PEOPLE OF MI V DIARRA DAMARI DRUMMOND
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 21, 2006
Plaintiff-Appellee,
v
No. 263560
Oakland Circuit Court
LC No. 05-201193-FC
DIARRA DAMARI DRUMMOND,
Defendant-Appellant.
Before: Cooper, P.J., and Hoekstra and Smolenski, JJ.
PER CURIAM.
Defendant was convicted of bank robbery, MCL 750.531, and armed robbery, MCL
750.529, and sentenced, as a third habitual offender, MCL 769.11, to 15 to 40 years’
imprisonment for each conviction. Defendant appeals as of right. We affirm.
Defendant first argues on appeal that he was denied a fair trial by the admission of a prior
bad act under MRE 404(b). We disagree. Claims of improper admission of evidence are
reviewed for a clear abuse of discretion. People v Crawford, 458 Mich 376, 383; 582 NW2d 785
(1998). An abuse of discretion occurs when an unprejudiced person, considering the facts,
would say there was no justification for the court’s ruling. People v Rice (On Remand), 235
Mich App 429, 439; 597 NW2d 843 (1999).
The test enunciated in People v Golochowicz, 413 Mich 298; 319 NW2d 518 (1982), is
used to determine the admissibility of prior bad acts under MRE 404(b), to show identity through
a scheme, plan, or system. People v Smith, 243 Mich App 657, 671; 625 NW2d 46 (2000).
Golochowicz requires that:
(1) there must be substantial evidence that the defendant actually perpetrated the
bad act sought to be introduced; (2) there must be some special quality or
circumstance of the bad act tending to prove the defendant's identity or the
motive, intent, absence of mistake or accident, scheme, plan or system in doing
the act and, in light of the slightly different language of MRE 404(b) we add,
opportunity, preparation and knowledge; (3) one or more of these factors must be
material to the determination of the defendant's guilt of the charged offense; and
(4) the probative value of the evidence sought to be introduce must not be
substantially outweighed by the danger of unfair prejudice. [Smith, supra at 670,
quoting Golochowicz, supra at 309.]
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Defendant claims that, under Golochowicz, the prior bad act was inadmissible, there was
not substantial evidence showing defendant committed the prior bank robbery, other than
unsubstantiated claims of witnesses, and there were no special qualities shared between the
robberies except that they were both bank robberies. Furthermore, defendant claims that the
evidence of the prior bank robbery confused the jury, and it is likely that the jury convicted
defendant by presuming his guilt of the prior offense.
We disagree, and find that the evidence here satisfies the Golochowicz test of
admissibility. First, substantial evidence was presented to show defendant committed the prior
bank robbery. A black wig with red streaks, similar to the wig worn by the perpetrator of the
prior bank robbery, was found at defendant’s residence, and two individuals identified defendant
as the person who committed the prior robbery. Second, there were enough similarities between
the two bank robberies to satisfy the “special quality or circumstance” prong of Golochowicz:
the two crimes were committed at the same bank within two months of each other; the
perpetrator wore dark clothing; the perpetrator threatened to use explosives1 but did not use a
weapon; a satchel was used to carry the money; the perpetrator fled the bank on foot; two
individuals identified defendant as the perpetrator of both crimes. Third, both parties agreed that
identity was at issue, and therefore, the prior bad act was relevant. Fourth, since the bank teller
in the charged crime was unable to identify the perpetrator, and because there was strong
evidence linking defendant to both crimes, the trial court properly balanced the probative value
of the prior bank robbery relative to the prejudice to defendant.2 See People v Ho, 231 Mich App
178, 187; 585 NW2d 357 (1998). All four prongs of Golochowicz were met, and the trial court
did not abuse its discretion by admitting evidence of the prior bank robbery.3
Defendant also argues on appeal that there was insufficient evidence to convict him of
bank robbery and armed robbery. We disagree. When reviewing a claim of insufficient
evidence, this Court reviews the evidence de novo, in the light most favorable to the prosecutor,
to determine whether a rational trier of fact could find that the essential elements of the crime
were proven beyond a reasonable doubt. People v Tombs, 472 Mich 446, 459; 697 NW2d 494
(2005).
1
In the first robbery the perpetrator presented a note stating, “I have a bomb in my pocket.” In
the charged robbery, the perpetrator said, “Give me your money or else I’ll blow the bank up
now.”
2
Furthermore, the trial court gave a limiting instruction to the jury, stating that the jury should
not use the prior bank robbery evidence to “decide that it shows the defendant is a bad person, or
that he is likely to commit crimes. You must not convict the defendant here because you think
he is guilty of bad conduct.”
3
Even if this Court believed it was a close question regarding whether the prosecution met the
Golochowicz test, reversal is not warranted. “[C]lose questions arising from the trial judge’s
exercise of discretion on matters concerning the admission of evidence do not call for appellate
reversal because the reviewing justices would have ruled differently.” Golochowicz, supra at
322. The trial court has discretion to make evidentiary judgments, and the decision to a close
question is generally not an abuse of discretion. Id.
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Michigan’s bank robbery statute, MCL 750.531, “requires for its violation, by whatever
means accomplished, the larcenous or felonious intent to access a bank . . . .” People v Ford,
262 Mich App 443, 454-455; 687 NW2d 119 (2004). The elements of armed robbery are: (1) an
assault, (2) a felonious taking of property from the victim’s presence or person, (3) while the
defendant is armed with a weapon. People v Carines, 460 Mich 750, 757; 597 NW2d 130
(1999). The only issue in this case was the identity of the bank robber.
Defendant claims the only evidence linking him to the bank robbery was his cell phone.
In addition, three out of four bank employees who were witnesses to the robbery identified
someone other than defendant at the line-up, including the bank teller who was robbed.
However, the prosecution presented testimony that one of the bank tellers was “rock solid” in
identifying defendant as the perpetrator. Another individual also identified defendant as the
person he saw running away from the bank. Defendant’s cell phone was found in the area after a
tracking dog tracked directly past it. A note stating, “I have a grenade. Make no eye contact
with anyone,” was found in defendant’s bedroom, which was consistent with testimony that the
robber said, “Give me your money or I will blow up your bank.” On the other side of the note
was a map of the area where the bank is located. Defendant had clothes in his clothes dryer that
matched the description of the clothes worn by the robber, and one pair of pants had a pink stain
on the waistband, consistent with the exploding dye pack from the bank. A Kangol hat on
defendant’s clothes dryer matched the hat worn by the robber. A wig found in defendant’s
bedroom matched the wig worn by the perpetrator of the prior bank robbery. We find that,
viewing the evidence in the light most favorable to the prosecution, there was sufficient evidence
for a rational trier of fact to find defendant guilty beyond a reasonable doubt of bank robbery and
armed robbery.
Affirmed.
/s/ Jessica R. Cooper
/s/ Joel P. Hoekstra
/s/ Michael R. Smolenski
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