PEOPLE OF MI V STEVEN EUGENE BOOTHAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
October 30, 1998
Macomb Circuit Court
LC No. 94-002618 FC
STEVEN EUGENE BOOTH,
Before: Markey, P.J., and Sawyer and Whitbeck, JJ.
Following a bench trial, defendant was convicted of solicitation of murder, MCL 750.157b;
MSA 28.354(2). He was sentenced to ten to twenty-five years’ imprisonment. Defendant appeals as
of right. We affirm, but remand to the trial court for correction of the presentence report.
First, defendant argues that the trial court erred in admitting prior bad acts evidence. He argues
that the trial court abused its discretion when it admitted testimony from Christopher Kuczmarski and
Harmon Thomas Callihan indicating that defendant had stated he wanted to kill his stepfather ten or
eleven years prior to the instant offense. However, we find the testimony of both witnesses to be
admissible under MRE 801(d)(2). The witnesses were testifying as to statements made by defendant,
and not prior acts of defendant. The appropriate analysis is whether defendant’s prior statements were
relevant and whether the probative value outweighed its prejudicial effect. People v Goddard, 429
Mich 505, 518; 418 NW2d 881 (1988).
Relevance is defined as evidence having any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable than it would be
without the evidence. MRE 401. People v VanderVliet, 444 Mich 52, 60; 508 NW2d 114 (1993),
modified 445 Mich 1205 (1994). Defendant argues that these statements are too remote in time from
the instant offense and therefore, are irrelevant. Defendant rationalizes this theory based on MRE
609(c), which prevents impeachment of a defendant with prior convictions that are more than ten years
old. We disagree with defendant’s analogy. MRE 609(c) is used to attack the credibility of a crime.
Here, the statements are used as substantive evidence. Moreover, the consequential factual proposition
that defendant solicited the murder of his stepfather, is more probable with the testimony of his repeated
threats to kill his stepfather, than without the evidence. Accordingly, we find the evidence legally
The probative value of the evidence offered must also not be substantially outweighed by its
potential for unfair prejudice. MRE 403; Id. The evidence of defendant’s prior threats is prejudicial.
However, all relevant evidence will be damaging to some extent. People v Mills, 450 Mich 61, 74-75;
537 NW2d 909, modified 450 Mich 1212 (1995). Unfair prejudice exists when there is a tendency for
the evidence to be given undue weight. Id. at 75-76. After review of the record, we find that no such
Defendant also argues that the trial court erred in admitting the testimony of Timothy Radloff,
who testified that defendant, on a prior occasion while incarcerated in jail, solicited him to assault an
individual in exchange for posting his bond. In order for bad acts evidence to be admissible under MRE
404(b), it must satisfy three requirements: (1) it must be offered for a proper purpose; (2) it must be
relevant; and (3) its probative value must not be substantially outweighed by its potential for unfair
prejudice. VanderVliet, supra at 74. A proper purpose is one other than establishing the defendant’s
character to show his propensity to commit the offense. Id.
We agree that the trial court abused its discretion by admitting Radloff’s testimony on the
grounds that it was used for the proper purposes of proving defendant’s motive, intent, and state of
mind. First, this evidence does not constitute proof of defendant’s motive or intent. “Motive,” as used
in MRE 404(b), is defined as “the moving power which impels to action for a definite result.” People v
Hoffman, 225 Mich App 103, 106; 570 NW2d 146 (1997) (quoting Black’s Law Dictionary [Rev 5th
ed]). The legal definition of motive differs subtly from the definition of intent, which is “the purpose to
use a particular means to effect” a definite result. Id. We believe that, had defendant solicited Radloff
to cause harm to his stepfather, this evidence might be admissible as proof of defendant’s motive and
intent. In that scenario, the evidence would show defendant’s wish to harm his stepfather, his motive, or
“the moving power which impels to action for a definite result,” as well as the particular means by which
defendant planned to effectuate this harm and escape detection, i.e., by paying another person to
commit the act. However, the evidence in its present form only conceivably can support the conclusions
that defendant wished harm on another person, and that he intended to hurt this other person by
soliciting another to do the criminal act. To use this evidence to support the conclusions that defendant
wished ill toward his stepfather and solicited another to bring about that result, simply because he had
directed a similar act toward another person at a different time, is to use this evidence to establish
defendant’s character or propensity to commit the crime for which he was prosecuted, which, of
course, MRE 404(b) prohibits. VanderVliet, supra.
Second, we are not persuaded by the trial court’s reasoning that this evidence constitutes proof
of defendant’s state of mind. Standing alone, it is unclear how this evidence sheds light on defendant’s
mental state at the time he solicited Robert Hills to kill his stepfather. Again, it appears that this
evidence was used simply to show that defendant harbored a violent wish to kill his stepfather solely
because defendant had a similar desire that he directed toward another person in the past. Used in this
manner, this evidence violates MRE 404(b). Id.
While the trial court abused its discretion in admitting this evidence, reversal is not necessary,
because the error in admitting the evidence was harmless. See MCR 2.613(A), MCL 769.26; MSA
28.1096. An error that might require reversal if committed in a jury trial can be harmless if committed at
a bench trial, as here, because, unlike a jury, the judge is equipped with a knowledge of the law that
allows him to ignore errors and decide a case solely on properly admitted evidence. People v Jones,
168 Mich App 191, 194; 423 NW2d 614 (1988). Here, notwithstanding admission of Radloff’s
testimony, the trial court gave detailed findings of fact, identifying numerous pieces of evidence that
overwhelmingly supported its finding of guilt. Based on the testimony of Robert Hills alone, whom the
trial court found to be credible regardless of Hills’ dislike for defendant, the trial court could have found
defendant guilty beyond a reasonable doubt of solicitation of murder. Thus, reversal is not warranted.
Next, defendant argues that the trial court abused its discretion in ruling that the prosecution
exercised due diligence to produce Timothy Radloff, an endorsed witness. Unless the prosecution
seeks to delete a witness from its witness list, it is obliged to exercise due diligence to produce all
endorsed witnesses. People v Wolford, 189 Mich App 478, 484; 473 NW2d 767 (1991). However,
a prosecutor may be relieved of the duty to produce an endorsed witness 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). Due diligence is the attempt to do everything reasonable, not
everything possible to obtain the presence of a witness. Id.
Here, an evidentiary hearing was held and Detective Bartholomew testified that Radloff was
incarcerated in the Macomb County Jail on November 6, 1996, the day before trial in the instant case
was to begin. Bartholomew served Radloff while in jail, but noted that he would be released the next
morning at 6:00 a.m. He testified that he put $5 in Radloff’s account so that he could buy breakfast in
the morning while he waited until 9:00 a.m., the time he was to appear in court. Radloff did not appear
on November 7, 1996, so Bartholomew attempted to contact him at home, and spoke with his
stepfather, who indicated that Radloff was a coke addict and was not welcome at home. Bartholomew
testified that based upon previous experiences with Radloff, he knew that further efforts to locate him
would be futile. After review of the record, we find that based upon the testimony of Bartholomew, the
trial court did not abuse its discretion in ruling that the prosecution used due diligence to produce
Next, defendant argues that the trial court erred in not dismissing the charges against him when
the prosecution failed to turn over previously requested discovery materials until the middle of trial. We
review a trial court’s determination of an appropriate remedy for discovery violation for an abuse of
discretion. People v Davie (After Remand), 225 Mich App 592, 597-598; 571 NW2d 229 (1997).
Upon request, the prosecution must provide a defendant with (1) any exculpatory information
the prosecutor knows; (2) police reports concerning the case; (3) any written or recorded statements by
a defendant, codefendant, or accomplice, even if that person is not a prospective trial witness; (4) any
affidavit, warrant, and return pertaining to a search and seizure in connection with the case; and (5) any
plea agreement, grant of immunity, or other agreement
for testimony in the case. MCR 6.201(B); People v Gilmore, 222 Mich App 442, 448; 564 NW2d
158 (1997). Due process is implicated when the prosecutor fails to disclose exculpatory evidence,
regardless of whether the defendant requested it; where the prosecutor allows false testimony to stand
uncorrected; and when the defendant served a timely request on the prosecutor and material evidence,
favorable to the accused is suppressed. People v Tracey, 221 Mich App 321, 324; 561 NW2d 133
(1997). A prosecutor’s failure to provide the defense with inculpatory evidence, a violation which does
not implicate due process rights, does not necessarily require reversal. Davie, supra at 597-598.
Following an evidentiary hearing, the trial court found that there was no deliberate attempt by
the prosecution to withhold discovery. Moreover, after reviewing the evidence withheld, the court ruled
that none of the evidence presented a surprise to defendant based upon the evidence previously
presented in trial. The court also noted that defense counsel had ample time to review the evidence
given a four-day break in the trial and furthermore, he never requested a continuance. Although the
withheld discovery materials were not presented for our review, it appears that the evidence was not
exculpatory and therefore, reversal is not required. Furthermore, given the circumstances, we find the
trial court did not abuse its discretion.
Finally, defendant argues that he is entitled to have his presentence report corrected. We agree.
At sentencing, defendant objected to the pending warrant information contained in the report. The
preparer of the report was present in court and confirmed that the pending warrant did not apply to
defendant, but rather was erroneously put in the report. The trial court indicated that it would delete
that information from the report; however, it appears that it was never done. When a sentencing court
states that it will disregard information in a presentence report challenged as inaccurate, the defendant is
entitled to have the information stricken from the report, prior to it being transmitted to the Department
of Corrections. MCL 771.14(5); MSA 28.1144(5); People v Britt, 202 Mich App 714, 718; 509
NW2d 914 (1993). We find defendant is entitled to have his presentence report corrected.
We affirm defendant’s conviction, but remand the case to the circuit court so that the challenged
information in the presentence report may be stricken. We do not retain jurisdiction.
/s/ Jane E. Markey
/s/ David H. Sawyer
/s/ William C. Whitbeck