People v. Goddard

418 N.W.2d 881, 429 Mich. 505

• Court: Michigan Supreme Court
• Decided: January 20, 1988
• Docket: 74750, (Calendar No. 6)
• Status: Published

Opinions

Levin, J.

Kenneth Goddard was convicted of felony murder for the shooting death of George Wissmiller. At the trial, the judge admitted in evidence the testimony of Michael Koski, who stated that six months before Wissmiller’s death, in the course of one night, he and Ken had committed five breakings and enterings into various hunting lodges and cabins. Koski testified that during one of these breakings and enterings Ken drew a pistol and shot several times at a television set, and then said that if they "were ever approached that he’d fire once into the air and then fire at the people.” The question presented is whether Koski’s testimony was improperly admitted in evidence. We hold that it was, reverse the decision of the Court of Appeals, and remand for a new trial.

i

On August 17, 1980, a friend discovered Wissmiller’s body. Wissmiller died from a single gunshot which passed through his chest, piercing his heart. Wissmiller was the longtime caretaker of the Quart family’s vacation residence and sometimes ranch. The property comprises approximately 850 acres in Alcona County. Wissmiller’s body was discovered in the general vicinity of the caretaker’s residence and the family’s home.

Both Wissmiller’s residence and the Quart family home had been burglarized. Quantities of clothing, bedding, and sporting equipment were missing. The telephone in Wissmiller’s residence had been ripped out of the wall.

In determining responsibility for Wissmiller’s death, the jury faced a narrow question of credibility. Defendant Ken Goddard and his father, Grant Goddard, Jr., — the state’s chief witness — told conflicting stories. Each accused the other of shooting Wissmiller.

According to Grant, Ken accidentally shot Wissmiller and then initiated the breakings and enterings. Grant testified that on August 13, 1980, Ken came to his father’s home to go deer hunting. The two left Grant’s home a little after noon, and drove to a deserted area to engage in target practice with Ken’s .308 caliber rifle. Grant was armed with a .22 magnum rifle and a .38 caliber pistol. After practicing with the rifle and driving around for a bit without spotting any deer, they decided to go to the Quart property. The caretaker’s residence and the family home looked deserted, and the two pulled into a trail that led into the Quart land. They decided to hunt deer across an open field. Grant testified that after he and Ken stepped out of Ken’s Scout, they discussed the possibility of breaking into and entering the buildings if they found no one there.¹_

Upon reaching the vicinity of the caretaker’s residence and the family home, Grant testified that he and Ken climbed on top of a root cellar— effectively a small hill covered with tall grass — to observe the area. They decided that if no one was home, they would break and enter. They observed the area for about fifteen minutes, and had just decided to move in when they heard a tractor approaching.

Grant testified that he recognized George Wissmiller — for whom he had worked some years ago— as the tractor’s driver. Wissmiller parked the tractor and let one of his dogs, a small terrier, loose. The dog ran up to the root cellar and began circling and barking. Grant testified that Wissmiller walked past the root cellar, called his dog to him, and continued on several hundred yards to a small lake. He stayed by the lake for several minutes, and then began walking back along a different route.

Grant testified that as soon as Wissmiller appeared, he told Ken that he wanted to "get out of here.” When Wissmiller began coming back from the lake, Ken said, according to Grant, that he wanted to see what he was doing. So, lying prone on top of the root cellar, and with both hands on the gun’s forestock, Ken peered through the .308 rifle’s telescopic scope. The rifle accidentally discharged, and Ken exclaimed, "I didn’t mean to do it. The safety must have been off.” Grant testified that Ken’s hands were never near the trigger.

According to Grant, Wissmiller, who was then approximately one-hundred yards from the root cellar, took several staggering steps and collapsed. By the time Grant and Ken reached him, he was already dead. The two dragged his body approximately thirty feet to a less conspicuous location.

Grant testified that Ken, upon discovering that Wissmiller was dead, suggested that the two continue with their plans to break and enter. Ken, with his father right behind, entered the caretaker’s residence through an unlocked door. After taking a number of items, the two continued to the family home, which they broke into and searched.

Grant testified that he and Ken loaded the stolen items into Wissmiller’s old pickup, and then drove it over to Ken’s Scout.² The number of items necessitated two trips. Grant and Ken then returned to Grant’s home.³

An initial confession by Ken corresponded exactly with his father’s version of events.⁴ Ken subsequently claimed that the confession was part of an agreed-upon plan with his father whereby Ken would shift blame from his father, who was then a fugitive from federal charges, to himself, who had no prior criminal record.⁵ Ken testified that in fact it was his father who shot Wissmiller, and that his father told him two different versions of the shooting. First, that the shooting was accidental, the father fired unintentionally from the top of the root cellar. Second, the father shot Wissmiller after Wissmiller discovered and recognized him.

According to Ken, the afternoon began as his father had testified. The two intended to go deer hunting and first engaged in target practice with Ken’s .308 rifle. They next visited the Quart property. Here the stories diverge. According to Ken, there was no talk of breaking and entering. Ken had hunted deer on the Quart land a number of times previously, and had even constructed a deer blind near the property line. According to Ken, he and his father split up. Ken stayed in the blind with his dad’s .22 magnum, while his dad took the .308 and moved down toward the residence area. Ken testified that several hours after his dad left he heard a single shot, which he assumed was his dad shooting at a deer. After waiting for some forty minutes, Ken began moving toward the area from which the shot had come. Upon reaching the residence area, he observed his father carting items out of the family residence.

His dad initially waved him away. When Ken came up to him, he said that there had been an accident, and that Wissmiller was dead. At that point, Ken told his father that he, Ken, would take the blame and that his father should run off. Ken testified that he and his father argued. Ken wanted to report Wissmiller’s death; his father refused. Ken went into the caretaker’s residence to call the police, and his father tore the phone off the wall.

According to Ken, he refused to help his father move Wissmiller’s body, and his father moved it himself. Ken covered the body with a blanket, and his dad was the one who removed Wissmiller’s keys and wallet. Ken testified that he had nothing to do with the breaking and entering — his father had already loaded Wissmiller’s pickup truck with stolen items when Ken arrived, and Ken testified that after he learned of Wissmiller’s death he was in such shock that all he wanted to do was leave. Ken blew up when his father insisted upon taking some guns. His dad had a large collection of guns —over one hundred — and Ken saw no reason to add to it.⁶ They made only one trip with the pickup truck. Ken helped his dad transfer the stolen items to the Scout, and the two returned to Grant’s home.

In summary, the jury was faced with a narrow question of credibility. In this context, the prejudice caused to Ken by Koski’s testimony of Ken’s prior breakings and enterings, his shooting at the television set, and his statement may well have tipped the balance against Ken._

II

The prosecution persuaded the trial judge to admit Koski’s testimony in evidence under MRE 404(b), which authorizes admission of a defendant’s prior conduct to show "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 . . . .”⁷ Koski testified that on the night of February 15, 1980, he and Ken had committed at least five separate breakings and enterings.⁸ In testifying to the particulars of their breaking into and entering the Silver Wolf Lodge, Koski stated that while they were in the lodge, Ken pulled out a pistol and shot two or three shots at a television set, and then said that if they "were ever approached that he’d fire once into the air and then fire at the people.” The judge admitted Koski’s testimony to show malice — to show that if Ken did shoot Wissmiller, he intended to do so.

We make an initial distinction between Koski’s testimony regarding the prior breakings and enterings, and the shooting at the television set, and his testimony concerning Ken’s statement. A statement of general intent is not a prior act for purposes of MRE 404(b). As the statement of a party opponent, the admissibility analysis involves instead first determining whether the statement was relevant, and second whether its probative value outweighed its possible prejudicial effect.⁹

We first consider whether, under MRE 404(b), Koski’s testimony concerning the February 15 breakings and enterings and the shooting of the television set was properly admissible. We conclude that it was not admissible, and that the probable prejudice caused warrants reversal. We then consider whether Koski’s testimony concerning the statement would be admissible on its own. We conclude that it would not be, and hold that on remand the judge should not allow Koski to testify to Ken’s statement. We further hold that even if the probative value of Koski’s testimony outweighed its potential prejudicial effect, admitting it to show Ken’s intent was improper because he never placed his intent in issue.

in

Admitting Koski’s testimony of the prior breakings and enterings was clearly improper. The probable prejudice caused by allowing the jury to hear of these prior crimes outweighed their probative value. To allow admissibility, there must be some "special quality or circumstance” linking the prior bad acts to the crime charged. This Court declared in People v Golochowicz, 413 Mich 298, 308-309; 319 NW2d 518 (1982), that to admit evidence of a defendant’s prior bad acts:

(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 lie introduced must not be substantially outweighed by the danger of unfair prejudice.

There were no similarities between the February 15, 1980, series of breakings and enterings and the shooting at the television set testified to by Koski and the death of Wissmiller sufficient to warrant admitting Koski’s testimony. The prior breakings and enterings and the shooting at the television are not significantly probative of an intent to kill. At none of these prior burglaries did Ken kill or shoot at another human being. The shooting of a television set is not sufficiently similar to shooting a human being to warrant admitting it into evidence. Directing force at an inanimate object does not translate into a willingness to kill a human being.

Nor are the prior breakings and enterings and the shooting at the television set significantly similar to the breakings and enterings in the Quart property to warrant admission in evidence. Other than the fact that they were all breakings and enterings, there were no similarities at all.¹⁰ The February 15 breakings and enterings were committed all in one night, six months before Wissmiller’s death. At none of these prior burglaries did Ken kill or shoot at another human being. During the prior burglaries Ken was accompanied by Koski, while at the Quart’s property he was accompanied by his father. Further, the modus operandi of the February 15 burglaries differed from that of the Quart burglary.¹¹ The prior burglaries were a series committed in one night. The Quart burglary, according to the father’s testimony, occurred midday and only after father and son, using deer hunting as a cover, had an opportunity to thoroughly explore and observe the property.

Even if a lesser showing of similarity is required where the prior bad acts are offered to prove something other than identity, some showing of similarity must be made. The prior bad acts to which Koski testified bore no similarity — other than that they were breakings and enterings — to the death of Wissmiller and the burglarizing of the caretaker’s residence and the Quart’s vacation residence. Koski’s testimony of Ken’s prior bad. acts should therefore not have been admitted.¹²

The prosecution does not contend that the prior bad acts were similar. Rather than argue that the prior burglaries were similar — or relevant at all— to the present case, the prosecutor instead argues that Koski’s testimony was properly admitted because it included Ken’s statement, made during the breaking and entering of the Silver Wolf Lodge, that if he and Koski were ever discovered in the course of a breaking and entering, Ken would first fire a warning shot into the air and then, if the person or persons kept coming, fire at him or them. The prosecution argues, "The link exists between the 'other acts’ and the charge because the charged offense consisted of the defendant doing exactly what he said he was going to do.”¹³ Ken’s statement, however, is just that — a statement, not a prior act. MRE 404(b) does not apply to a defendant’s prior statements of intent. Rather, the appropriate analysis is whether the prior statement is relevant, and if so whether its probative value outweighs its potential prejudicial effect.¹⁴

Because the only "similarity” between the prior bad acts to which Koski testified and the crime charged is Ken’s statement,¹⁵ Koski’s testimony of the five breakings and enterings and the shooting at the television set was improperly admitted. These prior crimes were not similar to the crimes charged here. Furthermore, even if it would have been permissible to allow Koski to testify to Ken’s statement, Koski’s testimony regarding the prior burglaries could not have been admitted to provide context for interpreting the statement. Testimony of a defendant’s bad acts is admissible only for very limited purposes. Providing context for understanding a prior statement is not one of those purposes.

The jury was presented with two contrasting versions of Wissmiller’s death. Neither was inherently credible. Which version the jury chose to believe depended largely on which witness the jury found most believable. Koski’s testimony was the only evidence indicating that Ken had engaged in prior bad acts.¹⁶ Absent this testimony, the jury may well have found Ken the more credible witness and chosen to believe his version of events rather than his father’s.¹⁷ We therefore hold that admission of Koski’s testimony concerning the breakings and enterings and the shooting of the television set constitutes error requiring reversal.

IV

We further consider the question whether, on remand, Koski should be allowed to testify to Ken’s statement. Because we believe the statement’s probative value is outweighed by the potential prejudice it may cause, we hold that Koski should not be allowed to so testify.

The first step is determining the probativeness of Ken’s statement in deciding whether Ken shot and intended to shoot Wissmiller. The circumstances surrounding the making of this statement indicate that its probative value is low. The statement reflects Ken’s state of mind at the time he made the statement in February of 1980.¹⁸ Ken made the statement six months prior to Wissmiller’s death. At the time he made the statement, it was completely hypothetical. The statement appears to be an exercise in machismo, one accomplice bragging to another about how tough he would be. Prior to this case Ken had no criminal record. So far as we can determine, he had never faced the actual possibility of shooting another human being. He did not know — could not know— how he would react in such a situation. Further, his statement was limited in its scope to that night’s activities alone. Ken referred to somebody coming upon "us” — he and Koski. He did not hypothesize further as to what he would do six months hence. Additionally, according to the father’s testimony, which the jury must have accepted in convicting Ken, Ken did not act as his statement indicated. The statement is irrelevant because the scenario which it covered — discovery in the course of a breaking and entering — never occurred. According to Grant, Ken’s rifle discharged accidentally. Wissmiller was unaware that Grant and Ken were on the Quart land. Ken never fired a warning shot into the air. Ken’s statement is, therefore, of minimal probative value in determining whether he shot and intended to shoot Wissmiller._

The second step is determining whether the potential prejudice to Ken caused by the jury hearing his statement outweighs its probative value. We believe that it does. The statement is potentially highly inflammatory.¹⁹ The jury was faced with allocating blame where the two prime witnesses accused each other of being responsible. The jury then heard Ken’s statement — that if someone came upon Koski and him, Ken would fire first into the air and then, if he kept coming, shoot at the person. Because Wissmiller died of a bullet wound, the statement provided a ready explanation for Wissmiller’s death, although, as discussed above, the statement’s probative value is low. Because the statement’s probative value would be outweighed by the potential prejudice that it may cause, we conclude that on remand the trial court may not allow Koski to testify to Ken’s statement.²⁰

v

Even if the probative value of Koski’s testimony outweighed its potential prejudicial effect, admitting it to show Ken’s intent was improper because he never placed his intent in issue. As this Court said in Golochowicz, supra, p 316:

A genuine controversy exists concerning such matters when the defendant, either by counsel’s opening statement, a motion in limine, the nature of cross-examination by the defense, or evidence offered by the defense, has made one or more of them an issue actually disputed in the case.

Yet here Ken did not put the question of malice or intent in issue. Defense counsel did not argue that if the jury found Ken guilty of shooting Wissmiller, they could find, in the alternative, that the shooting was without malice, and therefore convict Ken only of involuntary manslaughter. While the judge instructed the jury on involuntary manslaughter, it is not clear why he did so. The record does not indicate that defense counsel requested the charge. People v Beach, 429 Mich 450; 418 NW2d 861 (1988), makes it quite clear that the judge was not obliged to give a manslaughter instruction. Because the defendant did not raise the question of intent, and did not argue that he could be found guilty only of involuntary manslaughter, we should not ignore error in admitting Koski’s testimony on the basis of the unnecessary manslaughter instruction.

The people further argue that Ken’s intent was properly put in issue by its own witness, Grant, who testified that the shooting was an accident. Grant was a res gestae witness, but he was also an accomplice. The prosecution was therefore not required to call him as a res gestae witness.²¹ Furthermore, here the prosecution bargained with Grant to obtain his testimony. The prosecutor may not bargain for testimony, and then use that testimony to transform an uncontested matter into a contested question of fact, thereby creating an opening for introducing prejudicial evidence of the defendant’s prior bad acts.²²

We reverse the decision of the Court of Appeals, and remand for a new trial.

Cavanagh and Archer, JJ., concurred with Levin, J.

1 Grant gave three different versions of when he and Ken first discussed the possibility of breaking and entering. Grant first said that he and Ken discussed the possibility after they pulled onto the Quart land. He then stated that the first time was after the two had hunted across the property and had actually reached the area of the caretaker’s residence and family house. His third version, on cross-examination, was that the first discussion occurred immediately after they drove by the caretaker’s residence and saw no indication that anyone was home.

2 According to Grant, after he and Ken were unable to find the pickup keys in the caretaker’s residence, Ken was the one who searched Wissmiller’s body, taking his keys and his wallet. Grant said that he was the one who covered Wissmiller’s body with a blanket.

3 On cross-examination, Grant recalled an event which he had omitted on direct examination — that Ken was the one who ripped the phone out of the wall of the caretaker’s residence.

4 Ken acknowledged that he made the confession.

5 Ken testified that his father told him that with Ken’s good record and his father’s testimony of how the shooting was accidental, Ken would at most be sentenced to a year or two in prison.

Evidence corroborating Ken’s story was kept from the jury. Most exculpatory was a letter written to Ken from his father after Ken was arrested. The letter stated:

Dear Ken. I got both of your letters. I think you must have the wrong idea of what is happening. The first thing, you were not going to make bond. For they were going to charge you with six more B and e’s, Alcona County. You was [sic] going to get a lot of time, believe me. I tried through God to salvage three lives, not just one. Yours, mine, and your grandfather’s. [Grant Goddard, Jr.’s, father, Grant, Sr., was living with his son at the time of Wissmiller’s death. Prior to the trial, Grant, Sr., left Michigan and was reportedly in Arizona. The testimony of both Grant, Jr., and Ken implicated Grant, Sr., in nothing more serious than aiding Grant, Jr., in getting rid of items stolen from the Quart property.] This slaying was a tragic accident. Your charge, thanks to a new Supreme Court ruling, just three days prior to your arrest, will result in a reduced charge of manslaughter. There is no way you will [get] one or two. Sit down and use your head and quit feeling sorry for yourself. If you don’t think enough of me and your grandfather, then I indeed feel sorry for you. Now after you read this letter and still feel I don’t love you, then I will do as you wish and not write again. It is up to you, my son, for I haven’t changed in the way I feel about you. God bless and comfort and direct you. Love always, Dad.

6 At least some of Grant’s federal charges related to unlawful firearm possession.

7 Although the prosecution argued that Koski’s testimony should be admitted to show only intent, and although the trial judge repeatedly instructed the prosecutor that he could only use Koski’s testimony for the limited purpose of showing intent, the prosecutor’s use of the testimony indicates that he intended the jury to infer, from Koski’s testimony, that Ken was a generally bad person. In his closing, for example, the prosecutor referred to Koski’s testimony that Ken had shot several times at a television set during the breaking and entering at the Silver Wolf Lodge. On the basis of this act, the prosecutor explicitly asked the jury to infer that Ken was a man of bad and violent nature who would readily have shot Wissmiller. This usage of Koski’s testimony was improper, directly contrary to the judge’s strict instructions, and indicative of the prosecutor’s true purpose in introducing the evidence.

8 Koski testified that he and Ken Goddard broke into the Silver Wolf Lodge, an unidentified building near the Silver Wolf Lodge, the Hawthorne Lodge, the Alpena County Lodge, and the Ten Buck Club.

9 MRE 401 and 403.

10 Showing that a defendant had committed the same sort of crime with which he is presently charged, e.g., a breaking and entering, is in itself an insufficient similarity. If sufficient, all prior crimes of the same classification as the pending charge would be admitted. The exception would swallow the general rule that evidence of prior bad acts is inadmissible. See People v Schweitzer, 23 Mich 301, 304-305 (1871), People v Lapidus, 167 Mich 53, 57; 132 NW 470 (1911), People v Pinkerton, 79 Mich 110, 113; 44 NW 180 (1889), People v Minney, 155 Mich 534, 537-538; 119 NW 918 (1909), People v Seaman, 107 Mich 348, 357; 65 NW 203 (1895), and Lightfoot v People, 16 Mich 507, 510-511 (1868).

11 Assuming Grant’s version of events.

12 We do not address the issue whether, when using prior bad acts to show a similarity other than identity, the prosecution need not make a strong showing of similarity. We note that here there is no similarity sufficient to warrant admission.

13 Plaintiff-Appellee’s Brief on Appeal, p 9. See, generally, pp 6-9.

14 Because the statement was made by a party opponent, it is not subject to the hearsay rule. MRE 801(d)(2).

15 The prosecutor also argues, almost as an aside, that the February 15 breakings and enterings are relevant in that because Koski testified that Ken carried a gun on at least some of the breakings and enterings that night, that fact indicates that Ken was prepared to use the gun. Hence, the prosecutor would have us infer Ken was ready and willing to use a gun against Wissmiller. We find this link too attenuated to outweigh the probable prejudicial effects of Koski’s testimony.

16 The father’s testimony that he had engaged in prior breakings and enterings with Ken, and a deputy’s testimony that Ken possessed a vehicle believed to be stolen, were objected to and the objections were sustained, and at least in the latter instance the testimony was stricken from the record.

17 The jurors were informed of Grant, Jr.’s, prior criminal history when they learned of the circumstances of his plea bargain.

18 An analogy to the Hillmon doctrine is instructive. The Hillmon doctrine is part of the state-of-mind exception to the hearsay rule, and provides that statements of future intent may be used to show the state of mind of the statement’s maker at the time he made them. The statements may not be used to show the maker did in fact do what he said he intended to do, but only to show his state of mind at the time he made the statements. The trier of fact, weighing the circumstances surrounding the making of the statements, reaches its own conclusion as to whether in fact the maker’s state of mind at the time he made the statements is probative in determining whether he actually did the alleged act. See Mutual Life Ins Co v Hillmon, 145 US 285, 295; 12 S Ct 909; 36 L Ed 706 (1892); 4 Weinstein, Evidence, ¶ 803(3)[04].

19 Particularly since the jury could not be told the total context in which it was made — to do so would reveal that Ken and Koski were engaged in breaking and entering into the Silver Wolf Lodge.

20 The record indicates that Grant Goddard, Jr., testified that he and Ken, in a conversation held several weeks before Wissmiller’s death, discussed what they would do if they ever found themselves in a "tight situation.” Grant Goddard, Jr., testified that he and Ken agreed that "if we ever got caught we felt like we would fight our way out of it.” This testimony is much less prejudicial to Ken because it affects father and son equally. The jury was faced with the choice of deciding that either the father or the son killed George Wissmiller. The father’s testimony, referred to above, affects both father and son; Ken’s statement as testified to by Koski prejudices just Ken.

21 MCL 767.40; MSA 28.980; People v Lytal, 415 Mich 603, 610; 329 NW2d 738 (1982).

22 If the prosecutor finds himself in a situation where he feels he must call a particular witness, yet part of that witness’ testimony will call into question issues that the defendant has not himself called into question, the solution is to redact those portions of the testimony which create the conflict.