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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
February 8, 2007
Kent Circuit Court
LC No. 04-004787-FC
PAUL ALLEN BERNARD,
Before: Murphy, P.J. and Smolenski and Kelly, JJ.
Defendant appeals as of right his jury conviction for the premeditated murder of his ex
wife, Mimi Bernard, contrary to MCL 750.316. Defendant was sentenced to life in prison
without the possibility of parole and ordered to pay $33,854.68 in restitution. Because we find
no errors warranting reversal, we affirm.
Defendant first argues that he was deprived of his Sixth Amendment right to the
assistance of counsel when the police searched his cell before trial and seized privileged
material. He further argues that the trial court should have remedied this violation by dismissing
the charges against him or, in the alternative, by disqualifying the prosecutor and the officers
involved in the search from participating in the prosecution. Defendant contends that this error
warrants dismissal of the case. We disagree.
This Court reviews a trial court’s decision whether to grant a motion to dismiss for an
abuse of discretion. People v Stone, 269 Mich App 240, 242; 712 NW2d 165 (2005). However,
this Court reviews the trial court’s factual findings for clear error and reviews de novo the
constitutional questions underlying the trial court’s decision. People v Russel, 471 Mich 182,
187; 684 NW2d 745 (2004).
On January 13, 2005, the trial court held a status conference. At the status conference,
the trial court indicated that defendant’s trial counsel had informed it that law enforcement
officers had earlier in the day searched defendant’s cell and taken documents belonging to
defendant. Defendant’s trial counsel told the court that she believed that the documents that
were taken from defendant’s cell were copied and brought to the hearing. Defendant’s trial
counsel stated a belief that the seizure of the documents, which may have contained work
product, constituted serious misconduct and requested that the court take custody of the copies
until the matter could be sorted out. The prosecutor then revealed that two copies of the
documents from defendant’s cell had been made and were present in the court. Based on this,
the Court ordered one copy to be turned over to defendant’s trial counsel and the other to be
sealed and retained by the court. The court further stated that it would give defendant’s trial
counsel time to brief and file a motion concerning the matter and indicated that it would be
willing to hold an evidentiary hearing.
Defendant later moved for dismissal of the claims against him based on the purportedly
illegal search of his cell and the unconstitutional interference with his Sixth Amendment right to
counsel. In the alternative, defendant asked the court to suppress the documents and recuse the
Kent County Prosecutor Attorney’s Office and the officers involved in the search from
participating in defendant’s prosecution.
The trial court held an evidentiary hearing on the search of defendant’s cell in February
2005. At the hearing, the prosecuting attorney assigned to defendant’s case testified that she did
not ask detectives Gates and McAlary to search defendant’s cell. However, she stated that at
multiple points throughout the investigation, the detectives inquired about whether they could
search defendant’s cell. She said she told them that under Michigan law they could search
defendant’s cell. She said the detectives did not indicate when they were going to perform a
search. The prosecutor stated that she never discussed with the detectives what they could or
could not take or copy.
The prosecutor said that Gates called her in the late morning of January 13, 2005 from
defendant’s jail cell. She stated that Gates told her he saw police reports in the cell with
defendant’s handwriting in the margins. She said Gates inquired about whether the materials
might be privileged and that she responded by stating that she could not say without seeing the
documents. She also testified that she told Gates he could not take the documents. She said she
told him to make two copies of the documents and bring them to court. She testified that she has
not been in defendant’s cell or seen the copied documents.
Gates testified that he and McAlary went to defendant’s cell and searched it on the
morning in question. Gates said that he had previously discussed searching defendant’s cell with
the prosecutor, but did not call before hand to tell her about the search on that day. Gates said
that they wanted to search defendant’s cell for mail that might not have been copied by the jail
staff and other evidence for the case. Gates said he noticed a stack of papers under defendant’s
bed. He said the front page was a police report with marginal notations in defendant’s
handwriting. Gates stated that he took the documents to the copy room and left McAlary to
complete the search. Gates said he then contacted the prosecutor and asked her what she wanted
him to do. He said he did not look through the stack.
Gates testified that the prosecutor told him to make copies of all the papers and bring
them to the court hearing scheduled for later that day. Gates said he made the copies by placing
the documents in the copier’s feeder. Gates said that after he made one copy he returned the
originals to defendant. Gates stated that the copies never left his possession from the time he
made them until they were brought to court.
In an opinion and order issued in February 2005, the trial court found that Gates and
McAlary searched defendant’s cell without a warrant and removed a stack of documents. The
court further found that McAlary and Gates became concerned about whether the documents
were privileged and contacted the prosecuting attorney for guidance. The court also specifically
found that the detectives did not intentionally read the contents of the documents and that there
was no evidence that anyone else had the opportunity to read the documents. From this, the trial
court concluded that the documents had not been substantially reviewed in any way by the
prosecutor’s office or the sheriff’s department. However, the trial court found that some of the
documents were clearly privileged and that others were likely privileged by virtue of the
annotations on them. Finally, the trial court also found that the remaining documents were likely
privileged by virtue of their association with other privileged documents.
After reviewing its findings, the trial court determined that the search itself was legal
because defendant had no reasonable expectation of privacy in his cell. The trial court
acknowledged that defendant still had a Sixth Amendment right to the assistance of counsel that
protected privileged documents and work product as well as his direct communications with his
trial counsel. However, it concluded that, because the detectives and the prosecutor did not
review the seized materials, defendant’s Sixth Amendment rights were not violated. Therefore,
the trial court determined, it was not necessary to dismiss the charges against defendant or recuse
the detectives and the Kent County Prosecutor’s office from prosecuting defendant.
Nevertheless, the trial court did determine that the seized documents should all be suppressed in
order to prevent a possible Sixth Amendment violation.
The Sixth Amendment to the United States Constitution guarantees an accused the right
to assistance of counsel for his defense. United States v Morrison, 449 US 361, 364; 101 S Ct
665; 66 L Ed 2d 564 (1981). “This right, fundamental to our system of justice, is meant to assure
fairness in the adversary criminal process.” Id. An essential part of the right to effective
assistance of counsel is privacy of communication between the accused and his counsel. United
States v Brugman, 655 F2d 540, 546 (CA 4, 1981); United States v Rosner, 485 F2d 1213, 1224
(CA 2, 1973).
In Weatherford v Bursey, 429 US 545; 97 S Ct 837; 51 L Ed 2d 30 (1977), the Supreme
Court recognized that government intrusion into confidential attorney-client communications
may violate a defendant’s Sixth Amendment right to effective assistance of counsel. However,
not every intrusion into the attorney-client relationship will implicate the right to effective
assistance of counsel. Id. at 558. Instead, the existence of a Sixth Amendment violation
“depends on whether the intrusions were purposeful and whether the prosecution, either directly
or indirectly, obtained evidence or learned of defense strategy from the intrusions.” Arizona v
Pecard, 196 Ariz 371, 377; 998 P2d 453 (1999), citing Weatherford, supra at 558.
We conclude that there is no indication that defendant was prejudiced by what occurred.
The trial court found that none of the documents had been substantially reviewed by the
detectives involved in the search or the prosecutor. Further, the original documents were
immediately returned to defendant and one copy was turned over to defendant’s trial counsel and
the other sealed within a short time after they were made. As a result, the prosecution was not
able to avail itself of any of the information contained within the documents. Hence, there was
no prejudice. Likewise, although the search of defendant’s cell was intentional, the trial court
found that the purpose behind the search was to find evidence and not to intercept attorney-client
communications. The trial court also found that the detectives inquired into the legality of a
warrantless search for evidence prior to conducting it and were told by the prosecutor that the
search was likely legal. Given that the current state of the law supports this conclusion, see
Hudson v Palmer, 468 US 517, 525-526; 104 S Ct 3194; 82 L Ed 2d 393 (1984) and People v
Phillips, 219 Mich App 159, 161-162; 555 NW2d 742 (1996), the search cannot be characterized
as blatant misconduct. The prosecutor advised the detectives that they could search defendant’s
cell in reasonable reliance on current authority and the detectives stated a legitimate reason for
the search. Furthermore, once the search was underway, the detectives recognized the
potentially sensitive nature of the documents and properly secured the documents until such time
as the trial court could determine whether the documents could be used. Hence, any intrusion
was at most inadvertent and done in a good faith belief in the propriety of the actions taken.
There was no error warranting the requested relief.
Defendant next argues that he was denied a fair trial when the trial court permitted
several prosecution witnesses to offer their opinion that defendant was guilty. Because this
prejudicial testimony likely affected the outcome of the trial, defendant further argues, his
conviction should be reversed and a new trial ordered. We disagree.
In the present case, the prosecution elicited testimony from several witnesses concerning
the witnesses’ belief that defendant was the person who killed Mimi. Although defendant’s trial
counsel did object to some of this testimony, until defendant’s daughter Melanie testified,
defendant’s trial counsel did not object to the testimony as improper opinion testimony or
testimony that infringed on the exclusive province of the jury. After defendant’s trial counsel
objected to his daughter’s opinion testimony, the prosecution agreed not to ask similar questions.
Thereafter, the trial court prevented further testimony of this nature.
It is a “settled and long-established rule that a witness cannot express an opinion
concerning the guilt or innocence of a defendant.” People v Parks, 57 Mich App 738, 750; 226
NW2d 710 (1975). Rather, the issue of an individual’s guilt or innocence is a question solely for
the jury. People v Suchy, 143 Mich App 136, 149; 371 NW2d 502 (1985). Therefore, it was
error to permit these witnesses to express their opinion as to defendant’s guilt. However,
defendant’s trial counsel did not object to the majority of the testimony cited and, when she did
object, she did not object on the basis that the proffered testimony was impermissible opinion
testimony concerning defendant’s guilt or innocence. Because an objection on one ground is
insufficient to preserve a claim of error on another ground, People v Kimble, 470 Mich 305, 309;
684 NW2d 669 (2004), these claims of error are all unpreserved.
An unpreserved constitutional or nonconstitutional error is reviewed for plain error
affecting defendant’s substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d
130 (1999), citing United States v Olano, 507 US 725; 113 S Ct 1770; 123 L Ed 2d 508 (1993).
In order to warrant relief based on an unpreserved claim of error, “three requirements must be
met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain
error affected substantial rights.” Carines, supra at 763. Under the third requirement, the
defendant bears the burden of demonstrating that the error was prejudicial, “i.e., that the error
affected the outcome of the lower court proceedings.” Id. Even if each of these requirements is
met, it is still within the discretion of an appellate court to decline to reverse. Id. Reversal is
warranted only when the plain, forfeited error resulted in the conviction of an actually innocent
defendant or when it seriously affected the fairness, integrity or public reputation of judicial
proceedings independent of the defendant’s innocence. Id.
In the present case, it was plain error for the trial court to permit the improper opinion
testimony. However, after carefully examining the record, we conclude that defendant has not
met his burden of demonstrating that the admission of this testimony affected the outcome of his
The testimony and record evidence admitted at trial clearly indicated that defendant
despised Mimi and harbored a belief that she was responsible for all his recent misfortunes. The
testimony and record evidence also indicated that defendant was obsessed with money and
would go to extreme lengths in order to keep money from Mimi. Defendant’s obsession with
keeping money from Mimi is exemplified by defendant’s own testimony, contrary to virtually all
the other testimony and evidence, that the impetus for the dissolution of his marriage was a
dispute over how to use savings bonds that had been set aside for the kids’ education. Indeed,
defendant testified that, when he learned that Mimi had used $3,000 of the more than $50,000 in
bonds to pay some of defendant’s son’s tuition, he had the safety deposit box where the bonds
were stored drilled open and removed them to a location where Mimi “would have no control
over them.” Testimony and record evidence also established that, at one point during the
divorce, defendant attempted to obtain payments of $75 from his children in order to resolve a
dispute with Mimi over $450. Melanie testified that she was actually frightened by defendant’s
request and called her mother to express her fear. E-mail records indicate that Mimi was so
concerned by Melanie’s call that she left work early in order to be at home with Melanie.
Testimony and evidence indicated that defendant also repeatedly attempted to have his
child support reduced and had gotten significantly behind on his child support payments, despite
the fact that he had a substantial 401(k) available to meet his obligations. When his efforts
failed, testimony established that defendant became angry towards Mimi and expressed a desire
to kill her. Defendant even left angry messages on the answering service of the court reporter
who presided at his hearings and went so far as to call the reporter at her home.
Testimony established that a show cause hearing was held to address defendant’s failure
to pay child support and that Mimi had asked the court to seize defendant’s child support
arrearage from his 401(k). The court ordered over $27,000 to be taken from defendant’s 401(k)
to bring the payments to date and ensure future payments. This amount was far greater than the
$450 and $3000 that had already led defendant to take extreme and unusual measures against
Mimi and his children. Indeed, defendant’s girlfriend testified that she told Mimi that this show
cause hearing would be defendant’s “breaking point.” Testimony by a Friend of the Court
(FOC) lawyer also established that, if Mimi died and defendant got custody of his son Jeff,
defendant’s child support arrearage would be erased and defendant would no longer have to pay
child support. Further, testimony established that after this hearing, defendant attempted to
withdraw his entire 401(k), but was prevented when the FOC placed a hold on it. Hence, the
evidence established that defendant had a strong motive to kill Mimi.
In addition, evidence established that the timing of Mimi’s murder was consistent with
defendant’s motive and that defendant had the means and opportunity to commit the murder.
Evidence established that the hearing that would finalize the withdrawal of funds from
defendant’s 401(k) was to be held on Friday, April 4, 2003. Mimi was murdered late on the
night of Wednesday, April 2, 2003 and was not discovered until the morning of Thursday, April
3, 2003. Hence, the timing of the murder fits with defendant’s motive to prevent Mimi from
getting his 401(k) money.
Defendant’s downstairs neighbor testified that she heard defendant loudly pacing at about
10:30 p.m. on the night of Wednesday, April 2, 2003. She also testified that she heard him
pounding in the kitchen. These noises stopped sometime after 10:30 p.m. Testimony also
established that defendant was seen in his Jeep in the parking lot of his apartment complex at
around that time. One of the investigating detectives testified that test drives showed that
defendant lived less than five minutes from Mimi’s home. Additionally, Mimi’s son Jeff
testified that he went to bed around 10 p.m. on April 2, 2003 and that when he went to bed he
saw Mimi using the Internet. A computer expert testified that the last user initiated action on
Mimi’s computer occurred at approximately 10:51 p.m. This evidence indicates that Mimi was
likely murdered shortly after defendant left his home on the night of April 2, 2003.
Testimony concerning Mimi’s injuries and the nature of her death also tended to suggest
that Mimi’s murder was motivated by rage. Testimony established that there was no evidence
that Mimi’s killer entered her home, but rather likely stayed within the confines of the garage.
Likewise, there was no sign that Mimi was robbed or sexually assaulted. In addition, Mimi was
brutally stabbed at least fifteen times in her neck. The stab wounds were concentrated within a 3
and ½ inch by 4 and ½ inch area and were so forceful that two wounds went entirely through her
neck and others penetrated her spine. Two other stab wounds were with such force that they
penetrated her sternum and one of her ribs.
Although there was no forensic evidence directly implicating defendant in Mimi’s
murder, there was significant forensic evidence that was consistent with defendant being the
perpetrator. First, defendant was discovered with fresh injuries to his hand and shin on the day
after Mimi’s murder that were consistent with a violent struggle. Likewise, although defendant
stated that he did not drive his Jeep on the night of Mimi’s murder, blood was found in his Jeep
above the door handle and near the switch for turning on the Jeep’s lights. Second, there were
bloody footprints at the scene of Mimi’s murder that indicate that the killer likely had blood on
his shoes. Testimony established that bloody shoe prints were made by a sport shoe or tennis
shoe. Multiple witnesses testified that defendant habitually wore tennis shoes. Yet on the
morning after Mimi’s murder, defendant no longer had his tennis shoes. Defendant testified that
he disposed of the tennis shoes on the same night Mimi was murdered. Third, a search of
defendant’s apartment revealed that defendant had a kitchen knife set that was missing one of its
knives and testimony by the forensic pathologist established that Mimi’s injuries were consistent
with such a knife. Finally, as the bloody footprints established, the perpetrator likely had blood
splattered on his person after the murder. Defendant’s neighbor testified that defendant normally
did not shower in the morning, but that she heard him shower on the morning after Mimi’s
The evidence of the timing of Mimi’s murder, defendant’s motive and opportunity to
commit the murder and the forensic evidence presented constitute significant evidence of
defendant’s guilt. However, the jury also heard extensive testimony concerning defendant’s
actions and statements after Mimi’s murder, including several taped conversations with officers
and his children, and had the opportunity to listen to defendant’s trial testimony. When
combined with the evidence of defendant’s motive and opportunity to commit the murder as well
as the evidence concerning the timing of the murder and the forensic evidence, these statements
are overwhelming evidence of defendant’s guilt.
Defendant made a variety of statements to the police and members of his family
throughout the investigation into Mimi’s death and at trial. Some of the statements purportedly
explaining the existence of incriminating circumstantial evidence are so contrived that they
actually reinforce the inference of guilt to be drawn from the evidence. For example, defendant
told the police that his regular shoes were his dress loafers, despite the fact that defendant’s
children testified that he habitually wore tennis shoes. When confronted with this evidence,
defendant explained that he uses the word “shoes” to refer to “dress shoes” and only refers to
tennis shoes as “sneakers.” Hence, the footwear he normally wears are “sneakers,” but the
“shoes” he normally wears are his dress shoes. When asked what happened to his tennis shoes,
defendant told the police that he decided to throw them out on the day of Mimi’s murder because
he intended to buy a new suit. Originally, defendant told the police that he disposed of the tennis
shoes early in the day, but defendant later stated that he wore his tennis shoes to the store and
must have thrown them out on his second trip to the dumpster later in the day. Despite visiting
the dumpster twice in one day, a search of defendant’s apartment revealed that his trash
receptacles had trash in them. Further, when asked why he would throw his shoes out before
actually replacing them, defendant explained that he would have to wear dress shoes to get fitted
for the new suit he planned to buy on the weekend and, therefore, there was no need to retain the
tennis shoes. The absurdity of this explanation inexorably leads to the conclusion that defendant
was concealing the real reason for disposing of his shoes. Defendant had similarly incredible
explanations for the fresh injuries found on him the morning after Mimi’s murder, for his failure
to seek any contact with his family after Mimi’s death or attend her visitation or funeral, and for
the dust on his loafers.
In addition to these contrived explanations, defendant denied having a problem with
Mimi, denied having a problem with paying child support, denied that he ever threatened to kill
Mimi, denied being angry with Mimi over the child support proceedings, denied that he had a
problem with the court taking more than $27,000 from his 401(k) and denied that he wanted
custody of Jeff after Mimi’s death. These denials were made in direct contradiction to
significant evidence to the contrary. Witness testimony, court records and defendant’s own
statements and e-mails indicate that defendant repeatedly tried to lower his child support
payments and became very angry when he was unable to do so. The evidence also showed that
defendant expressed a desire to kill Mimi to more than one person and that he was obsessed with
keeping money from her. In addition, there was ample evidence that defendant continued to
fight the release of his 401(k) funds to pay child support even after Mimi’s murder and that he
assumed that he would get custody of Jeff after Mimi’s death. Because these statements are so
thoroughly contradicted by the weight of the remaining testimony and evidence, these denials
actually undermine defendant’s credibility and permit an inference of consciousness of guilt.
Defendant also implicated several persons as Mimi’s potential killer. At one point he
claimed that the judge handling the child support issues was having a lesbian affair with Mimi
and must have killed her. He also claimed that a FOC lawyer must have murdered Mimi.
Another time he indirectly implicated Mimi’s sister. He also indicated that one of his sons might
have murdered Mimi. Finally, at trial, defendant presented a defense that suggested that Mimi
might have been murdered by someone she dated after her divorce. Defendant’s willingness to
implicate his own children and to make wild accusations against others also undermined
Finally, the tape of defendant’s telephone conversation with his eldest son Brian is
compelling evidence of defendant’s consciousness of guilt. Throughout the conversation,
defendant repeatedly attempted to redirect the conversation away from Mimi’s death. Indeed, at
one point he began to discuss property that he purportedly left at Mimi’s home that he wanted
Brian to know about. However, Brian always returned to the subject and pleaded with his father
to “tell me that you didn’t do it?” Finally, defendant told his son, “I’ll tell you what I told the
police. . . . I said I didn’t do it. I said I was working here at home.” Defendant’s equivocal
statements and refusal to directly deny killing Mimi was tantamount to a confession of guilt.
This evidence, taken in its entirety, is overwhelming evidence of defendant’s guilt.
Defendant has not met his burden of persuasion concerning the prejudicial nature of this
testimony. Therefore, the admission of this testimony does not warrant reversal. Carines, supra
at 763. Furthermore, even if defendant had satisfied the prejudice requirement, we would
decline to exercise our discretion to reverse in this case. Id. at 763, 772-773.
Defendant next argues that the prosecutor engaged in a deliberate pattern of misconduct
by attempting to “divert the jury’s attention from the lack of rationally persuasive evidence to the
seemingly unanimous family feeling blaming Defendant for the victim’s death.” However,
defendant presents this argument without any real analysis. Defendant merely recites a series of
general authorities that are applicable to prosecutorial misconduct cases and refers to the facts
stated under Issue II. Because this issue as insufficiently developed, we conclude that defendant
has abandoned it on appeal. People v Martin, 271 Mich App 280, 315; 721 NW2d 815 (2006).
However, even if we were to address this issue and conclude that the trial court’s elicitation of
opinion testimony was improper, for the reasons already stated under Issue II above, we would
conclude that any error was harmless. See People v McLaughlin, 258 Mich App 635, 645; 672
NW2d 860 (2003). Therefore, reversal is not warranted on this basis.
Defendant next argues that his trial counsel was constitutionally ineffective for failing to
object to Mimi’s sister’s testimony that Mimi told her that defendant “would not shoot her from a
distance because he would want to do it up close and personal, where she would know that it was
him doing it.” Defendant contends that this testimony likely affected the outcome of the trial
and, therefore, warrants reversal. We disagree.
Defendant argues on appeal that his trial counsel should have objected to this testimony
on the ground that it was inadmissible hearsay. See MRE 802. Hearsay is “a statement, other
than one made by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted. MRE 801(c). In the present case, it was the prosecution’s
theory that Mimi feared defendant and would not have placed herself in jeopardy by opening her
door to defendant absent some compelling reason. The prosecution further theorized that
defendant got Mimi to open the door by convincing her that he was trying to serve her with
papers related to the hearing scheduled for Friday. The prosecution proffered this theory in part
to explain why eight blank folded sheets of paper were found at the scene of the murder with a
bloody footprint. Hence, Mimi’s belief that defendant was dangerous and would not permit him
to “get up close and personal” was relevant to show that Mimi would not have opened the door
for defendant absent some compelling reason, such as to receive court papers related to the
upcoming court hearing. Therefore, this statement was properly admissible for a reason other
than to prove the truth of the matter asserted and, hence, was not hearsay. MRE 801(c). Because
this testimony was properly admissible, defendant’s trial counsel could not be faulted for failing
to object to it. People v Riley (After Remand), 468 Mich 135, 142; 659 NW2d 611 (2003).
There was no error warranting reversal on this basis.
Finally, defendant contends that his trial counsel was constitutionally ineffective for
failing to object to testimony by two witnesses that Mimi told them that defendant had threatened
to kill her. Defendant further contends that he was deprived of a fair trial as a result of these
failures to object. We disagree.
Almost every witness who knew Mimi testified that Mimi was afraid of defendant and
several testified concerning defendant’s threats to kill Mimi. In addition, two of Mimi’s friends
testified that Mimi told them that defendant had threatened to kill her. Although defendant
acknowledges that his counsel placed a continuing objection on the record prior to the testimony
of these witnesses, defendant contends that this objection did not encompass testimony
concerning statements by Mimi that defendant threatened her. Hence, defendant concludes that
his counsel failed to properly object to this hearsay testimony and that this failure fell below an
objective standard of reasonableness under prevailing professional norms and deprived him of a
fair trial. We disagree with defendant’s contention that the continuing objection did not apply to
At trial, Mimi’s neighbor testified that Mimi had expressed a fear of defendant. She then
testified that Mimi had asked her to take care of her (Mimi’s) cat while she was out of town. She
stated that she asked her husband to accompany her to Mimi’s home because of the concerns
Mimi had expressed about defendant. The prosecution then asked the neighbor about Mimi’s
state of mind and defendant’s trial counsel objected. The trial court excused the jury and
All right. We had a side-bar just before I sent the jury out. [Defendant’s trial
counsel] is objecting to testimony about the state of mind evidence of Mimi
Bernard and the statements of witnesses related to that. I asked for a side-bar
because I thought that the witness had already told what her state of mind was, but
apparently there was an actual declaration by the decedent to this witness that she
was afraid that she, being Mimi Bernard, was afraid that Paul Bernard was going
to kill her.
After this, the prosecution argued that Mimi’s statement to the witness was not being offered to
prove the truth of the matter asserted and, therefore, was not hearsay, or alternatively that it was
admissible under MRE 803(3). Defendant’s trial counsel countered that any statement would be
inadmissible hearsay and that she had a continuing objection to testimony of that nature. The
trial court noted that the objection was to testimony that Mimi “either, a, feared . . . the
defendant, or, b, what she may have said about whether she thought the defendant was going to
kill her . . . .” The court then ruled that the testimony would not be hearsay and, even if it were,
it would be admissible under MRE 803(3).
This record clearly indicates that defendant’s trial counsel placed a continuing objection
to both testimony by witnesses that Mimi was afraid of defendant and to testimony by witnesses
that Mimi told them that defendant had threatened to kill her. Therefore, defendant’s trial
counsel did in fact object and defendant’s claim to the contrary is without merit.
There were no errors warranting reversal of defendant’s conviction.
/s/ William B. Murphy
/s/ Michael R. Smolenski
/s/ Kirsten Frank Kelly