PEOPLE OF MI V JAMES CRAIG CRISTINIAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
July 17, 1998
Macomb Circuit Court
LC No. 94-002485 FC
JAMES CRAIG CRISTINI,
Before: Gribbs, P.J., and McDonald and Talbot, JJ.
Defendant was convicted by a jury of second-degree murder, MCL 750.317; MSA 28.549,
mutilation of a dead body, MCL 750.160; MSA 28.357, and habitual offender, second offense, MCL
769.10; MSA 28.1082, and sentenced to 60 to 90 years’ imprisonment. Defendant appeals his
convictions as of right. We affirm.
Defendant’s convictions arise out of the killing of James Scott Bussell, who died of blunt force
injuries to his head after being repeatedly kicked by defendant in an auto body shop owned by Tayser
Mona in the early morning hours of January 17, 1994. At trial, Mona was the key prosecution witness
testifying pursuant to an agreement with the prosecutor following his convictions for mutilation of a dead
body and habitual offender, fourth offense arising from his involvement in the incident. See People v
Mona, unpublished opinion per curiam of the Court of Appeals, issued 9/30/97 (Docket No. 188075).
According to Mona, on January 16, 1994, defendant, Mona, and Bussell spent the late
afternoon together at the Oakland Mall, purchasing merchandise with bad checks. Thereafter, the
threesome went together in Mona’s car to various places, including Mona’s home. Defendant, Mona,
and Bussell then went to “Tycoon’s,” a topless bar, where they stayed until closing time. After leaving
the bar, between 2:00 and 3:00 a.m. on January 17, the threesome went together in Mona’s car to his
collision shop located on Dequindre just north of Nine Mile to make calls to several “escort services.”
Mona testified that while he was on the phone, he saw Bussell stand up and push defendant. In
response, defendant hit Bussell in the face, causing Bussell to fall to the floor. At that point, Mona saw
defendant, who was wearing cowboy boots, repeatedly kick Bussell in the head. When Mona asked
them to stop fighting, defendant ceased kicking Bussell, who was injured and lying on the floor.
However, according to Mona, defendant again started kicking Bussell, about two or three times. After
defendant sat down in response to Mona’s request to stop hitting Bussell, defendant got up again and
began kicking Bussell. Mona then went to the back of his shop to get some ice, returning with a rag
with cold water on it. When Mona returned, defendant, who was standing over Bussell, told Mona that
Bussell was dead. At that point, defendant again kicked Bussell very hard in the head. Subsequently,
defendant asked Mona to let him use his car to move Bussell’s body.
Thereafter, Mona assisted defendant in moving Bussell’s body to his car and transporting the
body to an alley near Seven Mile and John R in Detroit. Placing the body next to a dumpster,
defendant poured lacquer thinner over the body and set it on fire. Mona and defendant then returned to
the collision shop to clean up the blood stains on the floor and to destroy any evidence that might
implicate them in Bussell’s death. Next, Mona and defendant drove to a motel on Eight Mile and
Dequindre, where they threw out a piece of carpeting that was used to wrap the deceased’s body. As
they drove along Eight Mile, Mona and defendant also tossed out the deceased’s personal effects,
bloody clothes, and rags through the car window.
According to Mona, he and defendant then went to a White Castle at Eight Mile and Gratiot,
where defendant bought hamburgers to bring back to the shop for a final look. Then, defendant and
Mona went to the Oakland Mall to retrieve Bussell’s car. Mona testified that he then followed
defendant driving Bussell’s car to a gasoline station on Woodward and Eleven Mile Road to buy a gas
can and gasoline. According to Mona, defendant went into the station, bought the gas can, and pumped
the gas. After purchasing the gasoline, Mona followed defendant in Bussell’s car to another location in
Detroit. There, defendant poured gasoline into Bussell’s car and set it on fire.
Defendant first contends he was denied a fair trial because the trial court improperly allowed
evidence of prior unrelated assaultive behavior under MRE 404(b).
The decision to admit evidence is within the trial court’s discretion and will not be disturbed on
appeal absent an abuse of discretion. This Court will find an abuse of discretion in an evidentiary matter
where the court’s ruling has no basis in law or fact. People v Bahoda, 448 Mich 261, 289; 531
NW2d 659 (1995); People v Ullah, 216 Mich App 669, 673; 550 NW2d 568 (1996).
Under MRE 404(b), 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. Such evidence may, however, be
admissible when it is introduced for a proper purpose, such as to show a motive, opportunity, intent,
preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or
accident when material. People v VanderVliet, 444 Mich 52, 74-75; 508 NW2d 114 (1993); Ullah,
supra at 674. In addition to determining whether the evidence is being introduced for a proper
purpose, the trial court must determine whether the evidence is relevant under MRE 402 and whether
the danger of unfair prejudice substantially outweighs the probative value of the evidence under MRE
403. VanderVliet, supra. Finally, upon request, the trial court shall instruct the jury that similar acts
evidence is to be considered only for the proper purpose underlying its admission. MRE 105;
VanderVliet, supra; People v Basinger, 203 Mich App 603, 606; 513 NW2d 828 (1994). The
Michigan Supreme Court recently reaffirmed the VanderVliet standard in People v Starr, ___ Mich
___; ___ NW2d ___ (Docket No. 107013, decided 6/2/98), sl op, pp 6-8.1
We note that VanderVliet clarified the rules governing similar-acts evidence treating MRE
404(b) as an “inclusionary,” rather than as an “exclusionary,” rule, replacing the apparently stricter
standards previously set forth in People v Golochowicz, 413 Mich 298; 319 NW2d 518 (1982),
which was expressly limited to modus operandi cases to establish the identity. VanderVliet, supra at
66. As set forth in Golochowicz at 310-312:
Where, as in this case, the only conceivable justification for admission of such
similar-acts evidence is to prove the identity of the perpetrator, the link is forged with
sufficient strength to justify the admission of evidence of the separate offense only where
the circumstances and manner in which the two crimes were committed are “[s]o nearly
identical in method as to earmark [the charged offense] as the handiwork of the
accused. Here much more is demanded than the mere repeated commission of crimes
of the same class, such as repeated burglaries or thefts. The [commonality of
circumstances] must be so unusual and distinctive as to be like a signature.”
McCormick, Evidence (2d ed), § 190, p 449.
It will not suffice that the “like act” be simply another crime of the same general
category or even of the same specific character. It will not do simply to show, for
example, that the defendant committed another murder. That information is likely to be
used by an ordinarily reasonable juror for the very purpose for which evidence of bad
character is required to be excluded, to show that the accused is a bad person who has
murdered before and to invite the inference that he probably did so in this case. It is the
uniqueness and the distinctiveness with which both crimes were committed, combined
with proof that the defendant committed the “like act”, that is the key.
Consequently, if the trial court determines that there is substantial evidence that
the defendant in fact committed the other or uncharged crime, it must then turn to the
task of determining whether the manners or systems employed by the perpetrator of the
uncharged crime and the crime in question were sufficiently “like” or “similar” and
involved such distinctive, unique, peculiar or special characteristics as to justify an
ordinarily reasonable juror to infer that both were the handiwork of the same person. If
the trial court concludes the evidence is of that character, it may be admitted. If not, it is
Applying these principles to the instant case, we conclude the trial court abused its discretion in
allowing into evidence defendant’s prior assault convictions because they lacked any “special quality or
circumstance” as to be like a “signature” of defendant. VanderVliet, 444 Mich at 66, n 1;
Golochowicz, 413 Mich at 310-312. Here, the evidence of defendant’s prior assault convictions “was
not logically relevant to prove that it must have been the defendant who perpetrated the present
offense.” VanderVliet, supra. Further, it is clear that the danger of unfair prejudice substantially
outweighed any probative value of the evidence under MRE 403. Moreover, throughout the trial, but
particularly in opening statement and closing argument, the prosecutor used the “bad-acts evidence,”
which went beyond the three prior assault convictions allowed by the trial court at the pre-trial motion
hearing, to argue that defendant had a propensity for assaulting people and that he acted in conformity
with his character by fatally assaulting Bussell.
Although the trial court erred in failing to exclude the evidence, we believe the error was
harmless. In People v Mateo, 453 Mich 203; 551 NW2d 891 (1996), the Court set forth two
possible standards for preserved, nonconstitutional error involving the admission of evidence. “The first
test assesses whether it is highly probable that the challenged evidence did not contribute to the verdict.
The second test asks whether it is more probable than not, i.e., a preponderance of the evidence, that
the error did not affect the verdict.” Id., p 219. Under Mateo, “reversal is required only if the error
was prejudicial. That inquiry focuses on the nature of the error and assesses its effect in light of the
weight and strength of the untainted evidence.” Id at 215. Recently, in People v Gearns, 457 Mich
170, 203-205, 207; 577 NW2d 422 (1998), the Court adopted “the highly probable standard as
articulated in Mateo” and placed the burden of persuasion on the prosecution for showing that it is
highly probable that the error did not contribute to the verdict.
Applying the highly probable test, we conclude the trial court’s error in admitting the bad-acts
evidence was harmless. Although there was no physical evidence that defendant killed the deceased,
the prosecution’s presentation of Mona’s testimony, coupled with the testimony of other witnesses
corroborating Mona’s version of the events, showed that it is highly probable that the error did not
contribute to the verdict.
First, although defendant’s testimony also confirmed it, Mona’s testimony that the threesome
met at the Oakland Mall to purchase merchandise with bad checks was confirmed by a friend of the
deceased, who observed the threesome together at 6:00 p.m. on January 16, 1994. Next, Mona’s
testimony that afterwards the threesome went to Mona’s home was confirmed by his brother, who also
corroborated Mona’s testimony that they went to “Tycoon’s.” Although no employee of Tycoon’s
could remember seeing the threesome at the topless bar on the night in question, the testimony of the
deceased’s girlfriend that the deceased called her from a bar at around 12:15 a.m. on January 17,
1994, was consistent with Mona’s testimony that they were at the bar until closing time.
Next, the telephone records of the escort service called by Mona corroborated his testimony
that he was on the phone when defendant and the deceased began to fight in his body shop. While
there was no physical evidence of defendant’s participation in the murder, Mona’s testimony that
defendant killed the deceased by repeatedly kicking him in the head was consistent with the
pathologist’s testimony that the deceased died of several blunt force injuries to the head. In addition,
Mona’s testimony that they transported the deceased’s body to an alley near Seven Mile and John R in
Detroit and that defendant set fire to the body next to a dumpster was corroborated by the garbage man
who claimed to have seen three individuals starting a fire next to a dumpster, but only two individuals
running to a vehicle parked in the alley.
Mona’s testimony that he and defendant subsequently went to the Oakland Mall to retrieve the
deceased’s car was also corroborated by the security guard at the Oakland Mall. The security guard
saw a vehicle matching the description of Mona’s car and two individuals, one of whom he identified as
Mona, and the other as a man with long bushy blonde hair, whom he could not identify but whose
description was consistent with defendant’s physical appearance at the time as confirmed by Detective
Christian. Further, the security guard’s testimony that both vehicles were driven away also
corroborated Mona’s testimony that he followed defendant driving Bussell’s car to a gasoline station to
purchase gas with which to set fire to the car. Very significantly, an employee on duty at the gas station,
Charlene Ramsey, identified defendant as the individual that pumped the gas into the gas can. This
testimony directly contradicted defendant’s version, as supported by his alibi witnesses, that he was
elsewhere at the time of the murder and the subsequent mutilation of the body. Finally, Mona’s
testimony that they drove to another location in Detroit and set fire to Bussell’s car was confirmed by
police and fire department reports of the fire.
Thus, in view of the strength and weight of the untainted evidence, we hold that the prosecution
has shown that it was highly probable that the error in admitting the bad-acts evidence did not contribute
to the verdict and that defendant was not prejudiced by the error.
Next, defendant claims reversal is required on the basis of prosecutorial misconduct. We
The test of prosecutorial misconduct is whether the defendant was denied a fair and impartial
trial. People v Paquette, 214 Mich App 336, 342; 543 NW2d 342 (1995). Prosecutorial
misconduct issues are decided on a case-by-case basis, and the reviewing court must examine the
pertinent portion of the record and evaluate a prosecutor’s remarks in context. People v LeGrone,
205 Mich App 77, 82; 517 NW 2d 270 (1994). The goal of a defense objection to prosecutorial
remarks is a curative instruction. People v Stanaway, 446 Mich 643, 687; 521 NW 2d 557 (1994);
People v Cross, 202 Mich App 138, 143; 508 NW 2d 144 (1993). Appellate review is precluded
unless an objection to the prejudicial effect of the prosecutor’s comments could not have been cured by
a timely instruction or the failure to review the issue would result in a miscarriage of justice. Stanaway,
First, defendant contends the prosecutor injected irrelevant and prejudicial evidence that his
brother, Michael Cristini, was in prison. After defendant and his alibi witnesses testified that they
recalled the night of January 16, 1994 because it was the birthday of Michael Cristini, and that he was
not present when they “toasted” him, the prosecutor, over defense objection, elicited testimony that he
was in prison. Contrary to defendant’s contention, the trial court did not abuse its discretion in allowing
the testimony because the jury was only informed about Michael Cristini’s status as an inmate to explain
his absence at the party. Moreover, even if there was an error in the admission of this testimony, it was
Next, no error occurred when the trial court allowed the prosecutor, over defense objection, to
question defense witness Larry George regarding an outstanding warrant for disorderly conduct.
However, even if this was considered an error, it would be considered harmless because George denied
there were any warrants pending against him.
Further, any alleged prosecutorial misconduct regarding reference to defendant’s prior
convictions during his cross-examination was harmless error given that there was evidence showing that
defendant had one conviction for issuing a fraudulent check on December 13, 1993 and another
conviction for obtaining a controlled substance by fraud in 1989. Likewise, any alleged prosecutorial
misconduct during cross-examination with respect to defendant’s prior uncharged acts of fraud was
harmless error insofar as defendant admitted that he engaged in these uncharged acts. Moreover, the
evidence of these prior bad acts was admissible under MRE 608(b) for the purpose of attacking the
credibility of defendant “as a specific instance of conduct probative of truthfulness or untruthfulness.”
People v Haines, 105 Mich App 213, 216 n 1; 306 NW2d 455 (1981).
There was also no error regarding defendant’s claim that the prosecution deliberately
misrepresented that he had been convicted of assaulting Robert Rizzo, Jr. First, defendant has not
come forward with any evidence showing that the prosecutor intentionally misrepresented any material
facts in this regard. Further, as the trial court properly recognized in denying defendant’s motion for a
new trial, the prosecutor’s mistake was understandable in light of the fact that there was strong evidence
supporting the claim that defendant assaulted Rizzo. In any case, the error, if any, was harmless.
As for the remaining claimed instances of prosecutorial misconduct, defendant’s failure to object
precludes appellate review because any prejudicial effect could have been cured by timely instruction
and because the failure to review them would not result in a miscarriage of justice. Stanaway, supra.
Next, defendant argues the trial court clearly erred in refusing to suppress the identification
testimony of Charlene Ramsey. We disagree.
The trial court’s decision to admit identification evidence is reviewed for clear error. People v
Kurylczyk, 443 Mich 289, 303; 505 NW2d 528 (1993). Recently, in People v Gray, 457 Mich 107,
111; 577 NW2d 92 (1998), the Court observed:
A photographic identification procedure violates a defendant’s right to due
process of law when it is so impermissibly suggestive that it gives rise to a substantial
likelihood of misidentification. . . . In People v Anderson, 389 Mich 155, 178; 205
NW2d 461 (1973), we noted that an improper suggestion often arises when “the
witness when called by the police or prosecution either is told or believes that the police
have apprehended the right person.” Moreover, when “the witness is shown only one
person or a group in which one person is singled out in some way, he is tempted to
presume that he is the person.” Id.
In this case, Officers Garwood and Bush were instructed to show a mug shot of defendant, and
another of Mona, to employees of gas stations on Woodward Avenue between I-696 and 14 Mile
Road. At the first gas station, Officers Garwood and Bush, without saying anything about why the
police wanted to find defendant and Mona, showed the photographs to two employees, Malicia
Christian and Charlene Ramsey. Christian recognized Mona’s photograph and stated he was one of the
men that patronized the gas station on January 17, 1994, but she did not recognize defendant as one of
the customers. On the other hand, Ramsey recognized both photographs as pictures of the two men
who came into the gas station on January 17, 1994 to purchase a gas can and gasoline. Following a
pretrial hearing, the trial court properly denied the motion to suppress Ramsey’s in-court identification
because the photographic identification procedure was not so unduly suggestive that it gave rise to a
substantial likelihood of misidentification. Gray, supra. As the trial court recognized:
The question here surrounds the fact whether or not the conduct of the two
detectives at the gas station was impermissibly suggestive. The Court said no, I don’t
think it was impermissibly suggestive in any way. You have to look at the totality of the
circumstances. I think what the police did was proper, the police officers indicated that
he (sic) didn’t say anything with regard to why they wanted these guys. I think all they
said was that do you know this person or was this person here. Did he obtain gas and
so forth. And both of them indicated one or the other of the two gentleman’s pictures
that they gave them. And one identified the defendant that is being charged right now.
None of them knew the circumstances, like I said. They could have been told, but their
testimony is under oath and the Court must believe what they say at this juncture. And
as I look at the whole thing, from the totality of the circumstances, the Court feels that
this was proper, and the Court’s going to allow it into evidence.
Defendant also raises a series of issues in propria persona. First, defendant contends the pre
arrest delay in charging him with open murder and mutilation of a dead body was prejudicial in violation
of his right to due process because the delay was intentional so as to enable the prosecutor to gain a
tactical advantage, since the prosecutor did not want to try both defendant and Mona at the same time
because a jury would not have believed Mona if he were charged as a principle in the murder. We find
no merit to defendant’s claim because he has failed to come forward with any evidence of substantial
prejudice to his right to a fair trial and an intent by the prosecution to gain a tactical advantage by
delaying his arrest. People v Reddish, 181 Mich App 625, 627; 450 NW2d 16 (1989). Although
defendant argues that two witnesses, Mr. Danny Brusseau and Dr. Sawait Kanluen, were unavailable
for trial as a result of the prosecutor’s delay, there is no evidence whatsoever linking the pre-arrest
delay with the absence of these witnesses at his trial.
Next, defendant claims he was denied a fair trial because the prosecutor did not show due
diligence in producing Brusseau and Dr. Kanluen at trial. Again, there is no merit to his claim.
Under the current res gestae statute, MCL 767.40a; MSA 28.980(1), the prosecutor’s duty to
endorse all res gestae witnesses on the information is replaced with a lesser duty to list the names of
known witnesses on the information. People v Burwick, 450 Mich 281, 288-289; 537 NW2d 813
(1995); People v Calhoun, 178 Mich App 517, 521; 444 NW2d 232 (1989). If a prosecutor
endorses a witness, he is obliged to exercise due diligence to produce that witness at trial regardless
whether the endorsement was required. People v Wolford, 189 Mich App 478, 483-484; 473 NW2d
767 (1991); People v Jackson, 178 Mich App 62, 65; 443 NW2d 423 (1989). If a prosecutor fails
to produce an endorsed witness, he may be relieved of the duty by showing that the witness could not
be produced despite the exercise of due diligence. People v Cummings, 171 Mich App 577, 585;
430 NW2d 790 (1988). A trial court's determination of due diligence is a factual matter, and the
court’s finding will not be set aside unless it was clearly erroneous. People v Wolford, 189 Mich App
478, 484; 473 NW2d 767 (1991); but see People v Lawton, 196 Mich App 341, 348; 492 NW2d
Defendant raised this issue during trial and also in his post trial motion for a new trial. During the
trial, a hearing was held to determine whether the prosecutor exercised due diligence in producing
Brusseau, who had testified previously at Mona’s jury trial and whom the prosecutor had listed as a
potential witness at defendant’s trial. After hearing testimony from Detective Christian, the trial court
found that the prosecutor “endeavored to use every means available to him to try to find and locate
Daniel Brusseau,” but that Brusseau “somehow disappeared” and that the prosecutor did not act in bad
faith. The trial court’s findings were not clearly erroneous. As for the medical examiner, Dr. Kanluen,
the trial court observed that he was served with a subpoena before he left on an overseas trip. In any
event, we note that both parties stipulated to reading the testimony of Brusseau and Dr. Kanluen from
Mona’s jury trial into the record.
Contrary to defendant’s contention, the trial court did not abuse its discretion in allowing the
prosecution to introduce evidence of defendant’s flight to Florida and his use of an alias. People v
Coleman, 210 Mich App 1, 4; 532 NW2d 885 (1995); People v Cutchall, 200 Mich App 396, 397
401; 504 NW2d 666 (1993).
Defendant also argues he was denied a fair trial on the basis of prosecutorial misconduct in
closing argument. Defendant’s failure to preserve the issue by objecting to the prosecutor’s closing
argument precludes appellate review because an objection could have cured any error and failure to
review the issue would not result in a miscarriage of justice. Stanaway, supra at 687.
Finally, defendant argues he was denied a fair trial because the trial court refused to give the
requested jury instruction on the material witness warrant on the erroneous belief that there was no
statute for a material witness warrant in Michigan. Although the trial court appeared to err in concluding
there is no statute governing the material witness warrant, MCL 767.35; MSA 28.975; People v
Burton, 433 Mich 268, 276-277; 445 NW2d 133 (1989), any error in failing to give the requested
instruction was harmless.
/s/ Roman S. Gribbs
/s/ Gary R. McDonald
/s/ Michael J. Talbot
In Starr, supra, the Court reversed this Court’s decision and held the trial court did not abuse its
discretion when it admitted testimony that the defendant sexually abused his half-sister over several
years before abusing the victim in that case, his minor adopted daughter.