PEOPLE OF MI V WILLIE BRYANT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 22, 2002
Plaintiff-Appellant,
V
No. 231655
Wayne Circuit Court
LC No. 99-011533
WILLIE BRYANT,
Defendant-Appellee.
Before: Hood, P.J., and Murphy and Markey, JJ.
PER CURIAM.
The prosecution appeals by right from the trial court’s order dismissing the charges1
against defendant after the court denied the prosecution’s motion to admit evidence of the
complaining witness’ preliminary examination testimony and granted defendant’s motion to
admit evidence of the complaining witness’ character and prior misconduct. We affirm in part,
reverse in part, and remand.
The prosecution first argues that the trial court erred in denying the prosecution’s motion
to admit evidence of Officer Brown’s preliminary examination testimony and in granting
defendant’s motion to dismiss on this basis. This issue involves defendant’s Sixth Amendment
right to confront his accuser, which is a constitutional issue that is reviewed de novo on appeal.
People v Conat, 238 Mich App 134, 144; 605 NW2d 49 (1999). The parties agree that this Court
should review this issue de novo. However, a trial court’s decision to exclude preliminary
examination testimony from evidence is reviewed for an abuse of discretion. People v Adams,
233 Mich App 652, 656; 592 NW2d 794 (1999). A trial court’s decision whether to grant a
motion to dismiss is also reviewed for an abuse of discretion. People v Herndon, 246 Mich App
371, 389; 633 NW2d 376 (2001).
Where a declarant is unavailable as a witness, the hearsay rule does not exclude
[t]estimony given as a witness at another hearing of the same or a different
proceeding, if the party against whom the testimony is now offered . . . had an
1
Defendant was charged with third-degree fleeing a police officer, MCL 257.602a(3), and
felonious assault, MCL 750.82.
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opportunity and similar motive to develop the testimony by direct, cross, or
redirect examination. [MRE 804(b)(1); Adams, supra at 656-657.]
A witness is considered “unavailable” when he asserts his Fifth Amendment right to silence at
trial. People v Meredith, 459 Mich 62, 65-66; 586 NW2d 538 (1998).
In the instant case, Officer Brown invoked his Fifth Amendment right to silence.
Therefore, he was unavailable as a witness. Id. Consequently, his preliminary examination
testimony is admissible under the Michigan Rules of Evidence if defendant had an opportunity
and similar motive to develop the testimony on cross-examination. MRE 804(b)(1). In People v
Vera, 153 Mich App 411, 415; 395 NW2d 339 (1986), this Court discussed MRE 804(b)(1):
MRE 804(b)(1) is identical to FRE 804(b)(1). McCormick on Evidence,
commenting on FRE 804(b)(1), states that the issue for which the former
testimony was elicited and the issue for which the party wishes the former
testimony admitted must be substantially similar before the former testimony may
be admitted[.]
In People v Cooper, 168 Mich App 62; 423 NW2d 597 (1988), rev’d in part on other grounds
433 Mich 862; 444 NW2d 527 (1989), this Court stated:
This Court has, pursuant to MRE 804(b)(1) and MCL 768.26; MSA 28.1049,
held on many occasions preliminary examination testimony admissible in lieu of
the actual testimony of the witness where the witness is unavailable. These
rulings have rejected confrontation clause challenges. Whether defense counsel
cross-examined the witness at the preliminary examination was a principle factor
in these cases. The cases in which preliminary examination testimony has been
held inadmissible involved instances where the prosecutor did not use due
diligence in trying to locate the witness so that the witness could testify at trial.
[Cooper, supra at 66-67 (citations omitted).]
In the instant case, defense counsel conducted a substantial cross-examination of Officer
Brown at the preliminary examination. The record reveals that the cross-examination consisted
of twenty-eight pages of transcript. Therefore, defendant did have the opportunity to develop
Officer Brown’s testimony through cross-examination. The issue is whether defendant had a
similar motive when cross-examining Officer Brown at the preliminary examination as he would
have had at trial.
We find that the trial court abused its discretion in finding that Officer Brown’s
preliminary examination testimony was inadmissible under MRE 804(b)(1). Not only did
defendant have the opportunity to cross-examine Officer Brown at the preliminary examination,
but also defendant’s motive in his cross-examination of Officer Brown at the preliminary
examination was similar to what his motive would have been at trial. At the preliminary
examination, Officer Brown testified that defendant fled from the police and that defendant
attempted to hit him with his car. Defendant cross-examined Officer Brown to attack his
credibility and to find inconsistencies in his testimony. The purpose of his cross-examination
was to show that defendant did not commit the crimes for which he was charged. After the
preliminary examination, the media apparently revealed to the parties that Officer Brown had
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allegations against him for improper police conduct. Consequently, defendant had a new reason
to cross-examine Officer Brown because defendant could now question him about these
allegations. Nonetheless, defendant’s motive behind cross-examining Officer Brown remained
similar in that he still had the goal of attacking Officer Brown’s credibility in order to show that
defendant was not guilty of the charged crimes. Therefore, we conclude that Officer Brown’s
preliminary examination testimony was admissible at trial under MRE 804(b)(1).
“Even when evidence of an unavailable witness is admissible under the Michigan Rules
of Evidence, it is still necessary to determine whether use of the testimony would violate a
defendant’s constitutional right to confront prosecution witnesses.” Meredith, supra at 67. A
defendant has a constitutional right to confront prosecutorial witnesses. US Const, Am VI;
Const 1963, art 1, § 20; Adams, supra at 659. The Confrontation Clause allows the preliminary
examination testimony of an unavailable witness to be used at trial under MRE 804(b)(1) only
upon a showing that the testimony bears satisfactory indicia of reliability. Meredith, supra at 68.
“This reliability requirement is satisfied ‘without more’ if the proposed testimony falls within a
firmly rooted exception to the hearsay rule.” Id. at 69. Because MRE 804(b)(1) is a firmly
rooted exception to the hearsay rule, testimony that falls within this rule satisfies the indicia of
reliability. Meredith, supra at 71; Adams, supra at 659-660. Therefore, because Officer
Brown’s preliminary examination testimony falls within MRE 804(b)(1), it satisfies the indicia
of reliability. The Confrontation Clause is in turn satisfied and the testimony is admissible.
Therefore, the trial court abused its discretion in denying the prosecution’s motion to admit
Officer Brown’s preliminary examination testimony at trial and in granting defendant’s motion
to dismiss on these grounds.
Next, the prosecution argues that the trial court abused its discretion in granting
defendant’s motion to admit evidence of Officer Brown’s character and prior misconduct. “The
decision whether evidence is admissible is within the trial court’s discretion and should only be
reversed where there is a clear abuse of discretion.” People v Starr, 457 Mich 490, 494; 577
NW2d 673 (1998). In the trial court, defendant moved to admit evidence of Officer Brown’s
violent character, that he had shot three suspects to death in five years, and had fired his gun
during several other incidents. Defendant argued that the evidence would show that Officer
Brown consistently used deadly force against suspects and then lied to justify his use of that
force. Defendant sought to have this evidence admitted in order to show that Officer Brown was
lying about defendant’s conduct in the instant case in order to justify his use of deadly force and
to protect his career and his employers from liability. We find that the trial court abused its
discretion in granting of defendant’s motion to admit evidence of Officer Brown’s prior conduct,
but did not abuse its discretion in granting defendant’s motion to admit evidence of Officer
Brown’s character.
MRE 404(a)(2) states that evidence of a person’s character is not admissible to prove
action in conformity therewith on a particular occasion except for “[e]vidence of a pertinent trait
of character of the victim of the crime, other than in a prosecution for criminal sexual conduct,
offered by an accused, or by the prosecution to rebut the same . . . .” The violent character of the
victim, even though it is unknown to the defendant, is admissible under MRE 404(a)(2) as
evidencing the victim’s probable aggression toward the defendant. People v Harris, 458 Mich
310, 315; 583 NW2d 680 (1998). Evidence of the victim’s pertinent character trait is admissible
even if the defendant does not claim self-defense. People v Anderson, 147 Mich App 789, 793;
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383 NW2d 186 (1985). “[A] defendant may show a pertinent trait of character of the alleged
victim that bears on whether the victim committed an act of aggression on the particular occasion
in conformity with that trait.” Harris, supra at 315. The only purpose for which evidence of the
victim’s violent character is admissible is to render more probable the evidence that tends to
show an act of violence at the time of the crime. Id. at 316. If evidence of the victim’s violent
nature sheds light on whether the defendant intended to commit the crime, it is pertinent and
admissible under MRE 404(a)(2). Anderson, supra at 793.
“[W]hen character evidence is used circumstantially, the existence of a
particular disposition is not itself the matter in issue; rather, evidence of a
person’s disposition is offered to show the doing or not-doing of an act on a
particular occasion. . . . [T]he accused may ordinarily offer evidence of a
pertinent trait of character of the victim, . . . but such use of evidence also
constitutes circumstantial use of character.” [Harris, supra at 317-318, quoting
1A Wigmore, Evidence (Tillers rev.), § 69.1, p 1478.]
We find that the trial court did not abuse its discretion in determining that evidence of
Officer Brown’s violent character is admissible under MRE 404(a)(2). Officer Brown’s
allegedly violent character is pertinent to whether defendant committed the charged crimes
because it may provide proof that Officer Brown may have shot at defendant without
provocation, i.e., he may have shot even though defendant was not intentionally driving his car
directly at Officer Brown. Evidence of Officer Brown’s violent character sheds light on whether
defendant committed the felonious assault because it shows that Officer Brown may have the
character trait of resorting to violence even if it was unnecessary. Therefore, the trial court did
not abuse its discretion in granting the portion of defendant’s motion to admit evidence of
Officer Brown’s character.
Next, “MRE 404(b)(1) is a means by which ‘other acts’ evidence is properly admissible.”
Starr, supra at 495. MRE 404(b)(1) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity,
or absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
The Supreme Court has created a four-pronged standard to determine whether evidence is
admissible under MRE 404(b):
First, that the evidence be offered for a proper purpose under Rule 404(b);
second, that it be relevant under Rule 402 as enforced through Rule 104(b); third,
that the probative value of the evidence is not substantially outweighed by unfair
prejudice; fourth, that the trial court may, upon request, provide a limiting
instruction to the jury. [Starr, supra at 496, quoting People v VanderVliet, 444
Mich 52, 55; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994).]
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Under the first prong, MRE 404(b) prohibits the admission of evidence “[i]f the proponent’s only
theory of relevance is that the other act shows defendant’s inclination to wrongdoing in general
to prove that the defendant committed the conduct in question . . . .” Starr, supra at 496, quoting
VanderVliet, supra at 63. Therefore, to be admissible, the specific acts may not be used to prove
a person’s character to show action in conformity with character on a particular occasion, the
evidence must be relevant to an issue of fact of consequence at trial, and the danger of undue
prejudice must not outweigh the probative value of the evidence. People v Sabin (After
Remand), 463 Mich 43, 55-58; 614 NW2d 888 (2000). MRE 404(b) applies to the prior acts of
any person, including the victim, witness, or defendant. People v Rockwell, 188 Mich App 405,
409-410; 470 NW2d 673 (1991). MRE 404(b) specifically addresses the admissibility of
uncharged conduct and permits the admission of evidence of other crimes, wrongs, or acts even
if the conduct has not resulted in a criminal conviction. Starr, supra at 499.
“[E]vidence of similar misconduct is logically relevant to show that the charged act
occurred where the uncharged misconduct and the charged offense are sufficiently similar to
support an inference that they are manifestations of a common plan, scheme, or system.” Sabin,
supra at 63.
General similarity between the charged and uncharged acts does not, however, by
itself, establish a plan, scheme, or system used to commit the acts.
* * *
The added element, then, must be, not merely a similarity in the results,
but such a concurrence of common features that the various acts are naturally to
be explained as caused by a general plan of which they are the individual
manifestations.” [Emphasis in original.] [Sabin, supra at 64-65 (citations
omitted).]
We find that under MRE 404(b)(1), evidence of Officer Brown’s previous shootings of
suspects is inadmissible to show Officer Brown’s propensity toward violence in performance of
his police duties. Additionally, this evidence is inadmissible to show a common scheme, plan, or
system. Defendant argues that he was a victim of Officer Brown’s scheme, plan, or system of
unjustly shooting suspects such as defendant and then falsely accusing them of committing a
crime in order to justify his use of deadly force. However, “[t]o establish the existence of a
common design or plan, the common features must indicate the existence of a plan rather than a
series of similar spontaneous acts . . . .” Sabin, supra at 65-66, quoting People v Ewoldt, 867
P2d 757, 770 (Cal, 1994). To establish the existence of a common design, plan, or scheme, “the
effort is to establish a definite prior design or system which included the doing of the act charged
as part of its consummation.” Sabin, supra at 64, quoting 2 Wigmore, Evidence (Chadbourn
rev), § 304, p 249. Defendant does not argue that Officer Brown’s previous shootings were
planned or that his shooting of defendant was part of the consummation of a plan in which these
prior shootings were involved. Although these previous shootings may have been similar acts,
they appear to be a series of similar spontaneous acts, rather than a concurrence of common
features that are naturally explained as caused by a general plan of which they are individual
manifestations. See Sabin, supra at 64-65, quoting 2 Wigmore, Evidence (Chadbourn rev),
§ 304, p 249. Therefore, evidence of Officer Brown’s previous misconduct was not admissible
under MRE 404(b)(1).
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Defendant also argues that evidence of specific instances of Officer Brown’s conduct is
admissible under MRE 405 and MRE 608. However, neither of these evidentiary rules is
applicable to this case. MRE 405(b) allows evidence of specific instances of conduct where
character is an essential element of the charge, claim, or defense. Officer Brown’s character is
not an essential element of defendant’s defense. MRE 608 allows evidence that is probative of
the witness’ veracity. The proffered evidence relates to Officer Brown’s violent character and
acts and is not relevant to his veracity. Therefore, the proffered evidence is not admissible under
MRE 405 or MRE 608. The trial court abused its discretion in granting the portion of
defendant’s motion to admit evidence of Officer Brown’s previous misconduct.
In summary, we reverse the circuit court’s order denying the prosecutor’s motion to
admit evidence of Officer Brown’s preliminary examination testimony, reverse the court’s order
granting defendant’s motion to dismiss the charges, reverse the court’s order granting
defendant’s motion to admit evidence of Officer Brown’s previous conduct, and affirm the
court’s order granting defendant’s motion to admit evidence of Officer Brown’s character. We
remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Harold Hood
/s/ William B. Murphy
/s/ Jane E. Markey
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