People v. Golochowicz

PEOPLE v GOLOCHOWICZ 17, request May by the defendant 1982. On 62949. Decided Docket No. Court, appointing record, Supreme after of the review appeal, apply in lieu of for leave to the defendant to counsel for leave, re- granting reversed the defendant’s conviction trial. for a new manded jury in the Oakland convicted J. Golochowicz was

Jerome Court, Ziem, J., first-degree The trial Fred C. murder. Circuit uncharged separate under murder evidence of a court admitted Appeals, R. B. Burns and statute. The Court of the similar-acts (Docket P.J., concurring), (Cynar, No. Breighner, affirmed JJ. 77-2319). appeal. applies for leave to The defendant Kavanagh, joined by opinion by Ryan, Justices In an Justice Levin, Fitzgerald, Supreme Court held: admitting separate evidence of the trial court erred in unfairly prejudicial uncharged so homicide. The evidence was weighed against probative worth its limited and tenuous when denying the a fair resulted in defendant its admission trial. against prejudice, protect 1. a defendant unfair In order permit of the

the rules of evidence and case law evidence (1) only there is similar acts to be admitted where defendant’s sought actually perpetrated the act that the defendant evidence (2) introduced, special quality or to be some circumstance intent, motive, identity, act tends defendant’s [1, 2, [8, [3, 29 Am Jur [5, 29 ^[9] Admissibility, Admissibility Am40 7] 6] 10] Am29 evidence charged charged. ALR 4-8, 5 Am Jur Am Jur Jur 10] Jur to show 29 Am Jur 2d, of other 2d, References under Rule other 2d, 2d, under Rule 2d, Appeal Homicide 310. Evidence 326. Evidence 322. Evidence § preparation Fed wrongs, crimes, crimes, wrongs, 2d, 497. § § Evidence 320 et and Error 881. for Points 404[b] 404[b] § 251. plan. of Federal Rules of Federal Rules of § § in Headnotes 47 ALR or acts acts seq. not Fed similar similar 781. Evidence, Evidence, to offense to offense People v Golochowicz scheme, plan, opportunity, preparation, knowledge, system in act, (3) doing accident, or the absence of mistake or one or more of those factors material to the determination of the (4) guilt offense, charged defendant’s the substantially outweighs danger of the value evidence the of prejudice. unfair prosecutor, requesting 2. A when admission of similar-acts purposes, identify specificity evidence for substantive must with purposes which of the enumerated in the rule of evidence justifies prosecutor specify, its admission. Where the to fails so judge require specific the trial should identification of the basis determining proffered admissibility the rule before the of the prosecutor merely "shotgun” evidence. The not should loose a admission, most, justify reciting fusillade of reasons to if not all, purposes Similarly, mentioned in the rule. the trial judge vague justifications should avoid for admission. 3. was There substantial evidence that the defendant had uncharged murder, satisfying committed the the first safe- guard. identity of the defendant the as killer in the charged genu- murder was material because it was a matter controverted, inely thereby satisfying safeguard. the third judgment 4. It is a matter of whether the manners of com- peculiar, mission distinguishing, of the two homicides such had special justify by characteristics as to an inference ordinarily juror reasonable both were the handiwork of appears the defendant. on While the record it that there were characteristics, close, question not such ques- the is and close arising trial, judge’s tions from the exercise of discretion on concerning matters the admission of do not call for evidence appellate justices reviewing reversal because the would have differently. only ruled Reversal is warranted if the resolution of question by the trial the court to amounted an abuse of discretion, upon question and the evidentiary decision a close ordinarily definition cannot be of an abuse discretion. Nevertheless, 5. requir- admission the of evidence was error reversal, ing not because of an abuse of on discretion the question distinctiveness, of but bécause the evidence was so unfairly prejudicial weighed against when its limited and tenu- probative that, admission, ous worth in its the defendant denied a fair trial. It a familiar rule that evidence of the uncharged misconduct of the accused is for inadmissible the damage thought unfair it is do in most cases. Because of that, presumptively guilt the defendant was entitled to have his killing charged or not of the jury in this case determined evaluating alone, evidence of this case uninfluenced the [May- separate distracting of a of the defendant’s admission evidence reasons, unless, compelling the other evidence of homicide determining jury helpful more to assist the would be crime prejudicial the identity the killer than it would the of example why presents trial case classic defendant. This relevancy applying of stricter in the standards courts should be identity purpose is to evidence when ultimate charged doing by act than the accused of criminal or the issue of they the evidence is offered on ultimate are when court, intent, knowledge, A or other state mind. trial evidence, admissibility passing on of similar-acts should

begin presumption ex- that such evidence is to be with the should be An ultimate decision to admit the evidence cluded. only policy the court is convinced that made where because, its will offended in view of rule of exclusion not be force, danger jury probative no will there is little or proper purpose of the evidence. misconstrue case, manner commission 6. In this homicide, uncharged because its manifest weakness single unique in both hand of a actor show distinctive crimes, proof force as of the defendant’s had limited identity charged, and inevitable as the killer in the crime its heighten prejudicial the of the was to effect countereffect evidence. Appeals

The of the Court of is reversed. decision Williams, joined by Jus- Justice Chief Justice Coleman and Moody, concurring dissenting agrees part part, and in tice in four-pronged requirement the for admission of similar-acts with However, similarity the evidence. he would hold that the of unique in case involved the murders in this circumstances prong the the that meets distinctive-characteristics of test and probative outweighed prejudicial the of evidence value the its addition, balancing In he effect. would hold that the determining admissibility factors in the of similar-acts court, and, discretionary of is with the trial because no abuse found, the court’s discretion he affirm. was would 1. The that accom- evidence indicates the murders were plished systematic plan in accordance a distinctive with perpetrated by scheme and killer. Both victims were same items; bachelors; strangled were and both were with household dwellings victims’ both had been entered without force. The personal property piecemeal resi- was removed from their personal possession dences. defendant of The had been property shortly killings had of both victims after their and People v Golochowicz offered to sell certain articles from each victim to the same person. unquestionably 2. The similar acts were relevant. of Evidence legitimate calling the acts would tend to effect its function of signature jury’s empha- attention a common rather than sizing that the a defendant was bad man. It is doubtful that the purely evidence would a have evoked emotional decision striking aspect jury similarity because its was the operandi of cumulative details the modus and because theory people defendant’s of the case that failed to proof, leading jury meet burden of on focus other exclusively elements and not on the defendant’s character. probative 3. determination whether the of value similar- substantially outweighed by prejudice acts evidence is unfair is within the discretion of the court. trial Absent an abuse discretion, is reversal not warranted. In order for such abuse to obtain, palpably grossly the determination must so be logic will, perversity violative of fact it evidences judgment, passion defiance of exercise of or bias. The proffered and, addition, evidence did not confuse the issues limiting given. instruction was (1979) App 57; NW2d reversed. Opinion Court — Admissibility. — — 1. Criminal Law Evidence Similar Acts Generally, evidence a criminal defendant’s other crimes is not purposes admissible for substantive because its value outweighed potential prejudice, creating danger is its that the history defendant will be convicted because of his upon presented other misconduct rather than the evidence issue; statutory the case in exceptions and decisional general narrowly required rule are confined and is the evidence (MRE safeguards to meet a number before it admitted 404[b]). — Admissibility. — — 2. Criminal Law Evidence Similar Acts Evidence of may a criminal defendant’s similar criminal act (1) admitted where there is substantial evidence defen- actually perpetrated sought dant the similar to act be intro- (2) duced; special quality some or circumstance of act the tends prove motive, intent, identity, to the defendant’s or the absence accident, scheme, plan, of or system doing mistake or the act, (3) opportunity, preparation, knowledge; or or one more of those factors is material to the determination of the defen- guilt (4) charged offense; of dant’s the the value danger substantially outweighs the of unfair of the evidence (MRE 404[b]). prejudice Admissibility — — — — Similar Acts Law Evidence 3. Criminal Identity. Proof of proved uncharged substantially of- of a Admission of evidence charged, fense, with which a defendant is to an offense similar identity perpetrator prove of may justified of the be only charged and manner in the circumstances offense where nearly are so committed identical which the two crimes were charged offense as the handiwork as to method earmark accused; be commonality must so of circumstances signature, thereby like a as to be unusual and distinctive ordinarily juror that both justify reasonable an inference (MRE person 404[b]). by the same crimes were committed Admissibility. — — — 4. Similar Acts Law Evidence Criminal may be offered to of a similar acts Evidence defendant’s intent, directly, identity, mistake or accident or absence of scheme, doing might plan, system in an act while evidence of might provable directly the threshold in issue or be as identity perpetrator evidence from which the point charged as the ultimate to be could be inferred crime court, upon duty inquiry proved; close it is of the trial counsel, satisfy jury, itself that one or in the absence of the justify would admission of the more of factors which to the determination of defendant’s evidence material (MRE 404[b]). guilt charged offense Admissibility. — — — 5. Criminal Law Similar Acts Evidence prosecutor, seeking upon of a A admission of evidence defendant’s speci- identify purposes, acts must with similar for substantive ficity purpose prescribed the rules of evi- the material as admission, prose- justify dence which would and where the require specify, cutor fails trial should such so court specification determining admis- before whether evidence is (MRE 404[b]). sible Materiality. — — — 6. Criminal Law Similar Acts Evidence justify A factor which would admission a criminal prescribed by defendant’s similar acts as the rules of evidence purpose satisfying is "in issue” or "material” for the requirements only genuinely of the rule where it is a contro- i.e., matter, verted made where the defendant has it an issue (MRE disputed actually 404[b]). in the case People v Golochowicz Admissibility. — — — 7. Criminal Evidence Similar Acts Law court, determining admissibility trial in A of evidence of a acts, especially purpose proving defendant’s similar for of identity perpetrator charged, of the of the crime should inadmissible, begin presuming by that such evidence is and an only decision ultimate to admit the evidence should be made policy when the court is convinced that of the rule of because, proba- would exclusion not offended view of the prove identity, of tive force the evidence to there is little or no danger instruction, jury, limiting a aided would purpose beyond misconstrue its a be stirred rational consid- guilt eration defendant’s or innocence crime (MRE charged 404[b]). — — — — 8. Criminal Law Evidence Similar Acts Discretion Appeal. of a decision trial court to admit evidence aof criminal acts, question, defendant’s similar it is where a close will not be appeal reviewing reversed on because the court determines that differently; it would have ruled reversal warranted where the discretion, decision the trial court amounted to an abuse of but, ordinarily, question evidentiary a a decision on close cannot amount to an abuse of discretion. Opinion Concurring Dissenting in Part and in Part by Williams, J. — — Admissibility. —

9. Homicide Evidence Similar Acts unique Evidence of uncharged similar and details of an murder pattern charged which intersects the aof so homicide as to perpetrated indicate that both killer, homicides were the same noted, may even where differences are be admitted probative where the trial court determines that the value of outweighs (MCL any prejudicial 768.27; evidence effect 28.1050). MSA — — — Appeal. 10. Criminal Law Evidence Similar Acts court, A trial determining whether the value of substantially outweighs similar-acts prejudicial evidence its effect availability should prejudicial consider the of less sources proof, necessity of the evidence to an element of people’s case, case, theory the defendant’s the ten- dency passions jury, inñame the potential its confusing case, for issues and such a grounds determination will appeal not be for reversal on absent (MCL showing 28.1050). 768.27; abuse discretion MSA op Opinion the Court Patterson, Rob- Brooks Prosecuting Attorney, L. Williams, Counsel, Appellate Chief ert C. Modelski, Prosecuting Attor- J. Michael Assistant ney, people. Wolfram, Shwedel, Zip-

Faintuck, McDonald & Wolfram) for defendant. William G. ser (by again an area of J. address once We Ryan, the bench bar law evidence with which the so-called continuing difficulty: to appear have rule.1 similar-acts 6, on jury May convicted a

Defendant was life 1977, and sentenced to first-degree murder Appeals affirmed The Court imprisonment. opinion,2 prompting published a conviction response, In request to a for review.3 defendant file 2, 1979, ap- this Court by order dated November application to and file an pointed prepare counsel for to appeal. leave attention single meriting whether

The issue a evidence of admitting the trial court erred in con- uncharged crime. After careful separate sideration we have concluded that admission to the defen- prejudicially evidence was unfair 853.2(4), and, 1963, to in lieu pursuant dant GCR deci- we reverse the granting appeal, leave sion of the of Appeals. Court 1, 1976, found Donald neighbor

On a November condomin- Mitchell’s in the den of Mitchell’s body bachelor, in the A ium of Novi. City 49-year-old had strangled Mitchell been with his own bathrobe tie. had on employer He seen alive his been 29, from missing October 1976. Several items were 1 404(b). MRE 2 (1979). Golochowicz, People 57; v App 576 Mich 279 NW2d 1977-4, See Administrative Order 400 Mich lxvii. People Golochowicz v Opinion op the Court barometer, including the condominium a Fisher checkbook, speakers, stereo a and a credit card. Mitchell’s yellow Lincoln Continental auto- gone. mobile was also house was not in disar- sign break-in, ray, there was no of a and the neighbor body who discovered the had to use a key to enter the premises. 30, 1976, defendant,

On October Golochow- icz, appeared Detroit at home Paul O’- Clare and his brother Dennis. Defendant was driv- ing yellow Mitchell’s Lincoln Continental and was possession pair also in of a of Fisher stereo speak- ers, checkbook, a barometer and a all at identified belonging trial as victim. The defendant later sold year-old Lincoln Continental He tire, also sold the spare $175. vehicle’s tape vehicle, stereo deck from the the Fisher speakers and the He barometer. wrote per- three sonal checks on the victim’s account and used victim’s credit card purchase clock-radio. 30,

The O’Clares both testified that on October 1976, the them, his to day visit the defendant to sell a Quasar offered television set and a Fisher stereo set to the O’Clares if they would accompany him the to obtain Paul items. O’Clare testified that the defendant claimed the items in a were condo- in minium the "Pontiac-Novi” area. The O’Clares declined the invitation.

At the discovered, time Mitchell’s a body was Fisher stereo Quasar set and set in television were the condominium. There expert opinion was testi- at mony the trial fingerprints found in Mitch- ell’s home were the defendant’s. statute,

On the basis the so-called similar-acts MCL 768.27; 28.1050, MSA Michigan the Rules Evidence having not been at the time of adopted trial, prosecutor introduce, the the able was to Mich Opinion op the Court following testimony the objection, over defense 4, 1976, the November On about Dennis O’Clare: inquired and whether contacted O’Clare defendant television purchasing Sony a he interested prompted That he was interested. set. said O’Clare through from defendant calls telephone numerous night, encouraging O’Clare course them the two of transportation so obtain to examine to a certain location go could a.m., Finally, set. at about O’Clare television car and drove the defen- his roommate’s took home, to a house on proceeded two dant’s in Detroit where defendant Muirland Street park- located. After the television set was claimed direction, ing garage car at defendant’s to the back door of followed defendant O’Clare a opened key the door without house. Defendant room, living to sit down and told O’Clare go roaming” not "to not touch anything, upstairs. then about. Defendant went kitchen, that he went into O’Clare testified and, basement, looking into light turned on He at the bottom of stairs. pool saw a blood ly- man’s body went and discovered a downstairs "coming cord ing face down with an electrical further from either side of his neck”. O’Clare testified:

"Uhmmm, Jerry upstairs. yelled I I went back up me. floor. he couldn’t hear He was on second floor, So, like, I met him on the second the staircase of just landing, carrying the second floor and he was off guns gun some—he had rack. I told him to set them on the floor. out of a some he had taken him, I told said, I I 'I here. man on floor.’ see lying 'Come saw a Somebody’s on the someone on the floor. floor.’ He the stuff. Come here. been killed said, just at I on. Just leave looked me. 'Come you.’ I went to show We want got We half- back down staircase and went down. People v Golochowicz Opinion of the Court I way down the stairs and leaned over to show him. legs halfway You could see the man’s way down the stair- I you when first noticed him —but couldn’t —that’s any legs. further see and than man’s He leaned over ”4 said, 'Oh, get let’s out here.’ pair The did not leave home At immediately. insistence, defendant’s he and O’Clare removed the set, guns calculators, television some lamps, and a number of other items from the home and in put them their car finally leaving. before further O’Clare testified the next day, while he and the defendant driving pawn were to a shop to sell some of the goods, stolen the defendant admitted that he had killed the man on Muirland Street and described how he had done so beat- ing the man over the head and then strangling him with an electrical cord from a coffee pot. Then, O’Clare, almost immediately, according to defendant denied that he had it. done

I question presented is whether the trial court committed reversible error in allowing into evidence Dennis O’Clare’s testimony concerning the Muirland Street events, homicide and related including defendant’s admission. The prosecutor offered this testimony pursuant 768.27; to MCL 28.1050, MSA provides: which any "In motive, criminal case where the defendant’s intent, of, the absence part, mistake or accident on his or act, scheme, plan defendant’s system doing material, any like acts or other acts of the may motive, intent, defendant which tend to show his of, the absence mistake or part, accident on his or the scheme, act, plan defendant’s system doing transcript, p Trial 174. [May- 298 413 Mich Opinion the Court contempora- they are whether proved, may be question, thereto; notwith- subsequent prior or or neous with or tend to proof may show show standing that such subsequent crime prior or another or commission the defendant.” this recognized it should be At the outset 404(b), successor, MRE stand as its statute inadmissibility rule of general to the exceptions policy other crimes. of a defendant’s evidence of simi- genéral exclusion underlying consideration is purposes for substantive evidence lar bad-acts based of conviction danger desire to avoid other misconduct history defendant’s upon a in of his conduct the evidence upon than rather in the case issue.5 inheres which prejudice potential

Given the of evidence a defendant against admission in the acts, statutory uncharged bad of similar rule of exclu- general to the exceptions decisional to a few confined evidence have been sion of such required and are defined circumstances narrowly safeguards evidentiary to meet a number Those admission into evidence. proper warrant it has been decided crimes is barred because "Evidence of other outweighed by probative evidence has is that whatever value such appraisal diverting objective disadvantage the trier of fact from against guards guilt innocence. 'This rule of law of the defendant’s convicting Barring person such is a man. an accused because he bad inferring prevents the accused of fact from evidence person trier charged guilty he has committed offense because 48, Matthews, 52; App People 17 Mich acts or crimes.’ v other similar (1969). 169 NW2d 138 however, decided, of such that the value "It also has been disadvantages people may outweigh seek to where the intent, 'motive, the absence use such evidence to show the defendant’s of, scheme, plan part, or the defendant’s mistake or accident on his act, 768.27; system [doing] question.’ MSA 28.1050.” MCL (1973). 410, 413; DerMartzex, People 213 NW2d 97 v 390 Mich (1931); 434; People Dean, v People 235 NW 211 See also v (1871). Schweitzer, 23 Mich 301 People Golochowicz v Opinion op the Court safeguards, accurately summarized the Court of Appeals People App Wilkins, 260; v Mich (1978), adequately supported by 266 NW2d 781 precedent required Court, from this citation at the time of trial that before evidence of the defen- (1) may dant’s other misconduct be admitted: there must be substantial evidence that actually perpetrated the defendant sought act bad to be (2) special quality introduced;6 there must be some tending or circumstance of the bad act identity motive, intent, the defendant’s or the plan accident, scheme, absence of mistake or system doing light slightly and, in the act of the 404(b) language opportu- add, different of MRE we (3) nity, preparation knowledge; and one or more of these factors must be material to the determina- guilt charged offense; tion of the defendant’s and of the (4) probative sought value of the evidence substantially to be introduced must not be out- weighed danger prejudice. of unfair

A Applying safeguards the first of these to the present case, we find that there was substantial evidence that defendant killed the man found at Testimony concerning the Muirland address. familiarity premises, defendant’s with the fact that he was aware that he Muir- could enter the key, land home without a his instructions to wit- anything ness Dennis O’Clare not to touch and not upon being to roam house, about the his reaction confronted with the fact that a dead man lying subsequent basement, removal of 6People Davis, (1955). 348; v 343 Mich 72 NW2d 269 The defen proved dant’s beyond commission of the other act need not People Duncan, 1; (1977); reasonable doubt. v 402 Mich NW2d Allen, (1958). People 535; v 351 Mich 88 NW2d 433 op Opinion the Court finally possessions, and the defen- deceased’s strong admission, to create a all combine dant’s inference previously on had been

that defendant premises in the killed the man found and had basement.

B safeguards third of the described The second problem. present a more difficult above "special second re- circumstance” relationship quirement charged between the the refers to the supplies uncharged offenses which thereby that evi- them and assures link between separate of some offense is dence character. the defendant’s bad fact other than identity killer, Here, of Mitchell’s that fact is alleged uncommon link to be the and the is said similarity ing circumstances surround- of the facts and the two victims were

the manner which relating including killed, to the defen- the facts residences and his theft dant’s access to the two disposition property. of the victims’ only case, Where, the conceivable as in this justification evi- for admission of such similar-acts perpetrator, prove identity the dence is to the strength justify forged to link the is with sufficient only separate offense admission evidence in which where the circumstances and manner nearly identi- "[s]o are two crimes were committed charged offense] [the cal in method as to earmark much more of the accused. Here as the handiwork repeated commission is demanded than the mere repeated class, such as of crimes of same burglaries [commonality of circum- or thefts. The toas stances] must be so unusual and distinctive People v Golochowicz 311 Opinion Court (2d McCormick, ed), Evidence signature.” like a be 190, p 449.7 § value of those two

It is of the combined because factors, distinctive unique uncommonly and committing by the defendant style employed oifense, uncharged similar "substantially proved” operandi employed distinctive modus and the same oifense, permitted that is charged jury in the evidence, infer, if that both to it believes person, were the handiwork same crimes the defendant.8 not suffice that the "like act” be simply

It will or general category another crime of the same character. It will not do specific even of the same show, the defendant example, to for simply murder. That information is committed another juror to used reasonable likely by ordinarily purpose for which evidence of bad very excluded, required is to be to show that character 7 Duncan, comparing People principle is best illustrated v 1; (1977); 472; People Oliphant, 399 Mich 402 Mich 260 NW2d 58 v Allen, (1976); 535; People 351 88 NW2d 433 250 NW2d 443 v Mich Davis, (1955); (1958); People 348; People v 343 Mich 72 NW2d 269 v (1950), Kalder, Morehouse, 689; People 44 v 364 Mich 11 328 Mich NW2d 830 (1938), 235; People Lundberg, 284 Mich 596; 493 with v NW (1961); 545; People Padgett, 111 NW2d 809 v 306 Mich NW2d (1936), (1943); Locke, People 333; v 275 Mich 266 NW 370 (1931). Dean, People 434; v 253 Mich NW 8Identity recognized explicitly statute is not one of the items capable proof by separate as explicitly recognized offense. It is now evidence of a 404(b), not as such an item MRE which was Nevertheless, effective at the time of trial. use of similar-acts prove proving earmarking identity by plan system a common or recognized prior judicially the offense as the accused’s handiwork was trial, 472, 489; People Oliphant, 250 NW2d 443 to this v 399 Mich (1971), (1976); People 330; Kelly, v 192 NW2d 494 justified language perpetrator’s under the of the statute in that plan prove system accomplishing charged offense is offered plan system it used coincides with a distinctive accomplish thereby tends to defendant that the defendant was a similar offense and responsible charged for the offense.

312 413 Mich 298 Opinion op the Court person who the accused is a bad has murdered probably that he before and to invite the inference uniqueness It did so this case. and the crimes distinctiveness with which both were com- proof mitted, combined with the the defen- key. act”, dant committed the "like that is the On point recently this Court stated: distinguishing "It is the characteristics which consti- meaning tute the acts as similar within the of MCL 40403), 768.27 and MRE not the fact that all constitute the same crime or are violative of the same statute. The distinguishing, peculiar special characteristics which personalize are common to the acts and thus them are 'signature’ said to be the defendant’s which identifies * * perpetrator him as the *.” People Major, v (1979). 394, 398-399; Mich NW2d Consequently, if the trial court determines that there is substantial evidence that the defendant in uncharged fact crime, committed the other or it determining must then turn to the task of whether systems employed by perpetra- the manners or uncharged tor of crime and the crime in question sufficiently were "like” or "similar” and unique, peculiar spe- distinctive, involved such justify ordinarily cial characteristics as to rea- juror sonable to infer that both were the handi- person. work of the same If the trial court con- may cludes the character, evidence is of that it not, admitted. If it is excluded. This is the essence requirement supra. of the second Wilkins, We requirement turn now to determine whether that was met in this case. concerning require-

Here a word is in order distinctly ment that one or more of the different purposes named in the statute and evidence rule for the admission of similar-acts evidence must be People Golochowicz v Opinion of the Court assist, to it is the bench an«i in hoped, material bar understanding analytical process which should to admit or such evi- reject inform the decision dence. 28.1050, 768.27; supplanted

MCL MSA now 404(b), MRE declares that may "like acts or other acts of the defendant which motive, intent, of, to show his

tend absence mistake scheme, part, plan or accident on his or or the defendant’s act, system doing question, may proved in in be in any criminal case which one or more of those [in factors, are material].” Evidence, applicable Michigan The now Rule of 404(b), is somewhat different and adds the fore- more: going "opportunity”, "prepara- factors four tion”, "knowledge”, and "identity”. Evidence, comparable Federal Rule

404(b), is It still different. lists most of the factors stated our statute and evidence rule except "scheme, it refers only "plan” plan instead of doing an act”. system statute, rule,

theOf factors listed in our decisions, it should be understood that not all are on the same plane. Stone,

As noted in The Rule of Exclusion of America, Similar Fact Evidence: 51 Harv L Rev 988, (1938): 1026, fn 190

"Intent, mistake, identity absence are facts in probanda. Motive, plan, issue—facta or scheme are probantia, facta may any pro- tend to show facta banda.”

Thus it becomes clearer that while evidence of intent, similar might acts be to prove offered ab- accident, sence of directly, mistake or or identity 413 Mich 298 Opinion of the Court plan, system doing evidence of scheme or an act might directly might provable be in issue or as the threshold evidence from which could be in- identity perpetrator ferred the of the as the ulti- point proved. mate to be conceptual template

No can be constructed appellate any court which trial courts and mechanically any, counsel can which, test if purposes described above are material within the meaning of our statute or rule. It is for the trial judge, upon inquiry counsel, close in the absence jury, satisfy process, himself, and, in the appellate record, create an that one or more of the named factors are material. requesting pur-

When admission for substantive poses of evidence of other misconduct the defen- prosecutor’s duty dant, specificity, identify, first is to with purpose for which such evidence is by identifying purposes admissible which of the 404(b) justifies named in MRE admission of such evidence as "material”. While in some instances might the evidence be admissible for more than a single purpose, ordinarily is not the case. Usually, only among purposes one the several described in the rule is material to the case and justifies Consequently, admission of such evidence. prosecutor if purpose does not announce the judge which offered, the evidence is the trial require prosecutor identify spe- should to justifying cific basis in the rule its admission: to opportunity, knowledge, preparation, motive, show intent, the absence of mistake or accident on the part prove defendant, or to the defendant’s plan system doing scheme, act, or because directly scheme is itself material, or because it prove identity tends to the defendant’s as the perpetrator question. of the crime in People v Golochowicz Opinion op the Court Experience in the trial courtroom and review of appeal suggests trial records on rather incontro- vertibly judge that, when asked the trial grounds specify the for admission of similar-acts prosecutors "shotgun” evidence, often loose a fusil- typically most, lade of reasons which include if not purposes all, of the named the statute.9 Such a response hints, course, if it does not demon- prosecutor inadequate strate, derstanding that the has an un- application of the correct of the rule precisely why and is unclear as to the evidence is or is not admissible.

Similarly, judges, admitting trial when doing crimes, of other should avoid so with the vague justification that "I’ll let it in for what it is plan, worth”, or "I’ll it allow to show scheme or system” suggested by when that is the basis prosecutor, requiring showing by without prosecutor as to how such evidence is relevant plan, system, plan, show scheme or or how scheme system impor- case, or, is material to the most tantly, evidence, whether if indeed relevant unfairly prejudicial material, is not more than proposition for which it is offered. before,

As have we said evidence of other mis- negate conduct is not admissible in this state to accident, mistake or intent, motive, to show plan, to demonstrate the defendant’s opening In his jury, prosecutor statement to the in this case stated: is, "The again, reason for similar-acts [the once to show evidence] operandi, plan crime, modus prove or or commission of a to identifica- tion, prove justification to absence of mistake or for the Novi homi- cide.” only purposes The named in the statute for admission of such evi- prosecutor dence which the failed to recite were motive and intent Later, and evidence, arguing absence of accident. when for admission of the prosecutor added "motive and intent” to his earlier list grounds for admission. 413 Mich 298 Opinion of the Court system, identity, to or or his unless

scheme genuinely in factors are issue or more those one intent, "in issue” in the sense that criminal —not identity, motive, of accident or some criminal lack nearly greater plan always in are issue to some or degree every case, but in in issue "mate- lesser rial” they genuinely

in the are contro- sense genuine controversy exists matters. A con- verted cerning defendant, either such matters when opening by statement, in lim- a motion counsel’s ine, the nature of cross-examination de- fense, defense, offered has made disputed actually more of an issue one or the case. them bar, In the case a motion mistrial at was prosecutor, made in defense counsel because the opening statement, detailed the evidence his he concerning to intended alleged guilt introduce defendant’s killing. of Muirland Street When denied, the mistrial objected was defense motion counsel killing to the admission evidence of the relating and sale and the activities that victim’s the theft property. prosecutor insisted, however,

The evi- under the stat- dence admissible "similar-acts argument support In ute”. the mistrial the course of his motion, defense counsel stated: proceed "I would like know before we further what materiality particular prose- and what fact [the trying prove”. cutor] prosecutor, virtually answer, all named purposes appear in the statute as which separate purpose proving as the identifica- well tion: [sic], right. All 766.27 Under

’’[The Prosecutor]: People v Golochowicz Opinion op the Court use, people term, are allowed to from want of a better similar acts. Under that statute—

"The Court: It’s the same as 728.1050 [sic]? I have the MCLA you cite. It states ’[The Prosecutor]: can use that to show motive and intent. open charge "We have an murder and the court is murder, well aware definition arid it is the killing being intention of another human with malice aforethought. The Detroit homicide tends to be relevant justiñcation accident, as to or and also the defendant’s plan, system doing scheme or an act.

"Here going we have defendant to another home removing property Detroit and from the home in O’Clare, crime, Detroit Mr. with a we return our to the instant crime eyewitness, have an before the court. We do not ligature strangulation

but homicide Detroit, the same found in kind and the defendant personal found with property various items of goes deceased. I state that committing plan system to the or ” added.) (Emphasis this crime. and, again pattern

"Once we can use this in Detroit to establish identification of the Novi homicide because Novi, again once eyewitness. we have no We have plan circumstantial identification and we can use the or system as used the Detroit homicide to establish perpetrator identiñcation of the of the Novi homicide.” added.) (Emphasis Despite prosecutor’s protestations evidence was admissible "to show motive and in- tent” and that the "Detroit homicide tends to be justification relevant as accident”, or there was no basis whatever for admission of the evidence justification motive intent or to show accident. There was no issue raised the evi- on concerning dence in the case the defendant’s in- justify tent admission of the similar-crime evi- Opinion of the Court example, ground. not, did He dence on insanity, or some self-defense, accident, claim other state killing. suggests an innocent mind which ultimately appears prosecutor to have theAs Street recognized, killing Muirland of the the evidence only all, as tend- admissible, if at could identity of the ing the killer of deceased, Mitchell.

C place eyewitnesses the defen- able to were No at the the homicide Novi of at the scene dant was no direct killed. There was time the deceased the killer. was the defendant evidence identity of the element killer was a critical of the pertaining only prosecution’s evidence case. The entirely guilty party was as the the defendant fingerprints defendant taken of the circumstantial: residence, evidence of recent the deceased’s from possession by prop- the deceased’s the accused of property, erty, the deceased’s use of sale of cashing by the defendant cards, credit three of the While, cumula- deceased’s checks. damaging tively, circumstantial that was convincingly pointing the accused as toward rather perhaps to sustain the the killer and sufficient identity conviction, to leave it was such as case element the killer the most doubtful and, very consequently, It in issue. much a fact particularly point genuinely controverted, was a prob- extensive of the defense counsel’s view ing interpreta- fingerprint cross-examination of testimony sought expert witnesses, whose tion killing, place the scene of the accused at during, although ing kill- before, or after the whether not clear. was People Golochowicz v Opinion op the Court

Clearly identity then, because the Mitchell’s was in the it killer material sense that was a genuinely controverted, matter the issue of the applicability of the similar-acts statute was intro- safeguard Thus, into the duced case. third was satisfied.

D identity However, the fact that the killer’s was genuinely not, in issue and therefore material was itself, ticket admission of evidence of the Muirland Street homicide the circumstances surrounding proof identity. it as required, addition,

It as we have indi- cated, that from court find the evidence that circumstances commission the crime question being in pared that it to which was com- "similar”,

as or "like” both bore such unique, uncommon, and distinctive characteristics suggest signature as to the a handiwork of single actor, the defendant. us,

In the case think before we distinctiveness quality that was not shown.

Certainly commonality are in there features of crimes, the and with effort one can a list construct of similarities both as to what occurred and what did not occur.10 particularly easy, example, tempting, compile It is for a negative is, being compared; litany list of the factors in crimes a of circumstances which did not obtain and did not events which occur respect shown, example,

with neither house was in to either crime. It can for disarray, that in neither case there evidence was entry, persons of forced in and that neither case were other at residence the time of the Such can crimes. a list be extended endlessly, of course. [May- Mich Opinion op the Court found homicides, the victims were

In both around wrapped household left with items dead In both necks, strangulation. suggesting their cases, possession seen defendant was the ho- shortly after personal property decedent’s cases, for the defendant offered micide. In both premises a set located at sale television to be retrieved with would have deceased which cases, person. In both other help of another offered for sale deceased were possessions indeed These are at the same location. stored two homi- in the circumstances similarities cides. differences,

There are however. While The was trial murder. defendant on commis- surrounding overall circumstances bearing upon are as sion of both crimes relevant commission, particularly common their system subsequent the theft and sale the deceased’s degree we look first to determine the personalty, distinguishing charac- uniquely similarity the crime teristics of the manner of commission of charged homicide. —the Mitchell, deceased, shows that from his garroted

was with belt bloodlessly death, according to bathrobe. The cause of examiner, ligature due to "asphyxia medical strangulation”. at deceased whose was found body lying

Muirland Street address was discovered severely a had "quite bit” of blood. He been O’Clare, witness, According beaten. to the defendant stated: People v Golochowicz op Opinion the Court '' him, 'Yeah, I you hit know. I I kept hitting hit him. and, finally,

him he fell down and lay he wouldn’t kept beating I I upstairs there. him and had to run —I grabbed an electrical from pot cord a coffee and knelt holding on the head back his or stood.’ He him behind, from behind the head strangled him from said.” he factfinder

While a would be in con- warranted cluding strangled, both the victims were the defendant’s statement to O’Clare does not strangulation describe bloodless which the medical examiner described as cause of Mitch- ell’s death.

While in both instances a television set and equipment stereo were stolen from the residence of very deceased, a considerable amount of other personal property of various kinds was stolen from ranging two automobile, residences from a barometer, a credit card and blank from checks lamps, shotguns, rifle, the Mitchell residence to projector desk calculator and slide from the Muir- similarity land Street residence. The essential be- tween the two crimes then the theft and disposition personal property from the homes of recently nothing bachelors, deceased but there is way in the the two committed, crimes were save persons strangled, the fact that both were al- though one had first been beaten and the other necessarily suggests employ- not, had which special, peculiar, unique ment of a method so distinctive as to mark the killer of both victims as person. the same , judgment is, course, It a matter of whether the fact that two unmarried male victims were strangled, bloodlessly both beating, one and one after a personal property

and their of various ranging kinds from an automobile to a desk calcu- 298 Mich op Opinion the Court to and later sold their residences lator stolen from defendant, exis- is evidence the of the friends to common characteristics of such distinctive tence personalized suggest a modus to both events as requisite operandi. the was not We think there special peculiar "distinguishing, characteristics” spoke Major, supra. It is we a close which arising questions question, however, and close judge’s discretion on exercise of from the trial matters concerning of evidence do the admission appellate because the review- not for reversal call differently. ing justices Reversal have ruled would question only if of the is the resolution warranted by to abuse of discre- trial amounted an the court upon ques- evidentiary a close tion. The decision ordinarily definition cannot be abuse tion discretion.11 record, satisfied, the from a examination of whole are careful We determining judge his trial did indeed exercise discretion that the homicide, uncharged although admissibility the of the the of evidence point is debatable. hearing argument prosecutor the and defense coun- After from the evidence, concerning admissibility the court stated: sel of the the case, Oliphant it seems like almost "The Court: In view question Oliphant anything There no in the case is admissible. is present to with the three witnesses who were able particular defendant was alleged

give In case no those crimes. this evidence about was one this man. No one knows how this crime committed. saw going great testimony man was beaten There is be deal beaten, being quite severely. man which is Whether the died happened something around different than what here because he had neck, being his doesn’t mean he died as a result of choked.” given foregoing Having impression, state- on basis ment, the other misconduct of disinclination admit the evidence of accused, judge suddenly the trial declared: statute, People v "The Court: In view of the and in view of permissible Oliphant, the motion opinion testimony this his is court’s is that therefore is denied.” exclude [to evidence] Certainly cryptic judge view observation of trial "[i]n admissible”, case, Oliphant anything the cannot it seems like almost demonstrating necessarily the failure be construed as appreciate requirements specifically apply that one of statutory purposes admission of similar- delineated or decisional reached whether acts evidence identified and a conclusion reading unfairly prejudicial probative. A than fair more People v Golochowicz op Opinion the Court hesitancy Nevertheless, we conclude without that admission of the evidence of the Muirland reversibly erroneous, Street not homicide was be- cause we find an abuse of discretion in deter- requisite mination that the similarity two crimes were requisite "signa- bore distinctive single per- actor, ture” of a but because we are uncharged suaded that the evidence of homi- the prejudicial weighed unfairly cide so was when against probative its limited and worth tenuous that, admission, in its the defendant was denied a fair trial. familiar

Because of the rule that evidence uncharged accused’s misconduct is inadmissible for judge’s suggests of the trial remarks felt that he the evidence was "permissible”, despite recognition his of the differences between the uncharged and in view killing facts of the homicide and the in issue "in view of statute, People Oliphant". the v of The court’s remarks however, strongly suggest, four for was prejudice against that there was careful no evaluation of the above, safeguards focusing upon specific purpose purpose no described a evidence, admission the no determination that such material, weighing dangers and no careful the of unfair relevancy of the evidence. hand, proper necessary On the other all of those considerations ato proffer may evaluation of the of the evidence well in have been all, customary, trial It court’s mind. is not after that court processes every verbalize for the record the mental involved evidentiary ruling. pointed Appeals: As was out the Court all, transcript any recognition "First of does not reveal formal Compare Strickland, People App and exercise of discretion. v 78 Mich 40, (1977). 53; 232, However, judge’s recognition 259 NW2d Oliphant controlling authority as is some indication that he knew of duty Also, by his concluding to balance. that the evidence was 'permissible’ judge acknowledge the trial seemed that the similar omitted.) (Citation permissive language.” People acts cast in statute is Golochowicz, 57, (1979). 63; App v NW2d Furthermore, pointed during defense counsel out about discussion admissibility testimony of this similar-acts had the court question discretion testimony on the whether the witness’s was suffi- ciently probative outweigh prejudice: so as to eyewitness "We don’t have to the one on Muirland. We have a [referring statement course, a from man to witness Dennis O’Clare]—of discretionary with this is to see if court outweighs up value it—we have a man that T said ended with all the ” materials out of the Muirland address.’ 413 Mich 298 Opinion of the Court damage thought it to do in most the unfair cases, here entitled to stand trial the accused was killing alone, for the Mitchell without introduction uncharged separate of a homicide. evidence of He was innocence of the Mitchell presumptively guilt entitled to have his

killing determined jury evaluating alone, unin- evidence that case distracting, horrifying, fluenced indeed evi- separate of the defendant’s admission of a dence compelling unless, reasons, homicide helpful more of the other crime would be assist jury determining identity killer prejudicial than it would be to the defendant. identity The of Mitchell’s killer was doubt. upon prosecutor relying entirely circum- guilty. the defendant was stantial evidence solely The evidence had to be derived from infer- unexplained ences to be from the drawn accused’s possession recent items of car and other deceased’s personal property in circumstances plus finger- suggesting them, theft of strongly opinion print expert’s presence, evidence the defendant’s time, at inside the deceased’s con- some apartment. dominium identity was that The result the killer case. the link weakest Mitchell’s prosecution’s reason, in the For that prosecutor understandably so, turned, and to evi- killing fortify, dence of the Street Muirland evidence, with further that his claim circumstantial the accused was Mitchell’s killer. We do not question general proposition similar-acts may properly evidence be for such a admissible purpose. presents example But this case the classic why as to trial courts should be applying "stricter relevancy standards of when [the] purpose the ultimate tity of the tois iden- [evidence] doing or the accused of the criminal act People v Golochowicz op Opinion the Court charged they than when the is offered on are evidence knowledge, the ultimate issue of intent or other state of (2d 190, McCormick, ed), p 452. mind.” Evidence § general rule, if

As a evidence ac- perpetrator identity cused’s as the of the crime in question strong essentially uncontroverted, is is no there need for evidence of other crimes to prove identity, only which evidence is circumstan- hand, at best. other tial On the if evidence of the identity of tenuous, the criminal actor is weak or revelation that he has committed unrelated may, tendency similar crime reason of its jury issue, distract from the idéntification tempt compromise ignore it that critical focusing while element case on the clearer proof of the defendant’s other misconduct. The dangerous may likely be, result well and indeed is jury’s be, to strength conclusion that whatever case, of the identification demonstrably person the defendant a bad imprisoned anyway. should part, is, It at least in for those reasons that court, trial when similar-acts evidence is offered to prove identity, upon showing should insist of a degree high similarity in the manner in which the crime in issue and the other crimes were regard requirement committed. We to be a heavy upon prosecution burden to show that charged the manner in which the crime and the other crimes were committed was marked with special peculiar uncommon, so characteristics compellingly distinctive as to lead to the conclu- sion all were handiwork defendant style because all bore his distinctive or "touch”. Even where evidence of that distinctiveness is produced, especially a trial court should be alert to paramount ruling consideration that on the [May- Mich Opinion of the Court more a matter of a of such evidence is

admission in the exercise discre- weighing process careful of a rule. application the mechanical tion than the accused protect is to overriding policy carried That can be policy unfair prejudice. from sensitive to the alertly if the trial court is out only prof- of the probative value need to balance impact by its against prejudicial evidence fered that, McCor- as Professor the likelihood weighing it, will "be roused evi- put jury mick overmastering hostility”.12 dence to of evidence of upon admissibility In passing proving identity purpose similar crimes for the danger sug- of unfairness the manifest especially, direction of the trial gests presumptive of discretion should be toward court’s exercise An the evidence. ultimate decision excluding direction, evidence, to admit opposite when thé trial court is only should be taken of the rule of exclusion policy convinced that because, proba- in view of the will not be offended there prove identity, tive force of the evidence to aided danger jury, little or no instruction, proper limiting will misconstrue or, learning evidence purpose upon * * * crime, as passion other be stirred "such swept] a rational consideration beyond [be guilt of the crime on or innocence [the defendant’s] trial”.13 case,

In this of the manner homicide, uncharged commission of the because unique its manifest weakness to show the crimes, single distinctive hand of a actor both proof had limited force as of the defen- The inevitable identity dant’s as Mitchell’s killer. (2d McCormick, 190, ed), p Evidence 453. § 13Id., p 454. People v Golochowicz Williams, J. Opinion heighten prejudicial countereffect was to im- pact the evidence. hearing describing testimony

On defen- separate murder, guilt uncharged dant’s of a and jurors only can have been deafened to the that might court’s instruction evidence another only considered as link in the chain of identity circumstantial evidence of Mitch- killer and as a suggestion ell’s not the defen- dant was an admitted murderer therefore probably of the crime As guilty charged. Justice Cardozo once said comparably prejudicial evi- context, dence another reverberating "[t]he clang of accusatory those words would all drown Shepard States, v United weaker sounds.” 290 US (1933). 96, 104; 54 L 22; S Ct 78 Ed 196 reasons, For these we conclude that the evidence Muirland Street homicide was more un- fairly prejudicial than identity the deceased’s killer.

Consequently, we reverse the decision of the Court of Appeals, and remand for a new trial. JJ.,

Kavanagh, Levin, Fitzgerald, con- curred J. Ryan, with J. (concurring in part dissenting

Williams, part). This case it concerns whether was error requiring reversal for the trial court a allow witness to at trial testify perpe- about defendant’s tration of a different but committed ho- similarly statute, micide under the 768.27; similar-acts MCL MSA 28.1050. The purpose of the similar-acts testi- mony was to show the identity common perpetrator of the two by showing murders similar "scheme, plan, distinctive system doing the importance The [two] act[s]”. similar-acts testimony prosecutor’s was that Mich 298 Opinion Williams, J. charged tying defendant

other wholly circumstantial, whereas there was crime testimony tying defen- and other an admission signature principal defense crime. dant to charge failure the state was a beyond doubt. a reasonable

I outset, it this At the let be understood disagree way opinion any in with does Justice not helpful exposition of and masterful the Ryan’s accept fully. underlying that law. We following accept particular, In we Justice Ryan’s requirement: four-pronged primary admission "(1) that there be substantial evidence the must sought actually perpetrated the bad act to be defendant (2) introduced; special quality must be some or there prove the tending act defen- circumstance bad motive, intent, identity or absence mistake dant’s the accident, scheme, doing the plan system or in act or and, 404(b) (3) light language of slightly in different MRE the add, preparation knowledge; and opportunity, we more factors be material the one or of these must guilt charged the determination offense; of the defendant’s (4) probative the value of the evidence substantially sought to be must not out- introduced be (Footnote weighed danger prejudice.” the of unfair omitted.)1 768.27; provides: MCL MSA 28.1050 motive, intent, any the "In criminal case where the defendant’s of, part, absence mistake or accident on his or the defendant’s scheme, act, material, plan system doing any like or in acts or motive, may his other acts of the defendant which tend to show intent, of, part, or the absence mistake or on his the accident scheme, act, question, may plan system doing defendant’s or the in proved, contemporaneous prior they or whether or subse- are with thereto; notwithstanding quent proof may or that such show tend to prior subsequent the crime the show defendant.” commission of another or People v Golochowicz Opinion Williams, J. The majority recognizes satisfaction (1) (3), so not prongs we will them consider agree we that factual While satisfaz further. (2) of prong question, believe, tion is a we close unlike that majority, positive case is stronger. As a consequence, balancing pro- bative danger with value (4), prejudice prong we more unfair readily reach conclusion that value of the evidence is not substantially outweighed by danger of unfair prejudice.

II. Distinctive Characteristics states majority necessary test be- fore of such evidence is: admission "that court find from the the circum- evidence that question stances of the commission of the crime in compared to which being as 'like’ it or 'simi- lar’, uncommon, both unique, bore such and distinctive suggest characteristics as signature handiwork actor, single of a the defendant.” People v Kelly,

In 330; 192 NW2d 494 Michigan 1, The MRE Rules of Evidence effective March became 1978. 404(b)provides that: "(b) crimes, wrongs crimes, wrongs, Other or acts. Evidence of other or show that is not to person acts the admissible of a in character order conformity however, may, he in therewith. It acted purposes, proof motive, for other such as admissible opportunity, intent, preparation, scheme, act, plan, system or in an doing knowl- edge, identity, or absence mistake or when same accident the is material, crime, wrongs, contempora- whether such other or acts are with, prior subsequent charged.” neous or or to the crime 404(b) 404(b) except FRE "plan” is identical with MRE the that word replaced phrase "scheme, plan, act”, system doing the in or phrase material, and there is added the "when the same is whether crime, wrongs, -with, contemporaneous prior such other or or are acts or subsequent charged”. good to the crime For a discussion the parameters 404(b), Note, of FRE see Extrinsic Offense Evidence at 404(b)-The Trial Under Federal Rule of Evidence Need a Uni (1979). Standard, Wayne form L Rev 1343 [May- Opinion Williams, J. rape

(1971), the defendant was convicted into a Detroit hotel room He burst robbery. armed 26, He August 1967. at a.m. on approximately pillowcase a gun point place at forced victim During her twice. raped her He then over head. attack, attack, he no clothes. After he wore tape recorder and complainant’s $74 with the fled in cash. trial, a testified that

At witness prosecution in Detroit hotel also a appeared defendant had 16, on 1968. victim at 7:30 a.m. March room room sharing the hotel which her fiance were entering After going to sleep. locked before they room, into boyfriend forced the the defendant He gun point. at locked the bath- the bathroom door, a put he forced victim room three raped her head. He then her pillowcase over during he no clothes again, times. Once wore watch, approxi- He took a a check and rapes. also in cash. mately $75 Kelly, held was testimony prop-

In we that the later act of defen- admitted because erly scheme, in plan, system dant tended to show performing similar acts under similar- these comparing statute. In factual record acts bar, Kelly with the supported case at we are met finding the murders the distinctive-char- cases, In prong. acteristics both evidence indicated systematic plan employed by that a or scheme was the victims at brutally attacking the defendants In the principal Kelly, different distinc- locations. signature tive characteristic defendant place pillow- the women were forced to was In Golo- being raped. cases over their heads before chowicz, it that both bachelor dece- fact strangled were with household apparently dents cases, personal property items. both Moreover* People v Golochowicz Opinion by Williams, J. of the victims defendants, was taken and, on each occasion that property removed, it was not exactly the same.

Our conclusion that the accomplishments murders were etched with the signature profits defendant from a further comparison of the plans or schemes the two cases. The defendant in Kelly entered two different Detroit hotel rooms without force and raped two different women sev- addition, eral times. In the defendant wore no clothing during the attacks. Similarly, the mur- ders in Golochowicz were accomplished in accor- dance with a distinctive systematic plan scheme. The defendant entered two different homes without force and strangled the bachelor addition, In decedents. the murders place took within other, a few days each and the property stolen from the homes was either sold to the same individual or stored in the short, same location. In the holding and analysis Kelly employed rein- forces our holding that the murders in the case at bar met the prong. distinctive-characteristics

In People v Oliphant, 472; Mich 250 NW2d (1976), the defendant was convicted of rape gross trial, At indecency. the prosecutor called three witnesses who testified that the defendant raped had them in the same manner as he had raped complainant. There were a number of circumstances rapes repeated which were each incident. There were also a signifi- number of cant among differences the various attacks. Never- theless, this Court held that about testimony the signature acts was admissible under the simi- lar-acts statute.

The factual similarities charged between the crime and signature crimes in Oliphant show that all four rapes during occurred a five-month 413 Mich 298 by Opinion Williams, J. college-age involving

period, The contacts women. the defendant were made the women with initially friendly. places public In each were topics marijuana conversa- case, were race tion. defendant’s

Moreover, the women entered all expectation They voluntarily. with the rode car specific them to a was to take that place. the defendant made, however, from the A deviation was an excuse the defendant route with intended They likely were fear in the victims. not to cause where an area unfamiliar to them then driven to place. intercourse took the forced place, all four intercourse took Before the they the acts or told to submit to women were although weapon by weapon, a be harmed would gave in to defendant’s never The women seen. crudely because of fear for communicated demands persons they of their cloth- if did not. None their ing ripped in the attacks. was torn or oppor- incidents, the victims had In all of the escape They tunity did not to from the defendant. they opportunity time the arose flee at the because feel the need to do so since the defendant did not change friendly. in defendant’s was still After the opportunity they them, attitude towards had no escape. important differ-

There were also a number signa- charged ences crime and between testifying entered The witnesses ture crimes. three complainant, immediately. car defendant’s meeting. however, entered the car soon after the ap- all Moreover, proached were not the four women way; met in the same the defendant In two them under different circumstances. attacks, accomplice with there was also an defendant. People v Golochowicz Opinion by Williams, J.

Additional differences were that two of the riding conversing women were friendly in a car with a upon coming when, man to an area unfa- threatening them, miliar manding. he became and de- accepted The other two a ride with a friendly accompanied man and him on an errand apartment, whereupon to an unfamiliar he became threatening demanding.

Only attempted physically one victim resist defendant, and she was struck him with his Moreover, fist. two of the women were forced to clothing raped dance without before the defendant given home, them. Three were a ride but one escaped being victim from defendant’s car while Finally, driven home. two of the women went to police knowledge the with name, of defendant’s college address, identification and car license num- voluntarily provided ber after the defendant them with the information. comparing Oliphant

When the factual records of immediately apparent Golochowicz, it becomes impact that the overall cumulative of the similar- important acts in the two cases is in finding signature. a common Like the similar acts Oliphant, in the murders in the instant case were distinguishing not committed with as unusual a pillowcase characteristic as the over the in head Kelly. Oliphant Nevertheless, in Court found necessary distinctive characteristic to admit notwithstanding acts, evidence of similar significant differences which existed between the charged holding signature crime and Thus, crimes. Oliphant, important

in where differences plan existed in defendant’s scheme or in the vari- rapes, strong precedent finding ous for our that prong the distinctive-characteristics was met in the case at bar where the differences between significant. two murders were less 413 Mich 298 by Opinion Williams, J. conclusion, under the distinctive-characteris- In opinion majority, tics test established unique details the similar we believe patterns indi- homicides intersect which perpetrated were the murders cate that the details common killer. Our review same killings were bachelors that both victims show the who had been homes with in their

found dead wrapped necks, indi- around their items household cating dwellings strangulation. had Both death force; windows the doors and entered without been property personal Moreover, intact. were found times, different sold removed at the victims was individual, in the same loca- or stored the same the defendant fact, testified that tion. In a witness property possession personal owned had been killings. shortly after their the decedents both had of- addition, the defendant In both cases individual the television sale to the same fered for by the victims. sets owned special details short, In we believe murders are so distinctive common to both unique killer of both victims as as to mark the person. same Prejudicial

III. More Probative Than majority conclusion its reversal on the bases uncharged was that the "evidence of the homicide against unfairly prejudicial weighed its so when probative that, in its limited and tenuous worth admission, trial”. denied a fair the defendant was respectfully disagree. We solely proof in rested Since the the instant case question evidence, it on circumstantial is without similarly that a committed murder where People v Golochowicz 335 by Opinion Williams, J. pointed can to the perpetrator defendant be as probative be relevant and would a trial Johnson, v State a different murder. See (1972). 288, 802, 293-294; Kan P2d It is that uncontested in the instant case the similar MRE question acts were relevant. See 401. question becomes whether acts unfairly value similar is and substan- tially outweighed by their prejudicial impact. Un- prejudice fair within the context of the rules of tendency evidence means an undue of a factfinder be in rendering influenced decision on as improper basis such an emotional one.2 impact What would the natural of the evi- signature dence murder? There is no reason believe that it would excite the unduly jury any than charged murder, more because both in- strangulation. volved murder It true that signature bloody charged murder and the not, nothing murder was there is but indicate the signature that murder was provokingly grue- some.

What the jury would be struck naturally by is operandi, modi the similar the numerous strikingly similar common elements: that the mur- force, derer entered the victim’s home without alone, living victim awas bachelor accomplished the murder was strangulation wrapping a object household around the victim’s neck, that personal piece- was removed property from residence, meal the victim’s that defendant possession remained some the victim’s property, and that defendant offered some Note, Advisory See Federal 403. Committee FRE MRE 403 is identical with FRE 403. 413 Mich 298 Opinion Williams, J. fact, offered property for sale —in property

victim’s person. victims for sale to the same of both natural that would appear jury It would to the several points have its attention attracted the two crimes rather than be similarity between signature nature of the provoked by excited or which, all, little different from the crime after consequence, the evidence would charged. one As legitimate calling to effect its function of tend rather than em- signature attention to a common the defendant was a bad man. phasizing In a decision on to exclude reaching whether of unfair the trial grounds prejudice, evidence on give probable must consideration judge limiting effectiveness or lack of effectiveness of a Such a determination lies solely instruction.3 discretion, of the trial province judge’s within and in the instant case a forceful instruction was given. People v Wil- agree majority

We with kins, (1978), 260; 82 Mich App NW2d proper establishes balance of factors in deter- mining pro- whether similar-acts evidence is more bative than prejudicial. Appeals, Court of People Oliphant, v 472, 490; on relying (1976), cases, Michigan 250 NW2d 443 and other determining stated that a trial court whether similar acts are too should consider prejudicial, alia, inter factors, many availability “the of less 3See MRE 105 which states that party "When evidence which is admissible as to one or for one purpose party purpose but not admissible as to another or for another admitted, court, upon request, is proper scope shall restrict its jury accordingly.” and instruct Note, Advisory See also Federal Committee FRE 403. People v Golochowicz Opinion by Williams, J. proof, sources of

prejudicial necessity prosecutor’s evidence to an element of the case, case, ten- theory defendant’s of the the dency passions evidence to inflame potential confusing the and its jury, issues App the case”. Mich 270-271. bar,

Applying these factors to the case at we find that testimony admission similar-acts First, prejudicial was not more than probative. proof there were no other sources of less prejudi- cial prosecutor because the only could marshal Second, circumstantial evidence to his case. it clear from the circumstantial nature of the other evidence that the similar-acts evidence was necessary proving the prosecutor’s case.

Third, the defendant primarily attacked credibility testimony establishing the circum- stantial links of the murder to the defendant. Defense counsel rested argument on the that state had not proved a beyond reasonable doubt that the defendant had committed the murder with which he was It charged. is very doubtful that the similar-acts evidence would pro- have voked a purely emotional decision the jury (1) because the striking aspect of the evidence similarity cumulative details of opérandi modus defendant’s committing murders, (2) the defendant’s theory the case was that the state had not met its proof burden of which would have led the focus a jury to on number of elements rather than exclusively focus- ing on defendant’s character. evidence,

The similar-acts as all does relevant evidence, prejudice causes implicates when it a evidence, however, defendant. impact this Mich 298 Opinion Williams, J. jury the case on a to decide have led the could not purely had because the defendant basis emotional only non-participation defense or as his not raised placed his defense. See at issue as his character 404(a). jury’s Thus, was not attention MRE solely fact character. This on defendant’s focused supports jury could not that

our conclusion the defen- deliberations, decided that have, in its guilty only emotional of an because dant was response basing for the its reasons most of without logical inferences reasonable decision on jury makes which from all the evidence drawn guilt reaching In innocence. on in short, a decision theory of defendant’s we hold because jury inflamed was not so of the case concept connected to a similar that defendant was jury not have followed could murder limiting instruction on the use trial court’s similar-acts during

testimony its deliberations.4 4 limiting jury: gave following instruction court The trial "Now, concerning You have heard of other offenses. evidence guilty tending an offense the defendant was evidence to show that testimony speaking of the he is not on trial now. I am for which concerning Douglas Perowitz. the death of "You, jury, judges the sole of whether believe members of the are evidence, However, you testimony. you any are cautioned believe such such should purpose, you that is for that it is before for a limited purpose determining if it tends to show that the defendant is, acting purposefully, the result of a charac- that that his acts were scheme, plan system, on another which he had used after teristic occasion. "Now, by you any other considered for this must not be showing not, instance, purpose. regard as You must this evidence person that he has a the defendant is a of bad character or disposition not convict the defendant to commit crimes. You must you guilty improper conduct. because believe he is of other doubt, you, beyond "All of a reasonable the evidence must convince charged, you must find that him not the defendant crime committed the guilty. "Now, fingerprint argument, there was some mention of believe, charge you you you that the two evidence. I Officers who testified that defendant before that if or if find compared fingerprints they 18, 1976, possibly have com- could not November 22, fingerprints pared People’s them with Exhibit No. those People Golochowicz 339 v Opinion by Williams, J. Finally, the admission of the testimony linking the defendant to a different but commit- similarly ted homicide did not confuse the issues in the case. jury assumed to understand most why evidence is being introduced. There was no error in light of the fact that limiting instruction was given and in light of the simple theory (Chad- defense. See 6 generally Wigmore, Evidence Rev), 1904, bourn pp 747-748. § Moreover, question whether the probative value of similar-acts evidence is out- substantially weighed by unfair prejudice has been held to be judge. E.g., People v discretionary with the trial Duncan, 1, 14; Mich (1977); NW2d 58 People Oliphant, v supra, 399 Mich 494, fn 10. See People DerMartzex, v also 410; Mich (1973). In People v Talley, NW2d 97 378, 386-387; (1981), 301 NW2d 809 we stated that our standard of review in testing for an abuse of discretion Thus, is a narrow one. we stated that the standard reads as follows in a criminal con- text: " 'Where, here, as the exercise of discretion turns upon a factual determination made the trier of the

facts, an abuse of discretion involves far more than a in judicial opinion difference between the trial and appellate courts. The term discretion itself involves the choice, idea of will, of an exercise of the of a determina- tion made between competing considerations. In order to have an reaching determination, "abuse” in such result must be so palpably grossly violative of fact logic it evidences not the exercise of will but perversity will, not judgment exercise of but thereof, defiance not the exercise of reason but rather ” passion or bias.’ defendant, you then any are not to consider that evidence in manner against the defendant.” Opinion Williams, J. case, we find no

Under the circumstances discretion. abuse of

Conclusion test should be agree four-pronged We resolving admissibility of similar acts. used cir- similarity unique We also believe that found in the murders met the distinc- cumstances prong under the test. tive-characteristics however, take to the exception, majority’s We impact conclusion that of the evi- prejudicial outweighed probative dence value. Under above, probative factors discussed we hold that Moreover, balancing was established. value judicial such factors is an exercise of discretion. Thus, bar, in the case at we find that the trial not judge finding did abuse his discretion was more than similar-acts leave, In prejudicial. granting lieu of we would Appeals. affirm the trial court and the Court of Coleman, C.J., Moody, Jr., J., and Blair con- Williams, curred with J.

Case Details

Case Name: People v. Golochowicz

Court Name: Michigan Supreme Court

Date Published: May 17, 1982

Citation: 319 N.W.2d 518

Docket Number: Docket 62949

Court Abbreviation: Mich.