People v. Golochowicz

Williams, J.

(concurring in part and dissenting in part). This case concerns whether it was error requiring reversal for the trial court to allow a witness to testify at trial about defendant’s perpetration of a different but similarly committed homicide under the similar-acts statute, MCL 768.27; MSA 28.1050. The purpose of the similar-acts testimony was to show the common identity of the perpetrator of the two murders by showing a similar distinctive "scheme, plan, or system in doing the [two] act[s]”. The importance of the similar-acts testimony was that the prosecutor’s *328other evidence tying defendant to the charged crime was wholly circumstantial, whereas there was an admission and other testimony tying defendant to the signature crime. The principal defense was a failure by the state to prove the charge beyond a reasonable doubt.

I

At the outset, let it be understood that this opinion does not disagree in any way with Justice Ryan’s helpful and masterful exposition of the underlying law. We accept that fully.

In particular, we accept Justice Ryan’s following four-pronged primary admission requirement:

"(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 introduced must not be substantially outweighed by the danger of unfair prejudice.” (Footnote omitted.)1

*329The majority recognizes the satisfaction of prongs (1) and (3), so we will not consider them further. While we agree that the factual satisfaz tion of prong (2) is a close question, we believe, unlike the majority, that the positive case is stronger. As a consequence, in balancing the probative value of the evidence with the danger of unfair prejudice in prong (4), we more readily reach the conclusion that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

II. Distinctive Characteristics

The majority states that the necessary test before admission of such evidence is:

"that the court find from the evidence that the circumstances of the commission of the crime in question and that to which it was being compared as 'like’ or 'similar’, both bore such unique, uncommon, and distinctive characteristics as to suggest the handiwork or signature of a single actor, the defendant.”

In People v Kelly, 386 Mich 330; 192 NW2d 494 *330(1971), the defendant was convicted of rape and armed robbery. He burst into a Detroit hotel room at approximately 7 a.m. on August 26, 1967. He forced the victim at gun point to place a pillowcase over her head. He then raped her twice. During the attack, he wore no clothes. After the attack, he fled with the complainant’s tape recorder and $74 in cash.

At trial, a prosecution witness testified that the defendant had also appeared in a Detroit hotel room at 7:30 a.m. on March 16, 1968. The victim and her fiance were sharing the hotel room which they locked before going to sleep. After entering the room, the defendant forced the boyfriend into the bathroom at gun point. He locked the bathroom door, and he forced the victim to put a pillowcase over her head. He then raped her three times. Once again, he wore no clothes during the rapes. He also took a watch, a check and approximately $75 in cash.

In Kelly, we held that the testimony was properly admitted because the later act of the defendant tended to show a scheme, plan, or system in performing these similar acts under the similar-acts statute. In comparing the factual record of Kelly with the case at bar, we are supported in finding that the murders met the distinctive-characteristics prong. In both cases, evidence indicated that a systematic plan or scheme was employed by the defendants in brutally attacking the victims at different locations. In Kelly, the principal distinctive characteristic or signature of the defendant was that the women were forced to place pillowcases over their heads before being raped. In Golochowicz, it was the fact that both bachelor decedents were apparently strangled with household items. Moreover* in both cases, personal property *331of the victims was taken by the defendants, and, on each occasion that property was removed, it was not exactly the same.

Our conclusion that the accomplishments of the murders were etched with the signature of the defendant profits from a further comparison of the plans or schemes in the two cases. The defendant in Kelly entered two different Detroit hotel rooms without force and raped two different women several times. In addition, the defendant wore no clothing during the attacks. Similarly, the murders in Golochowicz were accomplished in accordance with a distinctive systematic plan or scheme. The defendant entered two different homes without force and strangled the bachelor decedents. In addition, the murders took place within a few days of each other, and the property stolen from the homes was either sold to the same individual or stored in the same location. In short, the holding and analysis employed in Kelly reinforces our holding that the murders in the case at bar met the distinctive-characteristics prong.

In People v Oliphant, 399 Mich 472; 250 NW2d 443 (1976), the defendant was convicted of rape and gross indecency. At trial, the prosecutor called three witnesses who testified that the defendant had raped them in the same manner as he had raped the complainant. There were a number of circumstances to the rapes which were repeated in each incident. There were also a number of significant differences among the various attacks. Nevertheless, this Court held that the testimony about the signature acts was admissible under the similar-acts statute.

The factual similarities between the charged crime and the signature crimes in Oliphant show that all four rapes occurred during a five-month *332period, involving college-age women. The contacts with the women were made by the defendant in public places and were initially friendly. In each case, race and marijuana were topics of conversation.

Moreover, all the women entered defendant’s car voluntarily. They rode with the expectation that the defendant was to take them to a specific place. A deviation was made, however, from the intended route with an excuse by the defendant not likely to cause fear in the victims. They were then driven to an area unfamiliar to them where the forced intercourse took place.

Before the intercourse took place, all four women were told to submit to the acts or they would be harmed by a weapon, although a weapon was never seen. The women gave in to defendant’s crudely communicated demands because of fear for their persons if they did not. None of their clothing was torn or ripped in the attacks.

In all of the incidents, the victims had an opportunity to escape from the defendant. They did not flee because at the time the opportunity arose they did not feel the need to do so since the defendant was still friendly. After the change in defendant’s attitude towards them, they had no opportunity to escape.

There were also a number of important differences between the charged crime and the signature crimes. The three testifying witnesses entered defendant’s car immediately. The complainant, however, entered the car soon after the meeting. Moreover, the four women were not all approached in the same way; the defendant met them under different circumstances. In two of the attacks, there was also an accomplice with the defendant.

*333Additional differences were that two of the women were riding in a car conversing with a friendly man when, upon coming to an area unfamiliar to them, he became threatening and demanding. The other two accepted a ride with a friendly man and accompanied him on an errand to an unfamiliar apartment, whereupon he became threatening and demanding.

Only one victim attempted to physically resist the defendant, and she was struck by him with his fist. Moreover, two of the women were forced to dance without clothing before the defendant raped them. Three were given a ride home, but one victim escaped from defendant’s car while being driven home. Finally, two of the women went to the police with knowledge of defendant’s name, address, college identification and car license number after the defendant voluntarily provided them with the information.

When comparing the factual records of Oliphant and Golochowicz, it becomes immediately apparent that the overall cumulative impact of the similar-acts evidence in the two cases is important in finding a common signature. Like the similar acts in Oliphant, the murders in the instant case were not committed with as unusual a distinguishing characteristic as the pillowcase over the head in Kelly. Nevertheless, the Court in Oliphant found the necessary distinctive characteristic to admit the evidence of similar acts, notwithstanding the significant differences which existed between the charged crime and the signature crimes. Thus, the holding in Oliphant, where important differences existed in defendant’s scheme or plan in the various rapes, is strong precedent for our finding that the distinctive-characteristics prong was met in the case at bar where the differences between the two murders were less significant.

*334In conclusion, under the distinctive-characteristics test established in the opinion of the majority, we believe that the similar and unique details which intersect the patterns of the homicides indicate that the murders were perpetrated by the same killer. Our review of the details common to the killings show that both victims were bachelors who had been found dead in their homes with household items wrapped around their necks, indicating death by strangulation. Both dwellings had been entered without force; the doors and windows were found intact. Moreover, personal property of the victims was removed at different times, sold to the same individual, or stored in the same location. In fact, a witness testified that the defendant had been in possession of personal property owned by both the decedents shortly after their killings. In addition, in both cases the defendant had offered for sale to the same individual the television sets owned by the victims.

In short, we believe that the special details common to both murders are so distinctive and unique as to mark the killer of both victims as the same person.

III. More Probative Than Prejudicial

The majority bases its reversal on the conclusion that the "evidence of the uncharged homicide was so unfairly prejudicial when weighed against its limited and tenuous probative worth that, in its admission, the defendant was denied a fair trial”. We respectfully disagree.

Since the proof in the instant case rested solely on circumstantial evidence, it is without question that a similarly committed murder where the *335defendant can be pointed to as the perpetrator would be relevant and probative evidence in a trial for a different murder. See State v Johnson, 210 Kan 288, 293-294; 502 P2d 802, 808 (1972). It is uncontested in the instant case that the similar acts in question were relevant. See MRE 401.

The question becomes whether the probative value of the similar acts is unfairly and substantially outweighed by their prejudicial impact. Unfair prejudice within the context of the rules of evidence means an undue tendency of a factfinder to be influenced in rendering a decision on an improper basis such as an emotional one.2

What would be the natural impact of the evidence of the signature murder? There is no reason to believe that it would unduly excite the jury any more than the charged murder, because both involved murder by strangulation. It is true that the signature murder was bloody and the charged murder was not, but there is nothing to indicate that the signature murder was provokingly gruesome.

What the jury would naturally be struck by is the similar modi operandi, the numerous and strikingly similar common elements: that the murderer entered the victim’s home without force, that the victim was a bachelor living alone, that the murder was accomplished by strangulation by wrapping a household object around the victim’s neck, that personal property was removed piecemeal from the victim’s residence, that defendant remained in possession of some of the victim’s property, and that defendant offered some of the *336victim’s property for sale — in fact, offered property of both victims for sale to the same person.

It would appear natural that the jury would have its attention attracted to the several points of similarity between the two crimes rather than be excited or provoked by the nature of the signature crime which, after all, was little different from the one charged. As a consequence, the evidence would tend to effect its legitimate function of calling attention to a common signature rather than emphasizing that the defendant was a bad man.

In reaching a decision on whether to exclude evidence on grounds of unfair prejudice, the trial judge must give consideration to the probable effectiveness or lack of effectiveness of a limiting instruction.3 Such a determination lies solely within the province of the trial judge’s discretion, and in the instant case a forceful instruction was given.

We agree with the majority that People v Wilkins, 82 Mich App 260; 266 NW2d 781 (1978), establishes the proper balance of factors in determining whether similar-acts evidence is more probative than prejudicial. The Court of Appeals, in relying on People v Oliphant, 399 Mich 472, 490; 250 NW2d 443 (1976), and other Michigan cases, stated that a trial court in determining whether similar acts are too prejudicial, should consider many factors, inter alia, “the availability of less *337prejudicial sources of proof, the necessity of the evidence to prove an element of the prosecutor’s case, the defendant’s theory of the case, the tendency of the evidence to inflame the passions of the jury, and its potential for confusing issues in the case”. 82 Mich App 270-271.

Applying these factors to the case at bar, we find that the admission of the similar-acts testimony was not more prejudicial than probative. First, there were no other sources of proof less prejudicial because the prosecutor could only marshal circumstantial evidence to prove his case. Second, it is clear from the circumstantial nature of the other evidence that the similar-acts evidence was necessary in proving the prosecutor’s case.

Third, the defendant primarily attacked the credibility of testimony establishing the circumstantial links of the murder to the defendant. Defense counsel rested on the argument that the state had not proved beyond a reasonable doubt that the defendant had committed the murder with which he was charged. It is very doubtful that the similar-acts evidence would have provoked a purely emotional decision by the jury because (1) the striking aspect of the evidence was the similarity of the cumulative details of the defendant’s modus opérandi in committing the murders, and (2) the defendant’s theory of the case was that the state had not met its burden of proof which would have led the jury to focus on a number of elements rather than exclusively focusing on defendant’s character.

The similar-acts evidence, as does all relevant evidence, causes prejudice when it implicates a defendant. The impact of this evidence, however, *338could not have led the jury to decide the case on a purely emotional basis because the defendant had not raised non-participation as his only defense or placed his character at issue as his defense. See MRE 404(a). Thus, the jury’s attention was not focused solely on defendant’s character. This fact supports our conclusion that the jury could not have, in its deliberations, decided that the defendant was guilty only because of an emotional response without basing most of its reasons for the decision on reasonable and logical inferences drawn from all the evidence which a jury makes in reaching a decision on guilt or innocence. In short, we hold that because of defendant’s theory of the case the jury was not so inflamed by the concept that defendant was connected to a similar murder that the jury could not have followed the trial court’s limiting instruction on the use of the similar-acts testimony during its deliberations.4

*339Finally, the admission of the testimony linking the defendant to a different but similarly committed homicide did not confuse the issues in the case. The jury is assumed to understand why most evidence is being introduced. There was no error in light of the fact that a limiting instruction was given and in light of the simple theory of the defense. See generally 6 Wigmore, Evidence (Chadbourn Rev), § 1904, pp 747-748.

Moreover, the question whether the probative value of similar-acts evidence is substantially outweighed by unfair prejudice has been held to be discretionary with the trial judge. E.g., People v Duncan, 402 Mich 1, 14; 260 NW2d 58 (1977); People v Oliphant, supra, 399 Mich 494, fn 10. See also People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973). In People v Talley, 410 Mich 378, 386-387; 301 NW2d 809 (1981), we stated that our standard of review in testing for an abuse of discretion is a narrow one. Thus, we stated that the standard reads as follows in a criminal context:

" 'Where, as here, the exercise of discretion turns upon a factual determination made by the trier of the facts, an abuse of discretion involves far more than a difference in judicial opinion between the trial and appellate courts. The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an "abuse” in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.’ ”

*340Under the circumstances of the case, we find no abuse of discretion.

Conclusion

We agree that a four-pronged test should be used in resolving the admissibility of similar acts. We also believe that the similarity of unique circumstances found in the murders met the distinctive-characteristics prong under the test.

We take exception, however, to the majority’s conclusion that the prejudicial impact of the evidence outweighed the probative value. Under the factors discussed above, we hold that the probative value was established. Moreover, the balancing of such factors is an exercise of judicial discretion. Thus, in the case at bar, we find that the trial judge did not abuse his discretion in finding that the similar-acts evidence was more probative than prejudicial. In lieu of granting leave, we would affirm the trial court and the Court of Appeals.

Coleman, C.J., and Blair Moody, Jr., J., concurred with Williams, J.

MCL 768.27; MSA 28.1050 provides:

"In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.”

*329The Michigan Rules of Evidence became effective March 1, 1978. MRE 404(b) provides that:

"(b) Other crimes, wrongs or acts. 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 contemporaneous with, or prior or subsequent to the crime charged.”

FRE 404(b) is identical with MRE 404(b) except that the word "plan” is replaced by the phrase "scheme, plan, or system in doing an act”, and there is added the phrase "when the same is material, whether such other crime, wrongs, or acts are contemporaneous -with, or prior or subsequent to the crime charged”. For a good discussion of the parameters of FRE 404(b), see Note, Extrinsic Offense Evidence at Trial Under Federal Rule of Evidence 404(b)-The Need for a Uniform Standard, 25 Wayne L Rev 1343 (1979).

See Federal Advisory Committee Note, FRE 403. MRE 403 is identical with FRE 403.

See MRE 105 which states that

"When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.”

See also Federal Advisory Committee Note, FRE 403.

The trial court gave the following limiting instruction to the jury:

"Now, concerning the evidence of other offenses. You have heard evidence tending to show that the defendant was guilty of an offense for which he is not on trial now. I am speaking of the testimony concerning the death of Douglas Perowitz.

"You, members of the jury, are the sole judges of whether to believe any such testimony. However, should you believe such evidence, you are cautioned that it is before you for a limited purpose, that is for the purpose of determining if it tends to show that the defendant was acting purposefully, that is, that his acts were the result of a characteristic scheme, plan or system, which he had used after on another occasion.

"Now, this evidence must not be considered by you for any other purpose. You must not, for instance, regard this evidence as showing that the defendant is a person of bad character or that he has a disposition to commit crimes. You must not convict the defendant because you believe he is guilty of other improper conduct.

"All of the evidence must convince you, beyond a reasonable doubt, that the defendant committed the crime charged, or you must find him not guilty.

"Now, in argument, there was some mention of the fingerprint evidence. I charge you that if you believe, or if you find that the two Officers who testified that they compared the fingerprints of the defendant before November 18, 1976, could not possibly have compared them with People’s Exhibit No. 22, those fingerprints of the *339defendant, then you are not to consider that evidence in any manner against the defendant.”