Summary
In People v McDaniel, 99 Mich. App. 582; 297 N.W.2d 724 (1980), the defendant argued that the trial court abused its discretion in permitting the jury to view a videotape of the defendant selling an automobile to undercover agents.
Summary of this case from People v. FurmanOpinion
Docket No. 44734.
Decided August 25, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert E. Weiss, Prosecuting Attorney, Donald A. Kuebler, Chief, Appellate Division, and Edwin R. Brown, Assistant Prosecuting Attorney, for the people.
Peter C. Payette, P.C., for defendant on appeal.
Defendant was charged with taking possession and driving away a motor vehicle, contrary to MCL 750.413; MSA 28.645, and receiving or concealing stolen property of value in excess of $100, contrary to MCL 750.535; MSA 28.803. He was convicted of the former charge by a jury and sentenced to not less than 40 months nor more than 60 months in prison. Defendant now appeals as of right.
Defendant claims that the trial court committed an abuse of discretion by permitting the jury to view a videotape of defendant selling an automobile to an undercover storefront operation conducted by the United States Bureau of Alcohol, Tobacco, and Firearms. Defendant had objected to the admission of the tape in evidence because it included conversations mentioning other criminal transactions in which he might have been involved. The trial court admitted the tape without viewing it. Defendant says that since the trial court had not viewed the tape prior to ruling on its admission, it could not properly determine whether its contents were more probative than prejudicial.
The videotape of the defendant selling an automobile to the undercover storefront operation was very probative of defendant's guilt of the charged offenses. While this evidence was prejudicial in the sense that any direct evidence linking a defendant to a crime is prejudicial, no claim is made on appeal that any unfair prejudice actually resulted from the showing of the tape to the jury. Moreover, the videotape was a recording of part of the res gestae. As such, it was not rendered inadmissible by the fact that it might have tended to show that defendant had been involved in other criminal transactions.
People v Castillo, 82 Mich. App. 476, 479-480; 266 N.W.2d 460 (1978).
We find the trial court was not clearly erroneous in admitting the videotape in evidence.
Affirmed.
G.R. DENEWETH, J., concurred.
I dissent.
I don't question the fact that the videotape was "relevant evidence" within the meaning of the applicable rule of evidence. MRE 401. That is, the evidence did have a tendency to make defendant's complicity in the charged offenses either more probable or less probable than it would have been without the evidence. However, not all relevant evidence is admissible at trial. MRE 402.
In accordance with the provisions of MRE 403:
"Although relevant, 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."
Although this rule of evidence did not take effect until March 1, 1978, it is consistent with prior Michigan law on this point. See, People v DerMartzex, 390 Mich. 410, 415; 213 N.W.2d 97 (1973).
Defendant argued against the admission of the videotape into evidence on several grounds. He contended that the probative value of the tape was greatly outweighed by the prejudicial harm that it would create towards him, that it implicated him in other crimes that were irrelevant at his present trial, and that the evidence in it was merely cumulative and, thereby, not essential to the prosecutor's case. Notwithstanding the prima facie validity of defendant's argument that the videotape should have been excluded at trial, and the lower court's admission that the tape probably was prejudicial to defendant, the lower court held it to be admissible apparently for the reason that defendant waived the issue of its admissibility by not raising it in a pre-trial Walker hearing;
People v Walker (On Rehearing), 374 Mich. 331; 132 N.W.2d 87 (1965).
"No, I think I am going to allow it in. I think it should be brought up at the Walker hearing. This is the way I interpret that. That is the reason I granted the Walker hearing at that time. * * * And, whatever the jury can have in a way of facts to make common sense — without greatly exciting the conscience of an individual, I think — and I, as long as I am a Circuit Judge, the jury is going to have the necessary tools to decide the facts of the case."
Although the admission into evidence at criminal trials of photographs, which are analogous to videotapes, is within the sound discretion of the trial judge, People v Nard, 78 Mich. App. 365; 260 N.W.2d 98 (1977), People v Ernest Green, 74 Mich. App. 351; 253 N.W.2d 763 (1977), I fail to see how a judge can properly exercise his discretion in this matter without viewing the evidence sought to be admitted. Much less can I understand how this Court can hold the videotape admissible because, like the trial judge, we did not view it to determine its probative value relative to its prejudicial effect. Further, to the extent that the majority affirms defendant's conviction because "no claim is made on appeal that any unfair prejudice actually resulted from the showing of the tape to the jury", I believe that the majority has misstated the test for admissibility under MRE 403. In view of this, I cannot concur in the conclusion of the majority that the trial judge did not clearly err in admitting the videotape into evidence.