grams
of cocaine, inescapably leads to the conclusion
that he knew the cocaine was there.
12 Weinstein states:
In each individual case, the trial judge must
decide whether the proffered evidence tends to make
the consequential fact more or less probable. If
the connection between the other crime and the
charged crime is strong, admission may be
appropriate. If the connection is weak, exclusion
is generally sound. If enough time has passed, the
other crime may be of such attenuated probative
value as to warrant exclusion. [2 Weinstein,
Federal Evidence, § 404.21[2][c], pp 404-54 to
404-55.]
13 A simple analogy will prove the point. If the prosecutor
were "offering" evidence of a prior arson conviction to prove
that the defendant knowingly possessed cocaine with the intent
to deliver, even the dissent would likely concede that the
offer would fail the initial test of relevancy on the ground
that the two acts were too dissimilar. Under this scenario,
the evidence is inadmissible even though it is "offered" for
a "proper purpose" under Rule 404(b), that is, to prove
knowledge and intent. If, however, defendant's prior crime
involved the concealment of drugs in the dashboard of his car,
that evidence would likely be admissible under the doctrine of
chances because of the stark similarity of the two crimes.
There is, then, a continuum upon which each proffered prior
act must be placed; the more similar the prior act to the
charged crime, the closer the evidence to the admissibility
threshold. Cases cited by the prosecution and the dissent
that have admitted prior crimes to prove knowledge and intent
have similarly required a close factual nexus between the
prior and charged crimes. See, e.g., United States v
Rackstraw, n 6 supra at 1479 ("We have long
recognized the relevance of prior crimes in the context of
narcotics violations where the uncharged misconduct is close
in time and similar in method to the charged scheme and where
knowledge . . . was at issue"); United States v Garcia,
983 F2d 1160, 1173 (CA 1, 1993) ("In this case, there is a
close nexus between the past act and the current charges");
United States v Hernandez, 84 F3d 931, 935 (CA 7, 1996)
("we agree that Hernandez' prior conviction satisfied the
similarity/proximity requirements"); United States v
Adrian, 978 F2d 486, 493 (CA 9, 1992) ("It does not appear
from the record whether the prior convictions were similar
enough and proximate enough in time to the present offenses to
make them highly relevant to appellee's intent"); see also
United States v Hernandez-Miranda, 601 F2d 1104, 1108
(CA 9, 1979) ("When a prior criminal act is relied upon to
prove intent or knowledge, similarity between the two events
must be shown to establish the threshold requirement of
relevance").
14 Rather than attempting to explain the specific logical
progression that makes either knowledge or intent more likely
in light of the defendant's prior crime, the dissent simply
argues that the involvement of cocaine in defendant's 1988
conviction alone "makes [it] more probable than not that
defendant knowingly possessed drugs with the intent to
distribute them" in the present case. Slip op at 18. This is
a poorly disguised propensity argument, which is precisely
what Rule 404(b) expressly forbids. United States v
Betts, 16 F3d 748, 759 (CA 7, 1994); People v
Beasley, 809 F2d 1273 (CA 7, 1987); Arias-Montoya,
n 6 supra; United States v Lynn, 856 F2d 430
(CA 1, 1988); United States v Mehrmanesh, 689 F2d 822
(CA 9, 1982).
15 The dissent urges us to defer to the trial court's balancing
of prejudicial effect versus probative force because our
"rejection of the trial court's balancing under Rule 403" is
simply a substitution of our "judgment for that of the trial
court." Slip op at 49. However, the trial court's
misapplication of MRE 404(b) caused it to overvalue the
probativeness of the evidence. Having held that the evidence
had no relevance apart from the impermissible character
inference, we refuse to abdicate our responsibility to review
the circuit court's balancing under MRE 403 and to reverse
that ruling where necessary to prevent injustice.
16 The prosecutor and dissent argue that any undue prejudice
was offset by the following cautionary instruction given by
the judge at the conclusion of the trial:
You have heard evidence that was introduced to
show that the Defendant committed a crime for which
he is not on trial. If you believe this evidence,
you must be very careful only to consider it for
certain purposes. In this case, you may only think
about whether this evidence tends to show that the
Defendant specifically meant to or intended to
commit the crime as charged, which I will give you
the elements of in a moment. You must not consider
this evidence for any other purpose.
While a limiting instruction will often suffice to enable the
jury to compartmentalize evidence and consider it only for its
proper purpose, we note the absence of a proper purpose in
this case to which the jury could limit its use of the
evidence. Although the prior conviction was purportedly
"offered" to prove knowledge and intent, the only real
relevance of the prior conviction was to depict the defendant
as a drug dealer. Against this, the limiting instruction was
not limiting at all. See United States v
Wright, 901 F2d 68, 70 (CA 7, 1990).
17 The dissent's statement that "[a]ny error in admitting the
prior acts evidence was slight or negligible" ignores the fact
that the prosecution was allowed to parade the defendant's
prior conviction before the jury constantly throughout this
brief trial. Slip op at 53. The jury heard detailed
information about the prior arrest in the prosecution's
opening and closing statements, the direct examination of the
arresting officer from 1988, and in the cross-examination of
the defendant's wife. This repetition greatly enhanced the
danger of unfair prejudice arising from the admission of
defendant's prior conviction. The decision of the First
Circuit in United States v Arias-Montoya, n 6
supra, is instructive on this point. In a case that is
remarkably similar to the case at bar, the court ruled that
evidence of the defendant's prior drug conviction was
improperly admitted, but that the admission of the evidence
constituted harmless error. The court found "particularly
significant" the fact that, "aside from eliciting two lines of
testimony about the 1983 conviction, the prosecutor made no
further reference to it, either at trial or . . . in his
closing." Id. at 714.
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 104696
DOUGLAS L. CRAWFORD,
Defendant-Appellant.
___________________________________
BOYLE, J. (dissenting).
Protestations to the contrary, the majority rejects the
inclusionary view of MRE 404(b),1 universally recognized
to preclude bad acts evidence only when it is used to prove the
character of a person and that he acted in conformity therewith.
The heightened burden/exclusionary approach advocated by the majority
is inconsistent with the language of the Rules of Evidence and
with our decision in VanderVliet. A frank recognition
that this is the position the Court now advocates is less
destructive of the Court's integrity than the majority's
attempt to posture its position as consistent with the rules
and prior precedent.
More ominously for what the majority's decision bodes for
the future, is that its analysis signals a lack of fidelity to
the philosophy of liberal admissibility and the primacy of
trial court rulings embodied in the Michigan Rules of
Evidence. Bad acts evidence is precluded only when the
plaintiff or prosecutor uses character as a way station on the
road to an ultimate inference of conduct in conformity, and
expressly prohibits only one theory of logical relevancy.
Stated otherwise, if there is any other theory of logical
relevance of prior misconduct, the evidence falls outside Rule
404(a).2 It is admissible unless the
opponent shows that the probative value is "substantially
outweighed" by the potential for prejudice.3
Specifically, the majority ignores the fact that the
defendant actively disputed intent to distribute by requesting
a lesser charge of possession without intent to distribute.
The majority concludes that the similarity between the prior
act, distribution of a commercial amount of cocaine, and the
charged crime, possession with intent to deliver a like
quantity, is insufficient because the former act did not
involve concealing drugs "behind the dash board."4
The majority's analysis appears to resurrect the rejected
proposition that, unless the prosecutor argues the correct
theory, the evidence is inadmissible.5 It
also shifts and heightens the burden of showing the probative
force of Rule 404(b) evidence, despite the explicit language
of Rules 402 and 403. Both approaches undermine the Rules of
Evidence by endorsing the policy of exclusion. In short,
while the majority professes adherence to the inclusionary
approach, its analysis reasserts the exclusionary approach of
the common law enforced by appellate control and subverts the
foundational principles of Rules 402, 403, and 404.
The majority's conclusion that the evidence of an
identical state of mind had "no relevance apart from the
impermissible character inference," slip op at 24, n 15,
amounts to a contention that the prior act of distribution did
not make the defendant's intent to distribute more probable
than it would have been without the evidence, a truly
remarkable proposition.6 The holding that the prior
act was character evidence "masquerading" as evidence of knowledge
and intent can be explained in only one of two ways: either 1) the
majority does not understand the dual inference inquiry, i.e.,
the fact that the prior act permitted the inference that the
defendant is the "kind of person" who would knowingly possess
and intend to deliver large amounts of cocaine does not refute
that the act also demonstrates the mental state in issue, or 2)
the failure to understand is itself a masquerade, concealing an
assertion of closer appellate control over evidentiary rulings by
elevating the prosecutor's burden under Rule 404(b).
The majority's citation of People v Allen, 429
Mich 558; 420 NW2d 499 (1988), suggests that the latter
explanation is the majority's actual motivation. As we
observed in People v VanderVliet, 444 Mich 52;
508 NW2d 114 (1993), fear of the jury conflicts with
the Rules of Evidence and "with the intuitive sense that some
bad acts evidence is so powerfully probative that it would
pervert the truth-seeking process to prevent a jury from using
what looks like ordinary common sense." Id. at 73.
I
Facts and Proceedings
We restate the facts in the light most favorable to the
prosecution. On September 22, 1992, ten months after his
release from prison on parole from a three- to thirty-year
term of imprisonment imposed in 1989 for conspiracy to deliver
and delivery of cocaine, defendant was arrested and charged
with possession with intent to deliver 50 to 225 grams of
cocaine. A beeper was found during a "pat down" of defendant.
Six ziplock baggies containing cocaine residue and doper fold
papers were found in his jacket pocket, and there was a
digital scale in a box under the car seat.
Further investigation revealed cocaine residue on the
scale, a razor blade in the box with the scale, an additional
ziplock baggie in defendant's wallet, a mobile phone, and $455
in cash (mostly in ten and twenty dollar bills) in his pants
pocket. In an area behind the dash board above the glove box,
two subsequent searches of the impounded vehicle produced a
large plastic bag containing cocaine weighing 173.1 grams, and
a second bag containing several rocks of cocaine, one weighing
11.74 grams, and sixty-six individually packaged small rocks
of crack cocaine in baggies (one rock tested weighed 0.16
grams), and additional empty baggies. Each baggie contained
a twenty-dollar rock of crack, and the total street value of
all the cocaine was estimated to be $36,000.
At the in limine motion hearing 7 of
the prosecutor's notice of intent to prove prior misconduct,
defense counsel contended that defendant did not know that
there was cocaine concealed behind the glove box and
consequently that he was not knowingly in possession and
could not have had an intent to deliver.
The judge summed up the defense position by stating:
"[A]s I understand the controverted facts are that you say
your client had no knowledge whatsoever of the—[cocaine]
so he couldn't even be in possession much less have an intent
to deliver. Am I correct on that?" Defense attorney
responded, "Of the amount that was found behind the glove box.
Correct."8 The trial court found the prior act relevant
because, if defendant was unaware that he was in possession of the
bags found above the glove box, he was innocent of possession of
the larger amount of cocaine. Thus, both general mens rea and
the intent to deliver were in issue.
The jurors were instructed during voir dire that the
defendant had a previous conviction involving delivery of a
controlled substance, and that it was "very important" that
the crime was not admissible to prove character.9
In final instructions, the court again cautioned the
jury that if it believed defendant committed another crime, it
could only be considered on the question whether defendant
specifically meant or intended to commit the crime
charged.10 The defendant requested a charge on possession
without intent to deliver and argued that he should be convicted
only of possession of a lesser amount or should be acquitted because
of reasonable doubt. The jury was instructed on both possession
with intent to deliver and "simple possession."11 The jury found
him guilty as charged, and the Court of Appeals affirmed.
Unpublished memorandum opinion, issued October 10, 1995
(Docket No. 165956).
II
The Majority's Imposition of a
Heightened Burden Under Rule 404(b)
When the cobwebs are swept away, the majority ultimately
rests on one simple but far-reaching proposition:
Imwinkelried's thesis that the rules should be amended to
require the proponent to show that the probative value of
uncharged misconduct outweighs the prejudicial danger.
Imwinkelried, The need to amend federal Rule of Evidence
404(b): The threat to the future of the federal Rules of
Evidence, 30 Vill L R 1465, 1491 (1985).
Assuming arguendo that the Court has a retained common-
law power to exclude the evidence12 and
that the common-law rule is preferable, the result is
inconsistent with the language and philosophy of Rule 402.
If the rules are interpreted according to their plain
meaning, they afford no basis to reintroduce the common-law
approach to excluding relevant evidence by superimposing
additional restrictions on the face of the language.
Imwinkelried, A brief defense of the Supreme Court's
approach to the interpretation of the federal Rules of
Evidence, 27 Ind L R 267, 280 (1993). To repeat,
logically relevant evidence is admissible, except "as
otherwise provided."
It is precisely for this reason that the United States
Supreme Court in Huddleston v United States, 485 US
681; 108 S Ct 1496; 99 L Ed 2d 771 (1988), long ago rejected
the contention that the common-law foundation for admitting
uncharged misconduct, i.e., clear and convincing evidence that
the act occurred, applied under Rule 404(b). In unanimously
rejecting the claim, the Court observed that Rule 104(b) sets
out the procedure for determining preliminary facts, Rules 401
and 402 establish the broad principles of admissibility, and
Rule 403 allows the trial court to exclude. The Court
concluded that the text did not authorize the superimposition
of the common-law rule as "a level of judicial oversight that
is nowhere apparent from the language of that provision, but
is simply inconsistent with the legislative history behind
Rule 404(b)." Id. at 688.
Rule 404(b) "incorporates rule 403's balancing test,
requiring the opponent to convince the judge that the
prejudicial dangers substantially outweigh the probative
value." Imwinkelried, The need to amend, supra at
1479-1480. The burden inquiry under Rule 403 is distinct from
that of Rule 609. Imwinkelried and Margolin state:
The wording of Rule 403 has remained unchanged
since its adoption in 1975. However, prior to its
1990 amendment, Rule 609(a)(1), governing
conviction impeachment, included the following
language:
"For the purpose of attacking the credibility of a
witness, evidence that the witness has been
convicted of a crime shall be admitted if elicited
from the witness or established by public record
during cross-examination but only if the crime
. . . was punishable by death or imprisonment in
excess of one year under the law under which the
witness was convicted, and the court determines
that the probative value of admitting this evidence
outweighs the prejudicial effect to the defendant."
Note the differences between the wording of the two
balancing tests. Rule 403 is cast in the passive
voice: "its probative value is . . . outweighed by
the danger[s]." In contrast, the balancing test in
the former version of Rule 609 is in the active
voice: "the probative value . . . outweighs the
prejudicial effect." In addition, Rule 403
includes the adverb "substantially," which was
absent from Rule 609.13
* * *
On its face, the amendment indicates that the
Rule 403 balancing test differs from the test set
out in the last clause of the amendment. A
committee note accompanies the amendment. The Note
explicitly differentiates between the two balancing
tests. On the one hand, the Note states that when
the prosecution's conviction evidence is subject
to Rule 609(a)'s test, "the government [must] show
that the probative value of [the] convictions as
impeachment evidence outweighs their prejudicial
effect." On the other hand, the Note declares
that if conviction evidence is subject to Rule
403's test, the opponent must "point to a real
danger of prejudice that is sufficient to outweigh
substantially the probative value of the conviction
for impeachment purposes."
The amended language of Rule 609(a) and the
supporting Note should end the split of authority
among the lower federal courts over the proper
construction of Rule 403. It is now well
established that Rule 403 assigns the party
opposing the admission . . . . [Imwinkelried &
Margolin, The case for the admissibility of
defense testimony about customary political
practices in official corruption prosecutions,
29 Am Crim L R 1, 29, 31-32 (1991).]
The majority has thus simply amended Rule 404(b) by imposing
its "judicial oversight" on the discretionary decisions of the
trial bench.
III
The analysis and conclusion reveal the majority's angst
regarding two of the fundamental principles underlying the
Rules of Evidence—the basic premise of MRE 40214
that all relevant evidence is admissible
unless expressly precluded, and the corollary policy that the
appellate court must defer to the primacy of the trial bench,
constrained by the broad discretion invested in that bench
under Rule 403.15 These principles
have been recently reiterated and reinforced in Old
Chief v United States, 519 US 172; 117 S Ct 644;
1136 L Ed 2d 574 (1997), in which the Supreme Court deemed
erroneous a claim that the fact to which the bad acts evidence
is directed must be in dispute or the evidence is irrelevant
under Rule 401. Noting that the advisory committee notes to
Rule 401 state that "[t]he fact . . . need not be in dispute,"
and that relevant evidence is evidence having any probative
value, the Court concluded:
If, then, relevant evidence is inadmissible in
the presence of other evidence related to it, its
exclusion must rest not on the ground that the
other evidence has rendered it "irrelevant," but on
its character as unfairly prejudicial, cumulative
or the like, its relevance notwithstanding.
[Id., 117 S Ct 650.]
The majority accomplishes its result by holding that
evidence of defendant's prior misconduct, conviction of
conspiracy to deliver, and delivery of 225 to 600 grams of
cocaine was not "relevant" to an issue "other than the
defendant's propensity to commit the crime" and by asserting
that it is the prosecutor's burden "to weave a logical thread
linking the prior act to the ultimate inference." Slip op at
15. The majority purports to concede that defendant's
knowledge of the presence of cocaine is logically relevant to
the element of possession of cocaine and intent to deliver.
People v Wolfe, 440 Mich 508, 519; 489 NW2d 748 (1992).
Slip op at 14. However, the majority concludes that because
there was an insufficient factual nexus between the prior
conviction and the present charged offense to warrant
admission under the doctrine of chances, "[t]he prior
conviction only demonstrates that the defendant has
been around drugs in the past and [was] the kind of person who
would knowingly possess and intend to deliver large amounts of
cocaine." Slip op at 22 (emphasis added).
The evidence does not simply demonstrate that the
defendant has been around drugs in the past; it makes more
probable than not that defendant knowingly possessed drugs
with the intent to distribute them. While the rationale for
the majority's conclusion is not evident, it seems to rest on
two propositions: the first, that it is the prosecutor's
burden to "articulate[] a proper noncharacter purpose for
admission of the defendant's prior drug conviction" and
explain "how the evidence relates to the recited
purposes,"16 slip op at 12, and the
second, that there is an insufficient factual nexus between
the prior act and the charged offense. The rationale is, in
either event, logically flawed.
A. The Prosecutor's Burden
To the extent that the first rationale focuses on
language in People v Golochowicz, 413 Mich 298; 319
NW2d 518 (1982), that might have been read to require the
formulaic approach of United States v Sampson, 980 F2d
833 (CA 3, 1992),17 we expressly
rejected the concept that the key to admissibility under Rule
404 rests on the incantation of magic words in VanderVliet,
supra at 65-67. To be sure, the proponent of evidence who
fails to demonstrate relevance runs the risk that the trial
court will exclude the evidence. However, and quite
obviously, if the evidence is admitted, the question on review
is not what the prosecutor said, but whether it was error to
admit the evidence. If the rule were otherwise, the
prosecutor's inarticulate formulation of a theory would cause
reversal on appeal though the evidence was properly admitted.
People v Engelman, 434 Mich 204,223 n 27; 453 NW2d 656
(1993).
1. The Legal Precedent: The Inclusionary Approach
Rule 403 places the burden on the opponent of the
admissibility of logically relevant evidence to effectuate the
liberal philosophy of Rule 402 favoring admission of all
relevant evidence. Thus, the construction of Rule 404(b) "as
a sentinel at the gate," slip op at 14-15, ignores that
the prosecution [should not be deprived] of
evidence with multiple utility; if, indeed, there
were a justification for receiving evidence of the
nature of prior acts . . . to prove "motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident," . . .
. Rule 404(b) guarantees the opportunity to seek
its admission. [Old Chief, supra, 117 S Ct
655.]
To hold otherwise is to effectively resurrect the common-law
rule of exclusion and reject the approach that "[t]he
exclusion of relevant evidence under rule 403 is an
extraordinary remedy, and therefore courts should exercise the
power to exclude cautiously and sparingly." Imwinklereid,
The need to amend, supra at 1478.
The majority's suggestion that the prosecutor's failure
to carry its burden to demonstrate a proper theory deprives
the evidence of probative force conflicts with the policy of
Rule 402 that expressly declares this Court's support of
inclusionary admissibility. The majority's statement that
"[t]he general rule is more easily stated than applied," slip
op at 7, is also a distortion of the language of the rule and
of our prior precedent. The "general rule" is not that such
evidence is inadmissible. The general rule, as most recently
recognized in People v Starr, 457 Mich 490; __ NW2d
__(1998),18 is that, like all
other evidence, such evidence is admissible if relevant under
Rules 401 and 402. The majority's initial premise thus
misconstrues both Rules 403 and 404 and rests on a premise
that has been expressly overruled. VanderVliet, supra
at 64.
If the majority seriously contends that the prior acts
evidence was irrelevant to the proposition whether it is more
or less likely that defendant did not possess the drugs with
knowledge, or that he did not intend to distribute them, the
majority's conclusion is, as noted, nothing less than
remarkable. The majority purports to recognize that all
evidence that is logically relevant, that is, that makes more
probable than not a fact in issue, is admissible, but
nevertheless concludes that the prior act was "mere character
evidence masquerading as evidence of 'knowledge' and 'intent.'"
However, it is possible that the majority simply does not
understand the theory it employs. Evidence supporting this
explanation for the majority's conclusion can be found in the
statements that the question is whether there is some
"intermediate inference" and that "no such intermediate
inference has been established." Slip op at 16-17. The reason
prior acts evidence relevant to state of mind is so universally
admitted19 is that it does not require
any ultimate inference regarding the defendant's conduct (the
ultimate inference), and it does not require any inference
regarding propensity (the intermediate inference). What the
majority seemingly fails to understand is that, as recognized
in People v Engleman, supra, and VanderVliet,
supra at 85, an intermediate noncharacter inference is
required only where the prior act is offered to prove conduct.
As noted by 22 Wright and Graham, Federal Practice and
Procedure, § 5242, pp 487-488, in the case of intent, the
use of other crimes evidence can be defended on two grounds, it
does not require inference to propensity and involve any
inference to the defendant's conduct. To the extent that the
majority believes that Rule 404 always precludes other acts
evidence unless an intermediate inference to noncharacter is
demonstrated, it is incorrect. Either ground allows other
acts evidence to escape the common-law prohibition. Plainly
put, Rule 404(a) is avoided when the ultimate inference is not
to conduct, or the ultimate inference is to conduct but the
intermediate inference is to noncharacter.
However, because every federal circuit interpreting the
rule repudiates the analysis employed by the majority regarding
intent,20 as has this Court, we are
unable to conclude that the analysis employed is simply an
honest mistake. Moreover, the majority's references to
Allen, supra, suggest that the explanation for its
holding is not a matter of misunderstanding. To effectuate the
directive of liberal admissibility and nonintervention in trial
court discretion, the proper inquiry on review is not whether
there are multiple inferences, but whether the jury can make
one inference that does not include character as a necessary
link. What the majority is actually doing when it says that
the evidence demonstrated only the "defendant's propensity to
form a certain mens rea," slip op at 23, is to heighten the
burden of admissibility under Rule 404(b) to relevance "plus."
Given the directive of Rule 403, that it is the opponent's
burden to overcome the admission of relevant evidence, the
conclusion is inescapable that the majority's actual purpose is
to retake ground ceded by the rules to the jury and the
trial bench.
The Court made the rule. Moreover, there is no claim made
here that what the Court made it cannot "unmake."21
What cannot be honestly claimed, however,
is that the majority is faithfully applying the inclusionary
approach of our Rules of Evidence.22
2. Multiple Utility: Available Inferences
Authority admitting such evidence is legion. However, we
begin detailed analysis of the majority's contention that there
is no inference other than to character with an extensive
quotation from the en banc decision of the Circuit Court for
the District of Columbia, United States v
Crowder,(Crowder I) 318 US App DC 402; 87 F3d 1405
(1996), on reconsideration of its original holding excluding
the evidence of a prior sale of drugs in a drug case, vacated
in light of Old Chief, supra, by the United States
Supreme Court.
In United States v Crowder (Crowder II), ___
US App DC ___, ___; 141 F3d 1202, 1207-1210 (1998), the court
noted the multiple utility of Rule 404(b) and reversed the
prior decision holding that,
defendant's offer to stipulate to an element of an
offense does not render the government's other crimes
evidence inadmissible under Rule 404(b) to prove that
element, even if the defendant's proposed stipulation
is unequivocal, and even if the defendant agrees to
a jury instruction of the sort mentioned in our
earlier opinion. See [(Crowder I) supra
at 402. The court observed that] [o]ther rules of
evidence may bear on the admissibility of evidence
satisfying Rule 404(b) . . . . For now it is enough
to repeat the words of the advisory committee on Rule
404(b): if evidence is offered for a purpose Rule
404(b) permits, such as proving knowledge or intent,
Rule 404(b) "does not require that the evidence be
excluded."
* * *
The Supreme Court made these points to
distinguish between "stipulations to the status
element of a crime, which can be forced upon the
prosecution, and stipulations to other elements of a
crime, which the prosecution should remain free to
reject." . . . Proof of status, the Court said,
concerns an element that is "wholly independent[ ] of
the concrete events" of the charged crime. Old
Chief, . . . 117 S Ct 654-655. In contrast, the
elements of intent and knowledge are at the core of
the offenses charged in the cases before us.
Replacing proof of these elements with stipulations
creates "a gap in the story of a defendant's
subsequent criminality." Id. . . . 117 S Ct 655. To
be sure, other crimes evidence will typically relate
to events more or less removed in time from the
charged offense. But that is true of many other kinds
of evidence. A husband's prior physical abuse of his
wife while he was in a jealous rage may suggest his
motive for murdering her; an incriminating statement
made after the offense may reveal intent; tangible
evidence found later may suggest identity. Evidence
about what the defendant said or did at other times
can be a critical part of the story of a crime, and
may be introduced to prove what the defendant was
thinking or doing at the time of the offense. This is
true regardless whether the defendant's actions on
those other occasions were in themselves criminal.
Old Chief establishes that the prosecution
cannot be forced to stipulate away the force of such
evidence.
* * *
The government's proof of Crowder's other crime
also had legitimate probative force with respect to
matters beyond those encompassed in his proposed
stipulation. A "piece of evidence," the Court wrote
in Old Chief, "may address any number of
separate elements, striking hard just because it
shows so much at once," 117 S Ct 653. Rule 404(b)
evidence will often have such multiple utility,
showing at once intent, knowledge, motive,
preparation and the like. Proof of an individual's
intent to commit an act may itself serve as proof
that the individual committed the act, as the Supreme
Court recognized more than a century ago. See
Mutual Life Ins Co v Hillmon, 145 US 285, 296;
12 S Ct 909; 36 L Ed 706 (1892). In proving that a
defendant intended to distribute crack cocaine, for
instance, the government might simultaneously be
showing the defendant's motive to possess the crack,
which Rule 404(b) permits. Intent would thereby serve
as an intermediate fact from which the jury could
infer another intermediate fact—motive—from
which it could in turn infer the element of
possession. Thus, other-offense evidence of intent
would have probative value not just on the intent
element, but also on the possession element of the
offense.
* * *
The familiar language of Rule 403 is: "Although
relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of
unfair prejudice . . . ." In these cases, the concern
about "prejudice" focused on the danger of the jury
using the other crimes evidence in a way the rules do
not permit—to conclude that because the
defendant committed some other crime, he must have
committed the one charged in the indictment. This
danger, of course, will be present in every Rule
404(b) case. But that alone cannot give rise to a per
se rule of exclusion, as Crowder and Davis argued
when we first heard their cases en banc. In adopting
the Federal Rules of Evidence, Congress "was not
nearly so concerned with the potential prejudicial
effect of Rule 404(b) evidence as it was with
ensuring that restrictions would not be placed on the
admission of such evidence." Huddleston [v
United States], 485 US [681] 688-689 [108 S Ct
1496; 99 L Ed 2d 771 (1988)]; see also H.R.Rep No.
93-650, at 7 (1973) (noting that Rule 404(b)'s second
sentence is intended to place emphasis on
admissibility). As to Rule 403, each case will turn
on the discretionary judgment of the trial court and
its assessment, not of relevance, but of the
evidentiary value of the government's Rule 404(b)
evidence. On the same side of the balance, the trial
court will take into account the effect of a limiting
jury instruction to protect the rights of the
accused. See Fed R Evid 403, advisory committee
notes.
The majority's analysis of Rule 404(b) is fundamentally at
odds with the inclusionary approach expressed in
Crowder, unanimously endorsed by this Court in
VanderVliet, and by the United States Supreme Court in
Old Chief, supra. Rule 404(b) guarantees the
opportunity to seek the admission of evidence relevant to an
issue other than character, Old Chief, 117 S Ct 655.
The admissibility of the evidence is to be determined by the
trial court on a sensitive case-by-case balancing under Rule
403. The exercise is necessarily ad hoc, reversible on appeal
only for an abuse of discretion. The majority's approach
repudiates these fundamental propositions and undermines the
trial court's authority to gauge the likely effect of the
evidence in the particular context presented.
3. Multiple Utility: Analysis of Available Inferences
The majority does not question that a general denial
allows proof of the extrinsic act.23
Defendant Crawford raised a mere presence defense that
specifically challenged the prosecution's proofs of
constructive possession with intent to distribute by creating
a material issue that put his state of mind at issue.
United States v Adrian, 978 F2d 486 (CA 9, 1992).24
Defendant's denial by affirmative evidence that he knew
the cocaine was in the car was a direct challenge to two
mental states essential to sustain a conviction. It was
a direct denial of the element of knowing possession and
intent to distribute in the principal charge. Under the
cognate charge of possession, it was also a direct challenge
to whether he intended to distribute some or all the
drugs. United States v Thomas, 58 F3d 1313 (CA 8, 1995).
The instant case, like United States v Rubio-Estrada,
857 F2d 845 (CA 1, 1988), is a "fairly typical instance" of
a drug offense. While the majority professes not to know how
the evidence of defendant's prior act made more likely his
intent and knowledge in the instant case, the analysis is not
complex. Evidence of defendant's experience in dealing drugs
was probative of knowledgeable possession and of intent to
distribute. For example, in a case where the defendant
contested whether he knew drugs were in the freezer room or
under the chicken coop of the farmhouse where he lived, the
court identified the inference as
one who lives on a farm with marijuana in the freezer
room and under the chicken coop and has a prior
possession conviction is more likely to know about
the presence of marijuana than one who lives on such
a farm and does not have a past possession
conviction. . . . The jury might have thought a past
possessor is more likely to associate with those who
use and keep and talk freely about nearby marijuana;
it might have thought a past possessor is more likely
to spot marijuana under a chicken coop; it might have
thought a past possessor is less likely to throw away
marijuana if he comes across it. None of these
inferences—all supporting a conclusion of
"knowledge"—depends entirely upon the "bad
character/propensity" chain of reasoning. . . .
Thus, they escape the absolute bar of the Rules first
sentence. [United States v Moccia, 681 F2d 61,
63 (CA 1, 1982).]
Similarly, in United States v Nickens, 955 F2d 112,
124 (CA 1, 1992), the defendant, allegedly a respectable
citizen traveling for recreational and medical reasons, claimed
to be an innocent bystander duped by two young men who had
offered to help him when he had difficulty on a trip to
Ecuador. He contended that the young men, while purporting to
help him, switched his suitcases for ones that contained
concealed cocaine. The court recognized that a permissible
inference that could be drawn from admission of a prior sale of
cocaine was that
a person who has had experience in selling cocaine
was more likely than one without such experience to
know how drug traffickers operate. Such a person, the
jury might infer, is more likely to be familiar with
how to conceal cocaine and with false bottom
suitcases, and is less likely to have been fooled by
seemingly friendly young men eager to come to the aid
of a complete stranger.25
Because the jury might have drawn the permissible inference
that a person who has had experience in selling cocaine was
more likely than one without such experience to know how drug
traffickers operate, the evidence was admissible under Rule
404(b):
As the district court recognized, the two acts
"merely involve[d] different steps in the narcotics
distribution chain." While there is a possibility
that jurors may draw impermissible inferences about
defendant's character or propensity from the fact of
his prior conviction, such a possibility is
irrelevant to the first step of the admissibility
analysis and to Rule 404(b)'s absolute ban.
[Nickens, supra at 125.]
In United States v Sampson, supra, in which
the defendant contended that he did not have knowledge of
drugs found in his jacket, the court cited cases from every
federal circuit, id. at 887, for the principle that
where the defendant is charged with a drug offense, drug
convictions are admissible to show that the defendant's acts
were not without knowledge and intent. Finally, a classic
formulation of the probative noncharacter inference is that of
Judge Breyer in Rubio-Estrada, supra, where the
defendant was charged with possession to distribute cocaine
found in his house and in which he claimed:
"There is no real showing here . . . that this
defendant knew that that substance was concealed up
under his stairs." [Id. at 847.]
In words highly relevant to the case at bar, Judge Breyer
observed:
[A] person previously convicted of cocaine
distribution is more likely than one not so convicted
to know that electronic scales are used to measure
cocaine for sale . . . . [S]uch a person is more
likely to think that a white powder around the scales
might be a substance used to cut cocaine . . . [and]
a person . . . entering the downstairs closet to find
his clothes (as the jury might have thought this
defendant sometimes did), . . . is more likely than
one not previously involved to think that some kind
cocaine distribution operation is taking place in his
house. . . . Any one of these sets of inferences
make it logically somewhat more likely that defendant
did know about the cocaine in his house and did
intend to distribute it than one who did not have a
prior conviction—or so the jury might reasonably
believe. . . . The authority supporting admission of
evidence of a past bad act, under circumstances such
as those present here, is legion. [Id. at 847-
848.]
Thus, in the instant case, the jury might have inferred
that because the defendant had been convicted of cocaine
distribution, he was more likely to have recognized that the
visible scale, white powder, and a razor blade were tools of
the narcotic trade than one who had not been so convicted.
United States v Nickens, supra. It might have inferred
that a person with such prior conviction who discovered tools
of the trade in his own car might be more likely to suspect
that his car was being used for cocaine distribution than one
who had not. United States v Rubio-Estrada, supra. It
might have inferred that a past possessor was more likely to
associate with those who talked freely about the location of
hidden cocaine. Moccia, supra. It might have inferred
that a person with such knowledge would be more likely to be
familiar with how to conceal cocaine in cars, Nickens,
supra, and it might have inferred that a person with a
prior conviction and such knowledge was more likely than one
not previously involved to think that cocaine might be present
in his car, more likely to look for it in a hidden spot and
less likely to get rid of it if he came across it. Moccia,
supra. Any one of these sets of inferences make it
basically somewhat more likely that defendant did know about
the cocaine in his car and did intend to distribute it than one
who did not have a prior conviction, "or so the jury might
reasonably believe." Rubio-Estrada, supra at 848.
B. Doctrine of Chances/Factual Nexus
Citing Imwinkelried,26 the majority
concludes that even if the evidence was relevant to mens rea,
it fails of admission under "the doctrine of chances." Slip op
at 20. Initially we observe that the majority does not
acknowledge that the principal holding of VanderVliet is
that when the issue is intent, the test of admissibility is
whether the prior act is "sufficiently similar to be relevant
to intent under the theory of improbability," VanderVliet,
supra at 85, and "the improbability that the other acts are
an unlikely coincidence is relevant to negate a claim of
innocent intent." Id. at 85, n 44.
Because the majority continues to ignore the defendant's
theory of defense, it also bears repeating that the defendant's
theory actually contested intent to distribute by requesting a
charge on mere possession. This fact alone would make the
mental state in issue, intent to distribute, a basis for
admitting the identical state of mind to show intent to
distribute. The majority ignores this defense and concludes
that it is not admissible on the issue of knowledge or intent
to distribute because there is an insufficient nexus between
the other acts evidence and the charge in question.27
The majority concludes that the
fact that defendant was a drug dealer in 1988 was too remote
and too dissimilar from the instant charge to make it more
likely than it would otherwise be that he knew of the drugs
constructively possessed in the instant case, or that as to the
drugs he possessed with knowledge, that he had no intent to
distribute.28
The proofs established constructive possession of all the
drugs, and the defense was a species of accident, that is,
although the defendant was in constructive possession of the
drugs, his possession was innocent and unknowing because he
merely happened to be where the drugs were. Therefore, the
principal argument was focused on knowledge of the hidden
amount, and the secondary argument was that if defendant
possessed some drugs, he did not intend to distribute them.29
Mens rea or the mind at fault is the
opposite of innocent intent, which the defense asserted. Where
the defendant denies any knowledge of the presence of drugs and
asserts a mere presence defense, he is challenging both that
he knew he was in possession and that he intended to
distribute. United States v Tomberlin, 130 F3d 1318,
1320-1321 (CA 8, 1997).
Although the majority quotes Imwinkelried selectively for
the proposition that courts should not routinely admit
uncharged evidence on the issue of intent, Imwinkelried's
discussion of other acts evidence to negate a claim of accident
on a noncharacter theory merits more extensive quotation:
Suppose that the accused is [charged] with
possession of a contraband drug. To be wrongful, the
possession must be knowing. On the occasion alleged
in the indictment, the police discover cocaine
secreted in the trunk of a car driven by the accused.
The accused admits the presence of the cocaine in his
vehicle but denies mens rea—he claims that he
did not know that the trunk contained cocaine.
* * *
At trial, the prosecutor proffers testimony that
on two earlier occasions when the accused's vehicle
was stopped by the police, the police found illegal
drugs in the car. Under the doctrine of chances, the
testimony is relevant to meet the accused's claim
that his state of mind was ignorant and innocent. It
is true that innocent persons sometimes find
themselves enmeshed in suspicious circumstances.
However, everyday experience indicates that that
rarely occurs. The more frequently the accused is
involved in such circumstances, the less plausible
the claim of ignorance. The coincidence defies
common sense and reduces the likelihood that the
accused had an innocent mental state on all these
occasions. Considered collectively, the charged and
uncharged incidents strengthen the inference that the
accused knew of the presence of the cocaine on the
charged occasion. In short, just as uncharged
misconduct can tend to show an actus reus, the
evidence may be logically relevant to prove the
existence of the requisite mens rea.
* * *
The doctrine of chances does not ask the jury to
forecast behavior on the basis of any assumption
about character. Instead, the doctrine asks the
jurors to do what the pattern jury instructions in
many jurisdictions direct them to do, namely, employ
their common sense and knowledge of the ways of the
world to assess the relative plausibility of
competing versions of the disputed events.
[Imwinkelried, A small contribution to the debate
over the proposed legislation abolishing the
character evidence prohibition in sex offense
prosecutions, 44 Syracuse L R 1125, 1132-1138
(1993).]
The doctrine of chances focuses on the trial court's
assessment of the improbability that an individual would be
innocently involved in similar activity. This theory of
logical relevance does not depend on the intermediate inference
of character, but, rather, rests on the objective assessment of
the likelihood of fortuitous involvement. The majority
correctly observes that Imwinkelried cautions against routine
resort to the doctrine of chances30 to
admit misconduct evidence on the issue of intent. However,
what the majority fails to acknowledge is that because
Imwinkelried's view is that one prior act is sufficient, as the
previous quotation illustrates, it does not support the
conclusion that illegal drugs found in the trunk would be
inadmissible in a charged offense involving illegal drugs in a
car. Imwinkelried's definition of the doctrine of chances
offers a four-part test for admissibility. The test requires
assessment of improbability, similarity but not identity of
conduct, a temporal relationship between the prior act and the
act charged, and a bona fide need for the evidence.
Imwinkelried, The use of evidence of an accused's uncharged
misconduct to prove mens rea: The doctrines which threaten to
engulf the character evidence prohibition, 51 Ohio St L J
575, 597-600 (1990).
Imwinkelried states that in terms of logical relevance,
even one act can be material.31 The
decisions should be made case by case, focusing on relative
frequency rather than the absolute number of incidents.
Imwinkelried, Uncharged Misconduct Evidence, §
5:06, p 14. The trial court must conclude that the evidence
alters the probability that the defendant had the requisite
state of mind at the time of the charged offense. However,
"[i]f the ordinary incidence of innocent involvement in such
situations would be only once per decade and the defendant has
been involved in such situations twice within a decade that
extraordinary coincidence triggers the doctrine of
chances." Id., 1992 cumulative supp, § 5:06, p 125
(emphasis in the original).
C. Federal Authority: Prior Acts for Intent and Knowledge
The federal circuits follow a roughly similar four-part
test that appears to apply a limiting gloss without explicit
reference to the doctrine of chances. The prior act or acts
1) must be relevant to a material issue other than propensity,
2) there must be sufficient evidence that defendant committed
the other crime, 3) the probative value must not be
substantially outweighed by prejudice, and 4) the other acts
must be similar to and not too remote in time32
from the crime charged. United States
v Curry, 79 F3d 1489, 1495 (CA 7, 1996); United States
v Wiley, 29 F3d 345, 350 (CA 8, 1994); United States v
Rubio-Villareal, 927 F2d 1495, 1503 (CA 9, 1991); United
States v Perez-Garcia, 904 F2d 1534, 1539 (CA 11, 1990).
For example, in United States v Hernandez, 84
F3d 931, 935 (CA 7, 1996), the United States Court of Appeals
for the Seventh Circuit considered a case in which the
defendant, on deplaning at Chicago's O'Hare Airport from Los
Angles, denied that a suitcase containing two kilograms of
cocaine and one hundred grams of heroin belonged to him. The
government offered evidence of prior misconduct for purposes of
knowledge, intent, and absence of mistake. In the prior act,
the defendant was arrested at the border for possession of
forty-three pounds of marijuana in his car. The court agreed
that the evidence was admissible. Although different drugs
were involved and different methods employed, the similarity
requirement was met for Rule 404(b) purposes because both
incidents concerned distribution amounts of drugs and illegal
transport. The court also stated that the temporal element was
a "gimme" because of prior holdings in the circuit indicating
that seven years was sufficiently close for Rule 404(b)
purposes.
The court concluded that the forty-three pounds of
marijuana hidden in the automobile—clearly a distribution
amount—was relevant to show intent to distribute the other
distribution amount found in his suitcase, stating that the
prior possession tended to show that Hernandez was "not
some hapless fool mistakenly caught up in an overzealous law
enforcement action." Id. at 935.
Similarly, in United States v Ferrer-Cruz, 899 F2d
135 (CA 1, 1990), the defendant claimed that the
evidence showed only that he was present where cocaine was
found, but that it did not show that he knew there was cocaine
at that location. The trial court admitted a prior conviction
of possession of cocaine and marijuana on the basis of the
government's claim that the evidence showed Ferrer had
knowledge that the bags in the car contained drugs and his
intent to consummate a drug sale. On appeal, through Judge
Breyer, the Court of Appeals agreed, noting that one who has
previous experience with drugs is more likely to see car
switching as part of a drug sale technique and to recognize and
know that the contents of the bags in the car contained drugs
than someone without that experience.33
The majority finds an insufficient nexus between the prior
conviction and the charged offense. However, if not an
"unlikely coincidence," VanderVliet, supra, it is surely
an "extraordinary coincidence" that someone else left drugs in
defendant's car within ten months of his release from prison
for similar misconduct.34 The
relationship between the offenses was neither too dissimilar
nor too remote to preclude the inference of nonaccidental
possession.
In sum, the majority simply declines to recognize that its
analysis is inconsistent with the Imwinkelried test and with
all federal courts applying Rule 404(b). Further, the
majority's conclusion is at odds with the holding of this Court
in People v VanderVliet. Rule 404(b) does
not require a high level of similarity between the proffered
other acts evidence and the acts charged with respect to the
issue of intent. The majority resorts to similarity in support
of the notion that Rule 404(b) is a "sentinel at the gate."
However disguised, the majority's conclusion is a repudiation
of the principle that particular numbers need not be spun, or
particular pigeon holes filled, before the door to
admissibility swings open. The majority's doctrine of chances
analysis is simply a reassertion of the notion that Rule 404(b)
is a rule of exclusion.
IV
Abuse of Discretion
We also disagree with the majority that the evidence was
substantially more prejudicial than probative under the Rule
403 balancing test.35 This is not to say that in a given
case the trial court could not conclude that other proofs,
such as admissions or other tools of the trade such as, a
beeper, scale, baggies, and cocaine residue were so probative
that the bona fide need for the other evidence was minimal.
The inference of general mens rea or specific intent from
other evidence in the case may render the"bad" acts cumulative
under Rule 403. Imwinkelried, Uncharged Misconduct Evidence,
supra, § 5:09, p 23. Stated otherwise, had the jury found
possession and knowledge, the amount of the drugs itself
would provide convincing evidence of intent to distribute.
However, as the court observed in Nickens, supra,"Although the
government's case was strong without the prior conviction,
who is to say that it would have carried the day had the conviction
been left out?" Id. at 125. The defendant's defense of intermittent
possession of the car during the week he owned it appears to
impress the majority and could have created a doubt regarding
control sufficient to constitute possession of the hidden
drugs. Had the jury concluded defendant had possession of some
or all the drugs, as the defendant claimed on the cognate
charge, it might have concluded he did not intend to distribute
them. There was no direct evidence of state of mind, such as
an admission by defendant, testimony of uninterrupted
possession, or of a witness directly connecting defendant to
placing the drugs in the car that would have had the same
probative value as the prior act. The size of the cache as
well as the tools of the trade might have been as probative of
intent to deliver as was the prior act. They did not have
substantially equivalent probative force with respect to the
issue of possession or knowledge of the hidden cocaine.
When reviewing evidentiary decisions under MRE 401 and
403, our review is limited to whether the decision was an abuse
of discretion.36 The trial court's decision to admit other
acts evidence under Rule 404(b) is not reviewed under a de
novo standard. As we observed in People v Bahoda, 448 Mich
261, 289; 531 NW2d 659 (1995):
[C]lose questions arising from the trial judge's
exercise of discretion on matters concerning the
admission of evidence do not call for appellate
reversal because the reviewing justices would have
ruled differently. Reversal is warranted only if the
resolution of the question by the trial court
amounted to an abuse of discretion. The decision upon
a close evidentiary question by definition ordinarily
cannot be an abuse of discretion. [People v
Golochowicz, supra at 322.]
While there is no doubt that all prior misconduct carries the
potential for unfair prejudice, appellate courts are properly
reluctant to overturn the decisions of the trial courts if the
activity was not so inflammatory as to unduly divert attention
from the case 37 or involved conduct any more sensational or
disturbing than the narcotics charge that the defendant was
currently facing.38
Contrary to the majority's claim that the trial court
overvalued the probativeness of the evidence, slip op at 24,
n 15, the majority's failure to acknowledge that the evidence
was probative of both knowledge and specific intent results in
the undervaluing of its probative force.
The majority's rejection of the trial court's balancing
under Rule 403 and its assertion of a "heightened need for
careful application of the principles set forth in MRE 403,"
slip op at 24, substitutes the appellate judgment for that of
the trial court. The evidence was admissible under a noncharacter
theory,39 and we must assume the jury used it for its proper
purpose. People v Hana, 447 Mich 325, 351; 524 NW2d 682 (1994).
V
Harmless Error
Even if persuaded that the trial court abused its
discretion in admitting the other bad acts evidence, we would
find that the error was harmless.
In People v Mateo,40 we recognized that MCL 769.26;
MSA 28.1096 41 was not a usurpation of our authority and that a
"miscarriage of justice must affirmatively appear on review of
nonconstitutional preserved error." Id. at 221. We further noted
that review for nonconstitutional error was not harmless beyond
a reasonable doubt and that those courts denying relief where
the preserved error had "only slight or negligible influence on
the verdict have proceeded correctly." Id. We did not adopt a
definitive standard of review.
In federal courts, the prosecutor must show, after
pondering all that happened and without stripping the erroneous
action from the whole, that the verdict was not substantially
swayed by nonconstitutional error. Kotteakos v United
States, 328 US 750; 66 S Ct 1239; 90 L Ed 1557 (1946).
Substantial rights must be affected, and reversal of the
verdict is required only if the nonconstitutional error
resulted in actual prejudice because it "'had substantial and
injurious effect or influence in determining the jury's
verdict.'" United States v Lane, 474 US 438, 449; 106 S
Ct 725; 88 L Ed 2d 814 (1986).
By contrast, whether error is preserved or not, the
Michigan statute under any definition requires that a
miscarriage of justice affirmatively appear. MCL 769.26; MSA
It follows that Justice Weaver correctly held,
concurring in both Mateo 43 and Gearns, that there
is a presumption that the error is harmless and
that the "defendant should have the burden of
showing why the judgment should be overturned."
People v Gearns, 457 Mich 170; 577 NW2d 422
(1998). Since the statute must be applied completely,
including the allocation of the burden, the level of confidence
cannot be that defined in Kotteakos, i.e., that
prejudice did not occur. Rather, the court must be
persuaded that prejudice, as defined in Kotteakos, was
caused by the error. In short, the defendant must show by at
least a preponderance of the evidence that the preserved error
did have a "substantial and injurious effect or
influence in determining the jury's verdict."
Despite our disagreement, we recognize that four justices
in two separate opinions,44 have recently held that the
prosecution must show it is highly probable that the evidence
did not contribute to the verdict. People v Gearns, supra.
Applying this standard, we would find that the error is harmless
because it is highly probable that the disputed evidence did not
affect the verdict.
The following inculpatory evidence was properly admitted
at trial: routine pat down of the defendant revealed a beeper,
a ziplock baggie in defendant's wallet, and $455 in ten and
twenty dollar denominations. The car owned by the defendant
contained a mobile phone and a digital scale. A razor blade
was found within the box holding the digital scale, which had
cocaine residue on it. A jacket belonging to the defendant,
located on the back seat, contained six ziplock baggie bearing
cocaine residue as well as doper fold papers. The jury was
given limiting instructions regarding the proper use of prior
acts evidence at the beginning of the trial and again at the
end of the trial.45 See ns 6 and 7. The majority completely
fails to explain how the prior acts evidence harmed the defendant.
Any error in admitting the prior acts evidence was slight or
negligible. Mateo, supra at 221. Defendant has not met his burden
of proving that the conviction was a miscarriage of justice or
that the refusal to grant a new trial is inconsistent with
substantial justice.
Conclusion
The majority disregards the deference due trial courts in
admitting other acts evidence and instead determines that there
is an insufficient factual nexus between the prior conviction
and the present charged offense. It invokes the slippery slope
and fails to acknowledge that the structure and philosophy of
the rules require only relevancy. United States v Procopio, 88
F3d 21, 29 (CA 1, 1996). As the court articulated this concept
in United States v Latney, 323 US App DC 417, 420; 108 F3d 1446
(1997):
[T]he strength of the evidence is a different
matter than its relevancy. So long as the evidence
makes a fact of consequence more or less likely, it
is relevant. That the evidence is not conclusive, or
even nearly so, is of no moment. "[M]ost convictions
result from the cumulation of bits of proof which,
taken singly, would not be enough in the minds of a
fairminded person." . . . When it comes to
relevancy, however, there is no sliding scale. The
"item is either relevant or it is not; there is no
in-between."
The slippery-slope analysis simply reflects the majority's
substitution of its determination of relevancy for that of
the trial court as it shifts the burden under Rule 403
from the defendant to the government. Slip op at 24, n 15.
The trial court did not abuse its discretion in finding the
evidence more probative than prejudicial. The evidence was
circumstantial, but more than sufficient to show guilt beyond
a reasonable doubt, without the challenged testimony.
For the foregoing reasons, we would affirm the
decision of the Court of Appeals.
Weaver and Taylor, JJ., concurred with Boyle, J.
FOOTNOTES
1 People v VanderVliet, 444 Mich 52; 508 NW2d 114 (1993).
2 Rule 404 states:
(a) Character evidence generally. Evidence of
a person's character or a trait of character is not
admissible for the purpose of proving action in
conformity therewith on a particular occasion,
except:
(1) Character of accused. Evidence of a
pertinent trait of character offered by an accused,
or by the prosecution to rebut the same;
(2) Character of victim of a crime other than
a sexual conduct crime. Evidence of a pertinent
trait of character of the victim of the crime,
other than in a prosecution for criminal sexual
conduct, offered by an accused, or by the
prosecution to rebut the same, or evidence of a
character trait of peacefulness of the victim
offered by the prosecution in a homicide case to
rebut evidence that the victim was the first
aggressor;
(3) Character of victim of sexual conduct
crime. In a prosecution for criminal sexual
conduct, evidence of the victim's past sexual
conduct with the defendant and evidence of specific
instances of sexual activity showing the source or
origin of semen, pregnancy, or disease;
(4) Character of witness. Evidence of the
character of a witness, as provided in Rules 607,
608, and 609.
3 Rule 403 states:
Although relevant, evidence may be excluded if
its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by
considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.
4 The majority relies heavily on the decision of the United
States Court of Appeals for the First Circuit in United
States v Arias-Montoya, 967 F2d 708 (CA 1, 1992). The
decision is instructive, slip op at 26, n 17, but for
different reasons. The facts of the case are not "remarkably
similar" to the present case. In Arias, the charge
involved a traffic violation in Rhode Island for speeding.
The defendant claimed that he had left his driver's license at
home and gave the officers a false name and address. He
informed the officers that the car belonged to a friend in New
York and provided registration indicating the same. A search
of the vehicle revealed a kilogram of cocaine taped and
wrapped in plastic bags in the trunk of the car. The prior
act that was admitted was a ten-year-old conviction for
possession of cocaine in Texas.
The majority fails to state that the court reviewed and
applied the precedent developed in United States v Moccia,
681 F2d 61 (CA 1, 1982) (drugs discovered in the
defendant's own home), United States v Rubio-Estrada,
857 F2d 845 (CA 1, 1988) (scales, white powder and cash
found in the defendant's home supports inference that the
defendant knew drugs were for distribution), and United
States v Ferrer-Cruz, 899 F2d 135 (CA 1, 1990) (the
cocaine found on front floor of the defendant's car). The
court reviewed the facts in Arias noting that,
[h]ad the car belonged to defendant, or were
there evidence that he had used it for an extended
period of time or on more than one occasion,
we might be willing to presume he would have had
reason to open its trunk and, so, to know that a
kilogram of cocaine was hidden there. Arguably,
the fact of defendant's prior possession coupled
with his access to and use of the trunk would make
it more likely for him to have come across the
cocaine or recognized the cavity in the
trunk as a good place to hide it. [Arias,
supra at 712.]
Defendant Crawford was driving his own car and testimony
indicated that he used it more than once over a two-week time
frame. His access possession and distribution conviction makes it more likely
for him to have recognized the area behind the dash board as
a good place to hide a distribution amount of cocaine. The
decision in Arias is factually inconsistent with the
majority's assertions and does not support its position.
5 The majority's citation of the holding in United States v
Sampson, 980 F2d 833 (CA 3, 1992), slip op at 10-11, n 6,
supports this assumption, while failing to acknowledge that
the method of analysis employed in Sampson was rejected
in VanderVliet.
6 The conclusion that the act had no probative value other than
to show propensity, although intent to deliver was an element
of the charged act and the included offense and the prior
crime was delivery, is, of course, belied by the inconsistent
observation that it demonstrated defendant's intent to deliver
large amounts of cocaine. Slip op at 22.
7 See appendix, post at 55 for hearing transcript.
8 The defense attorney apparently conceded that the defendant
was not contesting knowledge of the small amount of cocaine,
less than of sixth of a gram, that the police found in the
defendant's coat pocket. Even this amount was sufficient for
a charge of possession and the defendant could have been found
to be in possession solely on the basis of the cocaine residue
found in his pocket and on the scale. Obviously, if the jury
was persuaded that defendant only possessed the lesser amount,
it might have concluded that there was no intent to deliver.
The reason for defendant's emphasis on the amount was
that he was facing a mandatory life sentence for a second drug
offense for possession in any amount over 50 grams. The
penalty for a second offense if the amount was under 50 grams
is significantly less. MCL 333.7413: MSA 14.15(7413) states:
(1) An individual who was convicted previously
for a violation of any of the following offenses
and is thereafter convicted of a second or
subsequent violation of any of the following
offenses shall be imprisoned for life and shall not
be eligible for probation, suspension of sentence,
or parole during that mandatory term:
(a) A violation of section 7401(2)(a)(ii) or
(iii).
(b) A violation of section 7403(2)(a)(ii) or
(iii).
(c) Conspiracy to commit an offense proscribed
by section 7401(2)(a)(ii) or (iii) or section
7403(2)(a)(ii) or (iii).
(2) Except as otherwise provided in
subsections (1) and (3), an individual convicted of
a second or subsequent offense under this article
may be imprisoned for a term not more than twice
the term otherwise authorized or fined an amount
not more than twice that otherwise authorized, or
both.
(3) An individual convicted of a second or
subsequent offense under section 7410(2) or (3)
shall be punished, subject to subsection (4), by a
term of imprisonment of not less than 5 years nor
more than twice that authorized under section
7410(2) or (3) and, in addition, may be punished by
a fine of not more than 3 times that authorized by
section 7410(2) or (3); and shall not be eligible
for probation or suspension of sentence during the
term of imprisonment.
9 The court stated that the fact that the
defendant may have done this before "has nothing to do
with whether or not he did [it in] this particular case."
After further explanation, the judge asserted that anyone in
the courtroom who felt that if the defendant did it once he
was bound to do it again, should not sit as a juror.
10 The judge further stated that the jury could not convict
defendant because he was a bad person or a person likely to
commit crimes or because he was guilty of other bad conduct.
11 The majority's suggestion that the limiting instruction was
not directed to a proper purpose compounds its omission to
acknowledge that defendant placed his specific intent in issue
by requesting an included offense disputing the intent to
distribute, the specific intent to which the charge was
directed. Slip op at 25, n 16.
12 People v Kreiner, 415 Mich 372; 329 NW2d 716 (1982).
13 Imwinkelried and Margolin additionally note:
The linguistic differences between the two
statutes have seemed significant to some
commentators. The passive voice of Rule 403
suggests that the statute allocates the burden to
the opponent of the admission of logically
relevant evidence to convince the judge that the
probative dangers outstrip the probative worth of
the evidence. In addition, the presence of the
word "substantially" in Rule 403 indicates that the
opponent must convince the judge that the dangers
outweigh the probative value of the evidence by a
wide margin. That interpretation of Rule 403 is
sound. Allocating the burden to the opponent
reflects a Congressional decision to "place
priority on the principle of [logical] relevance
. . . . Relevance in terms of the search for truth
is . . . the predominant interest." When the
proponent of evidence can demonstrate its
relevance, the probative value of the evidence is
"unquestioned." However, the dangers listed in
Rule 403 are largely speculative risks—the
risk, for example, that a juror will overestimate
the probative value of an item of evidence. Since
"probative value is a reality" but "prejudicial
danger . . . only a risk," the scale should be
biased in favor of admitting relevant evidence.
In addition, this interpretation finds support
in the legislative history of the Federal Rules.
One of the themes running throughout the
legislative history is that the Rules favor the
admission of logically relevant evidence. In the
early hearings on the then proposed Rules before
the House of Representatives, the chair of the
drafting committee, Albert Jenner, Jr., asserted
that "the overall philosophy and thrust of the
rules" is to "place the burden upon he who seeks
the exclusion of relevant evidence." Thus, there
were strong policy and statutory interpretation
arguments for construing Rule 403 to require the
judge to admit relevant evidence unless the party
opposing the admission of the evidence sustained
the burden of convincing the judge that the
incidental probative dangers significantly
outweighed the probative value of the evidence.
These arguments persuaded many courts to
allocate the burden to the party resisting the
introduction of relevant evidence. Yet other
courts tended to apply Rule 403 as if it merely
codified the general common-law view that the
proponent of the admission of evidence has the
burden of showing that the probative value of
evidence exceeds the attendant probative dangers.
However, that tendency should soon end.
In 1989, the Supreme Court rendered its
decision in Green v Bock Laundry Machine Co
[490 US 504; 109 S Ct 1981; 104 L Ed 2d 557
(1989)]. In that case, the Court dealt with the
application of the balancing tests in Rules 403 and
609 to convictions offered to impeach civil
witnesses. Although the Court did not elaborate on
the balancing tests under the two statutes, the
Court seemed to assume that the two tests differed.
In early 1990, the Judicial Conference's
Committee on Rules of Practice and Procedure
formally proposed an amendment to Rule 609 to
revise the application of Rule 609's balancing
test to convictions offered in civil cases. The
amendment took effect December 1, 1990. The
amended version of Rule 609(a)(1) now reads:
"For the purpose of attacking the credibility of a
witness, . . . evidence that a witness other than
the accused has been convicted of a crime shall be
admitted, subject to Rule 403, if the crime was
punishable by death or imprisonment in excess of
one year under the law under which the witness was
convicted, and evidence that an accused has been
convicted of such a crime shall be admitted if the
court determines that the probative value of
admitting this evidence outweighs its prejudicial
effect to the accused." [Imwinkelried & Margolin,
The case for the admissibility of defense
testimony about customary political practices in
official corruption prosecutions, 29 Am Crim L
R 1, 29-31 (1991).]
14 Rule 402 states:
All relevant evidence is admissible, except as
otherwise provided by the Constitution of the
United States, the Constitution of the State of
Michigan, these rules, or other rules adopted by
the Supreme Court. Evidence which is not relevant
is not admissible.
15 See Brocker, Indelible ink in the milk: Adoption of
the inclusionary approach to uncharged misconduct evidence
in State v Coffey [326 NC 268; 389 SE2d 48 (1990)], 69 NC
L R 1604 (1991), and Imwinkelried, The need to amend,
supra at 1465.
16 The majority cites two cases for support of its position:
People v Zackowitz, 254 NY 192, 197; 172 NE 466 (1930),
and Michelson v United States, 335 US 469, 476; 69 S Ct
213; 93 L Ed 168 (1948). Slip op at 8. Both cases predate
the adoption of both the FRE and the MRE and embrace the
common-law approach excluding the evidence. Moreover, it is
noteworthy that the United States Supreme Court in
Michelson not only affirmed the trial court's ruling
regarding the admission of character evidence in that case,
but reaffirmed the wide discretion accorded trial courts and
reiterated that "therefore rarely and only on clear showing of
prejudicial abuse of discretion will Courts of Appeals disturb
rulings of trial courts on this subject." Michelson,
supra at 480. See also United States v
Daniels, 248 US App DC 198, 205; 770 F2d 1111 (1985),
cited by the majority. Contrary to the majority's assertion,
as the quotation from Wright and Graham in their own footnote
explains, Rule 404 does signal a shift to a liberal policy of
admissibility. Slip op at 15-16, n 8. The common law
automatically excluded the evidence unless it came within an
exception. The present rule admits the evidence unless its
only relevance is to propensity. The need to amend,
supra at 1468.
17 In point of fact, the court urged careful consideration of the
theory of admissibility. It did not hold that failure to
articulate the correct theory would require reversal on
appeal.
18 Starr was authored by Justice Weaver and signed by
Chief Justice Mallett and Justices Boyle and Taylor.
19 All federal circuits allow prior misconduct to be admitted for
purposes of showing intent when the crime is a specific-intent
crime such as possession with intent to deliver a controlled
substance. See United States v Mitchell, 311 US App DC
35; 49 F3d 769 (1995); United States v Rubio-Estrada, n
4 supra at 848; United States v Pitre, 960 F2d
1112, 1119 (CA 2, 1992); United States v Sampson,
supra at 887; United States v Tedder, 801 F2d
1437, 1444 (CA 4, 1986); United States v Hooker, 997
F2d 67, 76-77 (CA 5, 1993); United States v Johnson, 27
F3d 1186, 1193 (CA 6, 1994); United States v
Merriweather, 78 F3d 1070, 1077 (CA 6, 1996); United
States v Smith, 995 F2d 662, 672 (CA 7, 1993); United
States v Lewis, 759 F2d 1316, 1349 (CA 8, 1985); United
States v Adrian, 978 F2d 486, 492 (CA 9, 1992); United
States v Doran, 882 F2d 1511, 1524 (CA 10, 1989);
United States v Perez-Garcia, 904 F2d 1534 (CA 1,
1990).
20 See United States v Merriweather, n 19 supra at
1078, for this proposition. To prove intent, noted Judge
James Ryan, "other acts evidence is admissible, subject of
course to Rule 403 balancing, under Rule 404(b) if specific
intent is a statutory element of the offense." Listing nine
other circuits in addition to the United States Court of
Appeals for the Sixth Circuit that recognize this principle,
Judge Ryan stated, "[u]nder this line of authority . . . [the
evidence was] admissible for a legitimate purpose: to prove
Merriweather's specific intent to distribute cocaine."
21 See People v Starr, supra at 502, n 12, citing
People v Kreiner, n 12 supra (the Michigan Rules of
Evidence constituted a codification of the Rules of Evidence
that supersedes the common-law rules).
22 Imwinkelried argues that rather than undermining the policy
of the rules by evading Rule 404(b), the rule should be
amended to place the burden on the proponent. The need to
amend, supra at 1499.
23 "[A]ll elements of a criminal offense are 'in
issue' when a defendant enters a plea of not guilty. The
prosecution must carry the burden of proving every element
beyond a reasonable doubt, regardless of whether the defendant
specifically disputes or offers to stipulate any of the
elements." People v Mills, 450 Mich 61, 69-70; 537 NW2d
909 (1995) (citations omitted). See Old Chief, supra.
24 "Adrian was charged with . . . possession with intent to
distribute marijuana. His intent was thus a material issue in
the case." Id. at 492.
25 See United States v Rackstraw, 7 F3d 1476, 1480 (CA 10,
1993). The court found evidence of prior acts probative of
the issue of knowledge. The defendant claimed to be a naive
unsophisticated mechanic who had merely undertaken to deliver
a car, unaware that it contained cocaine. The evidence of
prior drug sales showed that he was intimately familiar with
drug running in general and with dealers Williams' and
Fisher's drug operation in particular. Thus, "[t]he evidence
suggested that it was highly unlikely that Rackstraw was
unaware that he was smuggling crack."
26 The doctrine of chances or the objective-improbability
approach endorsed by Imwinkelried as applied to the use of bad
acts evidence for mens rea is a variation of that employed by
the majority of federal circuits addressing the issue. The
federal courts appear to apply a roughly similar limiting
gloss to whether the prior act is admissible for purposes of
knowledge and intent where the defendant presents an innocent
explanation for his presence, i.e., innocent bystander, mere
presence, or wrong place/wrong time, and denies knowing that
drugs were, for example, in a room, United States v
Garcia, 983 F2d 1160 (CA 1, 1993); United States v
Tomberlin, 130 F3d 1318 (CA 8, 1997), a motor vehicle,
United States v Buchanan, 70 F3d 818 (CA 5, 1995);
United States v Santa-Cruz, 48 F3d 1118 (CA 9, 1995);
United States v Rackstraw, n 25 supra, a boat,
United States v Molinares Charris, 822 F2d 1213 (CA 1,
1987); United States v Perez-Garcia, n 19 supra
or other location in proximity to the defendant, United
States v Curry, 79 F3d 1489 (CA 7, 1996); United States
v Rogers, 287 US App DC 1; 918 F2d 207 (1990). The
consensus in the circuits allows prior misconduct evidence to
be admitted to show knowledge in these circumstances, without
explicit discussion of the doctrine of chances.
27 The majority cites a number of federal opinions in its support
of the proposition that federal courts require a close factual
nexus between the prior and charged crimes. Slip op at 20-21,
n 13. Analysis of the cases does not support the majority's
position that the nexus in this case is insufficient as a
matter of law.
The question of similarity is a question of relevance,
which turns on the precise facts of any given case. For
example, in United States v Rackstraw, n 25
supra at 1479, the court found persuasive the fact that
all the crack sales were within months of each other and that
the sales in Fort Worth were similar to the crack sales in
Colorado because the method of transportation was similar, the
same drug was involved, and the defendant was the middleman
for drugs supplied by the same dealers. In this case, the
facts of both offenses were very similar. In United States
v Hernandez, 84 F3d 931, 935 (CA 7, 1996), the court found
that a March 1993 (1995 WL 23003 (ND Ill, 1995) arrest for
possession of forty-three pounds of marijuana hidden in an
automobile and discovered when the defendant attempted to
enter the United States at a border crossing was sufficiently
similar to a March 1994 charge of possession of two kilograms
of cocaine and one hundred grams of heroin hidden in a
suitcase brought in by plane from Los Angeles to Chicago, to
allow the prior act's admission. These acts were less similar
than those in Rackstraw. The fact that both courts
found sufficient similarity on both sets of facts indicates
the diverse spectrum of facts that appellate courts must
review and the case-by-case analysis they necessarily employ.
In United States v Hernandez-Miranda, 601 F2d
1104, 1107 (CA 9, 1979), the court found that there was no
logical relevance between a prior conviction for smuggling
marijuana across the border from Mexico in a backpack and a
current charge of importing heroin from Mexico that was
discovered at a border crossing concealed in the defendant's
car under the fender well of the trunk's spare tire. Although
the court found the admission of this evidence to be error, it
did not find it prejudicial and affirmed the conviction on the
strength of the other evidence presented. Hernandez-Miranda
claimed that he had just purchased the vehicle; however, the
court noted that he was in possession of his own car and
inferentially everything else in it. Additionally, there was
no evidence that someone else had hidden the heroin in the
car, and the large amount of money that the heroin was worth
negated the possibility that it had been placed in the car by
accident or mistake. This case is, however, nearly twenty-
years old and not in accord with more recent Ninth Circuit
Court cases, see for example, United States v Arambula-
Ruiz, 987 F2d 599 (CA 9, 1993); United States v Santa-
Cruz, 48 F3d 1118 (CA 9, 1995).
In the final case cited by the majority, United States
v Adrian, supra, the district court denied the
government's motion to admit the defendant's prior
convictions, finding that the prior act only proved criminal
disposition and that the prejudicial value outweighed the
probative value. On interlocutory appeal, the United States
Circuit Court for the Ninth Circuit disagreed, stating that
intent was a material issue in a conspiracy with intent to
distribute and possession with intent to distribute charge.
The court stated that the "government [is] permitted to prove
knowledge through proof of prior bad acts where knowledge [is]
an element of the crime at issue. . . . Intent in prosecutions
for possession of and intent to distribute narcotics may be
demonstrated through evidence of prior possession and sale of
narcotics. . . . Thus, the district court erred in holding
that evidence of appellant's prior narcotics convictions
tended only to prove a criminal disposition." Id. at
492. However, the court found the record insufficient
regarding the similarity of the prior offense to the charged
offense and was therefore unable to determine whether the
district court had abused its discretion in excluding the
evidence by finding that the danger of unfair prejudice was
substantially outweighed by the probative value of the
evidence. The court determined the wiser course was to remand
the case to allow the government to develop the record and to
permit the district court to weigh the evidence. Id.
at 493.
28 The fact that the evidence is admissible for one purpose, but
not another, does not make it inadmissible.
[T]here is no rule of evidence which provides
that testimony admissible for one purpose and
inadmissible for another purpose is thereby
rendered inadmissible; quite the contrary is the
case. [For example],[i]t would be a strange rule of
law which held that relevant, competent evidence
which tended to show bias on the part of a witness
was nonetheless inadmissible because it also tended
to show that the witness was a liar. [United
States v Abel, 469 US 45, 56; 105 S Ct 465; 83
L Ed 2d 450 (1984).]
Therefore, even if the majority concluded that the other acts
evidence did not reflect a permissible inference of knowledge,
the evidence was admissible because it was relevant with
respect to a proper noncharacter theory of intent.
Nor is relevant evidence rendered irrelevant by the
presence of other evidence probative of the same issue.
Old Chief, 117 S Ct 649-650.
29 Defense counsel in essence conceded during the motion in
limine that defendant knew about the drugs. Further, the
defendant did not deny ownership of the coat or wallet
containing the baggies and cocaine residue. The defense
attorney's closing argument urged the jury not to find the
defendant guilty merely because he associated with people who
used drugs and may have left drugs in his car.
30 The doctrine should be cautiously employed because uncritical
acceptance of the argument that uncharged misconduct is
relevant to mens rea would rationalize admission as a matter
of course.
31 While noting that some courts and commentators have adopted
the position that the proponent may not resort to the doctrine
of chance to prove mens rea with evidence of only one similar
act, Imwinkelried states that in terms of logical relevance,
the contrary view, that even one act can be material "is more
sound." The decisions should be made case by case, focusing
on relative frequency rather than the absolute number of
incidents. The proponent must convince the court that the
evidence alters the probability that the defendant had the
requisite state of mind at the time of the charged offense.
Imwinkelried, Uncharged Misconduct Evidence, §
5:06, p 14.
32 The trial bench has broad discretion to determine whether the
prior acts meet the similarity requirement, see United
States v Rogers, n 26 supra; United States v
Thomas, and United States v Tomberlin, supra, and
have not established an absolute maximum regarding the number
of years that separate the offense charged and the prior act,
see United States v Ismail, 756 F2d 1253, 1258-1260 (CA
6, 1985), and cases cited therein, United States v
Moore, 98 F3d 347, 350 (CA 8, 1996)(seven years is not too
remote); United States v Tomberlin, supra (ten years is
not too remote).
33 The court observed that the government was required to show
more than mere presence in a car with cocaine in order to
prove the knowledge and intent needed to make that presence a
crime. Pertinently, the court also noted that the "Rule's
framers considered the pros and cons of absolutely banning
evidence of this sort," and they concluded that the evidence
survives an absolute ban "as long as at least one permissible
inference is possible." Ferrer-Cruz, supra at 138.
34 See United States v Hernandez, 896 F2d 513, 522-523 (CA
11, 1990). Because Hernandez spent much of the interim time
in prison between his prior conviction and the current charge,
and by his own admission was on probation when arrested, the
court found that the six-year period between offenses did not
depreciate the probity of the extrinsic offense.
35 See Williams v Nebraska State Penitentiary, 57 F3d 667,
670 (CA 8, 1995). There is no automatic requirement that a
district court exclude evidence more prejudicial than
probative. The term used is that the court "may exclude"
prejudicial evidence. The language is permissive and is a
reminder that when reviewing Rule 403 determinations, the
appellate court's task is not to reweigh these prejudicial and
probative elements, but to determine if the trial court
"clearly abused its discretion in admitting the evidence."
36 The majority of federal circuits are in accord with this
standard of review. United States v Watson, 282 US App
DC 305, 309; 894 F2d 1345 (1990); United States v
Garcia, n 26 supra at 1172; United State v
Mark, 943 F2d 444, 447 (CA 4, 1981); United States v
Mazzanti, 888 F2d 1165, 1169 (CA 7, 1989); United
States v Tomberlin, supra at 1320; United States
v Khan, 993 F2d 1368, 1376 (CA 9, 1993); United States
v Suntar Roofing, Inc, 897 F2d 469, 479 (CA 10, 1990);
United States v Perez-Garcia, supra at 1539.
As the United States Court of Appeals for the Seventh
Circuit has recognized, defendants carry a "'heavy burden on
appeal because an evidentiary ruling will be reversed only if
a trial court committed a clear abuse of discretion, . . . a
. . . reviewing court gives special deference to the
evidentiary rulings of the trial court.'" Mazzanti,
supra at 1169.
37 United States v Edwards, 91 F3d 1101, 1104 (CA 8,
1996).
38 United States v Pitre, n 19 supra at 1120.
39 United States v Rogers, n 26 supra; United
States v Garcia, n 26 supra; United
States v Pitre, n 19 supra at 1119-1120;
United States v Wright-Barker, 784 F2d 161, 174 (CA 3,
1986); United States v Mark, n 36 supra;
United States v Buchanan, n 26 supra at 831-832;
United States v Ismail, n 32 supra at 1259; cf.
United States v Johnson, n 19 supra at 1193-
1194; United States v Hernandez, supra;
United States v Edwards, n 37 supra at 1104;
United States v Arambula-Ruiz, n 27 supra
at 604; United States v Rackstraw, n 25 supra at
1480; United States v Perez-Garcia, n 19 supra.
Cf. United States v Williams, 816 F2d 1527, 1532 (CA
11, 1987).
40 453 Mich 203; 551 NW2d 891 (1996).
41 A new trial may not be granted in any criminal case on the
ground of improper admission of evidence unless it
affirmatively appears that the error complained of resulted in
a miscarriage of justice. See also MCR 2.613(A) (an error in
the admission of evidence is not ground for granting a new
trial unless refusal to take this action is inconsistent with
substantial justice).
42 Justices Brickley's and Cavanagh's opinions would appear to
rest on the premise that the Legislature may not require that
a defendant demonstrate prejudice.
43 Justice Weaver stated the that the Court has recognized this
burden on the defendant in the past. A lawful conviction
negates the presumption of innocence. On review, the burden is
on the defendant to disclose error requiring reversal.
Similarly, when a defendant enters a guilty plea and appeals,
the defendant has the burden of showing a miscarriage of
justice. Mateo, supra at 222.
44 Justice Brickley was joined by Chief Justice Mallett and
Justice Cavanagh was joined by Justice Kelly. People v
Gearns, supra.
45 The majority does not seem to recognize the importance
of these jury instructions and virtually ignores them. The
majority states that the risk created by the "reverberating
clang" of the other acts evidence drowns the "weaker sound" of
the other evidence before the jury. Slip op at 25, citing
Merriweather, n 19 supra. Concerning the value of the
jury instructions and their effect on the risk caused by the
"reverberating clang" of other acts evidence, Judge Ryan
stated in Merriweather, n 19 supra at 1077:
The magnitude of that risk might well have
been reduced by a clear and concise instruction
identifying for the jurors the specific purpose for
which the evidence was admissible and limiting
their consideration to the evidence to that
purpose.
APPENDIX
COLLOQUY DURING HEARING ON MOTION IN LIMINE
MAY 17, 1993
The Court: (Interposing) Which is an
element but there are other hurdles to jump before
we get to that.
Mr. Fenton [defense attorney]:
Your Honor, I believe that first of all, the
act was different. That was a buy. That was a
direct buy in that particular case in 1988. That
was a delivery of the controlled substance on that
particular occasion. This, there's no delivery.
It's a traffic stop. Some nine hours later, they
find a controlled substance hidden behind the glove
box, not in the glove box but roughly in the area
behind the glove box. I don't believe that that is
. . . [.]
The Court: (Interposing) Are you arguing
that they can't show intent, that this is
the—he had no intent to deliver? And that's
one of the key elements of the delivery, right, is
the intent?
Mr. Fenton: Possession with intent to
deliver which he is charged with. Your Honor. I
don't believe they can show it with a similar act.
I think the prejudicial value outweighs the
probative value in this particular case. It's
almost tantamount to telling the Jury that he's
guilty in this particular case.
The Court: What was he guilty of in the
prior situation? Everybody agrees he was guilty of
something. What was he guilty of?
Mr. Stablein [prosecutor]:
Delivery between 50 and 225 grams—I'm
sorry—225 to 650 and conspiracy were the two
Counts in that Information, Judge, in 1989 when he
was convicted.
The Court: So the argument here is that
an element would be he mainly is in possession. I
assume that you're not disputing possession?
Mr. Fenton: I am disputing possession,
Your Honor.
The Court: You're saying he didn't know
he had possession?
Mr. Fenton: That is correct.
The Court: So you're saying knowledge is
necessary for possession then, am I correct? Is
that an element.
Mr. Fenton: I would think so.
Mr. Stablein: It says knowingly
possessed, Judge. It definitely is an element.
The Court: Okay. And so that would
appear to be relevant to the issue? I mean
obviously if he didn't have knowledge, he couldn't
conceivably possess.
If it was there by accident or somebody put it
there without his knowledge—am I correct on my
supposition? That's your argument, Mr. Fenton?
Mr. Fenton: Yes. And I base it on a
case, Your Honor.
The Court: Okay. And so you were trying
to then establish that he did have knowledge of
possession because of his prior acts, am I correct
on that, Mr. Stablein?
Mr. Stablein: Yes, Your Honor. A clear,
I think, issue in this case is going to be
knowledge because the cocaine was so well hidden.
I believe that the defense is going to be that he
didn't know . . . [.]
The Court: (Interposing) As I understand
404B, there's really a laundry list or a check list
that you can follow. You have to specifically
identify the controverted facts. And apparently as
I understand the controverted facts are that you
say your client had no knowledge whatsoever of
the—so he couldn't even be in possession much
less with an intent to deliver. Am I correct on
that?
Mr. Fenton: Of the amount that was found
behind the glove box. Correct.
The Court: Okay. Well, see did he have
knowledge of any? Forget about the amount. Did he
have knowledge of any cocaine?
Mr. Fenton: There was a small—I
can't say small residue but allegedly according to
the police reports, that they found in a coat
pocket less than —I think .16, not even a
sixth of a gram.
The Court: The key is the amount.
Mr. Fenton: That is correct.
The Court: All right. And it's in
dispute because you are arguing that he didn't know
about it, he couldn't have it there. Obviously
you're not put in the posture of having to prove
your defense as the prosecution so has its burden
of proof but I'm just trying to understand what
attack we are making so that I can figure out what
really is in dispute. And that would appear to be
a dispute then, am I correct on that? That he
didn't have knowledge that he had this amount of
cocaine in his possession?
Mr. Fenton: He didn't have knowledge that
there was cocaine. That's correct, Your Honor.
The Court: All right. And does anybody
disagree that's relevant to the issue—the
amount . . . [.]
Mr. Stablein: (Interposing) If I can't
prove knowledge, the Defendant is not guilty of the
crime.
The Court: Okay.
Mr. Fenton: Your Honor, they can
have—they can still possibly have possession
without . . . [.]
The Court: (Interposing) Okay. And so
we did have the—no dispute at all that the
Defendant did the prior act. Nobody is arguing
about that, right?
Mr. Fenton: No, because he pled guilty
to that and served time.
People v Crawford
Frank J. Kelley, Attorney General, Thomas L.
Casey, Solicitor General, David G. Gorcyca,
Prosecuting Attorney, Richard H. Browne, Chief,
Appellate Division, and John S. Pallas, Assistant
Prosecuting Attorney [1200 North Telegraph Road, Pontiac, MI
48341] [(248) 858-0656], for the people.
Arthur James Rubiner [P.O. Box 251603, West
Bloomfield, MI 48325-1603] [(248) 737-4424] for the
defendant.
Amicus Curiae:
William A. Forsyth, President, and Timothy K.
McMorrow, Chief Appellate Attorney [416 Hall of Justice,
333 Monroe Ave., N.W., Grand Rapids, MI 49503] [(616) 336-
3577], for the Prosecuting Attorneys Association of Michigan.