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People v. Wilder

Supreme Court of Michigan

June 15, 2018

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
DARRELL JOHN WILDER, Defendant-Appellant.

          Argued on application for leave to appeal January 11, 2018.

          Chief Justice: Stephen J. Markman Justices, Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Kurtis T. Wilder.

         Syllabus

         Darrell J. Wilder was tried before a jury in the Wayne Circuit Court on charges of carrying a concealed weapon, MCL 750.227; being a felon in possession of a firearm (felon-in-possession), MCL 750.224f; and possessing a firearm during the commission of a felony (felony-firearm), third offense, MCL 750.227b, after police officers saw defendant standing near a car in a vacant lot with what appeared to be the handle of a handgun sticking out of his pants pocket. The officers saw defendant move the object from his pocket into the trunk of the car, and when the officers opened the trunk, they found a handgun. At trial, defense counsel called defendant's wife, Tameachi Wilder, as a witness. On direct examination, Wilder testified that she had not seen defendant with a gun when he left the house on the date in question, that to her knowledge he did not own a gun, and that she did not have any weapons in the house. She was not asked about and did not offer any other information about defendant's history with guns. On cross-examination, the prosecutor did not question the witness about defendant's possession and ownership of weapons on the day of the crime but instead asked three times whether the witness knew defendant to carry guns. The witness responded "no" to each question. Over defendant's objection, the trial court, Qiana D. Lillard, J., then permitted the prosecutor to question the witness about defendant's prior weapons convictions. The jury found defendant guilty of both felon-in-possession and felony-firearm, but acquitted him of carrying a concealed weapon. Defendant was sentenced by Judge Lawrence S. Talon to five years' probation for the felon-in-possession charge and 10 years' imprisonment for the third-offense felony-firearm charge. The Court of Appeals, Borrello, P.J., and Markey and Riordan, JJ., affirmed in an unpublished per curiam opinion issued September 27, 2016 (Docket No. 327491), holding that the trial court had not erred by allowing the prosecution's questions. Defendant applied for leave to appeal in the Supreme Court, which ordered and heard oral argument on whether to grant the application or take other peremptory action. 500 Mich. 997 (2017).

         In an opinion by Justice Viviano, joined by Justices McCormack, Bernstein, and Clement, the Supreme Court, in lieu of granting leave to appeal, held:

The prosecutor's attempt to impeach a defense witness with evidence of defendant's prior convictions violated several basic tenets of the rules of evidence. Therefore, the portion of the Court of Appeals judgment holding that it was not error to have allowed the cross-examination of that witness concerning her knowledge of defendant's weapons-carrying proclivities and his prior weapons convictions was reversed and the case was remanded to the Court of Appeals to consider whether the error was harmless.

         1. The prosecutor's attempt to impeach a defense witness with evidence of defendant's prior convictions was not governed by MRE 609, which applies when a party seeks to impeach a witness's general credibility with evidence that the witness himself or herself has committed a crime. The evidence also was not governed by MRE 608, because it was not opinion or reputation evidence concerning the witness's character for untruthfulness and it did not concern specific instances of the conduct of the witness.

         2. MRE 404(b)(1) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith, but it may be admissible for other purposes. Generally speaking, impeachment by contradiction can be a proper purpose for the admission of other-acts evidence. Impeachment of this kind usually occurs when a prosecutor seeks to cross-examine a defendant about prior convictions in order to impeach a defendant's blanket denial on direct examination of ever engaging in conduct similar to the charged conduct. In this case, the prosecutor's initial questions were not logically relevant to a proper purpose under MRE 404(b) because they were not designed to elicit an answer contradicting any statements made by the witness on direct examination. As it pertained to weapons, the witness's direct testimony was limited to whether defendant owned a gun or possessed one on the date in question. This testimony would not have been contradicted even if the witness had acknowledged knowing that defendant generally carried weapons. Therefore, although the prosecutor articulated a proper purpose under MRE 404(b)-impeachment by contradiction-the prosecutor did not establish that the questions asked were logically relevant to impeachment.

         3. Absent a proper purpose, evidence of defendant's other acts was inadmissible under MRE 404(a) unless defendant opened the door by introducing evidence of his good character, which he did not do. The prosecutor's tactic of shifting the focus from the pertinent facts to which the witness testified on direct examination to a broader inquiry about defendant's general weapons proclivities was an impermissible attempt by the prosecutor to open the subject of defendant's character. When a defendant has not offered character evidence, a prosecutor's attempt to elicit character evidence regarding the defendant on cross-examination of another witness is not permitted by MRE 404(a)(1). Although the prosecutor maintained that her second set of questions regarding defendant's prior firearm convictions was appropriate to impeach the witness's response to the first set of improper questions, a party cannot seek to elicit inadmissible character evidence on cross-examination when the opposing party has not opened the door and then claim the right to impeach the elicited denial as a subterfuge to elicit even more inadmissible character evidence. Any other conclusion would eviscerate MRE 404.

         Court of Appeals judgment reversed in part; case remanded to the Court of Appeals for further proceedings.

         Justice Zahra, joined by Chief Justice Markman and Justice Wilder, dissenting, disagreed with the majority's interpretation and application of MRE 404(b), which he stated unduly restricted the discretion of the trial judge. He would have held that the testimony that the witness did not know defendant to carry firearms did not implicate MRE 404(b) because it constituted not other-acts evidence but rather evidence of defendant not performing an act, that defendant's prior convictions were admissible for the noncharacter purpose of impeachment under MRE 404(b), and that the prosecutor's questions about the witness's knowledge of defendant served a valid nonpropensity purpose considering the totality of the circumstances, namely, to rebut the inference that the witness was a credible source of information about defendant.

         BEFORE THE ENTIRE BENCH

          OPINION

          Viviano, J.

         This case presents the issue of how and when it is appropriate to impeach by contradiction using other-acts evidence. Because the prosecutor's tactics and questions violated several basic tenets of our rules of evidence, we reverse that part of the Court of Appeals' judgment holding that the cross-examination of defense witness Tameachi Wilder concerning whether she knew of defendant to carry guns and her knowledge of defendant's prior weapons convictions was not error, and we remand this case to the Court of Appeals to consider whether the error was harmless.

         I. FACTS AND PROCEDURAL HISTORY

         During defendant's trial on charges of carrying a concealed weapon, MCL 750.227; being a felon in possession of a firearm (felon-in-possession), MCL 750.224f; and possessing a firearm during the commission of a felony (felony-firearm), MCL 750.227b, he called his wife, Tameachi Wilder, as a witness. On direct examination, the witness testified that she did not see defendant with a gun when he left the house on the date in question, that to her knowledge he did not own a gun, and that she did not have any weapons in the house. She was not asked about and did not offer any other information about defendant's history with guns.

         On cross-examination, the prosecutor did not question the witness about defendant's possession and ownership of weapons on the day of the crime but instead asked three times whether the witness knew of defendant to carry guns. The witness responded "no" to each question.[1] Over defendant's objection, the trial court-which mischaracterized both the evidence on direct examination and the witness (referring to her as a character witness rather than a fact witness)-then permitted the prosecutor to question the witness about defendant's prior weapons convictions.[2] At the conclusion of trial, the jury found defendant guilty of both felon-in-possession and felony-firearm, but acquitted him of carrying a concealed weapon. The Court of Appeals affirmed defendant's convictions, concluding, among other things, that the trial court had not erred by allowing the prosecutor's questions.[3] After defendant sought leave to appeal in our Court, we ordered oral argument on the application, directing the parties to address, among other things, whether the prosecutor's cross-examination of the witness was proper.[4]

         II. STANDARD OF REVIEW

         "A trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion. Preliminary questions of law, including whether a rule of evidence precludes the admission of evidence, are reviewed de novo." People v Burns, 494 Mich. 104, 110; 832 N.W.2d 738 (2013) (citation omitted).

         III. ANALYSIS

         The prosecutor sought to impeach a defense witness with evidence of defendant's prior convictions. This tactic was unusual, to put it mildly. In a more typical situation, a party seeks to impeach a witness's general credibility with evidence that the witness himself or herself has committed a crime, and the admissibility of such evidence is governed by MRE 609.[5] That is not the situation here.[6] The evidence also does not fit under MRE 608, because it is not opinion or reputation evidence concerning the witness's character for untruthfulness and it does not concern specific instances of the conduct of the witness.[7] Therefore, neither of those rules is applicable. That leaves MRE 404 as the rule governing the admission of evidence of defendant's prior acts and convictions. However, for the reasons below, it is abundantly clear that this evidence is also not admissible under Rule 404.

         MRE 404(b)(1) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes . . . ."[8] Generally speaking, impeachment by contradiction can be a proper purpose for the admission of other-acts evidence. See United States v Copelin, 302 U.S. App DC 113, 116; 996 F.2d 379 (1993) ("Although it is not one of the listed permissible purposes, an attempt to impeach through contradiction a defendant acting as a witness is indisputably a legitimate reason to introduce evidence of other crimes or wrongs."), overruled on other grounds by United States v Rhodes, 314 U.S. App DC 117 (1995); see also People v Taylor, 422 Mich. 407, 414-415; 373 N.W.2d 579 (1985).[9] Impeachment of this kind usually occurs when a prosecutor seeks to cross-examine a defendant about prior convictions in order to impeach a defendant's blanket denial on direct examination of ever engaging in conduct similar to the charged conduct. See, e.g., United States v Gilmore, 553 F.3d 266, 271-272 (CA 3, 2009) (and cases cited).

         In this case, the prosecutor's initial questions were not logically relevant[10] to a proper purpose under MRE 404(b) because they were not designed to elicit an answer contradicting any statements made by the witness on direct examination. See People v Denson, 500 Mich. 385, 402; 902 N.W.2d 306 (2017).[11] As it pertained to weapons, the witness's direct testimony was limited to whether defendant owned a gun or possessed one on the date in question. This testimony would not have been contradicted even if the witness had acknowledged "know[ing] of" defendant to more generally carry weapons.[12]Thus, although the prosecutor articulated a proper purpose under MRE 404(b)- impeachment by contradiction-the prosecutor did not establish that the questions asked were logically relevant to impeachment.[13] The prosecutor's broad and repeated questions about defendant's weapons-carrying proclivities were simply an attempt to elicit propensity evidence.[14]

         Absent a proper purpose, evidence of defendant's other acts was inadmissible under MRE 404(a) unless defendant opened the door by introducing evidence of his good character. See MRE 404(a)(1) (prohibiting the prosecution from offering character evidence of an accused to prove action in conformity therewith on a particular occasion, except on rebuttal if the accused has first offered evidence of his or her good character). Defendant in this case, however, never opened the door by eliciting testimony as to his good character from the defense witness on direct examination. The prosecutor's tactic-i.e., shifting the focus from the pertinent facts to which the witness testified on direct examination to a broader inquiry about defendant's general weapons proclivities- was an impermissible attempt by the prosecutor to open the subject of defendant's character.[15] Where, as here, the defendant does not offer character evidence, a prosecutor's attempt to elicit character evidence regarding the defendant on cross-examination of another witness is not permitted by MRE 404(a)(1).[16]

         Despite the analysis above, the prosecutor maintains that her second set of questions regarding defendant's prior firearm convictions was appropriate to impeach the witness's response to the first set of improper questions. However, it should almost go without saying that a party cannot seek to elicit inadmissible character evidence on cross-examination when the opposing party has not opened the door and then claim the right to impeach the elicited denial as a subterfuge to elicit even more inadmissible character evidence. See generally People v Stanaway, 446 Mich. 643, 693; 521 N.W.2d 557 (1994) ("[A] prosecutor may not use an elicited denial as a springboard for introducing [otherwise inadmissible] substantive evidence under the guise of rebutting the denial.") (citation omitted). See also Jones v Southern Pac R, 962 F.2d 447, 450 (CA 5, 1992) ("[A] party cannot delve into collateral matters on its own initiative and then claim a right to impeach that testimony with contradictory evidence. This would be a mere subterfuge to get before the jury evidence not otherwise admissible.") (quotation marks and citations omitted).[17] Any other conclusion would eviscerate Rule 404.[18]

         IV. CONCLUSION

         For the above reasons, we reverse that part of the Court of Appeals' judgment holding that the cross-examination of defense witness Tameachi Wilder concerning whether she knew of defendant to carry guns and her knowledge of the defendant's prior weapons convictions was not error, and remand this case to the Court of Appeals to consider whether the error was harmless.[19]

          Zahra, J. (dissenting).

         The Court concludes that the prosecutor's use of defendant's convictions for possessing a firearm during the commission of a felony (felony-firearm) to impeach a defense witness's prior testimony on cross-examination was improper under Michigan Rule of Evidence 404(b). As more fully explained below, I disagree with the majority's interpretation and application of Rule 404(b).[1] While the manner in which defendant's prior convictions were used in this case was undoubtedly atypical, novelty alone is no reason to misconstrue the plain language of the rules of evidence. In my view, the Court, with the benefit of hindsight and far removed from the heat of trial, has unduly restricted the discretion of the trial judge with regard to the admission of evidence. Accordingly, I dissent.

         I. FACTS AND PROCEEDINGS

         Defendant Darrell J. Wilder was charged with carrying a concealed weapon, being a felon in possession of a firearm (felon-in-possession), and felony-firearm after two Detroit police officers saw defendant pull a hand-held firearm with his right hand from his right pants pocket and place it in the trunk of a vehicle located in a vacant lot. One of the officers testified that defendant was wearing "corduroy or pants similar" to corduroy on the night in question.

         During trial, defendant called several witnesses, one of whom was his wife, Tameachi Wilder. This witness testified that she and defendant had been married for nine years and, although there were occasions during their marriage when they had been separated, the two of them were living together on May 16, 2014, the date of the offense. She also testified that, to her knowledge, defendant did not wear or even own corduroys, and that he is left-handed. When asked how she knew that defendant was left-handed, she responded, "[b]ecause I've been with him for sixteen years."

         According to the witness, she was with defendant on the afternoon in question when he received a call from his brother, Carlos Wilder. The witness testified that defendant left with Carlos and that she did not know where they were going. The following exchange then took place between defense counsel and the witness on direct examination:

Q. Okay. And when you see your husband leave the house did you see him with a gun?
A. No.
Q. To your knowledge, do [sic] he own a gun?
A. No.
Q. Do you have any weapons in your house?
A. No.

         During cross-examination, the prosecutor asked the witness the following questions:

Q. Now you were asked whether or not Mr. Wilder had a weapon with him on that day?
A. Yes.
Q. Okay. You don't know where he went? You didn't see where he went after he left your apartment on the eastside of Detroit, did you?
A. No.
Q. Do you know of Mr. Wilder to carry weapons?
A. No.
Q. Do you know of him to carry guns?
A. No.
Q. You've been with him for nine years and you don't know of him to carry guns?
A. No.

         At this point, the prosecutor asked to approach the bench and the jury was excused. Outside the presence of the jury, the following discussion occurred:

[The Prosecutor]: Your Honor, Mrs. Wilder testified that she's known him for sixteen years and has been married to him for nine years and now is testifying that she did not know him to carry a weapon. He has a Felony[-]Firearm conviction on August of 2010, another Felony-Firearm conviction on June of 2007, and I think that it is relevant and I think that I should be able to ask her about those convictions.
[Defense Counsel]: Your Honor, the Prosecutor is simply trying to back-door and get in convictions that she knows that she can't get in, and the fact that Mr. Wilder had been convicted, these aren't crimes involving theft, dishonesty or false statements, and then it presumes that Ms. Wilder knows something. Again, she says they've had an on and off again relationship. I don't think it's relevant and it's simply a way of them trying to back-door and get in convictions that they know aren't relevant.
[The Court]: Well I'm going to allow and that's what happens when you put witnesses on the stand and open the door. I mean she got on the stand, and you asked her on direct examination if she's ever seen with a gun [sic], if there were any guns in the house, if he owned any weapons and if he had a gun that day, so that doesn't mean that once on cross-examination, and you talked about the length of their relationship. That doesn't mean that on cross-examination that she can't challenge that, challenge the voracity [sic] of him. In essence she becomes like a character witness and so I believe you've opened the door and I'm going to allow it. Your objection is overruled. Your objection is preserved for the record.

         During further cross-examination, the prosecutor then asked the following questions:

Q. Ms. Wilder, you were with him in 2007, correct?
A. Yes.
Q. And you know that he was convicted of carrying a weapon back then, correct?
A. Yes.
Q. So you knew that he carried weapons, right?
A. No. I didn't know but he was convicted.
Q. Okay. You didn't know that he-you didn't see a weapon in your house?
A. No.
Q. Do you know the circumstances behind that?
A. No.

         Regarding defendant's second felony-firearm conviction, the ...


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