EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, December 19, 2012

O Brother: Court of Appeals of Michigan Finds No Error With Character Evidence Ruling in Murder Case

Michigan Rule of Evidence 404(a)(2) provides that

When self-defense is an issue in a charge of homicide, evidence of a trait of character for aggression of the alleged victim of the crime offered by an accused, or evidence offered by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a charge of homicide to rebut evidence that the alleged victim was the first aggressor [is admissible].

That said, Michigan Rule of Evidence 405(a) provides that

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into reports of relevant specific instances of conduct.

So, where did these two rules leave the defendant in People v. Harvey, 2012 WL 6177090 (Mich.App. 2012)?

In Harvey, Michael Harvey was charged with open murder in the shooting death of his brother.

At trial, several of defendant's family members, as well as his longtime girlfriend, testified against him at trial. These witnesses indicated that the victim began arguing with defendant when defendant's girlfriend accidentally walked through trash that the victim had recently swept into a pile on the living room floor. The family witnesses claimed that defendant entered his sister's room and lay down on her bed. Meanwhile, the victim was standing a couple of feet outside of the sister's room. The sister testified that defendant and the victim argued for approximately five minutes until the victim told defendant to "squash it," which the sister interpreted to mean "forget about it." The sister said that defendant then stood up, drew his revolver from beneath his shirt, pointed it at the victim, asked the victim "you think I'm a punk ass bitch?" and fired the gun at the victim. The sister testified that the victim then charged at defendant, and while they wrestled for the gun on the bed, defendant continued firing at the victim until all six shots were emptied from the revolver. The family witnesses testified that they heard several gunshots and that immediately after the shooting, defendant emerged from the bedroom and stated that he "got" the victim. 

In response to this evidence against him, Harvey sought to present evidence concerning his brother's character for violence. The trial court allowed Harvey to introduce evidence relating to the brother's reputation violence and opinion evidence concerning his character for violence, but the court precluded him from presenting evidence of specific prior acts of violence by the brother.

After he was convicted, Harvey appealed, claiming, inter alia, that this evidentiary ruling was erroneous. The Court of Appeals of Michigan disagreed, noting that only the reputation and opinion evidence was admissible under Michigan Rule of Evidence 405(a). The court did acknowledge that specific act evidence would have been admissible if Harvey had knowledge of his brother's prior violent acts (to prove reasonable apprehension). But because Harvey lacked knowledge of those acts, the appellate court found that the trial court properly precluded him from presenting evidence of the acts.



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Sounds right, doesn't it? Anyway, nice people. Possible candidate for law school given the drop in applications?

Posted by: Rick Underwood | Dec 19, 2012 4:23:50 PM

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