PEOPLE OF MI V BRIAN CHRISTOPHER WEATHERS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 31, 2000
Plaintiff-Appellee,
v
No. 219141
Arenac Circuit Court
LC No. 98-002587-FH
BRIAN CHRISTOPHER WEATHERS,
Defendant-Appellant.
Before: Talbot, P.J., Hood and Gage, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of assault with intent to commit murder, MCL
750.83; MSA 28.278,1 and possession of a firearm in the commission of a felony, MCL 750.227b;
MSA 28.424(2). The convictions stemmed from defendant’s shooting of a sleeping motorist at a
highway rest stop during an attempt to rob the motorist and steal his vehicle. Defendant was sentenced
to fifteen to forty-five years’ imprisonment for the assault conviction, consecutive to two years’
imprisonment for the felony-firearm conviction. He appeals as of right. We affirm.
Defendant first argues that he was denied a fair trial when the prosecutor introduced irrelevant
and prejudicial other acts evidence without prior notice or a ruling from the trial court. Defendant
specifically challenges testimony from three witness referring to the fact that he was driving a stolen truck
on the night in question, and portions of a letter defendant wrote to his accomplice while he was in jail,
stating that (1) had defendant been “staking out” the stolen truck as its owner allegedly told the
authorities, he would have “smoked [the owner’s] ass in his mu-fuckin crib & got his loot. Just kiding
[sic]. Ha-Ha-mu-fuckin Ha!,” and (2) that the authorities were testing blood found in the back of the
truck because they thought defendant and his accomplice had “killed someone and put him in the back
of the trunk and dumped the body in the woods.” Because defendant did not object to the admission of
the testimony and objected to the letter on grounds other than those asserted on appeal, our review is
limited to determining whether he demonstrated plain error that was prejudicial, i.e., that could have
1
The jury was permitted to consider the alternative charge of assault with intent to rob while armed,
MCL 750.89; MSA 28.284.
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affected the outcome of the trial. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130
(1999).
Pursuant to MRE 404(b) evidence of other crimes, wrongs, or acts is admissible if the evidence
is (1) offered for a proper purpose other than to prove the defendant’s character or propensity to
commit a crime (2) relevant to an issue or fact of consequence at trial, and (3) sufficiently probative to
outweigh the danger of unfair prejudice. People v VanderVliet, 444 Mich 52, 55; 508 NW2d 114
(1993), amended 445 Mich 1205 (1994); see also People v Crawford, 458 Mich 376, 385; 582
NW2d 785 (1998); People v Starr, 457 Mich 490, 496; 557 NW2d 673 (1998). MRE 404(b)(2)
requires the prosecution to provide reasonable notice in advance of trial of the general nature and
rationale for any such evidence it intends to introduce at trial.
Our review of the record reveals that the prosecutor did not introduce or otherwise use the
contested evidence at trial to prove defendant’s character or propensity to commit the charged offenses.
The introduction of the evidence simply did not implicate MRE 404(b), and the prosecutor was
therefore not obligated to demonstrate a purpose under which such evidence would be admissible or to
provide notice. See People v Lukity, 460 Mich 484, 499-500; 596 NW2d 607 (1999). To the
extent the contested evidence could be characterized as other acts evidence, its admission did not result
in unfair surprise and the mere lack of notice did not prejudice defendant. MRE 404(b)(2). In
response to defendant’s motion to suppress the letter, which included statements regarding the theft of
the vehicle, the trial court redacted certain parts and specifically ruled that the remainder would be
admissible at trial.
Further, testimony from the three witnesses regarding the stolen vehicle would have been
admissible under the res gestae exception to MRE 404(b), which allows evidence of other criminal acts
when those acts are “so blended or connected with the [charged offense] that proof of one incidentally
involves the other or explains the circumstances of the crime.” People v Sholl, 453 Mich 730, 742;
556 NW2d 851 (1996), quoting People v Delgado, 404 Mich 76, 83; 273 NW2d 359 (1978). The
police officers’ brief references to the fact that they either discovered defendant was driving a stolen
vehicle during a high speed chase or that they were pursuing the vehicle because it was stolen was
merely foundational and intended to explain the circumstances which ultimately led to defendant’s arrest.
The inmate’s testimony that defendant told him he was driving a stolen vehicle, that he wanted to get rid
of it because the police were going to be looking for him, and that he wanted to exchange it for the
victim’s vehicle was also needed to give the jury “an intelligible presentation of the full context in which
the disputed events took place.” Sholl, supra at 741.2 Finally, the prosecutor introduced defendant’s
lengthy letter because it contained statements confirming defendant’s participation in the instant offense.
Although the two contested portions were minimally relevant in providing a context for the incriminating
statements, we cannot conclude that the probative value of those statements or other evidence was
2
The inmate’s testimony would have also been admissible under MRE 404(b) to establish defendant’s
motive and intent to rob or murder the victim. See VanderVliet, supra at 74 and People v Hoffman,
225 Mich App 103, 106; 570 NW2d 146 (1997).
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substantially outweighed by the danger of unfair prejudice. MRE 403. Consequently, defendant has
failed to demonstrate plain error that affected his substantial rights. Carines, supra at 763-764.
Defendant next argues that the prosecutor’s remarks and questioning denied him a fair trial.
Again, because defendant did not object to the alleged misconduct at trial, our review is limited to
determining whether defendant has demonstrated a plain error that affected his substantial rights.
People v Schutte, 240 Mich App 713, 720; 613 NW2d 370 (2000), citing Carines, supra at 763
764. Prosecutorial misconduct issues are decided case by case, with the reviewing court examining the
pertinent portion of the record and evaluating the prosecutor’s remarks in context. Schutte, supra at
720. After contextual review, we conclude that each alleged instance of misconduct constituted proper
argument and questioning or was an appropriate response to defendant’s cross-examination and closing
argument. Schutte, supra at 721. Moreover, any prejudice resulting from the prosecutor’s conduct
was dispelled by the trial court’s instructions to the jury, see People v Bahoda, 448 Mich 261, 281;
531 NW2d 659 (1995), or could have been cured by a timely objection and instruction. Schutte,
supra at 721, citing People v Green, 228 Mich App 684, 693; 580 NW2d 444 (1998). Defendant is
therefore not entitled to relief with respect to this issue.
Finally, defendant argues that the trial court abused its discretion in allowing a detective to testify
that the accomplice told him that, prior to the incident in question, she and defendant had discussed
shooting someone only as a “last resort.” Defendant contends that the hearsay statement was
improperly admitted as either an inconsistent or consistent statement under MRE 801(d). We hold that
any error in the trial court’s decision to admit the contested statement was harmless.
“A preserved nonconstitutional error is not a ground for reversal unless ‘after an examination of
the entire cause, it shall affirmatively appear’ that is more probable than not that the error was outcome
determinative.” Lukity, supra at 495-496, quoting MCL 769.26; MSA 28.1096. Thus, reversal is
only required if the error is prejudicial, and the appropriate inquiry “focuses on the nature of the error
and assesses its effect in light of the weight and strength of the untainted evidence.” Id., citing People v
Mateo, 453 Mich 203, 215; 551 NW2d 891 (1996). The object of the inquiry is to determine if it
affirmatively appears that the error asserted “undermine[s] the reliability of the verdict.” Id., citing
Mateo, supra at 211. “In other words, the effect of the error is evaluated by assessing it in the context
of the untainted evidence to determine whether it is more probable than not that a different outcome
would have resulted in error.” Id.
In this case, one of the pivotal issues was whether defendant possessed the requisite intent to
support a conviction for assault with intent to commit murder. At trial, the accomplice testified that
when the victim did not respond to their attempt to wake him up, defendant aimed the gun at the victim
and pulled the trigger. The accomplice also testified that defendant told her that he shot the victim to
“get rid of him as a witness” so that the victim could not testify against him. A fellow inmate testified
that defendant told him that although he originally only intended to rob the victim and steal his vehicle, he
became frustrated when the victim would not wake up, that he stated “Fuck this mother fucker, I’m
going to shoot him,” and that he intentionally shot the victim in the face. The inmate’s and the
accomplice’s testimony regarding the basic events which transpired on the night in question were
consistent with each other, the victim’s injuries, and defendant’s own admissions in his letter to his
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accomplice. In light of this evidence, defendant has not demonstrated that it is “more probable than
not” that the exclusion of codefendant’s single statement – that she and defendant discussed shooting
their victim only as a last resort – would have resulted in a different outcome. Lukity, supra at 497.
Accordingly, this preserved, nonconstitutional error is not a proper ground for reversal of defendant’s
convictions.
Affirmed.
/s/ Michael J. Talbot
/s/ Harold Hood
/s/ Hilda R. Gage
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