People v. Fisher

537 N.W.2d 577, 449 Mich. 441

• Court: Michigan Supreme Court
• Decided: August 9, 1995
• Docket: 98903, (Calendar No. 15)
• Status: Published

Opinions

Weaver, J.

Defendant Charles Ray Fisher was twice convicted by a jury of first-degree murder of his wife. MCL 750.316; MSA 28.548. Both convictions were set aside, the first by the trial judge for alleged prosecutorial misconduct. The second conviction came before this Court following a decision by the Court of Appeals that none of the eleven issues raised by defendant required reversal. This Court decided defendant had been denied a fair trial because of the admission of hearsay evidence regarding the victim-wife’s state of mind, peremptorily reversed his conviction, and remanded the case to the trial court for a third trial.¹

Before a third trial, the prosecutor moved for permission to introduce certain oral and written statements of the victim-wife that were relevant to the issue of motive and premeditation. The trial judge granted the motion.² The Court of Appeals denied defendant’s application for leave to appeal, and denied rehearing. This Court granted leave to appeal solely on the issue whether the trial court erred in granting the people’s motion to admit the decedent-wife’s oral and written statements with conditions. We affirm the trial court’s ruling and hold that the trial court did not err, and that the admission of evidence in accordance with the trial court’s ruling was proper.

i

LAW OP THE CASE

Defendant argues that this Court rejected in toto the victim-wife’s oral and written statements in its earlier ruling.³ Defendant suggests that in our previous peremptory reversal we intended to close the door to any evidence of the decedent-wife’s state of mind. Such an argument misconstrues our order. We stated "defendant-appellant was denied a fair , trial by the admission of hearsay evidence regarding the victim’s state of mind,” and despite limiting instructions the prejudice of the evidence outweighed its probative value.⁴

In order to reach the issue whether the trial court erred in granting the people’s motion to admit the decedent-wife’s oral and written statements with conditions, we must first determine whether or not the "law of the case” doctrine applies. The doctrine as generally stated provides:⁵

[I]f an appellate court has passed on a legal question and remanded the case for further proceedings, the legal questions thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain materially the same.

Defendant maintains that our earlier peremptory reversal left no opening for the admission of any evidence, and thus is the law of the case.⁶

In the peremptory reversal order we stated:

[We have] concluded that the defendant-appellant was denied a fair trial by the admission of hearsay evidence regarding the victim’s state of mind. . . . While limiting instructions were given in this case, we believe 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. MRE 403. [Emphasis added.][⁷]

In light of the order and in preparation for the third trial of defendant, the people moved to admit only "relevant, nonhearsay or hearsay excepted evidence that was not substantially more prejudicial than probative, with the further understanding that the trial court give the jury a strongly worded cautionary instruction during preliminary instructions, during trial, and during the court’s final charge to the jury . . . .”

This evidence was broken down into nine categories.

1. Statements by decedent-wife regarding her feelings for the defendant.

2. Statements by decedent-wife regarding her feelings about the state of her marriage to the defendant.

3. Statements by decedent-wife about or relationships with men other than the defendant.

4. Statements by decedent-wife about her desire to pursue an education and career in transcultural nursing.

5. Statements about decedent-wife’s intent to enter Wayne State University’s program in transcultural nursing.

6. Statements about decedent-wife’s desire for independence from the defendant.

7. Statements about decedent-wife’s insistence on visiting her cousin/lover in Germany.

8. Statements about decedent-wife’s intentions to divorce or separate from the defendant during the marriage.

9. Statements made by decedent-wife that directly contradict statements made by the defendant about her to others.

The trial judge ruled that statements, both oral and written, that were shown to be relevant to the issue of motive and the elements of premeditation and deliberation would be admitted with limiting instructions. In granting the motion, the trial judge adopted the people’s recommendations, and further ruled that a list of nonhearsay evidence would be prepared by the parties, that objections to entry of the evidence could be made in front of the jury, but that the evidence would be admitted.

Though defendant argues to the contrary, the trial court was acting within its power in so ruling. As we stated in Sokel v Nickoli, 356 Mich 460, 464; 97 NW2d 1 (1959), "The power of the lower court on remand is to take such action as law and justice may require so long as it is not inconsistent with the judgment of the appellate court.”⁸ Likewise, the doctrine of the law of the case has no application where a case is remanded without directions to the lower court; in such a case the lower court would enjoy the same power as if it made the ruling itself. Lyon v Ingham Circuit Judge, 37 Mich 377 (1877); Garwood v Burton, 274 Mich 219, 222; 264 NW 349 (1936).

Though clearly this Court felt some evidence of the victim’s state of mind was inadmissible hearsay, more prejudicial than probative, and not cured by limiting instructions, defendant’s position that all of the proffered evidence in categories 1 to 9 was meant to be excluded is not justified. To sanction such a result would not further the causes of justice. As stated in Taines v Munson, 42 Mich App 256, 259-260; 201 NW2d 685 (1972):

To straightjacket proceedings subsequent to a decision on a case by an appellate court by making assumptions regarding the disposition of arguments which the appellate court did not see fit to consider is not, in our opinion, the wisest of policies.

Leave to appeal was granted in this case to resolve the apparent ambiguity surrounding this Court’s previous order.

In granting leave, we likewise asked the parties to "be as specific 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.” 445 Mich 945 (1994). This the parties did not do.⁹_

II

Within the nine discrete categories of evidence sought to be admitted are literally hundreds of proposed exhibits, many of which were admitted during the second trial of sixteen days’ duration. The trial judge stated that the parties should develop a list of oral or written statements made by the victim that were known to the defendant. The court ruled that these statements were not hearsay and that it would admit those statements that are especially relevant to the issues of motive and the elements of premeditation and deliberation. The trial court also ruléd that it would also admit certain statements made by the victim that were not known to the defendant:

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 and thereafter will be allowed it being the impression of the court that they are not violative of the Supreme Court’s ruling.²

We agree with the conclusion reached by the trial court. It is well accepted that evidence that demonstrates an individual’s state of mind will not be precluded by the hearsay rule.¹⁰ Several legal scholars have commented on the nonhearsay use of such evidence:

Wherever an utterance is offered [into] evidence [for] the state of mind which ensued in another person in consequence of the utterance, it is obvious that no. assertive or testimonial use is sought to be made of it, and the utterance is therefore admissible, so far as the hearsay rule is concerned. [6 Wigmore, Evidence (Chadbourn rev), § 1789, p 314. Emphasis added.]

Likewise, in 4 Weinstein, Evidence, j| 801(c)[01], pp 801-94 to 801-96:

An utterance or a writing may be admitted to show the effect on the hearer or reader when this effect is relevant. The policies underlying the hearsay rule do not apply because the utterance is not being offered to prove the truth or falsity of the matter asserted.

Specifically, statements by murder victims regarding their plans and feelings have been admitted as hearsay exceptions in a number of jurisdictions. In United States v Donley, 878 F2d 735, 737-739 (CA 3, 1989), cert den 494 US 1058 (1990), a statement by the victim’s wife that she intended to move out of the apartment and separate from the defendant-husband was found admissible to show marital discord and motive. Likewise, in Whitmire v State, 789 SW2d 366 (Tex App, 1990), statements of the decedent-husband that he wanted to end the marriage with the defendant-wife were found admissible. See also United States v Hartmann, 958 F2d 774, 782 (CA 7, 1992), in which statements made by the victim-husband about the "dismal state of his marriage” to the defendant-wife, his removal of her as beneficiary from his life insurance policy, and statements of his fear of being killed by the defendant-wife and her codefendant lover all were found admissible under a state of mind exception to the hearsay rule.

In the.case at hand, marital discord, motive, and premeditation are all at issue. Thus, the statements of the victim-wife are admissible to show the effect they had on the defendant-husband. This testimony will not offend the hearsay rule because it does not constitute hearsay.

The victim-wife’s statements that were not known to the defendant about her plans to visit Germany to be with her lover and her plans to divorce the defendant upon her return are hearsay. They are admissible, however, because they satisfy the exception to the hearsay rule for "statement[s] of the declarant’s then existing . . . intent, plan . . . [or] mental feeling . . . .” MRE 803(3). The victim, five days before, her fatal assault, wrote in her journal:

The way I’m feeling right now is that I want to go [to Germany]. ... I am afraid if I allow my self to let my defenses down with Charles [the defendant] he will manipulate me into forgetting about the importance of my career, traveling, having children I will resent in the future. He manipulated me into marriage, . . . now by telling my father about my plan to go to Europe. I am sick of this manipulation of me. I want to get away from it.

Ill

The remaining issue is whether the probative, value of the proffered testimony is substantially outweighed by any unfair prejudice. Obviously, evidence offered against a party, by its very nature is prejudicial, otherwise there would be no point in presenting it. The pivotal consideration is whether the probative value of the testimony is substantially outweighed by unfair prejudice. MRE 403.¹¹ As discussed in People v Goree, 132 Mich App 693, 702-703; 349 NW2d 220 (1984), courts must balance these two competing principles:

We are quick to dispense with the recurrent notion that evidence should be excluded under MRE 403 because it simply "prejudices” the cause of the objecting party. Obviously, evidence is offered by an advocate for the always clear, if seldom stated, purpose of "prejudicing” the adverse party. Recognizing this, the Supreme Court in adopting MRE 403 identified only unfair prejudice as a factor to be weighed against probative value. This unfair prejudice refers to the tendency of the proposed evidence to adversely affect the objecting party’s position by injecting considerations extraneous to the merits of the lawsuit, e.g., the jury’s bias, sympathy, anger, or shock.

There is no rule requiring the prosecution' to use only the least prejudicial evidence per se to establish facts at issue. Even if the defendant were to stipulate all the facts concerning the relationship between his deceased wife and himself, and to the best of our knowledge he has not offered to do so, the decision whether to admit this evidence would remain within the discretion of the trial court. See People v Hall, 83 Mich App 632, 640; 269 NW2d 476 (1978); People v Green, 74 Mich App 351, 357-358; 253 NW2d 763 (1977).

Thus it is necessary to weigh the probativeness or relevance of the evidence. Specifically, relevant evidence is any fact that is of consequence to the determination of the action. People v McKinney, 410 Mich 413; 301 NW2d 824 (1981).¹² The purpose of admitting relevant evidence is to provide the trier of fact with as much useful information as possible. People v Hampton, 407 Mich 354; 285 NW2d 284 (1979).

Hence, the question becomes whether the statements made by the victim-wife and known to the defendant provide any facts of consequence, or in other words raise an issue of motive for the defendant to kill his wife. If they do, then they are relevant with regard to the issues of motive, premeditation, and deliberation as well.

In cases such as the instant case, in which the proofs are circumstantial and the only witness is the accused, evidence of motive would be highly relevant. People v Shaw, 9 Mich App 558, 566; 157 NW2d 811 (1968), aff’d 383 Mich 69; 173 NW2d 217 (1970).¹³ In fact, numerous prior cases have upheld the admissibility of evidence showing marital discord as a motive for murder, or as circumstantial evidence of premeditation and deliberation.¹⁴ We do not need to restate those holdings, but simply reaffirm them. Since the proffered evidence would illustrate the extensive marital discord in defendant’s marriage and thus provide a motive, we believe that it is highly relevant and more probative than prejudicial.

Evidence of marital discord is relevant to motive just as evidence of marital harmony would be relevant to show lack of motive. Discord or lack of discord in an ongoing relationship obviously has some tendency to make the existence of a fact in controversy more or less probable — whether or not the accused ended the relationship as it is alleged he did. Whether the marital discord is of a type that would provide a motive for murder is an issue of weight, not admissibility.

iv

In our peremptory reversal order, we excluded "hearsay evidence regarding the victim’s state of mind” where its "relevance . . . was substantially outweighed by the prejudice.”¹⁵ The people properly interpreted this order to mean that any of decedent-wife’s statements that expressed fear of the defendant, or that depicted significant misconduct of the defendant tending to show him to be a "bad person,” were inadmissible. However, this order did not preclude from admission the vast majority of the remaining proffered evidence.¹⁶ We agree with this reasoning and would find the admission of evidence in accordance with the trial court ruling proper.

Boyle, Riley, and Mallett, JJ., concurred with Weaver, J.

1 439 Mich 884 (1991).

2 The trial judge ruled:

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.

3 See n 1.

4 Id., n 1 supra at 884.

5 CAF Investment Co v Saginaw Twp, 410 Mich 428, 454; 302 NW2d 164 (1981) (citations omitted).

6 Defendant’s sole authority for this proposition is Johnson v White, 430 Mich 47; 420 NW2d 87 (1988). Johnson is inapposite. The issue in Johnson was whether the appellate court had authority to readdress an issue that was not raised before us and that we did not direct be considered on remand. We held it did not. Id. at 49.

7 Note 1 supra at 884-885.

8 See also Meyering v Russell, 85 Mich App 547; 272 NW2d 131 (1978).

9 As noted in the oral argument:

Mr. Puleo: I think part of the problem is the parties have not sat down and actually compiled a list and have the judge go over those — okay, this is going to come in — this is not.

Justice Boyle: Okay, so we get to deal with it conceptually as the judge did?

Mr. Puleo: That I think is part of the problem.

1 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 objections by the defense — but an exchange between the parties will be had.

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 [sic] of the matter asserted but to establish the state of mind of the person who performed the thing or made this statement.)

10 The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

Then existing mental, emotional or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or'physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will. [MRE 803(3).]

11 Although relevánt, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair ' prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

12 "Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. [MRE 401.]

13 See also People v Nash, 110 Mich App 428; 313 NW2d 307 (1981), aff’d in part 418 Mich 196; 341 NW2d 439 (1983), evidence of motive is always relevant in a murder case; People v Mihalko, 306 Mich 356; 10 NW2d 914 (1943).

14 People v Rotar, 137 Mich App 540; 357 NW2d 885 (1984); 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); People v Lewis, 95 Mich App 513; 291 NW2d 100 (1980); People v Nash, n 13 supra; People v Furman, 158 Mich App 302; 404 NW2d 246 (1987).

15 Note 1 supra at 884, 885.

16 Assessment of the effect of particular evidence, and whether it is cumulative, distracting, or otherwise substantially more prejudicial than probative, is a contextual evaluation of the life cycle of a given proceeding. An appellate court can rarely determine in an interlocutory appeal that unfair prejudice will require exclusion of a specific piece of relevant evidence. "The probative value of . . . evidence and its true potential for prejudice is often unclear until the proofs are actually presented.” People v VanderVliet, 444 Mich 52, 90; 508 NW2d 114 (1993). The trial court will have to rule on defense objections to specific statements brought under MRE 403 in light of the proofs admitted at that point.