Michigan Court of Appeals Holds MRE 404(b) Notice Must Be In The Record

On January 15th, 2015, the Michigan Court of Appeals held in a criminal case that Michigan Rule of Evidence (MRE) 404(b)(2) requires that the prosecution must make its notice a part of the record when it intends to offer other acts evidence at trial.

In People v Johnson, Docket No. 317206, the Michigan Court of Appeals addressed the issue of whether the prosecution in a criminal case must make its notice under MRE 404(b)(2) a part of the record, either in writing or orally in open court.  

On appeal, the prosecution argued that MRE 404(b)(2) did not require such notice. The Court of Appeals disagreed.

The Court first recited the facts of the case:

The home of Nicholas Simon and Serena Norris was broken into on April 18, 2012. The perpetrator gained access to the home by kicking in two different doors, as evidenced by the broken frames and a boot mark impression left on one of the doors. Among the items stolen from the home were a 52-inch, flat-screen television and several pieces of jewelry, including an heirloom ring with a cross on it and a class ring. Investigation eventually led police to Jackie Sturgis, who admitted to the home invasion and implicated defendant.

At trial, Sturgis testified that she helped defendant commit the home invasion. She stated that she drove defendant to the home and saw him go around the back. Through a window she viewed defendant inside the house and then witnessed him exit the home with various items, including a large television. She thereafter drove defendant to his brother’s home, where defendant lived, and helped defendant unload some of the stolen items into the garage. She then accompanied defendant to Grand Rapids, where defendant sold the television. She also, per defendant’s instructions, sold the ring with a cross on it and gave defendant the proceeds.

Chet Wood, who was incarcerated with defendant while awaiting trial, testified that he and defendant spoke about the charged home invasion. Wood testified at trial that he asked defendant “bottom line, did you do it?” Defendant responded “yeah, but I can’t tell them that.” Wood also recounted a discussion with defendant in which defendant told him that “between sellin’ heroin and breakin’ into houses, he was gettin’ about 600 bucks a day.” He also testified that Defendant told him that he had female accomplices—including “some Jackie girl”—and that some of them were going to testify against him.
Another witness testified that on defendant’s request he pawned a class ring that was later determined to have come from the burglarized home and gave defendant the proceeds.

The prosecution also introduced testimony from Rory Bancroft who gave testimony regarding a separate burglary, linked to the defendant that bore characteristics similar to those of the charged offense. She testified that the person who broke into her home had gained access by breaking in the front door and that she had observed a large footprint on the door. At trial, the prosecution showed Bancroft several items found in defendant’s brother’s garage, which she identified as having been stolen in the break-in of her home.

The Court's analysis of whether the prosecution introduced inadmissible evidence at trial followed. The Court referenced the seminal case of Vandervliet throughout its opinion.

A review of the record confirms that the prosecution failed to adhere to this notice provision. See Hawkins, 245 Mich App at 453. No written notice of the intent to introduce other acts evidence is contained in the record1 and the prosecution has not referred us to any proceeding in which oral notice was provided. The record also makes clear that the prosecution did not seek an exception from this requirement on good cause shown.

We reject the prosecution’s argument that MRE 404(b)(2) should not be applied as written. The language of the rule is both unequivocal and mandatory given its use of the word “shall,” i.e., “the prosecution in a criminal case shall provide reasonable notice in advance of trial . . . of the general nature of any such evidence it intends to introduce at trial[.]” It is well- settled that “use of the word ‘shall’ indicates that . . . [the directed action] is mandatory and imperative.” Scarsella v Pollak, 461 Mich 547, 549; 607 NW2d 711 (2000) (citations omitted). Our Supreme Court recently reemphasized this principle:

Where a statute provides that a public officer “shall” do something within a specified period of time and that time period is provided to safeguard someone’s rights or the public interest, as does the statute here, it is mandatory, and the public officer is prohibited from proceeding as if he or she had complied with the statutory notice period. [In re Bail Bond Forfeiture, 496 Mich 320, 339; 852 NW2d 747 (2014) (emphasis added).]

Given the statutory language, we must therefore conclude that the prosecution was “prohibited from proceeding” with introduction of the other acts evidence given its failure to provide the mandatory notice as required by MRE 404(b)(2) or otherwise show good cause during trial for failing to provide the requisite notice. Id. at 339.

The prosecution argues that MRE 404(b)(2) does not mandate that notice be in writing. We agree as the plain text of the rule does not include such a requirement. However, we reject any suggestion that if there is a question whether oral notice was provided, the trial court must hold a hearing and determine whether such oral communication occurred and whether its content satisfied the notice requirement. Such a mechanism would be highly inefficient and unnecessarily place the court in the position of taking testimony from participating counsel as to their recollection of oral communications. It is far simpler, and more consistent with VanderVliet to require that the mandated notice be provided either in writing or orally in open court so that both parties and the trial judge, will know as a matter of record whether and what notice was in fact provided. Accordingly, we hold that where the record does not demonstrate compliance by the prosecution with the mandatory notice requirement of MRE 404(b)(2), upon objection by the defense, the trial court shall exclude such evidence absent a showing of “good cause” for the failure to provide such notice. As such, the prosecution’s failure to give notice in accordance with MRE 404(b)(2) was plain error. Hawkins, 245 Mich App at 453 (“failure to give notice [of prior bad acts evidence] is plain error because the court rule unambiguously requires notice to the defense at some time before the prosecutor introduces [it].).”