In People v. Johnson, No. 317206, the Michigan Court of Appeals held that if it intends to introduce other acts evidence under MRE 404(b)(1), the prosecution must provide notice in writing or orally in open court. A jury convicted the defendant of second-degree home invasion, MCL 750.110a(3). At trial, a witness testified about a similar burglary that had been linked to the defendant. On appeal, the defendant argued that the witness’s testimony was inadmissible other-acts evidence under MRE 404(b)(1) and MRE 404(b)(2).
The Court of Appeals held that the witness’s testimony was admissible under 404(b)(1) because it showed a common scheme or plan, and the danger of unfair prejudice did not substantially outweigh the evidence’s probative value under MRE 403. The first home invasion was similar to the second because the way they were carried out and the location of the recovered stolen goods were nearly the same.
The prosecution, however, failed to give the defendant written notice of its intent to include other acts evidence as required by MRE 404(b)(2), or seek an exception on good cause shown. The court rejected the prosecution’s argument that the text of the rule did not require the notice to be in writing, and if a question as to whether oral notice was provided arose, the trial court should hold a hearing on the issue. Instead, the notice must be provided in writing or orally in open court. The court held, therefore, that if the record does not reflect that the notice was given, the trial court should exclude the other acts evidence if the prosecution does not show good cause for failing to provide it. The court, however, held that failure to provide notice in this case was harmless because of the other evidence against the defendant. The court also rejected various challenges to the defendant’s sentence, including the trial court’s alleged failure to consider mitigating factors and ineffective assistance of counsel.
