(dissenting). I have signed without qualification Justice Cavanagh’s dissenting opinion.
I write separately to respond to some of the discussion of case law in the majority opinion, and to express my dismay that the Court would speak so definitively, although the prosecutor has not, as "directed” by this Court’s order granting leave to appeal, been "specific” in identifying the testimony and documents he contends should be admitted into evidence on retrial.1
*460I
Charles Ray Fisher was convicted at two jury trials of first-degree murder2 of his wife, Ella Maria Fisher. Following the first conviction, the trial judge found prosecutorial misconduct and granted a new trial. The Court of Appeals affirmed the second conviction.3 This Court reversed by order,4 and remanded for a third trial, stating that Fisher "was denied a fair trial by the admission of hearsay evidence regarding the victim’s state of mind.”
This Court said, citing and quoting at length from People v White, 401 Mich 482, 504-506; 257 NW2d 912 (1977), that usually, when a victim’s state of mind is an issue in a murder case, it is because self-defense has been asserted or it is claimed that the death was accidental or suicide. Evidence that the victim feared the defendant would make it less likely that he was an aggressor, and the victim’s state of mind might tend to negative suicide or accident.
In the instant case, Fisher claimed that he and his wife were assaulted in their home. There is no claim of self-defense, or suggestion of suicide or accidental death.
In White, this Court, in reversing and remanding for a new trial, said that the statements of the deceased victim that he had an argument with White and was frightened of him tended to relate to White’s "character and the acts attributed to him” (emphasis, added), and there was the danger that, as set forth in United States v Brown, 160 US App DC 190, 198; 490 F2d 758 (1973), the jury would accept the victim’s statement "as somehow *461reflecting on defendant’s state of mind rather than the victim’s — i.e., as a true indication of the defendant’s intentions, actions or culpability.” (Emphasis in original.) This Court added:
Even where state of mind bears substantial relevance to the issues in a case, these additional factual matters may present so great a likelihood of prejudice that the evidence should be excluded. [401 Mich 505-506. Emphasis added.]
This Court similarly concluded, in its order entered following the second trial in the instant case, that "under the circumstances there was such a great- likelihood of prejudice that the evidence should have been excluded because the relevance of the evidence was substantially outweighed by the prejudice.”5
ii
This case was returned to the trial court for a third trial. The prosecutor moved to admit "some, but not all” of Ella Maria Fisher’s statements, claiming that this Court’s order did not include all her statements. The judge, acknowledging this Court’s order,6 agreed with the prosecutor, and *462said that he will require that a "specific list” of the evidence to be admitted be prepared7 that *463"should as much as possible” bé made up of statements known to or by Fisher that are "non-hearsay in nature and in a factual content.” The judge added that other material not known to Fisher concerning the marital discord will also be permitted.
The specific list had not been prepared before this Court granted leave to appeal. For that reason, this Court, in granting leave to appeal, said:
The parties are directed to be as speciñc as possible in identifying and discussing the testimony and documents they contend should be admitted into or excluded from evidence, as the case may be. [Emphasis added.][8]
The majority acknowledges that the parties "did not do” so.9
As set forth in the trial judge’s opinion and in the majority opinion, the prosecutor identified in his pretrial motion "nine discrete categories of evidence sought to be admitted,” and there "are literally hundreds of proposed exhibits, many of which were admitted during the second trial of sixteen days’ duration.”10 (Emphasis added.)
hi
Absent the "specific list” contemplated by the judge’s order or compliance by the prosecutor with this Court’s "directive] to be as specific as possible in identifying and discussing the testimony and *464documents” he seeks to have admitted, this Court cannot adequately address the legal issues dealt with in the majority opinion.
The failure of this Court to insist on compliance with its directive that the prosecutor be as specific as possible has made it difficult, almost impossible, to address the specific evidence that will be admitted at trial. Fisher has offered in his appendix a typed version of Ella Maria Fisher’s handwritten diary. The prosecutor has included photocopies of her handwritten diary, and photocopies of her and Fisher’s handwritten letters.
The justices do not have the time to read through that mass of handwritten material without specificity from the prosecutor concerning the items that belong in each of the nine discrete categories, and without specificity concerning the portions of each item he will ask the judge on remand to admit in evidence.
Because there is no "specific list” and the prosecutor has not been "as specific as possible” in identifying the testimony and documents, the majority does not and cannot speak specifically concerning the "literally hundreds of proposed exhibits” that might be offered at the third trial.
The judge has in effect been given by the majority carte blanche11 on remand for the third trial to decide in the exercise of his discretion the specific evidence to be admitted and excluded.12 The new majority has indicated its impatience with the *465forthcoming third trial. There will be even less patience for a fourth trial. This means that it is unlikely that even an abuse of discretion in admitting evidence at the third trial will be corrected.
As set forth in the majority opinion, many of the literally hundreds of proposed exhibits were admitted at the second trial. As previously related, following this Court’s order of reversal, the prosecutor asserted, and the trial judge agreed, that some of those exhibits were covered by this Court’s order, and others, apparently the bulk according to the prosecutor and judge, were not. Here again, the prosecutor has not been specific; neither was the trial judge, nor is the majority in this Court, in identifying the exhibits admitted at the second trial that they regard to have been unambiguously covered by this Court’s order of reversal, with the result that neither Fisher nor his counsel, nor the undersigned13 know what specific effect is still required to be given on remand for the third trial to this Court’s order of reversal.
This Court should withhold decision in this case until the prosecutor complies with this Court’s directive that he be as specific as possible. It has been ruled that Fisher was twice denied a fair trial. He should not be denied one fair trial — at the third trial — by a rush to decision. This Court should avoid opining in generalizations until the prosecutor is "as specific as possible.” This Court should show respect for its own orders by requiring compliance, and should not be surprised that its orders are ignored if it makes no effort to enforce them.
IV
The majority cites a number of decisions of the *466Court of Appeals14 for a proposition that is undisputed and with which I agree: evidence of marital discord is admissible to show motive in a homicide case.15 The issue here, however, is whether hearsay statements of the deceased are admissible on the theory that the mental state of the deceased tends to show marital discord.
The majority states that "statements by murder victims regarding their plans and feelings have been admitted as hearsay exceptions in a number of jurisdictions.”16 These cases are distinguishable from this case and are not in point.
In United States v Donley, 878 F2d 735 (CA 3, 1989), a statement by a homicide victim that she intended to leave her husband, the defendant, was found to have been admissible to prove marital discord as a motive for the homicide. In Donley, however, the defendant raised, analogous to White, a heat-of-passion defense, thus rendering the victim’s state of mind material to the case.
In Whitmire v State, 789 SW2d 366 (Tex App, 1990), the homicide victim’s statements that he wanted to get out of the marriage to the defendant were found admissible. However, the defendant raised a claim of self-defense, thus making, as the White Court said, the victim’s state of mind relevant and material to the case.
In United States v Hartmann, 958 F2d 774 (CA 7, 1992), a homicide victim’s statements about his dismal marriage, evidence that he removed her as a beneficiary from his life insurance policy, and *467his statements that he feared his wife and her lover were going to kill him were found admissible under the state of mind exception to the hearsay rule. Hartmann was an insurance fraud case, not a homicide case. Additionally, defendants made no objection to the admission of those statements at trial, unlike this case. The United States Court of Appeals for the Seventh Circuit employed a plain error standard of review that required "even more deference to the district court’s ruling” than the usual abuse of discretion standard used in reviewing admissibility issues.17- Because Fisher objected to the use of all the evidence that is the subject of this interlocutory appeal, Hartmann provides no guidance to this Court in ruling in this case.
The majority cites no authority contrary to this Court’s decision in White and its order in the instant case excluding statements of the deceased offered to show the state of mind of the deceased.
On the question whether the probative value of the evidence sought to be admitted might be substantially outweighed by unfair prejudice to Fisher, the majority cites18 a long passage from People v Goree, 132 Mich App 693, 702-703; 349 NW2d 220 (1984), observing that most evidence sought to be admitted against an adversary will be prejudicial.
The majority fails to add that later in Goree, which concerned the possible swaying of jury opinion by a witness’ impressive credentials, the Court of Appeals noted that any possible prejudice to defendant that might inure from the number of letters following the witness’ name could be lessened by "proper cross-examination, argument, instructions by the court and the jury’s common *468sense” in "distinguishing] between the message and the messenger.”19
In this case, there will be no cross-examination or proper argument based thereon because the "witness,” Ella Maria Mercado Fisher, is dead. Absent a means of communicating with those who have passed from this world, Goree fails to provide guidance in this case.
Cavanagh, J., concurred with Levin, J.This Court’s order granting leave to appeal stated:
The question is limited to whether the trial court erred in its September 20, 1993, opinion and order granting the people’s motion to admit decedent’s oral and written statements with conditions. The parties are directed to be as speciñc as possible in identifying and discussing the testimony and documents they contend should be admitted into or excluded from evidence, as the case may be. Leave to appeal is denied in respect' to the defendant’s search and seizure and double jeopardy issues, which were not affected by the Court’s order of November 25, 1991. The January 24,-1991, decision of the Court of Appeals is the law of this case in respect to these matters. [445 Mich 945 (1994). Emphasis added.]
MCL 750.316; MSA 28.548. .
Unpublished per curiam opinion, issued January 24, 1991 (Docket No. 108857).
439 Mich 884 (1991).
Two justices dissented. 439 Mich 885. One justice vigorously-dissented from the order denying reconsideration. 439 Mich 886.
The judge said:
This court is cognizant of the Supreme Court’s peremptory slip decision in which it reversed the trial court and the Court of Appeals holdings as to certain evidence received for the purpose of establishing the state of mind of the deceased as to her husband the Defendant herein. However, it is crystal clear and undeniable that the Supreme Court’s order was in a sort of cart blanc [sic] makeup which was lacking in detail, intent or explanation as to whether all of the evidence in its entirety or whether conceivably certain portions or parts of it only were acceptable while other parts were not so as to result in an unavoidable conclusion that the Supreme Court’s peremptory *462slip decision, unwittingly and surely unintentionally, resulted in absolutely no help or assistance to the litigants as to a future course of procedure in situations as is here present. As Justice Boyle stated in her dissent:
"The order fails to inform the trial court, the three Court of Appeals judges on the panel whose decision is being reversed, the attorneys, the Defendant, the victim’s family, the bench and bar and the public at large of the facts and reasons for this court’s reversal of a jury verdict delivered after 16 days of trial.”
The court will arrange for a mutually agreed upon time and place and date for the purpose of developing a list of such type of data and evidence to be used at trial. The list should as much as possible be made up of oral or written statements by the victims which were known to or by the Defendant. Such are or should be non-hearsay in nature and in a factual content. The court specifically will avoid any effort to allow the admission of the entire contents of all oral and written statements but will consider those oral and written statements which are especially relevant to the issues of motive and the elements of premeditation and deliberation.
The people’s intent to present certain other material not known to the Defendant but which can be properly considered to be admissible as non-hearsay circumstantial evidence as to the existence and extent of marital discord which is admissible as proof of a motive for Defendant to kill his wife will also be permitted at the trial. That material described on page 29, Sec. n [of the people’s motion] and thereafter will be allowed it being the impression of the court that they are not violative of the Supreme Court’s ruling.2
2 Non-hearsay circumstantial evidence as to the existence and extent of discord shall be admitted when in the form of statements that the victim made reasonably in point of time before her demise — this specifically relates to the purpose of establishing a motive for defendant to want to kill his wife. (Here a factor to be kept in mind is that this kind of testimony is not being offered for the proof of the matter asserted but to establish the state of mind of the person who performed the thing or made this statement.)
The judge said:
On page 24 of the people’s motion, the people have itemized 9 types of statements they will seek to introduce at trial — the court sees no problem with allowing them — even over objec*463tions by the defense — but an exchange between the parties will be had.
See n 1.
Ante, p 447.
Ante, p 448. See also ante, pp 445-446, where the nine categories are set forth.
The judge, in commenting on this Court’s order of reversal following the second trial (see n 4), said that the order was "in a sort of cart blanc [sic] makeup which was lacking in detail.”
Today’s decision, which concludes that the Court’s previous order is not the law of the case, will be regarded as the law of the case— even though the majority cannot now possibly pass upon each exercise of judicial discretion in deciding which portions of the diary and letters will be admitted — when application is made for leave to appeal following a conviction after the third trial.
Nor the bench and bar.
People v Rotar, 137 Mich App 540; 357 NW2d 885 (1984); People v Lewis, 95 Mich App 513; 291 NW2d 100 (1980); People v Nash, 110 Mich App 428; 313 NW2d 307 (1981). See also People v Johnson, 24 Mich App 1; 179 NW2d 658 (1970); People v Burkhart, 165 Mich 240; 130 NW 597 (1911); People v Zabijak, 285 Mich 164; 280 NW 149 (1938).
Ante, pp 452-453.
Ante, p 450.
Hartmann at 783.
Ante, pp 451-452.
Goree at 703.