Preview:

STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v DEREK JAMES NASH, Defendant-Appellee.

UNPUBLISHED May 12, 2005

No. 254862 Macomb Circuit Court LC No. 03-001349-FH

Before: Judges O'Connell, P.J., and Markey and Talbot, JJ. PER CURIAM. Defendant appeals as of right his jury conviction for involuntary manslaughter, MCL 750.321. Defendant was sentenced as a fourth habitual offender to eleven years and ten months' to forty years' imprisonment. We affirm. Defendant first argues that the trial court improperly excluded evidence of the victim's criminal history and prior acts of violence, denying him a fair trial. We disagree. This Court reviews a decision to admit other acts evidence under MRE 404(b) for an abuse of discretion. People v Crawford, 458 Mich 376, 383; 582 NW2d 785 (1998). An abuse of discretion exists only if an unprejudiced person considering the facts on which the trial court acted would say that there is no justification or excuse for the trial court's decision. People v Snider, 239 Mich App 393, 419; 608 NW2d 502 (2000). "A trial court's decision on a close evidentiary question cannot `by definition' be an abuse of discretion." People v Layher, 464 Mich 756, 761; 631 NW2d 281 (2001) (citation omitted). A preserved nonconstitutional evidentiary error will not merit reversal unless it involves a substantial right, and, on review of the entire cause, it affirmatively appears that it is more probable than not that the error was outcome-determinative. People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999). In defendant's motion for discovery, he requested that the court order the prosecutor to produce the criminal records of all witnesses that the prosecution was planning to call. At the motion proceeding, defense counsel argued that he wanted to introduce the facts underlying the victim's criminal history pursuant to MRE 404(b). MRE 404(b) states 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 the rule allows such evidence to be admitted for other, limited purposes. The trial court precluded production of the victim's criminal records unless defendant could introduce evidence that defendant was aware of reputation or character evidence -1-


of the victim's violent propensities. The trial court also precluded introduction of prior instances of the victim's violent behavior unless defendant was aware of the specific acts. At trial, defense counsel contended that the victim was an aggressive and violent drunk, and through direct examination of defendant and the victim's mother as well as cross examination of several prosecution witnesses, defense counsel managed to introduce evidence of the victim's previous aggressive and violent behavior and criminal history, despite the trial court's ruling on defendant's motion. Defense counsel attempted to use this evidence to argue that the victim also became aggressive and violent on the night in question. This is precisely the use of other acts evidence that MRE 404(b) prohibits. Defense counsel also attempted to introduce evidence of the victim's prior acts of violence to impeach prosecution witnesses; however, the prosecution never elicited any character evidence with regard to the victim's reputation for peacefulness. Therefore, there was no testimony to impeach with evidence of other bad acts. In any event, it is unnecessary to determine whether the trial court abused its discretion in excluding the other acts evidence because the exclusion of the evidence does not warrant a new trial because any resulting error was harmless. MCL 769.26; Lukity, supra, at 495. The victim's propensity for aggressiveness and violence is relevant only under a theory of self defense to show that defendant reasonably feared for his safety. Although defendant now claims on appeal that he argued alternative theories of self defense and accident at trial, a review of the record indicates that defendant expressly denied that he was defending himself when he struck the victim. The prosecutor cross-examined defendant about his self-defense story, but defense counsel objected, stating, "Judge, he never said his story was to defend himself. The prosecutor is mischaracterizing the evidence. He's never used the word `defend.'" Defendant testified numerous times, on both direct and cross examination, that he wrestled with the victim and may have hit him,1 not because he had to defend himself, but because the victim was "out of line." On cross examination, defendant testified as follows: Q. You were wrestling around because [the victim] was out of line; is that right? A. Yes, ma'am. Q. And because you didn't want him to have anymore to drink? A. Yes, ma'am. Q. Did you adopt [the victim] at some point, become his father? A. No, ma'am.

Defendant's testimony on whether he hit the victim is somewhat inconsistent in that defendant first said, "I may have hit him once or twice." Defendant later said, "I don't really know exactly where I hit him or if I hit him at all. I know I grabbed him."

1

-2-


Q. So when you

Download PEOPLE OF MI V DEREK JAMES NASH.pdf

Michigan Law