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People v. Berry8/11/2005
UNPUBLISHED
Before: Cooper, P.J., and Fort Hood and R. S. Gribbs, JJ.
Defendant Stephen Maurice Berry appeals as of right from his jury trial conviction of possession of a firearm during the commission of a felony, MCL 750.227b, arising from the nonfatal shooting of Reginald Smith on July 17, 2003. Defendant was sentenced to serve a two-year prison term. We affirm.
Defendant first argues that the trial court erred in denying his motion for a mistrial after a police officer testified that he obtained defendant's picture from a database. We disagree. We review a trial court's decision to deny a motion for a mistrial for abuse of discretion. "A mistrial should be granted only for an irregularity that is prejudicial to the rights of the defendant and impairs his ability to get a fair trial." A trial court's decision to admit evidence is reviewed for an abuse of discretion.
During direct examination, the prosecutor asked a police officer how he became familiar with defendant's name. The officer responded as follows:
By interviewing the witnesses, some of the witnesses and some of the people from the neighborhood, then mentioned the name Stephen and a block where he used to live. Nobody knew a last name and, based on that information, I found a Stephen Berry, and then I developed-went through our database and we had pictures of a Stephen Berry and I put together a photo line-up because he fit the description, height, weight and age of the Stephen we were looking for who could have done the shooting.
Defendant immediately made a motion for mistrial. In denying defendant's motion, the trial court concluded that having one's picture in a database does not necessarily indicate that the person pictured has a prior conviction. The court opined that most people would not make such an assumption.
"It is well settled that evidence of a prior conviction may be prejudicial to the accused . . . ." However, the police have access to numerous databases and the officer did not indicate that the referenced database was criminal in nature. Further, the response was gratuitous and defendant did not show that the prosecutor knew in advance that the officer would make an arguably improper remark. Accordingly, defendant failed to demonstrate that the prosecutor acted in bad faith or that defendant was prejudiced by this testimony. The trial court properly denied the motion for mistrial.
Within this issue, defendant further argues that the prosecutor exacerbated the error by subsequently eliciting improper character evidence, over defendant's objection, that defendant's friend, Reginald Coleman, usually asked defendant whether he carried a gun. As defendant objected on relevancy grounds, rather than pursuant to MRE 404(b), our review is limited to plain error affecting defendant's substantial rights. Mr. Coleman testified that on the day of the shooting, a group of his friends, including defendant, picked him up. Knowing that they were heading into a fight, Mr. Coleman testified that he asked everyone if they had a gun. He further testified that it was "unusual" for him to ask his friends this question and indicated that defendant did not have a gun that day.
Evidence of other bad acts is inadmissible to prove an individual's propensity to act in conformity therewith. The testimony elicited, however, while implicitly indicating the defendant might carry a gun, taken in context is insufficient to establish a propensity. In fact, Mr. Coleman testified that defendant did not have a gun on the day of the shooting. Accordingly, defendant has not established that the admission of this evidence amounted to plain error affecting
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