COA Grants Prosecution Interlocutory 404(b) Application

In this interlocutory application for leave, the Michigan Court of Appeals yesterday published it's previously unpublished opinion in People v Calvin Kelly, Docket No. 331731, reversing the Kalamazoo Circuit Court's decision to exclude evidence offered by the prosecution pursuant to MRE 404(b).

Kelly is charged with kidnapping, three (3) counts of first degree CSC and assault with intent to commit CSC.  The allegations arise from an incident in 2008.  Kelly has readily admitted to having sexual intercourse with the complainant (the prosecution possesses favorable DNA evidence), but asserts that the encounter was consensual because the complainant is a prostitute and is merely upset because Kelly did not pay her.

Kelly's DNA, however, has linked him to a total of five (5) CSC complaints, and he has admitted to having intercourse with three (3) others.  In each case, which span a timeframe from 1985 to 2010 and occurred in four (4) different states, Kelly told the same story - no assault occurred because of the women consented to sex as prostitutes.  The versions told by the women are all similar - Kelly drove them to a secluded area, threatened them with a knife or punched and choked them, and then forced them to have intercourse with him.  He did not use a condom and ejaculated, frequently leaving DNA evidence behind.  Kelly had not been charged in any of the other seven (7) cases, but the prosecution wished to present other complainant's testimony about the assaults.

Kelly's objection to the use of the MRE 404(b) centered on the fact that he had a viable defense to the allegations and he had not even been charged with them.  The prosecution argued that the other acts were relevant as they were offered for a proper purpose - "to establish defendant’s intent and to demonstrate a common scheme, plan or system in doing an act."  Kelly took the position that "relevancy means believability" and since he had not even been charged with the other crimes and that the women lacked credibility, his objection to the evidence should be sustained.

The trial court ruled in his favor, but apparently engaged in an improper analysis of the prosecution's offer of proof.  The trial court found the fact that Kelly had never been charged and that each of the cases was a swearing contest between the defendant and the complainants, the court could not take a "leap of faith" to conclude Kelly had actually been involved in a pattern of criminal activity.  The court held that "if defendant’s conduct in relation to the other acts was not criminal, then the other acts evidence would not be of any use in the present case."

The Court of Appeals, not surprisingly, found that the trial court had abused it's discretion in excluding the 404(b) evidence.  Primarily, the Court held that the trial court had not engaged in the proper 404(b) analysis as the Michigan Supreme Court had set forth in People v VanderVliet in 1994:

First, that the evidence be offered for a proper purpose under Rule 404(b); second, that it be relevant under Rule 402 as enforced through Rule 104(b); third, that the probative value of the evidence is not substantially outweighed by unfair prejudice; fourth, that the trial court may, upon request, provide a limiting instruction to the jury. [People v VanderVliet, 444 Mich 52, 55; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994).]

Here, the trial court had not even concluded that the evidence met the relevancy requirement before it went straight to the MRE 403 analysis and concluded that the unfair prejudice outweighed the probative value.  Therefore, the trial court abused its discretion and the Court of Appeals reversed the decision to exclude the evidence.  The Court retained jurisdiction, however, in remanding the case to the trial court with instructions to engage in the proper analysis and thereafter decide whether the evidence should be admitted.

Christopher Allen from the AG's office represented the People on appeal.  Kelly was represented by Anastase Markou from Kalamazoo.