People v. Mitchell , 223 Mich. App. 395 ( 1997 )

Neff, P.J.

Defendant was convicted by a jury of unarmed robbery, MCL 750.530; MSA 28.798, and subsequently pleaded guilty of being an habitual offender, third offense, MCL 769.11; MSA 28.1083. He was sentenced to twelve to thirty years’ imprisonment. Defendant now appeals as of right. We reverse and remand for a new trial.

i

This cases arises from a robbery that occurred at a gas station/convenience store located in Muskegon, and was captured on tape by a surveillance camera. Defendant was accused of threatening the cashier and taking money from the register. Defendant’s theory of the case was that the cashier gave him the money as payment for a drug delivery that had taken place earlier. Defendant testified at trial that he had sold marijuana to the cashier on a number of previous occasions and that ordinarily the marijuana was given to the cashier by defendant’s associates and defendant collected the money for the drugs from the cashier at a later time. Defendant claimed that this occasion was no different; defendant was simply collecting money owed to him for marijuana previously delivered to the cashier.

n

On appeal, defendant argues that the trial court committed error warranting reversal in refusing his request to give a cautionary instruction to the jurors regarding the limited purpose for which they could consider defendant’s testimony regarding his involvement in alleged drug transactions with the cashier. We agree.

Our Supreme Court has held that when the prosecution introduces evidence that tends to show the commission of another criminal offense by the defendant, the defendant is entitled to a limiting instruction, and the failure to give the instruction, when requested, warrants reversal. People v DerMartzex, 390 Mich 410, 416-417; 213 NW2d 97 (1973); see also People v Chism, 390 Mich 104, 119-120; 211 NW2d 193 (1973). This case presents the question whether reversal is also warranted when the trial court’s refusal to give the requested limiting instruction follows the introduction by the defendant rather than the prosecution of evidence of another crime by the defendant. We hold that it is.

As a general rule, evidence tending to show the commission of other criminal offenses by a defendant is inadmissible with regard to the issue of the defendant’s guilt or innocence of the offense charged. DerMartzex, supra at 413. Evidence of other crimes generally is barred because it has been determined that whatever probative value such evidence has is outweighed by the disadvantage of diverting the trier of fact from an objective appraisal of the defendant’s guilt or innocence. Id. However, the probative value of such evidence may outweigh the disadvantages where the prosecution seeks to use such evidence to prove “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). Thus, MRE 404(b) creates an exception to the general rule by permitting an adverse party to present evidence concerning prior bad acts under certain circumstances.

Before admission, the trial court is required to rule regarding the admissibility of such evidence after determining whether the evidence is relevant to an issue of fact or consequence other than propensity, and whether the danger of undue prejudice outweighs the probative value of the evidence. People v Vander-Vliet, 444 Mich 52, 74-75; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994). When evidence of prior bad acts is properly admitted for the limited purpose of proving one of the recognized exceptions, the limiting instruction contained in CJI2d 4.11, formerly CJI 4:10:01, is given to ensure that the jury uses the evidence for a proper purpose. See People v Rice, 206 Mich 644, 658; 173 NW 495 (1919).

Our dissenting colleague concludes that because defendant himself introduced evidence regarding his involvement in drug trafficking, the traditionally recognized rationale for the admissibility of prior bad acts testimony pursuant to MRE 404(b) is not applicable. We conclude that whether the evidence of prior bad acts is introduced by the prosecution or the defense is irrelevant to the puipose for which a limiting instruction is intended, i.e., to advise the jury that the evidence is inadmissible with regard to the issue of the defendant’s guilt. The potential to prejudice defendant’s right to a fair trial by influencing the jury to convict on the basis of defendant’s admission of prior bad acts is unacceptably high without the limiting instruction, which is a simple matter to accomplish. The source of the evidence — the prosecution, the defense, or both — is a secondary matter. The potential for prejudice and interest in a fair trial are primary. As noted in Rice, supra at 658: “When testimony of this character is received the trial judge should carefully guard its use by appropriate instructions, and limit the purpose for which it is received.” This admonition is of no less importance because defendant introduced the evidence of other bad acts via his theory of defense that he was merely collecting money owed him for drugs.

We hold that the refusal to grant defendant’s request for a cautionary instruction was error requiring reversal and we remand for a new trial. Our holding does not address whether a trial court is required sua sponte to give a cautionary instruction where none is requested when the defendant is the party introducing evidence of his own prior crime, wrongs, or bad acts.

m

Defendant next argues that he was denied a fair trial because the prosecutor improperly questioned him regarding details of the alleged drug transactions in an attempt to establish the identity and modus operandi of defendant’s accomplices. In addition, defendant contends that the questions were improper because they served to inflame the jury by emphasizing his involvement in drug trafficking. Because this issue might arise on retrial, we will address it.

It was defendant who first introduced evidence of drug trafficking as a defense to the unarmed robbery charge. Under these circumstances, it was proper for the prosecutor to question defendant’s story and explore whether facts existed that might corroborate his testimony. To the extent that the questions asked of defendant assisted the prosecutor in identifying possible drug dealers, we fail to see how the defense was prejudiced by the testimony.

IV

Defendant also contends that he was denied a fair trial because of several other instances of prosecutorial misconduct, including an instance in which the prosecutor elicited testimony from the complainant establishing that she had once helped to convict her ex-boyfriend and another individual of selling cocaine. However, defendant failed to preserve these issues by objecting below. Consideration of unpreserved challenges to alleged misconduct is limited to whether our failure to review would result in a miscarriage of justice. People v Graham, 219 Mich App 707, 712; 558 NW2d 2 (1996). Here, our failure to provide further review will not result in a miscarriage of justice because any possible prejudice could have been cured by a timely instruction. Id.

v

Finally, defendant argues that his twelve- to thirty-year sentence as an habitual offender violates the principle of proportionality set forth in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). Our reversal of defendant’s conviction renders this issue moot.

Reversed and remanded for a new trial. We do not retain jurisdiction.

G. D. Lostraccco, J., concurred.