PEOPLE
v.
SMITH
Docket No. 55159.
Michigan Court of Appeals.
Decided October 18, 1982.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William F. Delhey, Prosecuting Attorney, and James S. Sexsmith, Senior Assistant Prosecuting Attorney, for the people.
William B. Hill, for defendant.
Before: M.F. CAVANAGH, P.J., and ALLEN and E.C. PENZIEN,[*] JJ.
ALLEN, J.
After a jury trial in Washtenaw County Circuit Court, defendant was convicted of robbery armed, MCL 750.529; MSA 28.797. On November 7, 1980, he was sentenced to 10-1/2 to 25 years in prison. Defendant appeals as of right.
At trial, the manager-trainee of an Ypsilanti Stop and Go store testified that in the early morning hours of June 23, 1980, a regular customer of the store brandished a knife, threatened the manager-trainee, and robbed the store of approximately $1,457. The store employee positively identified the robber as the defendant, testifying that he could make a positive identification because the defendant was a regular customer who had attempted to sell him marijuana one time in the weeks preceding the robbery.
Defendant voluntarily turned himself over to the police after learning that a warrant for his arrest had been issued. He was questioned after having been given his Miranda[1] warnings and he denied committing the robbery. The police testified at trial that defendant told them he would have no *434 need to commit an armed robbery since he made a lot of money selling drugs. The police also said that defendant told them he had been robbed of $80,000 worth of heroin just after the armed robbery of the Stop and Go.
Defendant raises several challenges to the trial court's determination that the prosecution could introduce evidence of defendant's admissions to the police that he had been involved in narcotics sales.
Defense counsel's motion to suppress these admissions was denied before trial, after a Walker[2] hearing was held and the trial judge determined that the statements had been made voluntarily. On appeal, defendant does not challenge the finding of voluntariness, but argues that the court should have (1) determined that the evidence of the narcotics dealings was inadmissible under the factors set out in People v Wilkins, 82 Mich. App. 260; 266 NW2d 781 (1978), rev'd on other grounds 408 Mich. 69; 288 NW2d 583 (1980), (2) found that the prejudicial impact of the evidence outweighed its probative value, or (3) ruled that the written police report was inadmissible as it had never been adopted by the defendant.
We first observe that the fact that the defendant did not adopt the written statement made by the police officer does not bar the officer from testifying about his recollection of defendant's statement and using the notes to refresh his memory if necessary. The admission of the defendant was properly allowed into evidence as it was not hearsay, under the definition of MRE 801(d)(2)(A).
Next, we note that the trial court correctly limited the scope of the Walker hearing to the *435 issue of whether defendant's statement was voluntary. People v McGillen # 1, 392 Mich. 251, 257; 220 NW2d 677 (1974); People v Robinson, 386 Mich. 551, 557; 194 NW2d 709 (1972). Once the statement was determined to be voluntary, however, it was admissible only if it was relevant and not unduly prejudicial.
This Court has recognized that the fact that a defendant's statement includes a reference to other crimes committed by the defendant does not bar the admission of the entire statement. People v Hopper, 21 Mich. App. 276, 279; 175 NW2d 889 (1970). Had the statements about other crimes been inextricably interwoven with defendant's admissions concerning other criminal activity, we believe that no portion of the statement could have been excised without rendering the whole meaningless. That was not, however, the case in the admission before us. Here, defendant's statements concerning the theft of $80,000 worth of heroin after the Stop and Go store was robbed could have been excised from the statement without changing the import of the defendant's denial or of the defendant's contention that he had no motive to rob the store. We, therefore, do not believe that the rule in Hopper necessarily permits the introduction of the entire statement.
Michigan courts have consistently ruled that portions of documents may be excised so that irrelevant or prejudicial information is not placed before the jury. Socony Vacuum Oil Co v Marvin, 313 Mich. 528, 538-540; 21 NW2d 841 (1946); People v Deblauwe, 60 Mich. App. 103, 104-105; 230 NW2d 328 (1975). We see little difference between requiring the exclusion of a portion of a written document and requiring, as defendant here requests, the excision of a portion of a defendant's oral *436 statement. We, therefore, hold that a portion of a defendant's statement may be excluded by a trial judge acting in his discretion when that portion includes information that is irrelevant or unduly prejudicial.
In the case at bar, the objectionable portions of the statement involved evidence of other criminal activities of the defendant, specifically, defendant's involvement with controlled substances. Defendant argues on appeal that the admission of this portion of his statement should be governed by the standards set out in Wilkins, supra, p 265, which holds that evidence tending to show that a defendant committed other bad acts generally is inadmissible because its probative value is outweighed by the likelihood of impermissible prejudice. Wilkins sets forth three criteria for determining whether evidence of similar acts should be admitted: (1) whether there is substantial evidence that the defendant committed the previous offense; (2) whether some special circumstances of the previous act are probative of the present charge; and (3) whether the defendant's motive, intent, absence of mistake or accident, scheme, plan or system is material to the defendant's guilt of the present offense. 82 Mich App 267-268; People v Bailey, 101 Mich. App. 144, 151; 300 NW2d 474 (1980). These exceptions are embodied in MRE 404(b), which supersedes MCL 768.27; MSA 28.1050.
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, 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, whether such other crime, wrongs, or acts are *437 contemporaneous with, or prior or subsequent to the crime charged."
The enumerated exceptions in Wilkins and MRE 404(b) are not an exhaustive list of when evidence of other bad acts can be admitted, People v Cramer, 97 Mich. App. 148, 155; 293 NW2d 744 (1980), although they do underscore the necessity of applying a higher standard for determining the admissibility of evidence of other crimes than is appropriate for other, less prejudicial, evidence. This Court has summarized the appropriate standard:
"[T]o admit evidence under the so-called `similar acts' doctrine it is necessary that the evidence of the defendant's other bad acts be substantial, relevant, and not unduly prejudicial to a matter which is material and in controversy in the case." Cramer, supra, p 156.
We believe that the rule of evidence and Wilkins apply broadly to include evidence of other crimes that is revealed in a statement made by a defendant to the police. In both Wilkins and MRE 404(b), there is no discussion about how the evidence of other crimes is to be placed before the jury. The protections afforded by the rule and case law seem applicable whether this information comes before the jury in the form of a victim's testimony, police records, or statements of the defendant himself. Accordingly, we now must apply the Wilkins test and the rule of evidence to determine whether defendant's statement was properly admitted in toto.
A portion of the statement involved defendant's possible sale of drugs. To the extent that this information bore on the credibility of the sales clerk who identified the defendant as the customer *438 who had attempted to sell him marijuana, this portion of the statement was highly relevant and not unduly prejudicial. Defendant's admission that he had been robbed of $80,000 worth of heroin, however, has no relevancy to the identification of the defendant as a seller of marijuana, and, therefore, the perpetrator of the robbery. Moreover, this information was potentially highly prejudicial. We conclude that the trial judge should have excluded that portion of the defendant's statement, as it did not satisfy the criteria established by the rule of evidence and Wilkins, supra.
Once error is found in the admission of evidence, we must determine whether the error was either so offensive to the maintenance of a sound judicial system that it requires reversal or, if not, whether the error was harmless beyond a reasonable doubt, Bailey, supra. We note that the reference to large scale heroin dealings was fleeting and the prosecution referred to defendant's drug enterprises only as they bore on the question of identity. We also observe that, at defense counsel's request, the jury was instructed on the limited purpose for which this testimony was admitted. We conclude that the error in admitting reference to defendant's heroin dealings was harmless beyond a reasonable doubt.
Defendant raises several additional arguments, none of which merits extensive discussion. First, he maintains that the prosecution impermissibly cross-examined him and two alibi witnesses about defendant's association with narcotics. We have examined the challenged testimony and believe that it was properly intended to support the identification of the defendant as the man who attempted to sell marijuana to the store clerk. This evidence was highly relevant and was properly admitted with a cautionary instruction.
*439 We also believe that the prosecution could properly call a second store clerk as a rebuttal witness after defendant denied attempting to sell marijuana to the store's manager-trainee. This witness would have provided only cumulative testimony had he been called in the prosecution's case in chief. Once defendant denied making any attempt to sell marijuana at the store, however, the additional testimony became relevant.
Defendant also argues that the court erred in denying his motion for a mistrial, which was made after the prosecutor elicited testimony that showed that defendant was unemployed at the time of the robbery. While we believe the prosecutor's question was improper, People v Andrews, 88 Mich. App. 115; 276 NW2d 867 (1979), lv den 411 Mich. 921 (1981), we believe that no undue prejudice resulted since the prosecutor did not attempt to show that defendant's unemployment was a motive for the robbery. Moreover, as defendant and his friends were students or on a summer break at the time of the robbery, there was little danger that a jury could be prejudiced by evidence of the unemployment. Accordingly, we do not believe that the judge erred in denying the defendant's motion for a mistrial.
Defendant also asserts that the verdict was against the great weight of the evidence. He properly preserved this issue for appellate review by moving for a new trial on this ground. The court denied the motion, observing that the jury had not believed the alibi defense and that he, too, found defendant's witnesses incredible. While we agree with the defendant that the discrepancies in the eyewitness's identification of the defendant raise some questions about the accuracy of the identification, we believe that the question of whether the *440 witness was believable was one for the jury. As we are not inclined to substitute our judgment for that of the reasonable trier of fact, we decline to find that the verdict was against the great weight of the evidence. People v Atkins, 397 Mich. 163, 172; 243 NW2d 292 (1976).
Finally, we do not believe the defendant was prejudiced by the prosecutor's questioning concerning who actually committed the robbery. Defendant said at trial that he told the police he could learn the identity of the robbers if given an opportunity to make a few telephone calls, so we do not believe that the question alone suggested that defendant was consorting with criminals. We also note that there was a prompt objection to the question and defendant was never given an opportunity to answer or refuse to do so. We fail to see how defendant was prejudiced.
Affirmed.
M.F. CAVANAGH, P.J., concurred.
E.C. PENZIEN, J. (concurring).
I concur in the result reached but write separately in regard to the issue of identity. Defense counsel argues that the proof of defendant's identity was so tenuous that the trial court's error in admitting evidence that defendant had been robbed of $80,000 worth of heroin could never be considered harmless. I disagree on three grounds.
First, it is not at all unusual to find people who are unable to describe accurately even those people who are very close to them. Secondly, the verbal description was given by the victim at a time when he was highly traumatized emotionally. His life had been threatened and he was left tied up in a back room. Thirdly, the victim had no *441 need, as he saw it, to be accurate about his verbal description since he told the officer that he knew the defendant well although he did not know defendant's name, but that the officer could find out the name by contacting Shandra Gilliard.
Accordingly, I find the error as to admission of evidence on the $80,000 worth of heroin harmless beyond any reasonable doubt and agree that defendant's conviction should be affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] Miranda v Arizona, 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694; 10 ALR3d 974 (1966).
[2] People v Walker (On Rehearing), 374 Mich. 331; 132 NW2d 87 (1965).