PEOPLE OF MI V CORAL EUGENE WATTS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 25, 2006
Plaintiff-Appellant,
v
No. 266959
Kalamazoo Circuit Court
LC No. 04-002204-FH
CORAL EUGENE WATTS,
Defendant-Appellee.
Before: Murphy, P.J., and White and Meter, JJ.
PER CURIAM.
Defendant was charged with first-degree premeditated murder, MCL 750.316, in the
1974 stabbing death of Gloria Steele in Kalamazoo. The circuit court denied the prosecutor’s
pretrial motion to admit other-acts evidence under MRE 404(b), and this Court denied the
prosecutor’s application for leave to appeal. People v Watts, unpublished order of the Court of
Appeals, entered August 3, 2005 (Docket No. 263407). The Michigan Supreme Court, however,
in lieu of granting leave to appeal, remanded the case by order to this Court for consideration as
on leave granted. 474 Mich 948 (2005). We affirm in part and reverse in part and remand.
The prosecution sought to introduce evidence regarding fifteen murders, eight assaults,
and one stalking that were committed by defendant, an admitted serial murderer, in Michigan
and Texas in the 1970s and early 1980s prior to defendant’s imprisonment for 2 nonfatal assaults
in Texas pursuant to a plea agreement in which he was granted immunity on a number of
murders, but not the Steele murder. The prosecution also sought to introduce evidence, under
MRE 404(b), relative to two incidents in which defendant allegedly knocked on doors in Steele’s
apartment complex on the day before the murder. Additionally, the prosecution sought to
introduce the testimony of Ron Freemire, who prepared a PSIR for defendant in regard to
assaults in Kalamazoo in 1974.1
1
Freemire interviewed defendant in preparing the PSIR, and defendant allegedly told Freemire
that he committed two or three assaults in Kalamazoo and five or six previously in Detroit.
Defendant also allegedly told Freemire about his plan or scheme in committing the assaults,
which included going to apartments, knocking on doors searching for young, attractive women
who were alone, asking for a fictitious person, leaving, returning to the apartment to leave a
(continued…)
-1-
We first direct our attention to the evidence arising solely out of the 1974 murder as
reflected in the testimony at the preliminary examination, and then we shall proceed to review
the proposed MRE 404(b) evidence.
At the preliminary examination, retired Western Michigan University (WMU) detective
Phillip Herron testified that at approximately 1:40 p.m. on October 30, 1974, he was dispatched
to the Stadium Drive Apartments in response to the homicide of Gloria Steele. Steele lived in
apartment 350 on the third level of the building. There were a number of individuals already
present at the crime scene, including other police officers, prosecutors, and emergency personnel.
Steele was found dead, lying on her back on a bedroom floor. She was clothed, and there were
blood stains around the area of her chest. There is no dispute that Steele was a black female, 19
years old, 5’4”, and 120 pounds.
Joyce DeJong, a forensic pathologist, testified that she did not perform the autopsy on
Steele and did not personally observe the body, but she had reviewed the autopsy report from
1974. The report revealed that Steele had been stabbed 30 to 35 times in the chest and abdomen.
Most of the stab wounds were on the left side of the upper chest in the breast area. Several of the
wounds penetrated and perforated Steele’s left lung, and there were also wounds to the heart,
including one wound that went entirely through the heart. One of the abdominal stab wounds
perforated the colon and aorta, and then went through the third lumbar vertebrae, with part of the
weapon remaining lodged in the third lumber vertebrae. According to DeJong, the weapon
“looked to be some type of a carving tool or something.” Only the shaft of the tool was lodged
in Steele; there was no handle attached. DeJong also testified that there was some evidence
suggesting manual strangulation, but the evidence was “not entirely definitive for that.”
There was no evidence of a sexual assault. DeJong did not believe that fingerprints were
collected. To the best of DeJong’s knowledge, there was no blood, saliva, semen, hair, fiber, or
fingernail scraping evidence collected from the body that could identify the killer. Nothing in
the autopsy report identified who killed Steele.
Sam Waller testified that he lived with Steele, as boyfriend and girlfriend, in the
apartment where Steele was found murdered. They had a young child together. Waller indicated
that on the morning of the murder, Steele had gone to class at WMU and then to an interview at
the Upjohn Company. Waller had been out of the apartment that morning, and when he returned
to the home around 12:30 p.m., he found Steele’s body.2 Waller recalled seeing a black male
(…continued)
message for a friend, and then choking the victim until she was unconscious. At the preliminary
examination, Freemire did not testify to this information because defense counsel continually
objected on various grounds, and although the trial court decided to hear the testimony, reserving
a ruling on admissibility, the prosecutor chose to end the questioning. We further note that the
prosecutor sought to introduce evidence that defendant, using hand tools, was caught removing
some plywood from a ramp on the campus of Western Michigan University 19 days before the
murder. The prosecutor does not pursue the matter on appeal; therefore, we decline to address
the issue.
2
There was testimony from an Upjohn employee, Patricia Atkins, who was also a Steele family
friend, that Steele left the Upjohn building at about 11:00 or 11:15 p.m. following her interview.
Waller indicated that he made an initial stop at the apartment at approximately 11:30 a.m., and
(continued…)
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coming out of a stairwell located in Steele’s apartment building at the time Waller was searching
the apartment complex in an effort to locate Steele. Defendant is black. As far as Waller was
aware, there were no other black individuals living in the apartment building besides himself and
Steele.
Waller did not notice anything having been taken from the apartment. But he also
indicated that Steele’s purse could not be located. Waller further testified that he had never
heard Steele mention defendant’s name, nor was Waller familiar with defendant. He did not
notice any disturbed or overturned furniture or household items; however, Steele’s books and
keys were lying on the ground near her body.
George Wright testified that he lived in Steele’s apartment complex at the time of the
murder. He testified that in October 1974 someone pounded on his door.3 Wright answered the
door, and he encountered a black male who was about Wright’s size, 5’10” and 168 pounds, and
Wright’s age, 21, back in October 1974, which description is consistent with that of defendant.
The person at the door appeared agitated and was asking for someone, and although Wright
could not remember what name the stranger mentioned, he recalled not recognizing the name
and informed the stranger to check another apartment. The stranger did not attempt to force his
way into the apartment, nor did he assault Wright.
Colette Herrick also lived in the apartment complex at the time of the murder, although it
was a different building in the complex than the one in which Steele resided. On the day before
the homicide, October 29, an individual rang Herrick’s doorbell, and she opened the door
slightly, keeping the chain lock in place. The individual at her door was black, looked about
5’8”, and he appeared to be in his early twenties. She had never previously seen the man. The
stranger was extremely agitated, and he repeatedly asked for “Charles.” The stranger did not
attempt to force his way into Herrick’s apartment. Herrick subsequently identified defendant as
the stranger at her door in a photographic array and later in a police lineup.4
Robert Brown, police chief at WMU, testified that he responded to the crime scene in
October of 1974. His testimony was consistent with that of officer Herron as reflected above.
Brown also testified that a brown paper bag containing a “narcotics work kit” had apparently
(…continued)
Steele’s vehicle was not in the parking area. Waller, who was accompanied by a couple of
friends that morning, left and returned at about 12:30 p.m., at which time Steele’s vehicle was in
the parking lot. Waller did not have a set of apartment keys with him, and there was no response
when he knocked on the apartment door. Waller and his companions searched the complex,
including the laundry area, assuming that Steele was either doing laundry or visiting someone in
the complex. Waller was eventually able to obtain apartment keys from a third party, and he
discovered Steele’s body after entering the apartment.
3
It is not entirely clear from the transcript whether the incident discussed by Wright occurred on
the day before the murder in October 1974. However, the prosecutor proceeds on the basis that
the incident occurred on October 29, and defendant does not suggest or argue otherwise.
4
We note that the trial court’s ruling excluded the testimony of Wright and Herrick regarding the
incidents. We find that the incidents are part of the res gestae and are admissible for the reasons
discussed later in this opinion.
-3-
been thrown from the balcony of Steele’s apartment, and a syringe was found in a toilet in the
apartment.5 Brown further testified regarding two nonfatal assaults involving young women in
Kalamazoo.6 He indicated that defendant had been arrested for those assaults, and he had the
opportunity to interview defendant. Defendant admitted that he had been at the Stadium Drive
Apartments, but only on the day before the murder, not the day of the crime, and he denied any
involvement in the homicide. Defendant explained that he was at the apartment complex looking
for a friend named Charles that he had met at a party or someplace on campus.
Brown stated that the partial weapon found in Steele’s body was a skew chisel, which is
used in woodworking. In a search of defendant’s parents’ home in Detroit, where defendant had
a room and where his car was being stored, the police found a bag of woodcarving or
woodworking tools and a bag of marijuana locked in a closet in defendant’s room. No direct
connection could be made between the woodcarving tools and the remnant of a tool that
remained in the victim’s body, and Brown conceded that the woodcarving tools found in
defendant’s room were common tools and not unique in any way.
Brown additionally testified that the search of defendant’s vehicle led police to find two
WMU parking tickets, a gold necklace, and a half-dozen pictures of young girls. One of the
tickets was dated the day of the homicide, and it was for a parking violation on a lot on the
WMU campus. Brown believed that the ticket was written sometime in the morning. The
parking lot was located northwest of and across the street from Steele’s apartment complex, and
it was close in proximity to the apartment.
Eugene Bombich, a retired detective sergeant from the Kalamazoo Township Police
Department, testified that, as he was transporting defendant from jail to court in 1974 for an
arraignment on one of the nonfatal Kalamazoo assaults, defendant stated, “I guess you have me.”
And defendant then questioned Bombich, asking, “Do you have me on all of them[?]” The
prosecutor points out that defendant used the words “all of them” and not “both of them.”
Defendant, however, gave no indication to what he was referring when making the comments.
Defendant never stated that he killed Steele.
This was the extent of the evidence directly related to the Steele killing. In regard to
other-acts evidence, the preliminary examination included the testimony of Lenore Knizacky.
Knizacky testified that she lived in an apartment building in the Kalamazoo area near the WMU
campus in October 1974. It was not the same apartment complex in which Steele resided, but it
was nearby. On the day after the Steele murder, a twenty-something, black male, whom
Knizacky had never seen before, knocked at her door. She opened the door slightly, leaving the
chain lock in place. The individual at Knizacky’s door asked if “Charles” was there. Knizacky
told the stranger that no one lived there by that name. The stranger then proceeded to leave.
5
Waller’s testimony indicated that he was involved in selling drugs, and there was some
suggestion that Waller, who discovered the body, may have removed incriminating drug
evidence before police arrived.
6
We shall discuss these assaults by way of the victims’ testimony when viewing the MRE
404(b) evidence.
-4-
However, he started knocking on other apartment doors, and subsequently returned to
Knizacky’s door. Again, the stranger asked if “Charles” was there, and Knizacky said “no.”
Knizacky then offered to give the stranger a pencil and some paper so he could write a message
for whomever he was searching, and when she went to retrieve the items inside her apartment,
she left the door unchained. The stranger followed her inside and pushed her to the ground. He
then climbed on top of her and placed his hands around Knizacky’s throat. Knizacky passed out
briefly, and as she was regaining consciousness, she saw a shadowy figure get up and leave.
Knizacky’s attacker did not sexually assault her, nor had he acted threatening when at the door.
After the assault, Knizacky identified defendant as her assailant in a police lineup, and she also
identified him in court as her assailant at the preliminary examination regarding the Steele
murder. She acknowledged that no weapons were used against her during the assault. Knizacky,
who is white, 5’4”, and has brown hair, was 20 years old and weighed about 120 pounds when
she was attacked.
The district court also heard testimony from Diane Hoskins regarding her assault.7
Hoskins lived in an apartment building in Kalamazoo that was located a few miles from the
Steele murder scene. On November 12, 1974, Hoskins, who was 23 years old and 115 pounds at
the time of the assault and is 5’7” and white, answered a knock at her apartment door, where she
encountered an individual she later identified in a police lineup as defendant. Hoskins was
home alone. She recognized defendant, though not by name, and she recognized his vehicle8
because he had approached the apartment several times in the past, asking for “Charles.”
Defendant again asked for “Charles,” and he asked for a pencil and some paper so he could leave
a note. Hoskins thought it was possible that there was someone named Charles living in the
apartment complex, and she provided defendant with a pen or pencil and some paper.
Defendant walked over to some nearby mailboxes and then returned to Hoskins’ doorway to
return the writing utensil and paper. At this point, defendant suddenly and ferociously attacked
Hoskins, choking her with both hands. A struggle ensued inside the apartment, with Hoskins
attempting to fend off defendant while defendant punched and choked Hoskins. Hoskins did not
know whether she remained conscious during the assault, and she could not recall defendant
leaving her home; he was just gone. She was not sexually assaulted, nor did defendant use a
weapon as far as Hoskins could tell, other than his hands.
There were six additional assaults, the fifteen murders, and the one stalking incident. The
occurrence and details of some of these crimes were supported by testimony at the preliminary
examination from various officers who worked the cases in Michigan and Texas. This testimony
was supplemented with documentary evidence that was included in an offer of proof presented
by the prosecutor. Further, the crimes for which there was no direct testimony at the preliminary
examination were also the subject of documentary evidence included in the offer of proof. The
documentary evidence consisted of such materials as police notes and reports, autopsy or
medical examiner reports, photographs, and transcripts of interviews with defendant. We have
carefully scrutinized the preliminary examination testimony and the extensive documentary
evidence, reviewing the facts and circumstances of each of the crimes that the prosecution seeks
7
Hoskins name at the time of her assault in 1974 was Diane Williams.
8
Hoskins testified that the vehicle had a WMU parking sticker.
-5-
to introduce. We shall discuss the nature of the other-acts evidence in the context of our analysis
below.
Other-acts evidence regarding several of defendant’s previous crimes was admitted at the
preliminary examination in the district court, and defendant was bound over for trial as charged.
The circuit court ruled, however, that because there was no direct evidence of identity relative to
defendant’s alleged involvement in the Steele murder, and because there was only weak
circumstantial evidence offered by the prosecution to support a claimed inference that defendant
was the killer, the other-acts evidence, considering its quality and quantity, would be
inflammatory, highly prejudicial, and thus inadmissible under the law. Following its ruling on
the evidence, the circuit court remanded the case to the district court and ordered the district
court to reconsider its decision to bind defendant over for trial, but this time without
consideration of the other acts-evidence that the circuit court had found inadmissible.
The prosecution contends on appeal that the circuit court abused its discretion by failing
to consider the three-part test set forth in People v VanderVliet, 444 Mich 52; 508 NW2d 114
(1993), amended 445 Mich 1205 (1994), by failing to articulate its VanderVliet analysis on the
record, by demanding direct or circumstantial evidence to prove identity before other-acts
evidence could be utilized, and by remanding the case to the district court. The prosecution
further maintains that it properly offered the other-acts evidence to prove identity, pursuant to
People v McMillan, 213 Mich App 134; 539 NW2d 553 (1995), to prove a common scheme,
plan, or system in doing an act, pursuant to People v Sabin (After Remand), 463 Mich 43; 614
NW2d 888 (2000), and to prove defendant’s intent, motive, and opportunity to commit the
murder. According to the prosecution, the circuit court abused its discretion, in addition to the
arguments above, by misapplying the McMillan test, by failing to recognize that the Steele
murder was patterned after defendant’s other acts, and by disregarding facts showing that
defendant was familiar with Steele’s apartment complex, was capable of being in the complex on
the day she was murdered, and was developing a personal plan in 1974 to suddenly attack, stab,
and/or choke young women. Finally, the prosecution argues that the case should be assigned to a
different circuit court judge on remand.
In general, this Court reviews a trial court’s decision regarding the admissibility of otheracts evidence for an abuse of discretion. People v Crawford, 458 Mich 376, 383; 582 NW2d 785
(1998). “However, decisions regarding the admission of evidence frequently involve preliminary
questions of law, e.g., whether a rule of evidence or statute precludes admissibility of the
evidence.” People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). Questions of law are
reviewed de novo. Id.
Pursuant to MRE 404(b)(1), “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity therewith."
Other-acts evidence, however, may 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[.]" MRE 404(b)(1). It is insufficient
for the proponent of the evidence to merely recite one of the purposes articulated in MRE 404(b).
Crawford, supra at 387. The proponent must also explain how the evidence relates to the recited
purposes. Id.
-6-
Evidence of other acts may be admitted under MRE 404(b)(1) if: (1) the evidence is
offered for a proper purpose, i.e., “something other than a character to conduct theory[,]” (2) the
evidence is relevant under MRE 402, as enforced by MCR 104(b), “to an issue or fact of
consequence at trial[,]” and (3) the probative value of the evidence is not substantially
outweighed by its potential for undue prejudice under MRE 403.9 VanderVliet, supra at 74-75,
citing and quoting Huddleston v United States, 485 US 681; 108 S Ct 1496; 99 L Ed 2d 771
(1988). With respect to the first two VanderVliet requirements, our Supreme Court in People v
Knox, 469 Mich 502, 509; 674 NW2d 366 (2004), reviewing the law regarding MRE 404(b),
stated:
In People v Crawford, 458 Mich 376, 385; 582 NW2d 785 (1998), this
Court explained that the prosecution bears the initial burden of establishing the
relevance of the evidence to prove a fact within one of the exceptions to the
general exclusionary rule of MRE 404(b). “Relevance is a relationship between
the evidence and a material fact at issue that must be demonstrated by reasonable
inferences that make a material fact at issue more probable or less probable than it
would be without the evidence.” Crawford, supra at 387. Where the only
relevance of the proposed evidence is to show the defendant’s character or the
defendant’s propensity to commit the crime, the evidence must be excluded.
In Crawford, supra at 398, our Supreme Court discussed the heightened need for the
careful application of the principles found in MRE 403 when determining the admissibility of
other-acts evidence under MRE 404(b):
Evidence is unfairly prejudicial when there exists a danger that marginally
probative evidence will be given undue or preemptive weight by the jury. In the
context of prior bad acts, that danger is prevalent. When a juror learns that a
defendant has previously committed the same crime as that for which he is on
trial, the risk is severe that the juror will use the evidence precisely for the
purpose that it may not be considered, that is, as suggesting that the defendant is a
bad person, a convicted criminal, and that if he “did it before he probably did it
again.” People v Johnson, 27 F3d 1186, 1193 (CA 6, 1994).
Here, with respect to the purposes for which the evidence was proffered, the prosecution
focused chiefly on identity, motive, and common scheme, plan, or system in doing an act.
We begin our analysis by first observing some legal errors in the circuit court’s approach
to the prosecution’s motion to admit the other-acts evidence. First, the circuit court’s apparent
demand that there be direct evidence, as opposed to circumstantial evidence, of defendant’s
involvement in the Steele murder before evidence under MRE 404(b) can be considered is
legally unsound. Circumstantial evidence and reasonable inferences that arise from the evidence
9
MRE 403 provides, “Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.”
-7-
can constitute satisfactory proof of the elements of a crime. People v Carines, 460 Mich 750,
757; 597 NW2d 130 (1999). Moreover, the language of MRE 404(b) provides no such
prerequisite before other-acts evidence can be considered. Next, it is not entirely clear from the
record whether the circuit court took into consideration the facts and circumstances with respect
to each of the crimes or incidents that the prosecutor sought to admit. It appears that the court
viewed them as a whole or lumped them together in conducting the VanderVliet analysis without
deeper examination of the possibility that one or some of the crimes or incidents could be
introduced under VanderVliet. That being said, we disagree with the prosecution’s argument that
the court abused its discretion by not articulating a detailed VanderVliet analysis on the record.
Trial courts are not required to conduct this analysis on the record. People v Smith, 243 Mich
App 657, 675; 625 NW2d 46 (2000), remanded on other grounds 465 Mich 931 (2001).
Additionally, with regard to the two incidents in which defendant allegedly knocked on
the doors of individuals living in Steele’s apartment complex the day before the murder, this
evidence was admissible as part of the res gestae. In People v Sholl, 453 Mich 730, 741; 556
NW2d 851 (1996), our Supreme Court, after acknowledging MRE 404(b), stated, “Nevertheless,
it is essential that prosecutors and defendants be able to give the jury an intelligible presentation
of the full context in which disputed events took place.” Quoting People v Delgado, 404 Mich
76, 83; 273 NW2d 395 (1978), the Sholl Court expressed:
“It is the nature of things that an event often does not occur singly and
independently, isolated from all others, but, instead, is connected with some
antecedent event from which the fact or event in question follows as an effect
from a cause. When such is the case and the antecedent event incidentally
involves the commission of another crime, the principle that the jury is entitled to
hear the “compete story” ordinarily supports the admission of such evidence.”
[Sholl, supra at 742 (citations omitted).]
By way of testimony from George Wright and Colette Herrick, there was evidence that
defendant was in Steele’s apartment complex the day before the murder, that he was agitated and
acting strangely, and that he was asking for someone unknown to both Wright and Herrick.
Defendant himself told police that he was at the Stadium Drive Apartments the day before the
murder, and he did not live in the complex. There was also evidence, the parking ticket, placing
defendant in close proximity to the apartment complex on the day of the murder. And an
unknown black male was seen leaving Steele’s apartment building around the time Steele was
found dead, which building, according to Sam Waller, had no other black residents besides
himself and Steele. Presentation of the events that occurred in the Stadium Drive Apartments
involving defendant on the day directly before the murder, which murder occurred in that same
complex, is necessary to give the jury an intelligible presentation of the full context in which
disputed events took place. A jury is entitled to the complete story. Testimony by Wright and
Herrick regarding the incidents before the day of the murder is admissible as part of the res
gestae and not excludable under MRE 404(b).
With respect to the two Kalamazoo assaults, we hold that the evidence is admissible
under MRE 404(b) to show common scheme, plan, or system in doing an act. In regard to
proving common plan, scheme, or system, our Supreme Court in Knox, supra at 510, citing and
summarizing Sabin, supra, stated:
-8-
We clarified that “evidence 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.” We cautioned both that
“[l]ogical relevance is not limited to circumstances in which the charged and
uncharged acts are part of a single continuing conception of plot,” and that
“[g]eneral similarity between the charged and uncharged acts does not, however,
by itself, establish a plan, scheme, or system used to commit the acts.” Id. at 64.
[Citations omitted; alterations in original.]
In both of the Kalamazoo assaults, defendant was identified as the perpetrator, and in
both cases he used the same ruse of asking for someone named “Charles.” While there is no
direct evidence regarding how the person who killed Steele gained entry into her apartment,
entry was made, and there was specific evidence that defendant was in Steele’s apartment
complex the day directly before the murder asking for someone named “Charles.” Taken with
evidence that placed defendant in the vicinity on the day of the murder, i.e., the parking ticket,
along with the observance of an unidentified black male exiting the stairwell of Steele’s
apartment building shortly before the body was discovered, Waller’s testimony that he did not
know defendant and that Steele had never mentioned defendant’s name, and defendant posing a
question to an officer whether the police had him on “all” of the crimes, it can be inferred that a
ruse was used to gain entry into Steele’s apartment. Although the probative value of the other
acts evidence is marginal, considering the lack of direct evidence that defendant gained entry by
way of a ruse, it is not substantially outweighed by the danger of unfair prejudice, given the
wildly divergent characteristics of the attacks. Indeed, hearing evidence that defendant assaulted
two women through use of his bare hands by choking but not killing them, after hearing that
Steele was brutally murdered with a woodcarving tool, suffering 30 to 35 stab wounds, might
leave a reasonable juror believing that the attacks were not committed by the same individual,
especially when the murder occurred first in time.10
With respect to the remaining other-acts evidence, we conclude that the circuit court
erred in not allowing evidence regarding the Ann Arbor murders of Rebecca Huff and Glenda
Richmond for the purpose of proving identity. Additionally, the circuit court erred in not
allowing evidence of the Texas murders of Susan Wolf and Yolanda Garcia11 for purposes of
identity and motive. Defendant confessed to the murders of Wolf and Garcia.
10
With regard to the proposed testimony of Ron Freemire, the district court will be limited on
remand to consideration of Freemire’s actual testimony at the preliminary examination for
purposes of determining whether defendant should be bound over to the circuit court. In the
context of a circuit court trial should defendant be bound over for trial, Freemire is not precluded
under MRE 404(b) from testifying about statements made by defendant as those statements
pertain to the assaults against Knizacky and Hoskins.
11
This victim’s name is noted as “Gracia” in some documents and transcripts and “Garcia” in
other documents. The investigator’s report and autopsy report show “Garcia,” and we shall use
this name and spelling for purposes of this opinion.
-9-
Rebecca Huff was murdered on September 14, 1980, in the Ann Arbor area. She was 30
years old, 5’6”, and 140 pounds. Huff was stabbed 54 times in the heart, lungs, liver, and spleen.
The type of wounds were consistent with the use of a screwdriver-type instrument. Her body
was found at the doorway of her apartment. Huff was a student at the University of Michigan.
Her car keys and house keys were found on the ground beside her. There was no evidence of a
sexual assault. Huff was taken by surprise, and the police had no known motive for the killing.12
Glenda Richmond was murdered on July 13, 1980, in the Ann Arbor area. She was 25
years old, white, 5’5”, and 157 pounds. Richmond suffered 28 stab wounds from a “blunt type
puncture instrument,” possibly a screwdriver. The stab wounds were to “the anterior chest and
upper abdominal wall.” Richmond’s heart and lungs were penetrated by the weapon. Her body
was found just outside her apartment building. There was no evidence of a sexual assault. The
homicide fact sheet indicates that she was attacked by surprise and killed after a brief struggle.
Susan Wolf was murdered on September 13, 1981, in Texas. She was 21 years old,
white, 5’4”, and 122 pounds. Wolf was stabbed with a knife five times in her left lung and heart
and once in the abdomen. She was found just outside her apartment. There was police
testimony, based on defendant’s statements to police, which indicated that defendant had
grabbed Wolf, knocked her down, straddled her chest, and then stabbed her repeatedly. Wolf
was not sexually assaulted, and there is no indication that Wolf knew defendant.
Yolanda Garcia was murdered on April 16, 1982, in Texas. She was white, 22 years old,
5’5”, and 119 pounds. Garcia was stabbed twice in the heart. Defendant grabbed Garcia by the
neck from behind, spun her around, stabbed her, and then fled. There was no evidence of a
sexual assault, and no evidence that Garcia knew defendant. Defendant told Thomas Ladd, a
retired homicide detective with the Houston Police Department who testified at the preliminary
examination, that he killed Garcia because she had evil in her eyes. Detective Ladd, who
12
We note that defendant did not directly confess to the Ann Arbor homicides, and they were not
part of the Texas plea agreement. Defendant, however, became the chief suspect in the murders
after he was stopped by police in his vehicle when they observed him “stalking” a young female
who was walking in an area the police had under surveillance relative to an investigation of
thefts from parking meters. This stalking incident, which the prosecutor argues should be
admissible under MRE 404(b), occurred on November 15, 1980. A search of defendant’s
vehicle uncovered two screwdrivers and a box of woodworking files. Detective Paul Bunten
aggressively pursued defendant as a suspect in the Ann Arbor murders, and the detective
interviewed defendant. Defendant cried when Bunten spoke about the murders, and defendant
expressed that he was troubled and needed professional help. Defendant also asked Bunten
about what a person could expect if one confessed to three homicides. Defendant, however, did
not admit involvement in the murders. Shortly after defendant’s encounter with the police in
Ann Arbor, at which time he was placed under surveillance, he moved to Texas, where more
homicides and assaults quickly began occurring. After defendant’s arrest in Texas, detective
Bunten again questioned defendant, asking him whether Bunten needed to continue looking for
the perpetrator of the Ann Arbor murders. Defendant told Bunten that there was no need for
Bunten to continue his search for the Ann Arbor killer. Defendant’s concession that there was
no need for Bunten to look further is tantamount to an expression of guilt and, considering also
the other circumstantial evidence, is sufficient for admissibility under MRE 404(b).
-10-
extensively interviewed defendant regarding the Texas murders and assaults, including the
murder of Susan Wolf, testified that defendant expressed that he was compelled to attack women
because they had evil eyes, and he needed to rid them of the evil spirit. This motive was given by
defendant in police interviews as reflected in documentary evidence presented to the circuit
court.
As indicated in the language of MRE 404(b)(1), evidence of other crimes or wrongs may
be admissible against a defendant when the evidence offered tends to prove the identity of the
person who committed the crime for which the defendant is on trial. If other-acts evidence is
offered to establish identity through a modus operandi theory, as it was in this case, (1) there
must be substantial evidence that the defendant committed the bad act, (2) there must be some
special quality or circumstance of the act tending to prove the defendant’s identity or system, (3)
it must be material to the defendant’s guilt of the charged offense, and (4) the probative value of
the evidence must not be substantially outweighed by the danger of unfair prejudice under MRE
403. VanderVliet, supra at 68-72, citing People v Golochowicz, 413 Mich 298, 309; 319 NW2d
518 (1982); see also People v Ho, 231 Mich App 178, 186; 585 NW2d 357 (1998).
In Ho, this Court noted that, “[a]lthough the VanderVliet Court adopted a new test for
admission of evidence under MRE 404(b), the four-part test of [Golochowicz, supra], remains
valid to show logical relevance where similar-acts evidence is offered to show identification
through modus operandi.” Ho, supra at 186, citing McMillan, supra at 138. In Golochowicz,
supra at 310, the Supreme Court discussed the level of similarity required to permit the
introduction of other-acts evidence for the purpose of identity:
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 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.
[Alterations in original.]
We find that evidence regarding the Michigan murders, except that of Rebecca Huff and
Glenda Richmond, the stalking incident, and the Texas assaults and murders, aside from the
murders of Susan Wolf and Yolanda Garcia, was properly excluded on the posited theories of
admission.13 Various differences between the facts and circumstances of the other crimes and
the Steele murder lead us to conclude that the trial court did not abuse its discretion in excluding
the evidence when those crimes are viewed in the context of the analytical framework set forth in
13
Although the Texas murders and assaults that we are not allowing into evidence could be
considered for the purpose of motive, the evidence would be cumulative after consideration of
the Wolf and Garcia murders on the issue of motive. See MRE 403.
-11-
VanderVliet and its balancing test. Some of the murders and assaults exclusively involved
strangulation, choking, drowning, or hanging, with no evidence of a stabbing, and additional
murders and assaults, although committed through the use of stabbing instruments, involved very
public locations, away from any apartments or homes,14 or involved stabbing instruments that
varied greatly from those used in the Steele murder, or involved a single stab wound or a wound
to a part of the body not reminiscent of the Steele murder. In yet other cases, defendant took
several personal items and burned them and, on occasion, he would even remove bodies from
crime scenes and bury them. These differences call into question the purposes for which the
prosecution claimed it sought introduction of the evidence and lessen the probative value of the
evidence on identity and common plan such that any probative value is substantially outweighed
by the danger of unfair prejudice. Moreover, in attempting to show consistencies between the
Steele murder and the other crimes, the prosecution makes assumptions concerning the Steele
murder that are not supported by direct evidence or circumstantial evidence and reasonable
inferences that flow from the evidence. Even though we may disagree with the trial court
regarding exclusion of some of these other crimes under MRE 404(b), we cannot conclude that it
abused its discretion.
However, the parallels between the Steele murder and the murders of Huff, Richmond,
Wolf, and to a lesser degree Garcia, are so close as to reflect defendant’s signature on each of
them. As noted in VanderVliet, supra at 67 n 18, “In the case of modus operandi to prove
identity, the jury focuses on the defendant’s modus, not predisposition, to infer that the same
person committed both acts.”
Both Steele and Huff were young women who were attending college and who were
killed at their apartments while alone by being stabbed by hand tools, each suffering an
extremely excessive amount of stab wounds, 30 or more, to the left area of the chest, including
the lungs and the heart, which ferocity of attack reflected overkill, yet there was no evidence of
any sexual assault or prior connection or relationship between defendant and the victims. We
also note that both victims were left fully clothed and that each victim’s keys were left lying on
the ground beside their bodies.
Richmond’s murder also involved an unusually high number of stab wounds, 28, to the
heart and lungs through use of a hand tool, yet, again, there was no evidence of any sexual
assault or prior connection or relationship between Richmond and defendant. Richmond, like
Steele, was a young woman of similar stature, and she was found dead on the grounds of her
apartment complex.
Wolf was of comparable age to Steele and almost of identical height and weight. Wolf
was also viciously stabbed multiple times in the left chest region, including the heart, and once in
the abdomen. Similar to the Steele murder, this murder occurred at Wolf’s apartment complex,
there was no evidence of a sexual assault, and there was no indication that Wolf knew defendant.
14
The Garcia murder occurred on a street, but this crime goes not so much to establish identity
as it does motive. Therefore, it is included in other-acts evidence that should have been
admitted.
-12-
Garcia was also a young woman, comparable in height and weight to Steele. She was also
stabbed in the heart multiple times, and there was no evidence of a sexual assault, nor any
evidence that Garcia knew defendant.
These are all very distinctive and unusual crimes such that they can be utilized to show
identity, and to the extent that the Wolf and Garcia murders lack the commonality that the Huff
and Richmond murders have to the Steele murder, these Texas murders are clearly probative on
the issue of motive, where the nature of the Steele murder and surrounding circumstances would
leave a reasonable juror begging to know why defendant would commit such a horrific act.
On the subject of motive, this Court’s decision in People v Hoffman, 225 Mich App 103;
570 NW2d 146 (1997), is enlightening. The Hoffman panel held that other-acts evidence
regarding the defendant’s previous assaults on two women, in which he expressed hatred for
women, was properly admitted at a trial on charges of assaulting and kidnapping a female victim.
Id. at 104, 110. According to the Court, other-acts evidence “tending to establish that defendant
hated women was properly admitted at trial for the purpose of proving defendant’s motive for his
brutal and depraved actions.” Id. at 104. The Court first defined the term “motive” by reference
to Black’s Law Dictionary (rev 5th ed), in which the term is defined as the “[c]ause or reason that
moves the will and induces action. An inducement, or that which leads or tempts the mind to
indulge a criminal act.” Hoffman, supra at 106. The prosecution sought to introduce evidence of
the two prior assaults to show the defendant’s hatred of women, thereby establishing the
defendant’s motive. This Court noted that the distinction between admissible evidence of motive
and inadmissible evidence of propensity or character is subtle. Id. at 107. The Hoffman panel
then attempted to explain the distinction, stating:
The following hypothetical may clarify the differentiation:
“In midafternoon, on the outskirts of a rural Michigan village, an AfricanAmerican man is savagely assaulted and battered by a white assailant. The
assailant neither demands nor takes any money or property. The assailant is a
total stranger to the victim. The defendant is later apprehended and charged with
the attack. After the arrest, the prosecutor discovers that the defendant had been
involved in several other violent episodes in the past, including bar fights, an
assault on a police officer, and a violent confrontation with a former neighbor.”
Absent a proper purpose (such as to prove a common plan, scheme, or
other exception), this other-acts evidence would be inadmissible because its only
relevance is to establish the defendant’s violent character or propensity towards
violence. However, if we were to add to this hypothetical the fact that all the
defendant’s prior victims were African-American and that defendant had
previously expressed his hatred toward blacks, then the evidence of the
defendant’s prior assaults would be admissible to prove the defendant’s motive
for his conduct. By establishing that the defendant harbors a strong animus
against people of the victim’s race, the other-acts evidence goes beyond
establishing a propensity toward violence and tends to show why the defendant
perpetrated a seemingly random and inexplicable attack. [Id. at 107-108
(citations omitted).]
-13-
This Court concluded that evidence of the two prior assaults was relevant to the
defendant’s motive for his unprovoked, cruel, and sexually demeaning assault on his female
victim, and that the trial court did not abuse its discretion in finding that the probative value of
the other acts evidence did not substantially outweigh the danger of unfair prejudice. Id. at 109110.
Again, retired detective Thomas Ladd, speaking of the Texas murders and assaults and
one murder in Grosse Pointe Farms, Michigan, testified that defendant expressed that he was
compelled to attack women because they had evil eyes, and he needed to rid them of the evil
spirit. When discussing Garcia’s murder, Ladd testified:
Q. Did you ask him why he did it, why he killed Yolanda Garcia?
A. Yeah, he said she had evil in her eyes.
Ladd further testified:
Q. What did [defendant] say about how he selected his victims?
A. He said they had evil in their eyes. He was driving around and he’d see a
woman with evil in her eyes and that was the selection process.
There is no dispute that Wolf, Garcia, and Steele were all young, petite women. The
motive evidence is extremely probative and vital in the context of the Steele homicide in which
defendant allegedly perpetrated a seemingly random and inexplicable attack of great brutality
and depravity against a female stranger. See Hoffman, supra at 107-108.
The probative value of the evidence regarding the murders of Huff, Richmond, Wolf, and
Garcia is vast and substantial with respect to the relevant issues of identity and motive, as the
relevant evidence clearly makes it more probable that defendant killed Steele, but not on the
basis of propensity, but rather on the basis of similarities between the Steele murder and the four
homicides, especially in light of the circumstantial evidence regarding defendant and his
presence in Kalamazoo in 1974. Undoubtedly, defendant will incur some prejudice when the
other-acts evidence is revealed to the trier of fact, but we cannot conclude that the other-acts
evidence is unfairly prejudicial, nor that the highly significant probative value of the evidence is
substantially outweighed by the danger of unfair prejudice, assuming some level of “unfair”
prejudice. In People v Mills, 450 Mich 61, 75; 537 NW2d 909 (1995), mod 450 Mich 1212
(1995), our Supreme Court noted that all evidence offered by the prosecution is prejudicial to
some extent, but the fear of prejudice does not render the evidence inadmissible unless the
probative value is substantially outweighed by the danger of unfair prejudice. “Unfair prejudice”
does not mean damaging. Id. The Mills Court, quoting United States v McRae, 593 F2d 700,
707 (CA 5, 1979), stated:
“Relevant evidence is inherently prejudicial; but it is only unfair prejudice,
substantially outweighing probative value, which permits exclusion of relevant
matter under Rule 403. . . . Its major function is limited to excluding matter of
scant or cumulative probative force, dragged in by the heels for the sake of its
prejudicial effect. . . . It is not designed to permit the court to ‘even out’ the
-14-
weight of the evidence, to mitigate a crime, or to make a contest where there is
little or none.” [Mills, supra at 75 (omissions in original).]
The other-acts evidence that we are allowing to be admitted is not of scant or cumulative
probative force, dragged in by the heels for the sake of its prejudicial effect. Rather, it is proper
and powerful evidence of identity and motive. We note that our ruling effectively bars
presentation of eleven murders, six assaults, and one stalking – a majority of the crimes that the
prosecution sought to admit – and crimes which defendant indeed committed. The circuit
court’s abuse of discretion and legal errors arise from its failure to contemplate the admission of
some of the other-acts evidence, its demand for direct evidence of defendant’s involvement in
the Steele murder, and its misinterpretation of MRE 403 by focusing on prejudice, but not
properly considering the probative value of the evidence, whether the prejudice was unfair, and
whether the probative value was substantially outweighed by the danger of unfair prejudice.
In sum, the prosecution is permitted to introduce, and the district court may consider,
evidence of defendant knocking on doors in Steele’s apartment complex on the day before the
murder, as it constituted part of the res gestae, evidence of the two Kalamazoo assaults against
Lenore Knizacky and Diane Hoskins on the basis of common scheme, plan, or system, and
evidence regarding the murders of Rebecca Huff, Glenda Richmond, Susan Wolf, and Yolanda
Garcia for purposes of showing identity and motive.
We also conclude that it is proper for the district court to reconsider the evidence, as
limited by our ruling, and decide if the case should be bound over to the circuit court. Except as
otherwise provided by law, a court must conduct a preliminary examination in accordance with
the rules of evidence. MCR 6.110(C); see also People v Makela, 147 Mich App 674, 683-684;
383 NW2d 270 (1985). Thus, at a preliminary examination, a magistrate may only consider
legally admissible evidence. People v Walker, 385 Mich 565, 575-576; 189 NW2d 234 (1971),
overruled on other grounds by People v Hall, 435 Mich 599; 460 NW2d 520 (1990). If, during
the preliminary examination, the court determines that evidence being offered is excludable, it
must, on motion or objection, exclude the evidence. MCR 6.110(D). And, if the circuit court
finds a violation of, in relevant part, MCR 6.110(C) or (D), the court “must either dismiss the
information or remand the case to the district court for further proceedings.” MCR 6.110(H).
Michigan courts have recognized the circuit court’s well-established authority to remand
criminal cases for further preliminary proceedings. See Genesee Prosecutor v Genesee Circuit
Judge, 391 Mich 115, 119-120; 215 NW2d 145 (1974); People v Dunham, 220 Mich App 268,
276; 559 NW2d 360 (1996). In this case, the circuit court determined that the district court
violated MCR 6.110(D) because the court considered the inadmissible other-acts evidence at the
preliminary examination. We conclude that MCR 6.110(C)(“the court must conduct the
examination in accordance with the rules of evidence”) is the provision that actually supports the
circuit court’s proposition. Regardless, the circuit court’s decision to remand the case pursuant
to MCR 6.110(H) did not constitute an abuse of discretion because, as indicated above, MCR
6.110(H) permits remand to the district court for violation of MCR 6.110(C). The only
modification of the circuit court’s ruling in this regard is our direction that some, but not all, of
the other-acts evidence be considered by the district court on remand as is consistent with our
evidentiary holding.
-15-
The prosecutor also contends that this case should be reassigned to a different circuit
court judge. Assuming that the district court binds defendant over for trial and that the particular
circuit court judge who previously heard this case is again assigned the matter, he shall be
permitted to sit on the case because there is no legitimate basis for disqualification.
“The general concern when deciding whether to remand to a different trial judge is
whether the appearance of justice will be better served if another judge presides over the case.”
Bayati v Bayati, 264 Mich App 595, 602; 691 NW2d 812 (2004). And, absent actual personal
bias or prejudice against either a party or a party's attorney, a judge will not be disqualified under
MCR 2.003(B)(1). Cain v Dep't of Corrections, 451 Mich 470, 495; 548 NW2d 210 (1996). We
find that the circuit court judge did not make any comments on the record indicating actual bias
or prejudice against the prosecution. Moreover, there is nothing to indicate that the judge
disregarded, disbelieved, or minimized the prosecution’s offer of proof. We disagree with the
prosecutor’s assessment that the circuit court had prejudged the prosecution’s case. The record
does not support this contention. The judge simply rendered a ruling unfavorable to the
prosecution, and this in itself is insufficient to disqualify a judge. Id. at 495-496. The
prosecution has failed to overcome the heavy presumption of judicial impartiality. Id. at 497.
Accordingly, the prosecution’s argument that the circuit court judge should not be permitted to
sit on this case in the future is without merit.
We affirm in part, and reverse in part and remand for proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ William B. Murphy
/s/ Helene N. White
/s/ Patrick M. Meter
-16-
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