People v. Crawford

Mich 376 376 458 PEOPLE v CRAWFORD Argued (Calendar 1). No. Docket 104696. November 1997 No. Decided July 28, 1998. Douglas by jury L. Crawford was convicted the Oakland Circuit Court, Schnelz, J., possession Gene of intent to with deliver grams Appeals, P.J., of cocaine. The Court of and Hoekstra, JJ., unpublished and affirmed memorandum Wahls G. S. Both, opinion, holding People Mouat, App that under Mich (1992), admitting the trial court did abuse its not discretion evi- prior delivery (Docket dence of a conviction cocaine No. 165956). appeals. The defendant opinion by joined In an Justice Chief Justice Brickley, Supreme and Justices Court held-. Cavanagh Kelly, Mallett, prior improperly Evidence of defendant’s conviction was prosecution proper pur- admitted because failed to establish a

pose 404(b). under MRE Generally, wrongs, crimes, 1. evidence of other or acts inad- prove propensity missible to to commit such acts. Such evidence may purposes, be admissible for other however. touchstone of admissibility prior logical relevance, acts evidence is application determined MRE 401 402. Evidence rel- probative. if evant it is material and It is material if it is related to any consequence fact that is of to the action. Probative is the force tendency any consequence to make the existence fact that is of probable probable to the action more less than or it would be with- Any tendency out the evidence. The threshold is minimal: is suffi- probative However, proffered truly cient force. must something propensity other than the defendant’s prosecutor logical commit the crime. If the fails to weave a thread linking prior inference, act to the ultimate the evidence must be excluded, notwithstanding logical its relevance to character. probativeness evidence, prosecutor 2. To establish the chances, posits invokes the doctrine of which that the more often reus, the defendant commits an actus is the the less likelihood that accidentally innocently, and, thus, the defendant acted the for- subjective bidden intermediate inference defendant’s character is implicated. applicability of the doctrine of chances similarity depends defendant’s conviction between the charged. and the crime case, is an insufficient factual nexus between 3. In this there present charged admis- offense warrant conviction and the of chances. The factual the under doctrine sion of evidence charged relationship the offense was the 1988 crime and between jury permissible simply intermediate too for the to draw remote only prior The mens rea. conviction inference of the defendant’s past drugs in the defendant has been around demonstrates that the knowingly possess and, thus, person and kind of who would is the large the that the amounts of cocaine. To extent intend to deliver logically that defendant relevant to show the 1988 conviction is by solely way drug of the for- also a it does so was dealer specifically inference of bad character that is bidden intermediate prior by 404(b). prohibited was MRE The defendant’s conviction knowledge masquerading evidence of mere character evidence admitting Thus, intent. trial court abused its discretion in and the prior Further, MRE of defendant’s conviction. under evidence the prejudice substantially outweighed danger 403 the of unfair might probative marginal whatever value admission evidence Therefore, harmless. have had. the error was not Reversed remanded. and Taylor, dissenting, joined and Justice Justices Weaver Boyle, universally precluded only when it that evidence stated bad acts prove per- person to the

is used to the character of a that establish conformity prohibition play with into son acted in it. The comes prosecutor only plaintiff when uses character intermediate the conformity, expressly to an inference of conduct and ultimate theory relevancy, i.e., any only logical prohibits of if there is one theory logical prior misconduct, evidence other relevance of the 404(a). The unless the falls outside Rule evidence admissible substantially probative opponent value is out- shows that prejudice. weighed potential for inclusionary 404(b) majority rejects view MRE imposes proponent by ignoring heightened that burden on requires 404(b) incorporates balancing test Rule Rule 403’s carry proving opponent burden of of the evidence substantially probative outweighs prejudicial danger value. It imposes judicial bench, disregard- oversight the trial further its evidence, admitting ing other acts the deference due trial courts is an insufficient factual nexus and instead determines there charged present offense. between the conviction and acknowledge philosophy the structure and fails to relevancy. only require the rules 458 Mich 376 Court case, proper pur- In this conviction was relevant for the poses knowledge intent, and the was instructed to limit purposes. the use of the evidence to these The trial court did not finding abuse its discretion in the evidence more than prejudicial. circumstantial, While the it was more beyond guilt than sufficient to show a reasonable doubt without testimony. challenged Kelley, Attorney Frank J. General, Thomas L. Casey, Gorcyca, General, Solicitor David G. Pros- ecuting Attorney, Appel- H. Browne, Richard Chief, late Division, and John Pallas, S. Assistant Prosecut- ing Attorney, people. for the

Arthur James Rubiner for the defendant. Amicus Curiae: Forsyth, Timothy

William A. President, and K. Appellate Attorney, McMorrow, Chief for the Pros- Attorneys ecuting Michigan. Association of Brickley,

I Douglas following L. Crawford was convicted a possession trial of grams with intent to deliver 50 to 225 333.7401(2)(a)(iii);

of cocaine. MCL MSA 14.15(7401)(2)(a)(iii). He claims error the admis- prior delivery sion his conviction for grams conspiracy 225 to to commit the same Specifically, offense. he contends that the evidence of his conviction should have been excluded under 404(b) improper MRE evidence of his character or propensity charged agree to commit the offense. We improperly that the defendant’s conviction was admitted in this case and that conviction, his there- fore, should be reversed. Crawford

Opinion of the Court

n police September Park officer Oak On Gobeyn patrolling Eight Mile Road. He was Rene plac- defendant, man, a later identified as noticed parking something ing a car in lot the trunk of Embassy reputation appar- Motel. motel’s of ently Gobeyn suspect criminal caused Officer activity might be afoot. Gobeyn immediately confront the did

Officer watched as the car defendant, Instead, however. he Eight parking on lot and headed west left the motel Gobeyn off at estimated that the car drove Mile Road. posted speed speed limit, and he a in excess of up patrol Before he could do tried catch in his car. “turn around so, he the defendant turn left a saw intersecting There head street. lane” and south stop sign but lane, in the turn around was a Gobeyn it. decided to did not heed Officer defendant stop defendant for this violation. presented request, his On defendant driver’s proof Gobeyn registration, of insurance. license, patrol verify documents. to his car to those returned patrol Gobeyn car, he observed the As sat in his leaning passenger over to the side his defendant top portion left All he could see car. Fearing defendant defendant’s shoulder. Gobeyn might reaching gun, radioed for backup assistance. arrived, the two ordered the

When a second officer plain get with hands out of the car his defendant only beeper. patdown produced view. A search any drugs Gobeyn defendant if there were asked the responded, weapons in vehicle. The defendant go officer look.” While second “No, ahead and 458 Mich 376

Opinion of the Court Gobeyn outside, detained the defendant looked jacket area, around the car’s front-seat and found a plastic baggie which he found a that contained sev- Gobeyn baggies. thought, eral smaller and this was by stipulation large later trial, confirmed baggie Gobeyn contained cocaine residue. Further, as leaving car, was he a box noticed beneath the digital driver’s seat. Inside the box he found a scale. Gobeyn arrested the defendant on the basis discovery suspected bag- cocaine in the residue gie. police Defendant taken to the Oak Park sta- impounded tion and his car was towed and there. An police Oak Park officer searched defendant’s car early morning yellow baggie the next found grams contained more than one hundred of cocaine adjacent glove hidden in the dashboard to the com- partment. subsequent, A careful search, more found baggie another awith smaller amount of cocaine in the same area. charged possession

Defendant was with with intent grams to deliver 50 to 225 trial, cocaine. Before prosecutor advised defense counsel letter his prior drug intent to introduce evidence of a crime on 404(b) theory.1 an MRE “other bad acts” Defendant suppress citing moved to evidence, v (1982),2 Golochowicz, 298; 413 Mich 319 NW2d 518 predate case, participated In events that this 1992 the defendant delivery pound County of a of cocaine to an undercover Oakland police ultimately pleaded guilty delivering officer. The defendant 225 to grams conspiracy of cocaine and to commit the same offense. These juvenile present were his first adult or offenses. His arrest in the case paroled occurred ten months after he was on November 1991. predated People VanderVliet, The defendant’s trial in this case 52; (1993), Mich 508 NW2d 114 in which we articulated a clarified stan determining dard for the admission of acts under MRE 404(b). Opinion the Court if found to be that, irrelevant it was arguing response, In unfairly prejudicial. was relevant, it was rele- conviction prior argued prosecutor presence of the knowledge defendant’s vant to show that the it, and to deliver and his intent cocaine of the substantially not was of the evidence value The prejudice. unfair danger of by the outweighed prosecution and ruled that judge agreed trial convic- prior of defendant’s introduce could limiting read a his intention and announced tion, on the effect prejudicial to cushion instruction defendant. 17-21, 1993. May was held on four-day jury trial

A sur- circumstances Gobeyn described Officer who The officer arrest. the defendant’s rounding of the car in the dashboard cocaine located the discovery. he made that described how officer testified objection, a third defense Over crime.3 He tes- about the defendant’s detail great in that a codefendant had waited with tified that he codefendant until the defendant earlier case the defendant He said that on the scene. appeared car and entered man out of their got and the third carrying a dis- The defendant building. apartment the officer moments, a few After plastic bag. tinctive taken Cocaine was apartment. was invited into After field the officer. and handed to bag from the the defendant. $5,000 to the officer handed testing it, brought signal a prearranged then gave He conviction, prior testimony preclude about the detailed In an effort to conviction, prior stipulate as well to the offered at trial defense counsel persuaded prosecutor the trial and substance. The amounts as to the crime in order judge needed to hear the details stipulation properly. suggested 404(b) about the utilize MRE jury. also was read to conviction 458 Mich 376 Court participants.

other all officers to arrest hiding defendant was discovered in a bedroom closet. testify, The defendant did not but his wife did. She employed. said that both she and the defendant were They engaged yet were but married when the defendant was arrested. The defendant had been liv- ing Embassy temporarily, being in the Motel after by grandparent evicted with whom had he been liv- ing. provided she Further, the testimonial basis for theory the defense that the defendant had been una- ware of the cocaine hidden in the car’s dashboard. She testified that she never had seen the defendant purchased drugs. use or sell He had the old car in just days which he was arrested five to ten before his during arrest and had loaned the car to others time. She had ridden in car, but had never noticed anything hanging down from behind the dashboard. only

The other defense witness an Oak was Park police glove compartment officer who searched the of trunk the defendant’s car while it impounded. incriminating He found no evidence. The garbage bags trunk contained several full of men’s clothing. testimony, His therefore, was consistent theory with the defense that the defendant had been residing Embassy temporarily. at the Motel guilty charged found the defendant as possessing grams with intent to deliver 50 to judge imposed mandatory cocaine. The trial life sen- possibility parole tence without the June Appeals unpub- 1993. The Court of affirmed in an opinion, merely holding lished memorandum People App under v Mouat, Mich 482; 487 NW2d (1992), “the trial did court not abuse its discretion allowing prosecution present evidence of the Court where delivery cocaine involving convictions in the instant cocaine to deliver intent defendant’s appealed has The defendant an issue.”4 case was We reverse. Court. this

m admissibil- consider the again we once In this case 404(b). under MRE acts evidence ity of other applied: evi- easily stated than is more rule general an individ- or acts of crimes, wrongs, dence of other commit propensity prove ual is inadmissible may admis- MRE Such 404(b). such acts. MRE under purposes however, for other sible, provides: which 404(b)(1), crimes, wrongs, or acts is not admissi-

Evidence of other person in order to show prove of a the character ble to may, however, conformity be admis- It therewith. action opportu- motive, purposes, proof other such sible for system doing scheme, plan, nity, intent, preparation, or acci- knowledge, identity, of mistake or act, or absence crimes, material, whether such other the same is dent when with, contemporaneous or sub- wrongs, are or acts sequent in the case. conduct at issue to the is admissible evidence is whether such The decision only be and will discretion within the trial court’s dis- abuse of has been a clear where there reversed 261; 531 NW2d Bahoda, 448 Mich People v cretion. (1995). 659 rooted deeply is prohibition evidence

The character mere techni- a being Far from jurisprudence. in our the cen- meaning to gives and cality, the rule “reflects pre- justice, system of criminal precept of our tral 165956). (Docket No. 1995 4 Issued October 384 458 Mich 376 Opinion of the Court v sumption of innocence.” Daniels, United States 248 App 198, 205; US DC 770 F2d 1111 (1985). Underlying rule jury is the fear that a will convict defend- inferentially on ant the basis of his bad character than guilty beyond rather because he is a reasonable doubt of the crime charged. Evidence bad extrinsic prejudice, acts thus carries the risk of for it is anti- thetical to the “a precept defendant life starts his v afresh when . jury he stands before a . . .” Zackowitz, 192, 197; 254 NY 172 NE 466 As (1930). Supreme the United States recently Court in noted Old v United States, 181; US Ct 117 S Chief 136 L 644; problem Ed 2d 574 (1997), with charac- ter evidence generally and bad acts particular irrelevant, but, it is to the con- “ trary, using bad acts evidence can too ‘weigh much with the and ... overpersuade so them as to prejudge one with a bad general record deny him a fair opportunity against defend partic- a ” ular charge.’ Quoting Michelson v States, United 469, 476; US 69 S Ct L 213; 93 Ed (1948). The fun- principle damental of exclusion, codified MRE 404(b), woven into the fabric of Michigan jurisprudence:

There can be little doubt that an individual with a sub history likely stantial criminal is more to have committed past activity. crime than is an individual free of criminal system Nevertheless, jurisprudence, try cases, in our we persons, jury may only rather than thus look to the question, evidence of the events not defendant’s reaching acts its verdict. Mitchell, See United v States (2 Dall) 348, 357; US 1 L (1795). [People Allen, Ed 410 558, 566-567; Mich (1988).] 420 NW2d 499 385

Opinion the Court This most the MRE Court’s recent formulation of appears 404(b) People VanderVliet, v 444 test Mich rejected (1993). In 52; 508 NW2d 114 a case, we rigid, approach bright-line to other acts evidence and employ evidentiary directed the bench and bar already present safeguards in the Evidence, Rules of Supreme as identified the United States Court in Huddleston:5

First, proper purpose that the evidence offered for a 404(b); second, under Rule that it be Rule relevant under proba through 104(b); third, 402 as enforced Rule substantially outweighed tive value evidence is prejudice; fourth, may, upon unfair trial court request, provide jury. limiting instruction to the [Vander Vliet, supra at 55.] prosecution Under formulation, this the ini- bears establishing tial burden of relevance of the evidence prove exceptions a fact within one of the to the general exclusionary 404(b). of MRE rule Where the only pro- relevance is to character the defendant’s pensity to commit crime, the evidence must be Where, excluded. however, the evidence also tends to prove admissibility some fact other character, than depends upon outweighs whether its value prejudicial taking efficacy its effect, into account the limiting prejudicial cushioning aof instruction in effect of the evidence. question

Thus, the first that must be addressed is prosecutor proper whether the has articulated purpose noncharacter for admission of the defend- 5 States, 681; 1496; Huddleston United US 99 L 108 S Ct Ed 2d (1988). Mich the Court offers prosecutor conviction.6 prior drug ant’s prosecu objects proposition vociferously that the the The dissent purpose proper articulating noncharacter a the burden of tor must bear However, 404(b). prior the under MRE acts evidence admission of for the establishing proponent the burden of principle of evidence bears that the admissibility See 22 hornbook law. is a matter of basic and relevance Wright 5166, pp Procedure, Graham, Instead § 65-76. Federal Practice & & why prosecutor fashioning argument be relieved of this should an the of majority cases, 404(b) of somehow accuses the the dissent burden in MRE 404(b). prosecutor’s Our shifting heightening burden under MRE the purpose proper prosecutor requirement a noncharacter articulate only plain language 404(b), comports MRE but also with of with the by approach circuits. In United States the of federal utilized the 3, 1992), example, (CA Third Circuit Sampson, for F2d 883 the case for a new trial and remanded the defendant’s conviction reversed establishing government to meet its burden of had failed because prior purpose admission of the defendant’s for sufficient noncharacter that, although propo expressing drug its concern After convictions. proffered hardly it, 404(b) “will admit the reasons evidence nents of Rule village, may prior because the often be admit act evidence [P]otemkin to motive, urge suspect, to show some other is often mixed between we character,” Samp impugn consequential fact as well as to defendant’s government’s burden 886, of the described the contours son at the court prior seeking the admission of crimes: when clearly evidence, prior government must offense it If the offers inferences, logical fits into a chain of articulate how that evidence the defendant can be the inference that because no link of which likely before, drug to have he therefore is more committed offenses Thus, government is . the burden on the this one. . . committed showing proper of a rele- All that is needed is some not onerous. government’s prof- Whereupon judge the trial court must

vance. signifi- abuse, reason, potential and the for confusion fered evidence, value out- and decide whether its cance of the weighs prejudicial its effect. [Id. 887-888.] articulate, similarly requiring government in a clear circuits Federal purpose manner, proper logical for admis at least one noncharacter Rackstraw, 7 F3d United States v of acts evidence include: sion evidence, gov 10, 1993) (“When offering 404(b) (CA 1478-1479 hypothesis precisely which articulate the evidential ernment ‘must may consequence of other inferred from the evidence of fact identify specifically Concomitantly, must . . . the trial court acts.’ purpose . . . There must be a clear which the evidence is admitted. logical ‘other acts’ evidence and the case connection between the and being tried”); 9, 1994) (CA Mayans, 17 F3d United States v hypothesis precisely government (“the the evidential ‘must articulate the Court admissibility support two theories the admission drug the defendant’s 1988 conviction. The first is to show defendant knew the cocaine was hid den the dashboard of his car. The is to second show that he intended to deliver drugs 1992. and “intent” are indeed “Knowledge” among included MRE laundry proper list of 404(b)’s purposes. How ever, pitfall a common in MRE cases is the 404(b) tendency trial courts’ admit misconduct merely because it has been “offered” for one proper purposes. rule’s enumerated Mechanical intent, recitation “knowledge, mistake, absence etc.,” without how the explaining evidence relates to purposes, recited is insufficient justify to admis sion MRE If prosecutor under it 404(b). were, routinely could by admit character simply evidence it calling something else. Relevance is not inherent characteristic, Huddleston, supra at 689, prior nor are bad intrinsically acts relevant to “motive, opportunity, intent, preparation, plan,” etc. Relevance is relation ship between the and a evidence material fact at issue by that must be demonstrated reasonable inferences make material fact issue probable more probable less than it be would without the evidence. United Sampson, States v 980 883, F2d 888 (CA 3, consequence may which a fact of be inferred from other acts evi Yeagin, ”); 798, 5, United States (CA 1991) (“A dence’ 927 F2d 803 trial judge problem admissibility faced with the of other crimes evidence require government explain should exercise caution and should to why necessary specific the evidence is relevant and on a element government prove”); Arias-Montoya, 708, United States v must 967 F2d “ (CA 1, 1992) (admission by acts evidence no means a ‘is rou accepted government tine exercise and should not be unless the articu precision “special” ground doing ”); lates with suitable United so’ Mothershed, States v Zelinka, 585, (CA 8, 1988); 859 F2d United States v (CA 6, 1988). 862 F2d Mich 376

Opinion of the Court right to a 1992). defendant’s ensure the In order vigilantly character fair weed out must trial, courts logi- something disguised else. that is evidence proffered relationship between cal closely proven sought must be be fact the ultimate scrutinized.7 admissi-

Logical of the “touchstone” relevance, the by bility is determined evidence, acts application 401 and 402. of Rules provides:

MRE 401 tendency any having means evidence evidence” “Relevant consequence any fact that is the existence of to make prob- probable or less action more the determination without the evidence. it would be able than provides: MRE 402 admissible, except as otherwise evidence is All relevant States, the Con-

provided of the United the Constitution rules, rules Michigan, or other these of the State stitution Supreme is not rele- adopted Evidence which Court. vant is not admissible. relevant if two evidence is MRE

Pursuant to materiality present, components are prof- requirement Materiality is the value. “any fact that is of conse- evidence be related fered quence” is the fact to words, “In other to the action. Michigan truly proven Strom, Wade & in issue?” p ed), (rev A fact Rule 71. Evidence Courtroom 7 although have admitted on occasion that “courts Weinstein notes any analysis, they automatically, if real without evidence almost other-acts 404(b). categories specified in Rule . . . Rule within one of the find it fits proponent admission, of the 404(b) and the automatic does not authorize Evidence, Weinstein, Federal its relevance.” must demonstrate evidence pp 404.20[3], to 404-42. § 404-41

Opinion of the Court “of consequence” to the action is a material People McKinney, 413; fact. v 410 Mich 301 NW2d 824 “Materiality looks to the relation (1981). between the propositions for which the evidence is offered and If issues the case. the evidence is offered to help a prove proposition which is not a matter issue, McCormick, immaterial.” 1 Evi- (4th 185, p dence ed), 773. § It is well in Michigan established that all elements of a criminal are “in offense issue” when a defendant plea a guilty. enters of not People Mills, 450 Mich 69; (1995). prosecution NW2d 909 Because the carry every must the burden of proving element beyond a doubt, reasonable regardless whether the specifically disputes stipulate defendant or offers to any elements, elements the offense are always “in and, thus, issue” Chief, material. See Old supra. The possession elements of the charge with cocaine, intent deliver as applied case, to this are as follows: (1) the defendant knowingly possessed substance; controlled (2) the defendant intended to deliver this else; substance someone (3) the sub- possessed stance was and cocaine the defendant cocaine; knew it was (4) and substance was mixture that weighed between grams. See also CJI2d 12.3. prosecution

Because the obligated under the prove statute pos- defendant knowingly specific sessed cocaine he did so with the of distributing it, intent knowledge and intent were “in step issue.” The first ladder relevance, materiality, is thus reached. inquiry prof- force asks whether the

fered evidence “to any tends make the existence of Mich 376 458 Court of the determination the consequence that is of fact than it probable probable or less more the action The threshold is min- the evidence.” would be without tendency force. probative is sufficient “any” imal: Cicotte, 12 Mich 401. Beaubien v MRE See & & Marquette v Beecher and Collins (1864), Pacific 438; NW 97 In Co, (1881). 45 Mich Rolling Mill however, prior evidence, MRE context of acts the proffered as a at the the 404(b) gate: stands sentinel truly something must other evidence be the commit crime. propensity than defendant’s thread link- prosecutor logical If the fails to weave inference, act to ultimate the evi- ing prior its notwithstanding excluded, logical dence must be relevance to character.8 quarrel We do with the dissent’s assertion VanderVliet not “inclusionary” prior approach to embraced misconduct evidence. However, “inclusionary” deceptive. The the term can distinction 404(b) opposed to as a “inclusion” as a rule of

between MRE rule of policy signify a shift to a more liberal toward the “exclusion” does theory “inclusionary” merely recog prior admission of act evidence. despite can be inference nizes similar acts admissible to charac long proper so is at one noncharacter-based inference ter linking as there least inference, that, contrary act to the ultimate to the proper position law, 404(b)’s purposes is at common Rule list of taken explain Wright influential nonexclusive. As and Graham in their treatise on the Federal Rules of Evidence: unctuous, rule “an but common law has been described as easily Wigmore way: it this rule of exclusion.” stated circumvented act, part issue, doing “The another not a criminal doing is . . . charged, except of the criminal act not admissible specific purpose when for the of evidenc- offered Plan, Identity, Intent,

ing Design, Motive, other relevant general fact . . from While the rule of . distinct Moral Character.” applauded- occasionally exclusion is often exceptions enforced—it is —and significance. practical Courts that are of most have exceptions distinguish found it the rule from the difficult Stone, articles, argued Professor in two influential that the true i.e., Wigmore; rule was reverse of stated evidence of the one except proves nothing when it but the other crimes is admissible Opinion of the Court Turning present question to the case, becomes prosecutor whether carried its burden of demon strating the defendant’s conviction estab inference, lishes some intermediate other than the improper inference of character, pro which turn is of bative the ultimate case, issues this the defend ant’s of knowledge presence the of cocaine his .9 intent to it deliver We with agree the defendant

propensity engage of the defendant to in criminal conduct. Profes- -usually sor Stone’s version of the nary” referred to as the “inclusio- rule— “positive” against “exclusionary” Wigmore’s or rule as “negative” by many formulation —has been favored commentators adopted by courts, majority some the but rule at common law by Wigmore. Wright Graham, took the form stated & Federal [22 Procedure, 5239, pp § Practice & 428-432.] “inclusionary” theory recognizes application thus the rule’s restrictive solely prove propensity, point to evidence offered to criminal that was VanderVliet, require settled before but does courts to err the on side admission, of or to admit evidence that would not have been admissible Figueroa, 934, 939, before VanderVliet. See United States 618 F2d n 2 (CA 2, 1980) (“The exclusionary approach obliges to act similar sought proved the trial court to determine the whether issue to be is among exceptions barring prior evidence; the traditional the to rule act inclusionary approach permits prove any the the evidence be to used to propensity, obliged ask, than issue other but trial the court is still to ‘Is any way the evidence in relevant to a fact in issue otherwise than ” merely showing propensity?’ Stone, The rule exclusion similar of of fact America, [1938]). evidence: Harv L R 1004 9 Imwinkelried, dissent, post 417, ironically whom the accuses the citing selectively, expressly contrary rejects, plain of as the to language rule, the dissent’s contention that “an intermediate required only noncharacter is inference where the act is offered to prove conduct”: 404(b) “identity” per- The second sentence of Rule refers to as uncharged However, missible use of misconduct evidence. no one suggest permits prosecutor 404(b) would that Rule to invite the jury identity through to reach the conclusion of an intermediate inference of character. The second sentence also alludes to By parity urging reasoning, “intent.” of the rule should be construed prohibiting prosecutor jury urging from to reach that through an conclusion intermediate inference the defendant’s disposition of a certain rea. mens The better-reasoned cases 458 Mich the Court been estab- inference has no such intermediate lished.10 evidence, the probativeness

To establish chances,” also “doctrine of invokes the prosecutor objective improbability.” as the “doctrine of known require rea prosecutor inference mens to reach the ultimate relying inference character. without intermediate 5:01.50, Evidence, p Uncharged [Imwinkelried, § Misconduct 4.] view, prior prove a to defendant’s convictions offered Under dissent’s subject only course, MRE matter of of mind are admissible as a state already balancing. applies all evi- offers of 403 dence, Given MRE logic suggest 404(b) however, bar- that MRE erects no it strains such to the admission of evidence. rier 10The for the of character evidence to establish rationale exclusion by Imwinkelried, rea, as is twofold: mens described jury consciously if the focus on issue of One must character, grave is a risk that at a subconscious defendant’s there they level, tempted punish the for his or her will be defendant certainly present uncharged when the misconduct. That risk propensity question has a addresses of whether the defendant jury might repulsed forming rea. defend- a mens probative danger underpinning ant’s “criminal mind.” other jurors prohibition is the risk that the will over- character evidence predictor as a conduct. estimate the value of character applicable from the defend- That risk is also when reasons propensity ant’s for a mens rea to the conclusion defend- cogni- guilty charged ant had a state of mind on the occasion. The aspects large part tive and volitional of conduct account [Imwinkelried, supra, unpredictability n 9 of human behavior. Schweitzer, 5:01.50, People (1871).] pp 23 Mich § 3-4. See prosecution’s from We infer the reliance the doctrine chances statement, prosecu opening closing opening his statements. In his explained relevance of the defendant’s conviction as follows: tor you’re going hear, piece that ladies An additional of evidence testimony officers, gentlemen, other will be from other officers came the Defendant in 1988. And at that

who into contact with County you testimony time, will hear from Oakland Narcotics purchased kilogram one-half or Enforcement Team officers who grams in June of . . . of cocaine from the Defendant 1988. obviously going show the Defendant [T]hat car, somebody in his didn’t leave knew that the cocaine was amount, cocaine in his car without his this valuable this much Opinion of the Court theory, This which is attributed Wig- to Professor more, widely accepted, although its application var- ies with the issue for it which is offered. Where rea, here, material to the issue mens it rests on premise that “the more often the defendant com- reus, mits actus the less is the likelihood that the accidentally defendant acted innocently.” Imwinkelried, Uncharged Misconduct Evidence, 3:11, p Consequently, 45. § the forbidden intermediate subjective inference to defendant’s character is not implicated: theory logical depend

[T]his relevance does not aon proponent asking character inference. The is not the trier of (entertaining particu- fact infer the defendant’s conduct rea) personal, lar subjective mens from the defendant’s objective character. The intermediate inference is an likeli- subjective hood under the doctrine chances rather than probability [Id., 5:05, based on the defendant’s § character. 12.] P

knowing defendant, pos- it. And it will show that the time he cocaine, it, sessed this intended to he deliver intended deliver the cocaine 1988. closing argument: And in know the cocaine was there? In [D]id [Defendant] he deliv- kilogram Deputy Diplomat a half ered of cocaine to Moore at the Apartments Southfield, Michigan. sense, Towers It’s common upon gentlemen.

ladies and Based these facts that are admitted they clearly evidence, into show that the Defendant knew the cocaine was there. And later: delivery fact he that was convicted in 1988 for of a kil- [T]he half

ogram cocaine, cocaine, grams inescapably of of leads to he conclusion that knew the cocaine was there. 458 Mich the Court the routine However, against cautions Imwinkelried under misconduct evidence admission theory prone is chances because doctrine of of character may in the admission and result abuse disguise: evidence easily theory] can of chances doctrine [The every true essential element . . . an abused. [I]ntent prosecutor has evidence of crime. Whenever charged offense, pros-

uncharged similar to the crime attempt Wigmore’s doctrine to invoke ecutor can always argue chances; prosecutor similar can is, triggers chances and uncharged the doctrine of crime theory both therefore, logically relevant on noncharacter thereby prove rea. disprove mens If the accident and prosecutor accept uncritically, arguments courts these may bad evidence in dis- be able to introduce character tendency, guise. the courts should ... To counter this clearly rigorously the foundational enforce enunciate prosecutor applicable requirements when the relies on the [Imwinkelried, to establish mens rea. doctrine of chances uncharged use accused’s misconduct evidence anof engulf prove threaten to mens rea: The doctrines which prohibition, L J 51 Ohio St the character evidence (1990).] requirements trig- the foundational

Elaborating rea, prove chances to mens the doctrine of gering explains prosecutor must Imwinkelried inci- persuasive showings uncharged “make that each charged to the offense dent similar fre- accused been involved in such incidents more has typical at 602. We find quently person.”12 than the Id. 12Weinstein states: case, judge In each the trial must decide whether individual

proffered consequential fact tends to make the more probable. other crime and the less If the connection between the 395 the Court be reasoning applicability this sound. The depends similarity doctrine of chances the on prior between the defendant’s conviction and the crime for which he charged.13 stands

We conclude that there is an insufficient factual prior nexus between the present conviction and the offense to charged warrant admission of the evidence charged strong, may appropriate. crime is admission If the con- weak, generally enough nection is exclusion If sound. time has passed, may the other crime be of such attenuated value Weinstein, supra 404.21(2)(c), as to warrant exclusion. n § 7 at [2 pp 404-54to 404-55.] 13 simple analogy prove point. prosecutor A will If the were “offer ing” prior prove evidence of a arson conviction to that the defendant possessed knowingly deliver, cocaine with the intent to even the dissent likely relevancy would concede the offer would fail initial test of ground on scenario, that the two acts were too dissimilar. Under this though “proper pur the evidence is inadmissible even it is “offered” for a pose” is, prove 404(b), knowledge If, under Rule and intent. how ever, prior drugs defendant’s crime involved the concealment of in the car, likely dashboard of his that evidence would be admissible under the similarity doctrine chances because of stark of the two crimes. is, then, upon proffered prior There a continuum which each act must be placed; prior charged crime, the more similar the to the act the closer the admissibility prosecution evidence to the threshold. Cases cited prove prior knowledge and the dissent that have admitted crimes to and similarly required prior intent have a close factual between nexus and charged See, e.g., Rackstraw, supra crimes. United v States n 6 at 1479 (“We long recognized prior have relevance crimes in the context of uncharged narcotics violations where the misconduct is close in time and charged knowledge similar in method to the scheme and where . . . was issue”); Garcia, 1160, (CA 1, 1993) (“In at United v States 983 F2d 1173 case, past this there is a close nexus between the act and the current charges”); Hernandez, (CA 7, 1996) (“we United States 84 F3d agree prior similarity/proximity that Hernandez’ conviction satisfied the requirements”); Adrian, (CA 9, 1992) (“It United States v 978 F2d appear does from the record whether the convictions were simi enough proximate enough present lar and in time to the offenses to make appellee’s highly intent”); them relevant to see also United States v Her nandez-Miranda, 1104, 1108(CA 9, (“When 1979) 601 F2d criminal upon prove knowledge, similarity act is relied intent or between requirement two must events be shown to establish the threshold relevance”). Mich

Opinion of the Court arresting officer of chances. under the doctrine length how he about from 1988offense testified in that case a codefendant earlier had waited with appeared a codefendant until the defendant the third the defendant and the scene. He said that apartment got out of their car entered man building. carrying a distinctive was defendant plastic bag. was moments, officer After few apartment. Cocaine taken from invited into the testing bag After field and handed the officer. to defendant. He then it, $5,000 the officer handed the brought gave prearranged signal in other that participants. to all the officers arrest was not case, however, In this the defendant selling drugs. caught he was Rather, in the act of stopped which violation, for a routine traffic ulti- mately discovery in led to the of cocaine hidden the was at trial that dashboard of his car. There evidence just purchased the had the car five ten defendant days arrest, car had been in before his and that the lending possession during time, the of others that theoiy prior support owner to the defense or unwittingly drugs car, the in someone else left the attempt plausibility frame the defendant. The jury of this defense was be determined the credibility the basis of its assessment the the relationship However, factual between witnesses. charged simply crime and the offense permissible too to draw a interme- remote of the defendant’s mens rea diate inference present drug offense sim- case. The facts of ply prosecutor’s out the contention that do bear drugs “obviously were in his the defendant knew” the he them. The dashboard and that intended to deliver Opinion of the Court prior only conviction demonstrates the defendant has around drugs past and, thus, been is the person kind of who would knowingly possess and large intend deliver To amounts cocaine. extent that 1988 conviction logically relevant to show that the defendant was also a drug dealer in solely by way we believe it does so of the for- bidden intermediate inference of bad character specifically prohibited by MRE Thus, 404(b). prior defendant’s conviction was mere character evi- dence masquerading “knowledge” “intent.” Because MRE 404(b) expressly prohibits the use of prior bad acts to demonstrate defendant’s propensity to form a certain mens rea, we hold that the trial court abused its discretion in evi- admitting dence of defendant’s conviction and reverse and remand the case for a new trial.14

IV if Even we were to find evidence of the defendant’s conviction had some rele- logical vance distinct impermissible from the character infer- ence, we would nevertheless conclude that it should have been MRE excluded 403 because danger prejudice of unfair substantially outweighed whatever 14 explain specific attempting logical progression Rather than to likely knowledge light that makes either or intent more the defend of prior crime, simply argues ant’s the dissent that the involvement of probable cocaine in defendant’s conviction 1988 alone “makes more [it] knowingly possessed drugs than not that defendant with to the intent dis present poorly disguised tribute them” case. Post at 414. This is a propensity argument, precisely 404(b) expressly is which what Rule for Betts, 748, (CA 7, 1994); People bids. United States v 16 F3d 759 v Beas ley, (CA 7, 1987); Arias-Montoya, supra; 809 F2d 1273 n 6 United States v Lynn, (CA 1, 1988); Mehrmanesh, 856 F2d 430 United States v 689 F2d (CA 9, 1982). 822 398 Mich 376 op the Court might marginal probative had. Rule 403 it have value only prejudicial prohibit evidence; evidence does not unfairly prejudicial unfairly is is so. Evidence that probative marginally danger a that when there exists preemptive weight given will be undue prior danger jury. that acts, bad the context of In juror prevalent. has a defendant When learns that is previously crime as that for committed the same juror that the trial, the risk severe which he is purpose precisely it for the that will use the evidence may suggesting is, as considered, that be person, criminal, a bad a convicted defendant is probably again.” it Peo- if it before he did that he “did 1994). (CA ple 6, Johnson, F3d high with it a risk acts evidence carries Because heightened there need misuse, confusion application principles of the set forth for the careful in MRE 403.15Id. important principles

Applying MRE to present escape the case, we cannot conclusion only, powerful, if not the inference that that the most likely from conviction make one: the defendant was is the forbidden that because selling guilty must cocaine in he convicted of specter impermissible Thus, here. character likely significantly to have overshadowed evidence is any legitimate probative value. Car- To use Justice balancing prejudi urges us to to the trial court’s dissent defer “rejection our of the trial court’s cial effect versus force because balancing simply “judgment our Rule 403” is a substitution of under However, misapplica Post 439. the trial court’s trial court.” probativeness 404(b) the evi tion of MRE caused it to overvalue the apart Having the evidence had no relevance from dence. held inference, responsibil impermissible we refuse abdicate our character ity balancing 403 and reverse to review the circuit court’s under MRE necessary injustice. ruling prevent where 399

Opinion of the Court expression, dozo’s we believe the “reverberating clang” the evidence that the sold defendant drugs in 1988 drowned the “weaker sound” of the other evi- dence properly before jury, jury the leaving only hear the inference that if the defendant did it before, probably he did again. Shepard it v United States, 96, 290 US 54 Ct 104; 22; S 78 L Ed 196 (1933); United v Merriweather, States 78 1070, F3d 1077 (CA 6, hold 1996). We substantially the evidence was prejudicial more than probative and should not have been admitted.16

v Finally, we consider whether the introduction of prior the defendant’s conviction constituted harmless requires error. Error only prejudicial. reversal if it is People Mateo, 453 Mich 215; 551 NW2d 891 (1996). prejudice inquiry “focuses on the nature of the and error assesses its effect light prosecutor argue any prejudice and dissent undue was off by following cautionary given judge set instruction at the con clusion of the trial: You have heard evidence that was introduced to show you Defendant committed a crime for which he is trial. If not on evidence, you very only believe this must careful consider it purposes. you case, may only

for certain In this think about specifi- whether this evidence tends to show that the Defendant cally charged, meant to intended to commit crime as which I give you will the elements of in a moment. You must consider any purpose. this evidence for other limiting jury While a instruction will often suffice to enable to com- partmentalize only proper purpose, and it consider for its we proper purpose note the absence of this case to which the could Although purport- limit its use of the evidence. conviction was edly prove knowledge intent, only “offered” to real relevance of depict drug Against conviction was to defendant as a dealer. this, limiting limiting instruction was not at all. United See States v Wright, (CA 7, 1990). 901 F2d Mich Dissenting Boyle, Id. of the untainted evidence.” strength weight us to the section leads analysis foregoing Our in the the defend that admission of conclusion inescapable People was harmless.17 v conviction prior ant’s 422 170; (1998). 577 NW2d Gearns, 457 Mich

CONCLUSION facts this case the trial court hold that on the We by admitting evidence the its discretion abused prosecution the prior conviction because defendant’s purpose under MRE proper to establish a failed hold error was not harm- We further 404(b). reverse defendant’s conviction less. We therefore the pro- the to the court for further and remand case trial opinion. with this ceedings consistent JJ., and con- C.J., and Cavanagh Kelly, Mallett, curred with J. Brickley, contrary, J. to the (dissenting). Protestations

Boyle, inclusionary view of MRE rejects universally recognized preclude bad acts 404(b),1 17 prior “[a]ny admitting in The dissent’s statement that error acts prosecution slight negligible” ignores was the fact that the evidence parade prior jury was constantly before the allowed to the defendant’s conviction throughout 443. heard this brief trial. Post at detailed prosecution’s opening prior arrest and clos information about the ing in the statements, arresting from the direct examination of the officer repetition and of the defendant’s wife. This in the cross-examination prejudice arising greatly danger from the admis enhanced unfair prior sion conviction. The decision of the First Circuit of defendant’s point. Arias-Montoya, supra, n 6 on this In a case that is instructive remarkably bar, similar to case at the court ruled that evidence of the admitted, improperly drug but that the defendant’s conviction harmless error. The court found admission of “particularly evidence constituted that, eliciting significant” fact “aside from two lines of prosecutor testimony conviction, made no further ref about the 1983 it, closing.” either or ... in his Id. at 714. erence to at trial VanderVliet, 52; (1993). People Mich NW2d v 114 People Dissenting Boyle, character prove when it is used only conformity there- he acted and that person aof burden/exclusionary approach heightened with. with the majority is inconsistent by the advocated deci- and with our Rules of Evidence language 52; 508 NW2d VanderVliet, 444 Mich sion posi- that this is the recognition A frank (1993). destructive of is less now advocates the Court tion attempt majority’s than the integrity the Court’s the rules consistent with position as its posture precedent. decision majority’s ominously for what More lack analysis signals that its future, is for the bodes admissibility of liberal philosophy fidelity to the in the rulings embodied of trial court primacy pre is acts evidence Evidence. Bad Rules of Michigan uses prosecutor plaintiff the or when only cluded to an ultimate on the road way as a station character expressly conformity, and in of conduct inference relevancy. Stated theory of only logical one prohibits rele theory logical of any other otherwise, if there falls outside misconduct, the evidence vance of opponent the admissible unless It is 404(a). Rule 2 Rule 404 states: generally. person’s charac- Evidence of a (a) Character evidence prov- purpose of for the character is not admissible

ter or a trait of occasion, except: particular conformity a ing therewith on action in pertinent of charac- accused. (1) Evidence of a trait Character of same; by prosecution by accused, to rebut the or the an ter offered than a sexual conduct a crime other victim (2) Character of of pertinent of of the victim trait of character crime. Evidence of a conduct, prosecution sexual crime, for criminal than a the other same, accused, by prosecution or by to rebut the or offered peacefulness the victim offered of trait of evidence of character by prosecution case to rebut evidence in a homicide aggressor; was the first victim 458 MICH 376 Dissenting by Boyle, probative “substantially value shows that out by potential prejudice.* weighed” Specifically, majority ignores the fact that the actively disputed by defendant intent to distribute charge possession lesser of requesting without majority intent to distribute. The concludes that the similarity prior act, between the of a distribution cocaine, commercial amount of charged and the crime, possession with quan- intent to deliver a like tity, is insufficient because former act did not involve concealing drugs “behind the dashboard.”4 (3) prosecu- Character victim seocual conduct In a crime. of past conduct,

tion for criminal sexual evidence of the victim’s sex- specific ual conduct with the defendant and evidence of instances activity showing semen, origin preg- of sexual the source or nancy, disease; or (4) witness, Character witness. Evidence of the of a character provided 607, 608, Rules 609. 3 Rule 403 states: Although relevant, may be excluded if its substantially outweighed danger prejudice,

value is of unfair issues, misleading jury, confusion of the or considera- delay, time, presentation tions of undue waste of or needless cumulative evidence. heavily relies decision of the United States Court Appeals Arias-Montoya, for the First Circuit in United States v 967 F2d (CA 1, 1992). instructive, 400, 17, The decision is ante at n but for dif “remarkably ferent reasons. facts of the case are not similar” to the present Arias, charge case. In involved a traffic violation Rhode speeding. Island for The defendant claimed that he left his had driver’s gave license at home the officers a false name and address. He belonged informed the officers that the car to a New friend in York and provided registration indicating A the same. search of vehicle the revealed kilogram taped wrapped plastic bags of cocaine and in in the trunk of ten-year-old the car. The act that was admitted was conviction for possession in of cocaine Texas. applied prec- The fails to state that court the reviewed and the developed Moccia, (CA 1, 1982) in edent United States v 681 F2d 61 (drugs home), were discovered the defendant’s own United States v (CA 1988) Rubio-Estrada, 1, (scales, powder 857 F2d 845 white and cash Dissenting Boyle, to resurrect analysis appears majority’s prosecutor unless that, proposition rejected inadmissi- the evidence theory, the correct argues show- burden of heightens It also shifts ble.5 evidence, 404(b) Rule force of ing 403. 402 and of Rules explicit language despite Evidence Rules of undermine approaches Both while the short, In exclusion. policy of endorsing the inclusionary to the adherence majority professes exclusionary analysis reasserts its approach, by appellate law enforced the common approach of principles the foundational and subverts control 404. 403, and Rules support defendant inference that the defendant’s home

found Ferrer-Cruz, distribution), drugs States v and United were for knew floor of the defend (CA 1, 1990) (cocaine on the front was found F2d 135 noting that, car). the facts in Arias The court reviewed ant’s defendant, belonged that he were there evidence to the car [h]ad period more than one of time or on an extended had used it for presume occasion, might willing have had rea- he would we kilogram and, so, of cocaine open that a trunk to know son to its posses- Arguably, the fact of defendant’s hidden there. was coupled would make it and use of the trunk with his access to sion recognized likely the cocaine or him have come across more for supra place [Arias, cavity good at to hide it. in the trunk as a 712.] testimony driving indicated was his own car Crawford Defendant His access to time frame. once over a two-week he used it more than prior possession conviction plus and distribution his of the car and use recognized the dash- likely the area behind him have makes it more The deci- good place amount of cocaine. to hide a distribution as a board majority’s factually assertions and with the inconsistent in Arias is sion support position. its does not Sampson, holding majority’s States v in United citation of assumption, 6, supports 3, 1992), while (CA n this F2d 883 ante Sampson analysis employed acknowledge failing that the method rejected in VanderVliet. 458 Mich Opinion by Dissenting Boyle, J. majority’s

The conclusion that the evidence of an apart identical state of mind had from “no relevance impermissible inference,” character at 398, ante prior n 15, amounts to a contention that the act of distribution did not make the defendant’s intent to probable distribute more than it would have been truly proposition.6 evidence, without the remarkable holding prior act was character evidence “masquerading” knowledge as evidence of and intent explained only ways: 1) can be one of two either does not understand the dual inference inquiry, permitted i.e., the fact act person” inference that the defendant is the “kind of knowingly possess who would and intend deliver large amounts of cocaine does not refute that the act 2) also demonstrates the mental state in issue, or masquerade, failure to understand is itself a conceal- ing appellate an assertion of closer control over evi- dentiary rulings by prosecutor’s elevating the burden 404(b). under Rule majority’s People citation of v Allen, 429 Mich (1988), suggests

558; 420 NW2d that the latter explanation majority’s is the actual motivation. As we supra, jury in VanderVliet, observed fear of the con- flicts with the Rules Evidence and “-withthe intui- tive sense that some bad acts evidence is so powerfully probative pervert that it would truth- process prevent seeking using from what ordinary looks like common sense.” Id. at 73. The conclusion that the act had no value than other propensity, although show charged intent to deliver was an element of the delivery, is, act and the included offense and the crime was course, belied the inconsistent observation that it demonstrated large intent defendant’s to deliver amounts of cocaine. Ante 396-397. Dissenting Opinion Boyle,

I FACTS PROCEEDINGS AND light most favorable facts in the We restate the ten months September 22, On prosecution. parole from a three- from prison his release after imposed in 1989 thirty-year imprisonment term of delivery cocaine, and to deliver conspiracy for possession with charged and was arrested defendant A grams of cocaine. to deliver 50 to with intent “pat a down” of defendant. during found beeper was residue and containing cocaine ziplock baggies Six jacket pocket, found in his papers fold were doper in a box under the car digital there was a scale and seat. residue on investigation revealed cocaine

Further scale, with the scale, razor blade in the box a wallet, in a defendant’s ziplock baggie additional $455 in in cash ten and phone, (mostly and mobile In pants an area twenty bills) pocket. dollar in his box, two sub- above glove behind the dashboard produced impounded vehicle sequent searches of the 173.1 plastic bag containing weighing cocaine large a several rocks of bag containing a second grams, and sixty-six indi- 11.74 and cocaine, weighing grams, one in rocks of crack cocaine vidually packaged small 0.16 and (one weighed grams), rock tested baggies a baggie Each contained empty baggies. additional and the total street value twenty-dollax crack, rock $36,000. was to be all the cocaine estimated prosecutor’s hearing7 limine motion At the in misconduct, prove prior defense of intent notice post hearing transcript See appendix, 458 Mich 376 Dissenting Opinion by Boyle, J. counsel contended that defendant did not know that there was glove cocaine concealed behind the box consequently pos- was knowingly he session could not have had an intent to deliver. The summed judge up position defense stat- I ing: understand the controverted facts are that “[A]s you say your knowledge client had no whatsoever of so he couldn’t even be in possession [cocaine] the — much less have an

intent deliver. Am I correct on attorney that?” responded, Defense “Of the amount was glove found behind the box. Correct.”8 The attorney apparently The defense conceded that the defendant was not contesting knowledge cocaine, of the small amount of less than a sixth of gram, police pocket. found the defendant’s coat Even this possession charge was amount sufficient for a and the defendant could possession solely been have found to be in on the basis of the cocaine pocket Obviously, residue found in his and on the scale. if the was persuaded only possessed amount, might that defendant the lesser it have concluded that was there no intent to deliver. emphasis reason for defendant’s on the amount he was that facing mandatory drug possession life sentence for a second offense for any grams. penalty amount over 50 for a second if offense grams significantly 333.7413; amount was under 50 less. MCL MSA 14.15(7413)states: (1) previously An individual who was convicted for a violation of any following of the offenses and is thereafter convicted of a sec- subsequent any following ond or violation of of the shall offenses imprisoned eligible probation, be pension for life and shall not be for sus- sentence, parole during mandatory of or that term: (a) 7401(2)(a)(ii) A (iii). violation of section or (b) A 7403(2)(a)(ii) (iii). violation section or (c) Conspiracy proscribed by to commit an offense section 7401(2)(a)(ii) (iii) (iii). 7403(2)(a)(ii) or or section or (2) Except provided (1) (3), as otherwise in subsections and subsequent individual convicted of a or second offense under this may imprisoned article be for a term not than more twice term otherwise authorized or fined an amount not more than twice that authorized, otherwise or both. (3) An subsequent individual convicted of a second or offense 7410(2) (3) punished, subject under section or be shall to subsec- (4), by imprisonment years

tion a term of of not than less nor by Dissenting Opinion Boyle, if because, act relevant court found trial possession of he that was was unaware defendant glove bags was innocent box, he above the found possession larger Thus, amount of cocaine. general were the intent to deliver mens rea and both in issue. during jurors voir dire that instructed

The were involving previous deliv- conviction had a defendant “very ery it substance, and that was aof controlled prove important” the crime was admissible that character.9 again cautioned the instructions, the court

In final jury another it believed defendant committed if only question considered on the crime, it could be specifically meant or intended whether defendant requested charged.10The commit the crime defendant charge possession without intent to deliver and a argued only posses- he should be convicted acquitted or be of a lesser amount should sion jury The was of reasonable doubt. instructed because possession “simple on both with intent deliver charged, possession.”11 jury guilty The him found 7410(2) and, (3) than under or more twice that authorized section addition, may punished than be a fine not more 3 times 7410(2) (3); eligible or shall not that authorized section probation suspension during the term of of sentence imprisonment. may this The court that the fact that the defendant have done stated particular nothing or not “has to do with whether he did this [it in] before anyone explanation, judge in the asserted that case.” After further did it he was to do it felt that if the defendant once bound courtroom who juror. again, should not sit as a judge not convict defendant further stated that the could likely person person crimes or he bad or a to commit because was a guilty he conduct. because other bad majority’s suggestion limiting was not instruction acknowledge purpose compounds proper its omission directed to 458 Mich Dissenting Opinion by Boyle, Appeals Unpublished

and the Court of affirmed. mem- opinion, (Docket orandum 10, issued October 165956). No.

n THE MAJORITY’SIMPOSITION OF A 404(b) HEIGHTENED BURDEN UNDER RULE swept away, When the cobwebs are the ultimately simple far-reaching pro- rests on one but position: Imwinkelried’s thesis that the rules should require proponent be amended to to show that uncharged value of misconduct out- weighs prejudicial danger. Imwinkelried, The need 404(b): to amend Rule Evidence The threat federal to the Rules Evidence, 30 Vill future of federal (1985). L R

Assuming arguendo that the Court has a retained power common-law to exclude the evidence12 and preferable, that the common-law rule is result language philosophy inconsistent with the of Rule 402. inteipreted according plain

If the rules are to their they meaning, afford no basis to reintroduce the com- approach excluding mon-law relevant evidence superimposing additional restrictions on the face of language. Imwinkelried, A brief defense of Supreme approach interpretation Court’s to Rules Evidence, 27 Ind L R 267, federal placed specific that defendant his requesting intent issue disputing distribute, specific included offense intent intent charge which the was directed. Ante n 16. 12People Kreiner, 372; (1982). 415 Mich 329 NW2d 716 Dissenting Boyle, J. is admis- relevant evidence repeat, logically To (1993). provided.” “as sible, except otherwise the States this reason that United precisely for It is States, 485 US v United in Huddleston Supreme Court (1988), long ago 2d 99 L Ed 1496; 108 S Ct 681; founda- the common-law the contention that rejected clear misconduct, i.e., uncharged for admitting tion occurred, the act evidence convincing unanimously rejecting In 404(b). under Rule applied sets 104(b) Rule the Court observed that claim, the facts, preliminary procedure determining out the principles establish the broad 401 and 402 Rules the trial court admissibility, and Rule 403 allows the text did The Court concluded that exclude. of the common-law superimposition authorize the judicial that is nowhere oversight as “a level of rule provision, but is of that apparent language from the history legislative with behind simply inconsistent the 688. Id. at 404(b).” Rule test, “incorporates 403’s balancing

Rule rule 404(b) opponent judge to convince the requiring the substantially outweigh proba- prejudicial dangers amend, supra Imwinkelried, need tive value.” Rule inquiry burden under at 1479-1480. The Mar- of Rule 609. Imwinkelried and distinct from that golin state: unchanged wording has remained since of Rule 403 amendment, adoption However, prior to its 1990

its 1975. impeachment, governing 609(a)(1), includ- Rule conviction following language: ed witness, credibility attacking purpose

“For the has been convicted of crime the witness witness or established if elicited from the shall admitted only during if the by public cross-examination but record 458 Mich Dissenting Opinion by Boyle, punishable by imprisonment . . crime . was death year excess of one under the law under which the witness convicted, probative and the court determines admitting prejudicial outweighs value of this evidence effect to the defendant.” wording

Note differences between of the two bal ancing passive pro tests. Rule 403 is cast voice: “its is . outweighed danger[s].” bative value . . In con trast, balancing test in the former version of Rule 609 is in the active voice: “the . outweighs value . . prejudicial addition, effect.” In Rule 403 includes the adverb 609.[13) “substantially,” which was absent from Rule 13 Margolin additionally Imwinkelried note: linguistic differences between the two statutes have seemed significant passive some to commentators. The voice of Rule 403 suggests opponent that the statute allocates the burden to the of logically judge the admission of relevant evidence to convince the probative outstrip dangers probative that the the worth of the evi- addition, presence “substantially” dence. In of the the word in Rule opponent 403 judge indicates that the must convince the dangers outweigh probative the value the of a wide margin. interpretation Allocating That of Rule sound. the opponent Congressional “place burden to the priority reflects decision to principle [logical] on the of relevance .... Relevance in predominant terms of the search for truth is . . . the interest.” proponent relevance, When the of evidence can demonstrate its the probative “unquestioned.” However, value of the evidence is the dangers largely speculative risk, listed Rule 403 are risks—the example, juror for probative that a will overestimate the value of “probative reality” “preju- item of evidence. Since value is a but danger only risk,” dicial . . . the scale should be biased in favor admitting of relevant evidence. addition, interpretation support legislative hi this finds his- the tory running throughout of the Federal Rules. One the themes legislative history logi- the is that the Rules favor the admission of cally early hearings In proposed relevant evidence. the on the then Representatives, Rules drafting before the House of the chair of the committee, Jenner, Jr., philosophy Albert asserted that “the overall “place upon and thrust the rules” is to the burden he who seeks Thus, strong policy the exclusion of relevant evidence.” there were statutory interpretation arguments construing Rule 403 to require judge party the to admit relevant evidence unless the opposing the admission of the evidence the sustained burden Dissenting Opinion Boyle, J.

[*] ^{[*] [*]} face, that the Rule amendment indicates its the On out in the last clause balancing from the test set test differs accompanies note A committee of the amendment. explicitly between the differentiates The Note amendment. hand, Note states that balancing the one tests. On two subject to prosecution’s evidence is conviction when the test, 609(a)’s government show that “the Rule [must] impeachment probative evi- convictions value of [the] prejudicial outweighs effect.” On the other their dence if is sub- hand, conviction evidence the Note declares dangers signifi- probative convincing judge that the incidental probative cantly outweighed the value of the evidence. arguments persuaded many to the burden courts allocate These party resisting Yet of relevant evidence. the introduction to the merely apply if it Rule 403 as codified courts tended other general proponent of the admission common-law view that showing value of evi- burden of evidence has the However, probative dangers. that ten- the attendant dence exceeds dency end. should soon Supreme its decision in Green v Bock In Court rendered 504; 1981; Laundry S Ct 104 L Ed 2d 557 Co US Machine [490 case, application (1989)]. bal- with the In that the Court dealt impeach ancing convictions offered tests in Rules 403 and Although Court did not elaborate the balanc- civil witnesses. statutes, ing to assume that tests under the two the Court seemed two tests differed. early 1990, Committee on Rules In the Judicial Conference’s formally proposed an Rule and Procedure amendment to Practice application balancing test convic- of Rule 609’s 609 to revise in civil The amendment took effect Decem- tions offered cases. 609(a)(1) Rule now reads: 1990. The amended version of ber credibility attacking witness, purpose . evi- of a . . of “For of accused has been convicted that a witness other than the dence subject admitted, 403, if the crime was to Rule shall be crime year punishable by imprisonment one under in excess of death convicted, and evidence which the witness was the law under if been convicted of such crime shall admitted an accused has probative admitting value this evi- that the of the court determines prejudicial outweighs its effect accused.” dence admissibility Margolin, The & case [Imwinkelried of for customary political practices testimony about official defense corruption (1991).] prosecutions, Am L R Crim 29-31 458 Mich 376 Dissenting Opinion by Boyle, ject test, opponent “point 403’s to Rule must a real prejudice danger outweigh of that is sufficient substan- tially impeachment value of the conviction for purposes.” 609(a) language supporting

The amended of Rule and the split authority end among Note should the lower fed- proper eral courts over the construction of Rule 403. It is assigns party oppos- now well established that Rule 403 ing Margolin, the admission .... & The [Imwinkelried admissibility testimony case about cus- defense tomary political practices corruption prosecu- in official tions, 1, 29, (1991).] 29 Am Crim L R 31-32 simply by 404(b) The has thus “judicial oversight” amended Rule imposing discretionary its on the decisions of the trial bench.

m analysis majority’s and conclusion reveal the angst regarding principles two of the fundamental underlying premise the Rules of Evidence—the basic of MRE 40214that all relevant is evidence admissible expressly precluded, corollary policy unless and the appellate primacy court must defer to the bench, the trial constrained the broad discretion princi- invested that bench under Rule 403.15These ples recently have been reiterated and reinforced in

14Rule 402 states: admissible, except provided All relevant evidence as otherwise States, the Constitution of the United the Constitution of the Michigan, rules, adopted by State these or other rules Supreme Court. Evidence which not relevant is not admissible. Adoption inclusionary ink Brocker, indelible in the milk: See approach uncharged misconduct Coffey State NC [326 268; (1990)], (1991), Imwinkelried, 389 SE2d 48 NC L R amend, supra need to at 1465. People v Crawford Opinion by Dissenting Boyle, J. 644; 117 Ct States, 172; 519 US S v United Old Chief Supreme (1997), Court in which the Ed 136 L 2d to which the fact a claim that erroneous deemed dispute directed must be evidence is bad acts Noting Rule 401. is irrelevant under evidence advisory to 401 state that committee notes Rule dispute,” and that rele- fact . . . need not be “[t]he having any value, is evidence vant evidence Court concluded: presence then, If, in the inadmissible relevant it, must to its exclusion rest other evidence related “irrel- ground rendered it that the other evidence has on the unfairly prejudicial, evant,” cumula- its but on character like, notwithstanding. or the its relevance [Id. 179.] tive by holding majority accomplishes its result prior misconduct, conviction evidence of defendant’s delivery conspiracy of 225 to 600 deliver, grams “relevant” to an issue was not cocaine propensity commit than the defendant’s “other by asserting prosecutor’s bur- that it is the crime” and prior linking logical act den “to weave a thread majority pur- Ante at 390. The ultimate inference.” the ports knowledge defendant’s to concede that logically presence relevant to the ele- of cocaine is possession intent to deliver. of cocaine and ment 508, 519; Mich 489 NW2d 748 Wolfe, (1992). concludes However, at 389. Ante was an insufficient factual nexus because there present charged and the between the conviction the doctrine of admission under warrant offense only conviction demonstrates chances, “[t]he past drugs around in the has been that the defendant knowingly person who would [was] the kind 458 Mich 376 Dissenting Opinion by Boyle, J. possess and intend to deliver large amounts of cocaine.” Id. at (emphasis added). 396-397

The simply evidence does not that demonstrate defendant has been in drugs around the past; it probable makes more than not that defendant know- ingly possessed drugs with the to intent distribute them. While the rationale the majority’s for conclu- sion evident, is not it proposi- seems to rest on two tions: is first, prosecutor’s that it burden to “articulate a proper purpose noncharacter [] admission of the defendant’s drug conviction” and explain “how the evidence to relates the recited purposes,”16 387, ante at 385-386, and the second, that there is insufficient factual nexus between the prior act and the charged offense. is, The rationale event, either logically flawed.

A. THE PROSECUTOR’SBURDEN To the extent that the first rationale focuses on lan- guage in People Golochowicz, v Mich 298; 413 319 16 support position: People The cites two cases for of its v Zackowitz, 192, 197; (1930), 254 NY 172 NE 466 and v Michelson United States, 469, 476; 213; (1948). 335 US 69 S Ct 93 L Ed 168 Ante at 384. Both predate adoption cases of both the FRE and the MRE and embrace approach excluding Moreover, the common-law the evidence. it is note worthy Supreme only United States Court in Michelson not ruling regarding affirmed the trial court’s the admission of character evi case, dence that but reaffirmed the wide discretion accorded trial rarely only courts and showing reiterated that “therefore on clear prejudicial Appeals abuse rulings of discretion will Courts disturb subject.” Michelson, supra trial courts on this at 480. See also United Daniels, App 198, 205; (1985), States v US DC 770 F2d 1111 cited majority. Contrary majority’s assertion, quotation to the as the from Wright explains, signal and Graham in their own footnote Rule 404 does policy admissibility- 390, shift to a liberal Ante at n 8. The common law automatically exception. excluded the evidence it unless came within an present only pro rule admits the evidence its unless is relevance to pensity. Imwinkelried, amend, supra to need at 1468. Dissenting Boyle, might (1982), been have read NW2d require approach v of United States the formulaic expressly Sampson, (CA 1992),17we 3, F2d admissibility concept key rejected magic on the incantation of under Rule 404 rests supra sure, To be VanderVliet, at 65-67. words proponent rele- who fails demonstrate of evidence will risk the trial court exclude vance runs the obviously, quite if evi- However, the evidence. question what admitted, on review not dence prosecutor error admit said, but whether it was prosecu- otherwise, the If the rule were the evidence. theory of a would cause formulation tor’s inarticulate properly appeal though the evidence reversal People Engelman, 27; n 434 Mich admitted. (1993). 453 NW2d656 THE APPROACH

1. THE PRECEDENT: INCLUSIONARY LEGAL opponent places burden on the Rule 403 the admissibility logically relevant evidence to effectu- of philosophy favoring admis- the of Rule 402 ate liberal the construction Thus, of all relevant sion evidence. gate,” 404(b) at ante at Rule “as sentinel the of ignores that prosecution deprived] with of evidence not [should justification multiple utility; if, indeed, there were a prior prove ... of of acts

receiving evidence the nature “motive, intent, preparation, plan, knowledge, opportunity, accident,” identity, .... Rule mistake or or absence of opportunity its admission. 404(b) guarantees to seek supra Chief, at 190.] [Old urged of careful the theory In the court consideration point fact, theory not failure to articulate correct It did hold that admissibility.

would reversal require appeal. 458 Mich 376 Dissenting Opinion by Boyle, J. To effectively hold otherwise is to resurrect the com- reject mon-law approach rule of exclusion and that exclusion of relevant evidence under rule “[t]he extraordinary 403 is an remedy, and therefore courts power cautiously should exercise the to exclude need amend, supra The sparingly.” hnwinkehied, at 1478. majority’s

The suggestion prosecutor’s fail- carry ure to its burden a proper demonstrate the- ory deprives the evidence of probative force conflicts with policy of Rule 402 expressly that declares this support inclusionary admissibility. Court’s majority’s statement general that rule is more “[t]he easily ante at applied,” stated than is also a dis- tortion language the rule and of our precedent. “general rule” is not evi- such dence is inadmissible. The general rule, as most v Starr, 457 Mich 490; recently recognized 577 NW2d 673 (1998),18 that, like all other evidence, such evidence is admissible if relevant under Rules 401 and 402. The majority’s initial premise thus mis- construes both Rules 403 and 404 pre- and rests on a mise expressly that has been overruled. VanderVliet, supra 64.

If majority seriously contends acts evidence was irrelevant proposition whether it is likely more or less that defendant did possess drugs with knowledge, or he did not intend to them, majority’s distribute conclu- is, noted, sion nothing than less remarkable. The majority purports to recognize that all evidence that 18 Starr was authored by Justice Weaver and signed Chief Justice by Boyle and Justices Taylor. Mallett 417 Dissenting Boyle, logically relevant, is, proba- is that makes more issue, admissible, ble than fact in is but never- prior theless concludes that the act “mere char- acter masquerading evidence as of ‘knowl- ” edge’ However, and ‘intent.’ it possible majority simply does theory not understand the it employs. supporting Evidence this explanation for the majority’s conclusion can be found in the statements that the question is whether there is some “intermedi- ate inference” and “no such intermediate infer- ence has been established.” Ante at 391-392. rea- prior son acts evidence relevant state of mind is so universally admitted19 it require any is that does not ultimate inference regarding the defendant’s conduct (the require ultimate and it inference), any does not inference regarding propensity (the intermediate What inference). seemingly fails to v is that, People Engle- recognized understand man, supra, VanderVliet, supra 85, at an inter- mediate noncharacter required only inference where the act prove is offered to conduct. As noted 22 Wright Graham, & Federal Practice & Procedure, 5242, pp 487-488, in § of intent, case the use of other crimes evidence can be defended on 19 pur All circuits federal allow misconduct to be admitted for poses showing specific-intent intent when the crime is a crime such as possession with intent to deliver a controlled United See substance. Mitchell, App 35; States v United (1995); 311 US States v DC 49 F3d 769 supra Rubio-Estrada, Pitre, 848; 1112, n 4 United States v at 960 F2d Sampson, supra (CA 2, 1992); United States v 887; United 1119 States Tedder, 1437, Hooker, v (CA 4, 1986); v F2d 1444 United States 801 997 67, 5, Johnson, (CA 1993); States v 1186, F2d United 76-77 27 F3d 1193 Merriweather, (CA 6, 1994); 1070, United States v (CA 6, 78 F3d 1077 Smith, 662, 1996); United States v (CA 7,1993); United States 995 F2d Lewis, 1316, 1985); Adrian, v (CA 8, United v 759 F2d States Doran, 486, 9, (CA 1992); (CA F2d United States 882 F2d Perez-Garcia, 10, 1989); United States v (CA 1990). 904 F2d 1534 458 Mich by

Dissenting Boyle, J. propen- require grounds, to inference it does two any sity con- defendant’s inference to the and involve majority believes that To the extent duct. always precludes unless acts evidence other Rule 404 is demon- to noncharacter inference an intermediate ground allows other Either incorrect. strated, it is prohibition. escape the common-law to acts evidence put, 404(a) ultimate when the is avoided Rule Plainly inference ultimate conduct, or the is not to inference to non- inference is intermediate but the is to conduct character. interpreting every circuit federal

However, because analysis employed repudiates rule the majority regarding are Court, we intent,20as has this analysis employed is sim- to conclude that unable majority’s ply refer- Moreover, the an honest mistake. explanation supra, suggest that the Allen, ences misunderstanding. holding To a matter of is not for its admissibility and of liberal the directive effectuate proper discretion, the in trial court nonintervention inquiry multiple are whether there review is not jury infer- can make one whether the inferences, but necessary include character as that does not ence says actually doing it when link. What the only “defendant’s the evidence demonstrated propensity rea,” 397, at mens ante to form a certain admissibility heighten Rule under the burden of Merriweather, supra pro this n 19 See United States Ryan, Judge prove intent, acts evidence is position. James “other noted To 404(b) balancing, if admissible, subject Rule Rule 403 under of course to Listing statutory cir specific nine other element of the offense.” intent is a Appeals Sixth Cir Court of for the to the United States cuits in addition Ryan stated, principle, Judge recognize this line of “[u]nder this cuit purpose: legitimate authority admissible for a . . . [the was] specific prove cocaine.” intent to distribute Merriweather’s Dissenting Opinion by Boyle, J. 404(b) “plus.” Given relevance the directive of Rule opponent’s that it is the burden to overcome the admission of relevant evidence, the conclusion is inescapable majority’s purpose actual is to ground retake ceded the rules to the trial bench.

The Court made the rule. no Moreover, there is claim made here that what the Court it cannot made honestly “unmake.”21 What cannot be claimed, how- ever, is that faithfully the applying inclusionary approach of our Rules of Evidence.22

2. MULTIPLE UTILITY: AVAILABLEINFERENCES Authority admitting legion. such evidence is How ever, begin analysis we detailed majority’s of the con tention that there is no inference other than to char acter with extensive from quotation the en banc decision of the Circuit Court for the District of Columbia, (Crowder United States v I), Crowder 318 App 396, 402; US DC 87 F3d 1405 (1996), on reconsid eration of its original holding excluding of a sale of drugs drug case, a vacated in light Chief, of Old supra, by Supreme the United States Court.

In United States v (Crowder II), Crowder 329 US App 418, 423-426; DC 141 F3d 1202 (1998), court multiple utility noted the of Rule and 404(b) reversed decision holding that, People Starr, supra 12, citing People Kreiner, See v n n supra (the Michigan Rules of Evidence constituted a codification of the supersedes rules). Rules Evidence that the common-law argues policy undermining Imwinkelried than rather by evading 404(b), place rules Rule the rule should be amended to proponent. amend, supra burden on the The need to at 1499. 458 Mich

Dissenting Boyle, stipulate element of an offense offer to an defendant’s government’s other crimes evidence does not render the element, prove 404(b) to even under Rule inadmissible unequivocal, proposed stipulation is if the defendant’s agrees to of the sort a instruction even if the defendant opinion. I at 402. in our earlier See [Crowder mentioned may rules of evidence bear observed court that] [o]ther admissibility 404(b) satisfying Rule of evidence on the enough repeat words of the now it is .... For advisory if 404(b): Rule evidence is offered committee on proving purpose 404(b) permits, knowl- Rule such require intent, 404(b) edge evi- Rule “does dence be excluded.”

[*] ^{[*] [*]} points distinguish Supreme made these Court crime, “stipulations to the status element of between stipulations upon prosecution, which can be forced prosecution crime, to other elements of a which should status, reject.” said, . . . the Court remain free Proof “wholly independent]] of that is concerns an element charged concrete events” of the crime. Old US [519 Chief contrast, knowledge In the elements of intent and are 190]. charged in the at core of the offenses cases before us. stipulations Replacing proof of these elements with creates subsequent criminality.” gap story “a in the a defendant’s of sure, typically other will Id. To be crimes evidence [at 191]. or removed in from the relate to events more less time many of charged But that is true of other kinds evi- offense. physical A abuse of his wife while dence. husband’s jealous may rage suggest he in a his motive for murder- was incriminating ing her; made statement after offense may may sug- intent; tangible found reveal evidence later identity. gest about what the defendant said or did Evidence part story crime, of the of a at other times can be a critical prove may what the be introduced defendant thinking doing time This is true at the of the offense. regardless actions those other whether the defendant’s occasions were in themselves criminal. Old estab- Chief People v Crawford Dissenting Boyle, prosecution stipulate

lishes cannot be forced to away the force of such evidence. proof government’s of Crowder’s also other crime legitimate probative respect

had force with to matters beyond encompassed stipulation. proposed those in his A “piece evidence,” “may Chief, the Court wrote in Old any separate just elements, striking address number of hard once,” 404(b) because it shows so much at at Rule [id. 187]. multiple utility, showing will evidence often have such intent, knowledge, motive, preparation once like. may Proof an individual’s intent to commit an act itself proof act, serve as that the individual committed the as the Supreme recognized century ago. a Court more than See Hillmon, Mutual 296; Ins Co 145 US 12 S Ct Life 912-913; proving L (1892). 36 Ed 706 a In defendant cocaine, instance, gov- intended to distribute crack might simultaneously showing ernment be the defendant’s possess crack, permits. motive 404(b) which Rule thereby Intent would serve as an intermediate fact from which the could infer another intermediate fact— motive —from which it could in turn infer the element of possession. Thus, other-offense evidence of intent would probative just element, have value not on the intent but also possession on the element the offense. language “Although The familiar relevant, of Rule 403 is: may if excluded its value substan- tially outweighed by danger prejudice of unfair . . . .” cases, “prejudice” In these the concern about focused on danger jury using the other crimes evidence way permit the rules do not conclude that because —to crime, defendant committed some other he must have com- charged mitted one danger, in the indictment. This course, present every 404(b) will be Rule case. But give per exclusion, alone cannot rise se rule of argued Crowder and Davis when we first heard their cases adopting en Evidence, banc. In the Federal Rules Con- 458 Mich 376

Dissenting by Boyle, “was not such evidence.” gress dicial effect restrictions would of Rule nearly Huddleston 404(b) so not be concerned with [v United placed on the admission of as it was States], potential with US ensuring preju- ^[681] 1496; (1988)]; 2d see also H. Ct 99 L Ed S 688-689 [108 404(b)’s Rep (1973) (noting Rule sec- R. No. 93-650 at place emphasis on admissibil- is intended to ond sentence discretionary ity). each will turn on the As to Rule case assessment, judgment its not of rele- of the trial court and evidentiary government’s vance, Rule value of the but of balance, 404(b) side the trial evidence. On the same limiting the effect of a will take into account court protect R rights of accused. See Fed instruction advisory notes. committee Evid analysis of Rule is fundamen- majority’s 404(b) The inclusionary approach with tally odds unanimously by this Crowder, endorsed expressed VanderVliet, the United States Court Chief, supra. 404(b) guar- in Old Rule Supreme Court of evi- opportunity to seek the admission antees the character, than Old dence relevant issue other admissibility supra at of the evidence Chief, 190. be determined the trial court on sensitive case-by-case 403. The exercise balancing under Rule appeal only for an necessarily hoc, ad reversible on majority’s repudi- approach abuse of discretion. The and undermines propositions ates these fundamental likely effect of authority court’s to gauge the trial particular presented. in the context the evidence OF INFERENCES MULTIPLE UTILITY: ANALYSIS AVAILABLE 3. question that a general does not proof of extrinsic act.23 Defendant denial allows ‘in when a defendant elements of a criminal offense are issue’ “[A]ll guilty. The must the burden of carry prov- of not plea prosecution enters 423 Dissenting Opinion by J. Boyle, raised mere

Crawford a presence specif- defense that ically prosecution’s challenged proofs of construc- tive possession by with intent to creating distribute a put material issue that his state of mind at issue. Adrian, United States v 978 486 (CA 9, F2d 1992).24 Defendant’s denial affirmative evidence that he knew the cocaine was in the car awas direct chal- lenge two mental states essential a sustain con- a viction. It was direct denial of the element of know- possession ing and intent to distribute in the principal charge. cognate Under the charge of possession, it was also a direct challenge to whether he intended to distribute some or all United States v drugs. Thomas, 58 F3d 1313 (CA 1995). case,

The instant like United States v Rubio- Estrada, 857 F2d 845 (CA 1988), is a “fairly typical instance” of a drug offense. While majority pro fesses not to know how the defendant’s prior act made likely more his intent and knowledge in the instant case, analysis is complex. Evi dence of experience defendant’s dealing drugs in probative of knowledgeable possession and of intent example, distribute. For a case where the defendant contested whether he knew drugs were in the freezer room or under the chicken coop lived, farmhouse where he the court identified the inference as every mg beyond doubt, regardless element a reasonable of whether the specifically disputes stipulate any defendant or offers to of the elements.”

People Mills, 61, 69-70; (1995) (citations Mich 909 NW2d omit- ted). Chief, supra. See Old charged possession “Adrian was with . . . with intent to distribute marijuana. His intent was a thus material issue at 492. case.” Id. 458 Mich

Dissenting Boyle, marijuana room the freezer who on a farm with one fives prior possession coop con- and has a under the chicken and presence likely of mari- to know about the more viction juana a not have lives on such farm does than one who jury might possession . have past . . The a conviction. likely possessor past to associate with thought is more a nearby keep freely mari- use and talk about those who likely past juana; thought possessor is more might it have coop; might marijuana have spot a chicken it under away possessor likely mari- thought past less to throw juana these inferences —all if comes across it. None of he entirely “knowledge” depends supporting a conclusion — reasoning. upon character/propensity” chain of “bad they escape first Thus, . absolute bar of the Rule’s . . Moccia, 61, (CA 1, v States F2d sentence. [United 1982).] 955 F2d

Similarly, Nickens, in United States respecta- a 1992), defendant, allegedly (CA 1, and medical rea- traveling ble recreational citizen by bystander duped claimed to be an innocent sons, him when he help men who had offered to young two He difficulty trip to Ecuador. contended had a him, purporting help while young men, con- his suitcases for ones that contained switched permissi- that a recognized cealed cocaine. The court could be drawn from admission ble inference that of cocaine was that a sale experience selling person cocaine was who has had experience likely without such to know how

more than one person, jury might operate. drug traffickers Such likely infer, to be familiar with how conceal more likely suitcases, less with bottom and is cocaine and false Dissenting Opinion Boyle, friendly seemingly young eager to have been fooled men complete stranger.[25] of a to come to aid juiy might permissible Because have drawn the person that a experience inference who has had selling likely cocaine was more than one without experience drug oper- such to know how traffickers ate, evidence was admissible under Rule 404(b): recognized, “merely

As the district court the two acts steps different in the narcotics distribution involve[d] possibility jurors may While chain.” there is a draw impermissible inferences about defendant’s character or propensity prior conviction, pos- from the fact his such a sibility step admissibility is irrelevant to the first analysis [Nickens, supra 404(b)’s and to Rule absolute ban. at 125.]

In Sampson, United States v supra, in which the defendant contended that he did not knowledge have drugs jacket, found in his the court cited cases every from circuit, federal principle id. for the that where the defendant charged with a drug offense, drug convictions are admissible to show that the defendant’s acts were not without knowledge and Finally, intent. a classic formulation of the noncharacter Breyer inference is that of Judge in Rubio-Estrada, supra, where the defendant was Rackstraw, See United States v (CA 10, 1993). 7 F3d prior knowledge. court found evidence of acts issue unsophisticated The defendant claimed to be a naive mechanic who had merely car, undertaken to deliver a unaware that it contained cocaine. prior drug intimately The evidence of sales showed that he was familiar drug running general drug with and with dealers Williams’ and Fisher’s operation particular. Thus, suggested highly that it was “[t]he unlikely smuggling that Rackstraw was unaware that he crack.” Mich 376 Dissenting Opinion Boyle, cocaine found to distribute possession with charged claimed: and in which he in his house showing . . . defendant here that this “There is no real up his was concealed under knew that that substance at stairs.” 847.] [Id. at bar, Judge relevant case highly

In words Breyer observed: previously is person convicted of cocaine distribution

[A] likely know that so convicted to elec- more than one not .... cocaine sale scales are used to measure tronic likely powder person a is more to think that white a [S]uch might cocaine be a substance used cut around the scales person entering . closet to . . . a . . the downstairs [and] jury thought (as might have this defend- find his clothes likely previ- did), one not ant ... is more than sometimes ously think that some kind cocaine distribution involved to place Any operation taking . . in his . one of house. logically these of inferences make it somewhat more sets likely about cocaine his that defendant did know distribute it than one who did not house and did intend to reasonably jury might have so the a conviction —or authority supporting . . . The admission evi- believe. past act, such as those dence of a bad under circumstances here, present legion. 847-848.] [Id. have case, might in the instant

Thus, had been con- that because the defendant inferred likely he distribution, of cocaine was more victed scale, powder, white recognized have that the visible a were tools of the narcotic trade razor blade so convicted. United had than one who not been Nickens, supra. might It have inferred that States who conviction discovered person with such likely be more might in his own car tools of the trade his car was used for cocaine suspect being 427 Dissenting Opinion Boyle, J. distribution than one who had not. United States v supra. Rubio-Estrada, It might have inferred that a past possessor likely was more to associate with freely those who talked about the location of hidden Moccia, supra. might cocaine. It have inferred that a person such knowledge likely with would be more to Nick- be with how familiar to conceal cocaine in cars, ens, supra, and it might have inferred that a person prior with a conviction and such knowledge was likely previously more than one not involved to think present that cocaine in his might car, likely more spot likely to look for it in a hidden and less to get rid if it. Moccia, supra. Any it he came across one of these sets inferences make it basically somewhat likely more that defendant did know about cocaine in his car and did intend to distribute it than one who did not a conviction, have “or so the jury might reasonably believe.” Rubio-Estrada, supra at 848.

B. DOCTRINE OF CHANCES/FACTUAL NEXUS Citing majority Imwinkelried,26 the concludes that even if the evidence was relevant to rea, mens it fails objective-improbability approach The doctrine of chances or the applied endorsed Imwinkelried as use bad acts evidence for employed by majority mens rea is a variation of that of federal circuits addressing appear apply roughly issue. The federal courts similar limiting gloss purposes whether act admissible for knowledge presents explana and intent where the defendant an innocent presence, i.e., bystander, tion his presence, wrong for innocent mere place/wrong time, knowing drugs were, example, and denies in a Garcia, room, United States v (CA 1, 1993); United States v 983 F2d 1160 Tomberlin, 8, (CA 1997), vehicle, United States v 130 F3d 1318 a motor Buchanan, (CA 5, 1995); Santa-Cruz, United v 70 F3d 818 States 48 F3d Rackstraw, supra, (CA 9, 1995); v United States boat, United n 25 Charris, States Molinares Perez-Garcia, (CA 1987); United States v 822 F2d 1213 supra proximity defendant, n 19 or other location in Curry, Rogers, United States v (CA 1996); United States v 79 F3d 1489 Mich Opinion by

Dissenting Boyle, J. Ante at of chances.” doctrine admission under “the Initially does not we observe 395. acknowledge holding principal of VanderVliet test of admissibil- intent, the issue is is that when “sufficiently prior ity act similar is whether the theory improbabil- of to intent under the be relevant improbability supra ity,” “the 85, at and VanderVliet, unlikely rele- coincidence is acts are an other negate 85, intent.” Id. at a claim of innocent vant n 44. majority ignore continues

Because the repeating theory defense, it also bears of defendant’s theory actually intent contested that the defendant’s posses- requesting by charge a on mere to distribute in would make the mental state sion. This fact alone admitting distribute, for issue, intent to a basis distribute. state of mind to show intent to identical majority ignores and concludes that The this defense knowledge of admissible on the issue it not there is an insufficient intent to distribute because and the the other acts evidence nexus between question.27 majority charge that the The concludes in App 1; (1990). The in the circuits 287 US DC 918 F2d 207 consensus knowledge prior in misconduct evidence to be admitted to show allows circumstances, explicit of of discussion the doctrine these without chances. opinions support of in cites a number federal its require proposition between the that federal courts a close factual nexus prior charged 395, Analysis crimes. Ante and at n 13. of the cases does majority’s position support nexus in this case is insufficient a matter of law. similarity relevance, question question on the of is a of which turns any example, in United States v Rack precise given For facts of case. straw, supra 1479, persuasive fact all the n the court found in Fort of each other and that the sales crack sales were within months the method of Worth were similar to the crack sales in Colorado because involved, transportation similar, drug was was the same and defend drugs supplied In this was for the same dealers. ant the middleman Dissenting Opinion Boyle, case, very the facts of both were In offenses similar. United States Her nandez, (CA 7, 1996), 84 F3d the court found that March 1993 (1995 Ill, 1995]) possession forty-three pounds WL 23003 arrest [ND of marijuana hidden an automobüe and discovered when the defendant attempted crossing sufficiently to enter the United States at a border possession charge kilograms similar to a March 1994 of two of cocaine grams brought by plane one hundred heroin hidden in a suitcase Angeles Chicago, from Los to aHow the act’s admission. These acts were less similar than those Rackstraw. The fact that both courts siimlarity spec found sufficient on both sets of facts indicates the diverse appeHate case-by-case trum of facts that courts must review and the analysis they necessarily employ. Hernandez-Miranda, (CA 9, In United States v 601 F2d 1979), logical the court found that there was no relevance between smuggling marijuana conviction for across the from border Mexico in a backpack charge importing and a current heroin from Mexico that was crossing discovered at a border concealed in the defendant’s car under spare Although the fender well of the trunk’s tire. the court found the prejudicial error, admission of this evidence to be it did not find it strength presented. affirmed the conviction on the other evidence just purchased vehicle; Hemandez-Miranda claimed that he had how ever, possession the court noted in that he was his car of own and infer entiaUy everything AdditionaUy, else in it. there was no evidence that car, large else someone had hidden the heroin in the and the amount of money negated possibility that the heroin was worth the that it had been placed by is, nearly in the however, car accident mistake. or This case twenty-years old not accord with more Ninth recent Circuit Court cases, example, Arambula-Ruiz, (CA see for United States v 987 F2d 599 9, 1993); Santa-Cruz, supra. United States v n 26 by majority, In Adrian, supra, the final case cited the government’s United States v the district court denied the to motion the admit defendant’s prior convictions, finding prior only proved disposi- that the act criminal prejudicial outweighed probative tion and that the value the value. On interlocutory appeal, the United States Circuit Court for the Ninth Circuit disagreed, stating conspiracy that intent awas material issue in a with possession charge. intent to distribute and with intent to distribute “government permitted prove knowledge court stated that the to [is] proof through knowledge bad acts where element the [is] prosecutions possession . . crime at issue. . Intent of and intent to may through prior pos- distribute narcotics be demonstrated evidence of Thus, holding session and . sale narcotics. . . the district court erred in appeHant’s prior only that evidence of narcotics convictions tended to prove disposition." However, a criminal Id. at 492. the court found the regarding similarity record insufficient the of the to offense the charged offense and was therefore unable to determine whether the dis- excluding by finding trict court had abused its discretion in the evidence danger prejudice substantiaHy outweighed of unfair was the 458 Mich Dissenting Boyle, J. was too a dealer in 1988 drug was fact that defendant to charge instant dissimilar from the and too remote be that would otherwise likely than it make it more constructively possessed the drugs he knew of the possessed he with drugs as to the or that case, instant no to distribute.28 he had intent knowledge, that possession of proofs established constructive species was of acci- defense all and the drugs, was in construc- the defendant is, although dent, possession his was inno- drugs, possession tive merely happened he to because unknowing cent and Therefore, principal were. drugs be where the hidden knowledge argument was focused secondary argument was that if amount, intend drugs, he did not to possessed some defendant is rea the mind at fault them.29 Mens distribute that the wiser of the evidence. The court determined value develop government was to remand the case allow course weigh permit Id. at 493. court to the evidence. record and district purpose, but is for one not The fact that the evidence admissible another, it does make inadmissible. testimony provides rule which is no of evidence [TJhere purpose purpose and inadmissible for another for one admissible inadmissible; quite contrary thereby case. [For rendered strange example], rele- rule of law which held that would be a [i]t part vant, competent to show bias on the evidence which tended it inadmissible because also tended a witness was nonetheless Abel, US witness a liar. States v show that the [United 465; 56; (1984).] 83 L 105 S Ct Ed 2d Therefore, other evidence did even if the concluded acts permissible knowledge, was admis- inference of the evidence not reflect theory proper respect to a noncharacter it was relevant with sible because of intent. by presence the of other relevant evidence rendered irrelevant Nor is supra Chief, of the same issue. Old 178-179. during in in the motion limine Defense counsel essence conceded Further, deny drugs. the defendant did knew about the defendant containing baggies ownership the and cocaine resi- of the coat wallet People v Crawford Dissenting Opinion by Boyle, J. opposite intent, innocent which the defense asserted. Where any knowledge the defendant denies presence of drugs presence and asserts a mere defense, he is both that he knew challenging he was possession and that he intended to distribute. Tomberlin, United States F3d 1320-1321 (CA 8, 1997).

Although the quotes Imwinkelried selec- tively proposition for the that courts should not rou- tinely admit uncharged evidence on the issue intent, Imwinkelried’s discussion of other evi- acts dence a claim negate of accident on nonchar- theory quotation: acter merits more extensive Suppose [charged] possession that the accused is with drug. wrongful, possession a contraband beTo must be knowing. alleged indictment, On the occasion police discovered cocaine secreted in the trunk of a car presence driven the accused. The accused admits the the cocaine in his vehicle but denies mens rea —he claims that he did not know that the trunk contained cocaine.

[*] ^{[*] [*]} trial, prosecutor proffers testimony At that on two stopped earlier occasions when accused’s vehicle was police, police illegal drugs found car. chances, testimony Under the doctrine of is relevant meet the accused’s claim his igno- state mind was persons rant and innocent. It true that innocent some- suspicious find times themselves enmeshed in circum- However, everyday experience stances. indicates that that rarely frequently occurs. The more accused involved circumstances, plausible in such igno- the less the claim of rance. coincidence defies common sense and reduces attorney’s closing argument urged due. The defense not to find guilty merely people the defendant because he associated with who used may drugs drugs have left in his car. 458 Mich Dissenting Opinion Boyle, mental had an innocent that the accused likelihood the collectively, the Considered on all these occasions. state strengthen the uncharged inference charged incidents presence on of the cocaine knew of the that the accused uncharged just charged short, miscon- In occasion. the may reus, the evidence an actus can tend show duct requisite prove of the existence the logically relevant to rea. mens

[*] ^{[*] [*]} jury not ask the to forecast The doctrine of chances does any assumption of about character. on the basis behavior jurors pattern Instead, what to do the doctrine asks many jurisdictions do, direct them to instructions knowledge namely, employ of the their common sense plausibility com- ways relative of the world to assess the disputed [Imwinkelried, A peting events. versions proposed legisla- over contribution to the debate small prohibition in abolishing the sex character evidence tion Syracuse L prosecutions, 44 R 1132-1138 offense (1993).] court’s doctrine of chances focuses on trial an individual improbability that assessment activity. This innocently in similar would be involved depend on theory of does not logical relevance but, rather, character, inference of rests intermediate objective of fortu- assessment of likelihood majority correctly observes itous involvement. resort against Imwinkelried cautions routine that admit misconduct evi- doctrine of chances30 to However, what on the issue of intent. dence because acknowledge fails sufficient, act is view is that one hnwinkelried’s employed cautiously because uncritical The doctrine should be uncharged argument acceptance relevant misconduct admission as a matter of course. mens rea would rationalize Crawford Opinion by Dissenting Boyle, J. sup- it illustrates, does not previous quotation as the found in the illegal drugs the conclusion port charged in a offense inadmissible would be trunk in a Imwinkeliied’s defini- drugs car. involving illegal a four-part of chances offers test of the doctrine tion admissibility. requires The test assessment similarity identity conduct, but improbability, relationship the act and the temporal between for the and a bona fide need evidence. charged, act use an accused’s Imwinkelried, The mens rea: The doc- uncharged prove misconduct engulf the character evi- trines which threaten prohibition, (1990). 51 Ohio St L J 597-600 dence of logical states that in terms rele- Imwinkelried act can material.31 decisions vance, even one be focusing on fre- case, should be made case relative number of quency than the absolute incidents. rather Evidence, Imwinkelried, Uncharged Misconduct p The trial court must conclude that the 5:06, 14. § the had probability evidence alters the that defendant mind requisite charged state of at the time ordinary incidence of inno- However, offense. “[i]f only in such would be cent involvement situations has per and the defendant been involved once decade a twice within decade in such situations triggers coincidence doctrine extraordinary 31 adopted noting While that some courts and commentators have may position proponent to the doctrine of chances to resort only act, prove states mens rea one similar Imwinkelried with evidence relevance, contrary view, logical in terms of that even one act can by case, “is should be made case be material more sound.” decisions frequency focusing inci rather the absolute number of on relative than proponent convince court that the evidence alters the dents. The must requisite probability had state of mind at the time defendant Evidence, charged Imwinkelried, Uncharged Misconduct offense. 5:06, p § 14. 434 458 Mich 376

Dissenting Opinion by Boyle, Id., supp, chances.” 1992 5:06, p (emphasis cum § 125 in the original).

C. FEDERAL AUTHORITY: PRIOR ACTS FOR

INTENT AND KNOWLEDGE The federal a roughly circuits follow similar four- part appears test that apply limiting gloss without explicit reference to the doctrine of chances. The prior act or acts 1) must be relevant to material issue than propensity, 2) other there must suffi- cient evidence that defendant committed other crime, 3) value must not be substan- tially outweighed by prejudice, and other 4) the acts must be similar to and not too remote in time32 from the crime charged. United States Curry, v 79 F3d (CA 7, 1495 1996); United Wiley, States v F3d 345, (CA 8, 1994); United States Rubio- Villareal, F2d 1495, (CA 9, 1991); United States v Perez-Garcia, 904 F2d 1534, (CA 11, 1990). example,

For in United v Hernandez, States 84 F3d 931, (CA 7, 1996), the United Court States of Appeals for the Seventh Circuit a considered case in which the defendant, on deplaning Chicago’s at Airport O’Hare from Angeles, Los denied that a suit- case containing two of kilograms cocaine and one hundred of grams heroin belonged to him. The gov- prior The trial bench has broad discretion to determine whether the similarity requirement, Rogers, acts meet see United States v n 26 supra; Thomas, Tomberlin, States supra, United v United States v and and regarding have not established an absolute maximum the number of years separate charged prior act, that the offense and the see United Ismail, States v (CA 6, 1985), 756 F2d 1258-1260 and cases cited therein, Moore, United States v (CA 8, 1996) (seven years 98 F3d Tomberlin, supra remote); United States v years is not (ten too is not too remote). v Crawford Dissenting Opinion Boyle, for of misconduct offered evidence eminent of mis- intent, and absence knowledge, of purposes was arrested prior act, In the defendant take. forty-three pounds of possession the border agreed his the evi- marijuana in car. court drugs were different Although dence was admissible. the similar- employed, methods involved and different purposes Rule requirement 404(b) met for ity was distribution concerned both incidents because also illegal transport. The court drugs amounts a “gimme” was temporal element stated that indicating circuit prior holdings in the because of sufficiently 404(b) close for Rule years seven purposes. forty-three pounds of

The court concluded clearly a marijuana distri- hidden in automobile — relevant to show intent to dis- bution amount —was his amount found in tribute the other distribution prior possession tended suitcase, stating that fool mis- hapless was “not some show that Hernandez takenly up law enforcement caught overzeaious at 935. action.” Id. Ferrer-Cruz, 899 F2d

Similarly, United States that the evi- (CA 1, 1990), the defendant claimed only present that he was where dence showed he but that it did not show that found, cocaine was location. The trial knew was cocaine at that there possession court conviction admitted marijuana govern- on the basis of cocaine and showed Ferrer had ment’s claim that the evidence drugs the car contained bags knowledge On drug appeal, sale. intent consummate his Appeals Breyer, agreed, the Court through Judge with previous experience has noting that one who 458 Mich Dissenting Opinion by Boyle, likely part drugs switching is more to see car of a drug technique recognize sale and to know and that bags drugs the contents of in car contained experience.33 than someone without majority an finds insufficient nexus between charged and conviction offense. How- “unlikely ever, if not an coincidence,” VanderVliet, supra, surely “extraordinary it is an coincidence” that drugs someone else left in defendant’s car within ten prison months of his release from for similar miscon- relationship duct.34 The between the offenses was preclude neither too dissimilar nor too remote to possession. inference of nonaccidental majority simply recognize sum, In declines to analysis that its is inconsistent with the Imwinkelried applying 404(b). test with and all federal courts Rule majority’s Further, the conclusion at odds with the holding People of this Court v VanderVliet. Rule 404(b) require high similarity does not level of proffered between the other acts evidence and the charged respect acts with to the issue of intent. similarity support resorts to of the notion 404(b) gate.” that Rule is a “sentinel at the However disguised, majority’s repudiation conclusion is a government required The court observed to show more presence prove than mere knowledge a car with cocaine in order to presence Pertinently, and intent needed to make crime. the court pros also noted that the “Rule’s framers considered the and cons of abso lutely banning sort,” they evidence of this concluded that the evi long dence permissible survives “as absolute ban as at least one infer possible.” Ferrer-Cruz, supra ence is at 138. Hernandez, United States v See (CA 11, 1990). 896 F2d 522-523 spent prison Because Hernandez much of the interim time in between his charge, conviction and the current his own admission was on probation arrested, six-year period when the court found that between depreciate probity offenses did not of the extrinsic offense. Dissenting Boyle, need not be particular numbers principle of the the door pigeonholes filled, before particular or spun, majority’s The swings open. doctrine admissibility to of the analysis simply reassertion is of chances a rule of exclusion. 404(b) that Rule is notion

IV ABUSE OF DISCRETION evi- majority the the disagree We also with proba- than substantially prejudicial was more dence This is not balancing under Rule 403 test.35 tive could not con- case the trial court say given as admissions or other proofs, that other such clude scale, baggies, a beeper, trade such as tools probative that the bona residue were so and cocaine was minimal. The need the other evidence fide intent from specific mens rea general inference of acts may in the render the “bad” case other Imwinkelried, Uncharged 403. cumulative under Rule supra, Evidence, p 23. Stated oth- 5:09, Misconduct § erwise, jury possession knowledge, found had provide convinc- amount of the itself would drugs However, intent to distribute. ing evidence of Nickens, supra, “Although gov- court observed without convic- strong ernment’s case day say who that it would have carried the tion, is to been left out?” Id. 125. had conviction (CA 8, Penitentiary, Nebraska 57 F3d See Williams v State requirement 1995). evi that a district court exclude There no automatic prejudicial probative. The used is that the court more than term dence permissive language “may prejudicial and is a exclude” evidence. determinations, appellate reviewing that when Rule reminder elements, reweigh prejudicial task is these court’s “clearly in admit trial abused its discretion to determine if the court but ting the evidence.” 458 Mich 376 Dissenting Opinion by Boyle, J. possession

defendant’s defense of intermittent of the appears during impress car the week he owned it regard- and could have created a doubt possession ing control sufficient to constitute drugs. hidden Had the concluded had defendant possession drugs, or all the some as the defendant cognate charge, might claimed on the it have con- cluded he did not intend distribute them. There was no direct evidence state of mind, such as an testimony uninterrupted admission defendant, possession, directly connecting or of a witness placing drugs defendant to in the car that would probative prior have had the same value as the act. The size of the cache as well as the tools the trade might probative have been as of intent to deliver as They substantially was the did act. not have equivalent probative respect force with issue of possession knowledge or of the hidden cocaine. evidentiary reviewing

When decisions under MRE 403, 401 and our review limited to whether the decision an abuse of discretion.36 trial court’s decision to admit other acts evidence under Rule 404(b) is not reviewed under a de novo standard. As 36 of federal circuits are in accord with this standard Watson, review. United States v App 305, 309; US 282 DC 894 F2d 1345 Garcia, supra (1990); Mark, 1172; United States v n 26 United States v at Mazzanti, 444, (CA 4, 1991); United v 1165, 943 F2d 447 States 888 F2d Tomberlin, supra (CA 7, 1989); United States v 1320; United Khan, 1368, States v (CA 9, 1993); 993 F2d United States v Suntar Roofing, Inc, 469, 10, (CA 1990); United v 897 F2d States Perez-Gar cia, supra at 1539. Appeals recog- As the United States Court of for the Seventh Circuit has “ nized, carry ‘heavy appeal defendants a burden on because eviden- tiary ruling only will be reversed if trial court committed clear abuse discretion, reviewing gives special . . . a . . . court deference to the ” Mazzanti, supra evidentiary rulings trial of the court.’ at 1169. People Dissenting by Boyle, 261, 289; Bahoda, 448 Mich we observed (1995): 531 NW2d judge’s questions arising exercise from the trial “[C]lose concerning of evi- the admission on matters

of discretion review- appellate because the reversal not call for dence do differently. is war- justices Reversal ing have ruled would question only the trial if the resolution ranted decision of discretion. The to an abuse court amounted ordinarily evidentiary upon question definition a close Golochowicz, [People v be an abuse of discretion.” cannot supra at 322.] all misconduct car-

While is no doubt that there appellate potential prejudice, for unfair ries the properly the deci- reluctant to overturn courts are activity was not so if the the trial courts sions of inflammatory unduly attention from the divert any more sensational involved conduct case37or charge disturbing that the defend- than the narcotics currently facing.38 ant was Contrary majority’s trial court claim that the to the probativeness evidence, ante at overvalued majority’s acknowledge failure to n knowledge of both the evidence was pro- undervaluing specific of its intent in the results bative force. rejection majority’s balanc- of the trial court’s “heightened

ing of a and its assertion under Rule 403 principles application set need the careful for appel- 398, at substitutes 403,” forth in MRE ante judgment The evidence the trial court. late for 37 8, Edwards, 1101, (CA 1996). 1104 v 91 F3d United States 38 Pitre, supra n 19 at 1120. States v United 440 458 Mich 376 Dissenting Opinion by Boyle, J. theory,39 a admissible under noncharacter and we proper purpose.

must for assume used it its People Hana, v 447 325, 351; Mich 524 NW2d 682 (1994).

v HARMLESS ERROR persuaded if Even that the trial court abused its admitting discretion in the other bad acts evidence, we would find that the error was harmless. recognized

In Mateo,40 v we 769.26; that MCL usurpation authority MSA 28.109641was not a of our “miscarriage justice affirmatively a must appear preserved on review of nonconstitutional error.” Id. at 221. We further noted that review for beyond nonconstitutional error was not harmless denying reasonable doubt and that those courts relief preserved “only slight negligi where the error had proceeded ble influence the verdict have cor- 39 Rogers, supra; Garcia, v United States United States v n 26 n 26 supra; Pitre, supra United v 1119-1120; States n United States v 19 at Wright-Barker, 3, 1986); Mark, (CA United v 784 F2d 174 States n 36 supra; Buchanan, supra United v 831-832; States 26 United States v n at Ismail, supra Johnson, supra 1259; n 32 cf. United States v at n 19 at Hernandez, supra; 1193-1194; Edwards, United States v United States v n supra Arambula-Ruiz, supra 1104; United States v 604; at n 27 at Rackstraw, supra United States v 1480; n 25 United States v Perez- Garcia, supra. Williams, n United States (CA Cf. 816 F2d 11, 1987). 203; (1996). 453 Mich 551 NW2d 891 may granted any A ground new trial not be criminal case on the improper affirmatively appears admission of evidence unless it complained miscarriage justice. error of resulted See also MCR 2.613(A) (an ground granting error in the admission of evidence is a new trial unless take refusal to this action is with inconsistent substan justice). tial 441 People Dissenting Opinion Boyle, adopt definitive standard of rectly.” Id. We did not a review. courts, prosecutor show, must after

In federal the the stripping and without happened all that pondering whole, the that the verdict was action from erroneous substantially swayed by nonconstitutional error. not States, 66 v United 750; 1239; US S Ct Kotteakos 328 rights must be (1946). Ed Substantial 90 L 1557 required only if affected, reversal of verdict and preju- error resulted in actual the nonconstitutional “ injurious effect substantial and because it ‘had dice ” verdict.’ jury’s in determining influence or 725; 106 Ct Lane, v 438, 449; 474 S United States US 2d (1986). 88 L Ed 814 preserved not, the

By whether error is contrast, requires any that a under definition statute Michigan affirmatively appear. MCL justice miscarriage It follows that Justice 769.26; MSA 28.1096.42 Weaver Mateo43 and correctly held, both concurring that the error is Geams, presumption a that there is have the “defendant should harmless and that why the should be over showing judgment burden of Gearns, v 170; Mich NW2d People 457 577 turned.” com applied must be 422 Since the statute (1998). burden, allocation of the including the pletely, in Kot- be that defined level of confidence cannot Gearns, Brickley’s opinions Cavanagh’s Justices appear premise 170; (1998), to rest on the NW2d 422 would Mich prejudice. may require Legislature that a defendant demonstrate recognized this burden on has Justice stated that Court Weaver presumption negates past. conviction in the A lawful the defendant review, error the defendant disclose On burden innocence. guilty plea Similarly, requiring when a enters defendant reversal. justice. showing miscarriage appeals, has the burden of the defendant supra Mateo, at 222. 458 Mich 376 Opinion by Dissenting Boyle, J. prejudice i.e.,

teakos, Rather, did not occur. persuaded prejudice, court must be defined Kotteakos, was In short, caused error. by preponderance defendant must show at a least preserved the evidence that the error have a did “sub- injurious stantial and ing or effect influence in determin- jury’s the verdict.”

Despite disagreement, recognize our we that four justices separate recently opinions,44 in two have held prosecution highly probable that the must show it is that the evidence did not contribute to the verdict. People supra. Applying Gearns, v this standard, we would find that the error is harmless because it is highly probable disputed evidence did not affect the verdict. following inculpatory properly

The evidence was pat admitted at trial: routine down of the defendant beeper, ziplock baggie a revealed in defendant’s mostly twenty wallet, and $455, in ten and dollar by denominations. The car owned the defendant con- phone digital tained a mobile and a scale. A razor holding digital blade was found within the box jacket scale, which had cocaine A residue on it. belonging to the defendant, located on the seat, back ziplock baggies bearing contained six cocaine residue doper papers. jury given as well as fold The was limit- ing regarding proper instructions use of acts beginning again evidence at the of the trial and majority end the trial.45 See ns and 8. The com- Brickley joined by Justice was Chief Justice Mallett and Justice joined by Kelly. People Gearns, supra. Cavanagh Justice v majority recognize importance does not seem to of these virtually ignores instructions them. The states that risk “reverberating clang” created of the other acts drowns the Dissenting Opinion Boyle, prior acts evidence explain how the pletely fails to Any admitting error the defendant. harmed Mateo, negligible. slight evidence was prior acts met his burden has not at 221. Defendant supra jus- miscarriage the conviction was proving that trial is inconsis- a new grant or that the refusal to tice justice. with substantial tent

CONCLUSION trial deference due majority disregards and instead acts evidence admitting other courts factual nexus is an insufficient that there determines present charged and the conviction between slope and fails to slippery It invokes offense. philosophy that the structure acknowledge only relevancy. United States require rules 1996). As the court Procopio, (CA 1, 88 F3d Latney, concept this in United States articulated 417, 420; (1997): DC 108 F3d 1446 App 323 US strength is a different matter than of the evidence [T]he relevancy. long fact of con- So as the evidence makes a its sequence likely, That evi- more or less it is relevant. conclusive, nearly so, is no dence not or even of moment. result from cumulation of bits of convictions “[M]ost

proof which, singly, enough would not be in the taken person.” . . When rele- minds of a fairminded . it comes to jury. 398-399, Ante at cit- sound” of the other evidence before the “weaker Merriweather, supra. Concerning ing n the value of the instruc- clang” “reverberating and effect the risk caused tions their on Merriweather, supra evidence, Ryan Judge n at acts stated in other 1077: might magnitude The of that risk well have been reduced jurors specific identifying for the clear and concise instruction limiting purpose their for which the evidence admissible purpose. to the evidence to that consideration Mich 376 Dissenting Opinion by Boyle, J. vancy, however, sliding there is no scale. “item is either not; relevant or it no there is in-between.” slippeiy-slope analysis major- simply reflects the ity’s relevancy of its substitution determination that of the trial court it shifts the burden under Rule 403 from the defendant to the government. Ante n 15. The trial court did not abuse its discre- tion in finding the evidence prej- more than udicial. The evidence was circumstantial, but more than guilt beyond sufficient show a reasonable doubt, challenged testimony. without the

For the foregoing reasons, we would affirm the decision Appeals. of the Court of

Weaver JJ., concurred with Taylor, Boyle,

APPENDIX COLLOQUY DURING HEARING ON MOTION IN LIMINE

MAY (Interposing) The Court: Which is an element but there jump get are other hurdles before we to that. attorney]: Mr. Honor, Fenton Your I believe that [defense all, buy. first of the act was different. That was a That awas buy particular direct in that case in 1988. That awas deliv- ery particular of the controlled substance occasion. This, delivery. stop. there’s no It’s a traffic Some nine hours they later, find controlled substance hidden behind the glove box, glove roughly box but in the area glove behind the box. I don’t believe that that is . . . [.] (Interposing) you arguing they The Court: Are can’t intent, show that this is the —he had no intent to deliver? key And delivery, that’s one of the right, elements of the is the intent?

Mr. Fenton: Possession with intent to deliver which he is charged they with. Your Honor. I don’t believe can show it Dissenting Opinion Boyle, outweighs prejudicial value act. I think the a similar with tanta- particular It’s almost case. probative value this particular Jury guilty he’s in this telling mount case. guilty of in the situation? was he Court: What something. was he What

Everybody agrees guilty of he was guilty of? Delivery and 225 [prosecutor]: between Stablein Mr. conspiracy two sorry- were the

grams 650 and to—225 —I’m Judge, he was Information, in 1989 when in that Counts convicted. argument is that an element here The Court: So you’re mainly possession. I assume that he is in

would disputing possession? possession, disputing Your Honor. I am Mr. Fenton: had saying know he he didn’t The Court: You’re possession? is

Mr. Fenton: That correct. necessary for you’re saying knowledge is The Court: So possession then, I Is an element. am correct? think so.

Mr. Fenton: I would says possessed, Judge. knowingly It defi- Stablein: It Mr. nitely is an element. appear Okay. be rele- that would Court: And so obviously knowl- if he didn’t have I mean

vant to issue? conceivably possess. edge, he couldn’t somebody put with- it there If it was there accident my supposition? That’s knowledge I correct out his —am your argument, Mr. Fenton? case, it on Your Honor. Yes. And I base Mr. Fenton: Okay you trying to estab- were then And so The Court: possession knowledge because he have lish that did that, prior acts, Mr. Stablein? am I correct on his think, Yes, clear, I A issue Your Honor. Mr. Stablein: knowledge the cocaine going to be because this case going be that I believe that the defense so well hidden. didn’t know he ...[.] 404B, I there’s (Interposing) As understand The Court: you You laundry can follow.

really or a list that list check 458 Mich Dissenting Opinion by Boyle, J. specifically identify have to the controverted And facts. apparently as I understand the facts controverted are that you say your knowledge client had no whatsoever of the— possession so he couldn’t even much less with an I intent deliver. Am correct that?

Mr. Fenton: Of the amount that was found behind the glove box. Correct. Okay. Well,

The Court: did knowledge see he have any? Forget about the knowledge amount. Did he have any cocaine? say

Mr. Fenton: There was a small—I can’t small residue allegedly according police but reports, they to the pocket .16, found a coat less than —I think not even a gram. sixth key

The Court: The is the amount.

Mr. Fenton: That is correct. right. All dispute you Court: And it’s because are arguing it, that he didn’t know about he couldn’t have it Obviously you’re posture put there. having in the prove your prosecution defense as the so has its burden proof just trying but I’m to understand what attack we are making figure really so that I can dispute. out what is in appear dispute then, And would to be a Iam correct on that? That he knowledge didn’t have that he had this possession? amount of cocaine in his Mr. knowledge Fenton: He didn’t have that there was correct, cocaine. That’s Your Honor. right. anybody

The Court: All disagree And does that’s relevant to the issue —the amount ...[.] prove

Mr. (Interposing) Stablein: If I knowledge, can’t guilty the Defendant is not of the crime. Okay

The Court: Honor, they Mr. they Fenton: Your can can still have — possibly possession have without ...[.] (Interposing) Okay. The Court: And so we did have the— dispute no all the Defendant did the act. Nobody arguing that, right? about Boyle, Dissenting and served guilty to that pled No, he because Mr. Fenton: time.

Case Details

Case Name: People v. Crawford

Court Name: Michigan Supreme Court

Date Published: Jul 28, 1998

Citation: 582 N.W.2d 785

Docket Number: 104696, Calendar No. 1

Court Abbreviation: Mich.