Opinion
No. 334014
07-20-2017
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. DMARCO HOSKINS, Defendant-Appellee.
UNPUBLISHED Wayne Circuit Court
LC No. 15-003811-01-FC Before: SERVITTO, P.J., and CAVANAGH and STEPHENS, JJ. PER CURIAM.
Defendant is charged with assault with intent to commit murder, MCL 750.83, intentional discharge of a firearm from a motor vehicle causing physical injury to another person, MCL 750.234a(1)(b), and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. In this interlocutory appeal, the prosecutor appeals by delayed leave granted an order and opinion granting defendant's motion to preclude the admission of hearsay statements of the victim, Brandon Rice, who is now deceased, pursuant to MRE 804(b)(6), and an order denying the prosecutor's motion to preclude defendant from mentioning his prior acquittals for other crimes. We reverse and remand for further proceedings consistent with this opinion.
People v Hoskins, unpublished order of the Court of Appeals, entered October 12, 2016 (Docket No. 334014).
The charges in the instant case arise from defendant's alleged shooting of Rice on March 31, 2015, at the intersection of Second Street and Webb Street in Detroit, Michigan. In addition to the present case, there have been two related criminal cases against defendant for other shootings; each of those cases resulted in defendant's acquittal. In Wayne Circuit Court file no. 15-004107-FC, defendant was charged with three counts of assault with intent to commit murder and one count of felony-firearm for the June 26, 2013, nonfatal shootings of three people affiliated with Rice, i.e., Rice's brother, Nassar Rice-Sanders; Rice's stepdaughter, Sequoia Bryant; and a family friend, Joslynn Flewellen. In that case, defendant and two codefendants, Jeffrey Sack and Rodney Knight, were acquitted in a jury trial that began on September 14, 2015. In Wayne Circuit Court file no. 15-006650-FC (the murder case or the murder trial), defendant and his codefendant, Nathan Stokes, Jr., were charged with first-degree premeditated murder, MCL 750.316(1)(a), conspiracy to commit first-degree premeditated murder, MCL 750.157a and MCL 750.316(1)(a), and witness intimidation, MCL 750.122, for the April 23, 2015, fatal shooting of Rice, which was allegedly done at defendant's direction after defendant went to North Carolina to establish an alibi. A jury trial was held in the murder case beginning on February 29, 2016, resulting in the acquittals of defendant and Stokes on all charges. Again, the present case, which has not yet been tried, concerns the nonfatal shooting of Rice that occurred in the late evening hours of March 31, 2015. According to the prosecutor, defendant and another person followed Rice as he drove his SUV and then shot him at the intersection of Second and Webb.
The parties, the witnesses, and the trial court refer to Sequoia as Rice's stepdaughter even though Rice was engaged but not married to Sequoia's mother.
The first issue in the instant appeal concerns whether hearsay statements made by Rice following the March 31, 2015, nonfatal shooting are admissible under the forfeiture by wrongdoing rule, MRE 804(b)(6), on the ground that defendant engaged in wrongdoing that procured Rice's unavailability, i.e., whether defendant had Rice killed and thereby made him unavailable to testify at trial in the instant case. We agree with the prosecutor that the trial court abused its discretion by excluding Rice's grand jury testimony and other statements, which are admissible under MRE 804(b)(6) because a preponderance of the evidence establishes that defendant intended to and did procure Rice's unavailability by having him killed.
"A trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion." People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013). An abuse of discretion occurs when the trial court's decision falls outside the range of reasonable and principled outcomes. People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008). "Preliminary questions of law, including whether a rule of evidence precludes the admission of evidence, are reviewed de novo." Burns, 494 Mich at 110. Preliminary factual questions regarding the admissibility of evidence are to be determined by the trial court. Id. at 117 n 39, citing MRE 104(a). In making such preliminary factual determinations, the trial court is not bound by the rules of evidence, except for those related to privileges. See MRE 104(a); MRE 1101(b)(1); People v Barrett, 480 Mich 125, 137; 747 NW2d 797 (2008). The trial court's findings of fact are reviewed for clear error. See Burns, 494 Mich at 119; People v Barrera, 451 Mich 261, 269; 547 NW2d 280 (1996). "A finding of fact is clearly erroneous if, after a review of the entire record, an appellate court is left with a definite and firm conviction that a mistake has been made." People v Gingrich, 307 Mich App 656, 661; 862 NW2d 432 (2014) (quotation marks and citation omitted).
" 'Hearsay' is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." MRE 801(c). Hearsay is inadmissible except as provided by the rules of evidence. MRE 802. The forfeiture by wrongdoing exception to the hearsay rule is set forth in MRE 804(b)(6), which provides that the following is not excluded by the hearsay rule if the declarant is unavailable: "A statement offered against a party that has engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness."
To admit evidence under MRE 804(b)(6), the prosecution must show by a preponderance of the evidence that: (1) the defendant engaged in or encouraged wrongdoing; (2) the wrongdoing was intended to procure the declarant's unavailability; and (3) the wrongdoing did procure the unavailability. [Burns, 494 Mich at 115, citing People v Jones, 270 Mich App 208, 217; 714 NW2d 362 (2006).]
"The forfeiture-by-wrongdoing rule is also an exception to defendant's constitutional right of confrontation." People v Roscoe, 303 Mich App 633, 640; 846 NW2d 402 (2014), citing Burns, 494 Mich at 111. "[F]orfeiture by wrongdoing has its roots in the common law, and is based on the maxim that 'no one should be permitted to take advantage of his wrong.' " Burns, 494 Mich at 111, citing Giles v California, 554 US 353, 359, 366; 128 S Ct 2678; 171 L Ed 2d 488 (2008). "Both the Sixth Amendment and the court rule incorporate a specific-intent requirement. Thus, for the forfeiture-by-wrongdoing rule to apply, the defendant must have specifically intended his wrongdoing to render the witness unavailable to testify." Roscoe, 303 Mich App at 640 (citation omitted), citing Burns, 494 Mich at 111, 113-114. See also Burns, 494 Mich at 113-114 ("As forfeiture by wrongdoing is the only recognized exception to the Sixth Amendment's guarantee of the right to cross-examine adverse witnesses, the constitutional question will often go hand-in-hand with the evidentiary question . . . ."); id. at 114 n 35 ("[E]vidence properly admitted under MRE 804(b)(6) will likely also not be barred by the constitutional requirement imposed by the Sixth Amendment.").
In this case, the prosecutor sought to admit the grand jury testimony and other hearsay statements of the victim, Rice, in which he identified defendant as the shooter in the March 31, 2015, nonfatal shooting incident. The prosecutor argued that defendant procured Rice's unavailability by having him killed on April 23, 2015. In the murder case, the trial court ruled that Rice's grand jury testimony and other hearsay statements were admissible under the forfeiture by wrongdoing exception. After the jury acquitted defendant in the murder trial, defendant filed a motion in this case to exclude Rice's testimony and statements on the basis of collateral estoppel. The trial court rejected defendant's collateral estoppel argument but nonetheless decided on its own to revisit its earlier determination. The trial court ultimately concluded that the forfeiture by wrongdoing exception did not apply because the witnesses in the murder trial either contradicted aspects of the prosecutor's earlier offer of proof or lacked credibility. Although this Court owes deference to the trial court's credibility determinations, Jones, 270 Mich App at 220, the trial court's reasoning is flawed because the court entirely overlooked compelling evidence from the murder trial establishing by a preponderance of the evidence that defendant intended to and did procure Rice's unavailability by having him killed.
There was significant evidence presented at the murder trial that defendant arranged to have Rice killed in order to prevent him from testifying against defendant regarding the March 31, 2015, nonfatal shooting incident. On March 31, 2015, Elijah Lately saw defendant and Stokes sitting in a car near Rice's house; defendant had a .44 caliber automatic handgun in his lap, and Stokes had a .45 caliber gun in his lap. Rice was shot later that night, and police found .44 and .45 caliber semiautomatic shell casings at the crime scene. Rice told family members and police, and testified before a grand jury, that defendant was the person who shot him. Lately, who was a Detroit police officer and a childhood friend of defendant, surreptitiously sent defendant a photograph of the police report regarding the nonfatal shooting and read to defendant over the phone the content of another police report that included Rice's identification of defendant as the shooter. After Lately read the police report to defendant, defendant said, "That boy gotta go," which Lately understood as a reference to Rice. Defendant's girlfriend, Bianca Morris, testified that defendant showed her a photograph of a police report that he had received by text message from Lately, that defendant said he had shot someone the night before, and that defendant said it was not safe for him to be in Michigan; defendant left the Detroit area for Charlotte, North Carolina. Although they differed on when it occurred, Lately and his friend, Shaunard Williams, both testified that defendant had driven by several months earlier asking Lately if he had seen "Old Boy," meaning Rice, and that defendant had a handgun in the car on that occasion. Sherrod Winston, who was the brother of Rice's fiancée, testified that he was walking on Woodward on April 1, 2015, when defendant and Silver drove up and asked Winston, "[W]hy yo [sic] man snitching[?]" Defendant was indicted in this case on April 3, 2015. Rice was fatally shot on April 23, 2015; defendant's fiancée, Carrie Bryant, and Carrie's adult daughter, Sequoia, were both eyewitnesses and testified that Stokes was the shooter. A police expert in firearm and tool mark analysis determined that seven .45 caliber spent casings recovered from the March 31, 2015, shooting scene were fired from the same handgun as five .45 caliber spent casings recovered from the April 23, 2015, homicide scene. An expert in cell phone and forensic data analysis determined that there were several calls close to the time of the homicide between a phone number associated with defendant and a cell phone that traveled from Pennsylvania to the area of the homicide and then back to Pennsylvania; the expert further concluded that Stokes was either using that cell phone or directing its use given the number of contacts with Stokes's family members on that date.
Despite this overwhelming evidence presented at the murder trial indicating that defendant engaged in wrongdoing that was intended to, and did, procure Rice's unavailability by having him killed, the trial court in this case reversed its earlier determination that the forfeiture by wrongdoing exception applied. The trial court stated that Williams's trial testimony indicated that the incident in which defendant and Stokes pulled up and asked Lately if he had seen "Old Boy" had occurred in August of 2014, which the trial court reasoned was too far removed from the events in this case to have probative value. The trial court discredited Williams's testimony because he had an armed robbery conviction and a pending federal firearm charge. The court noted that Winston testified at trial that he did not know what defendant meant when he asked Winston about "why yo' man [was] snitching." The court found incredible Winston's testimony that he did not know defendant had been on trial a few months earlier for the nonfatal shooting of Sequoia, Winston's niece. The court also suggested that Winston was biased against defendant because of an ongoing feud with defendant. The court noted Winston's admission that he sells drugs out of a laundromat and that he has a conviction for distributing marijuana. The trial court observed that Lately is a former corrupt police officer who entered a plea agreement requiring him to testify in this matter. Rice's credibility was deemed suspect given his ongoing dispute with defendant. The court noted Morris's testimony concerning the police report received by defendant and defendant's admission to having shot someone, but the court interpreted Morris's testimony as indicating that defendant went to North Carolina out of a concern for his own safety rather than as part of a plan to murder Rice. The court observed that Rice was a crack cocaine dealer and hypothesized that he may have been killed by an unhappy customer or a competitor in the crack cocaine business. Because of these credibility concerns, the court found the prosecutor's evidence inadequate to establish forfeiture by wrongdoing by a preponderance of the evidence.
While phrased in terms of credibility considerations, the trial court's analysis is logically flawed and incomplete. Although Winston testified that he did not know what defendant was talking about when defendant asked Winston why his "man" was "snitching," the trial court failed to address whether a reasonable inference nonetheless arises that this was in reference to Rice having recently identified defendant as the shooter in the March 31, 2015, incident. This appears to be a reasonable inference given the timing of the statement and the fact that Winston was the brother of Rice's fiancée. See Burns, 494 Mich at 116 ("[A] defendant's wrongdoing after the underlying criminal activity has been reported or discovered is inherently more suspect, and can give rise to a strong inference of intent to cause a declarant's unavailability."). The trial court's reasoning that Rice was biased against defendant due to a feud was not a sound basis to revisit the court's earlier ruling because this ongoing violent feud was already known to the trial court when it had granted the motion to admit Rice's statements under MRE 804(b)(6) in the murder case; this was not a new revelation at the murder trial that would support the trial court's decision to alter its previous determination concerning this issue. The nature of some of Lately's underlying inappropriate conduct was also known at the time of the court's prior decision to admit the statements, although the details of his guilty plea were apparently not yet known at that time. Although the trial court interpreted Morris's testimony as indicating that defendant left town out of a concern for his own safety and not to further a plan to murder Rice, the trial court seemed to credit Morris's testimony that defendant said that he shot someone the night before and that he was looking at a police report regarding the matter on his cell phone. The trial court failed to explain whether or how it took into account that aspect of Morris's testimony in its overall analysis. The trial court engaged in pure speculation and conjecture by suggesting that Rice may have been killed by a crack cocaine customer or a competitor in that illicit drug business; there is simply no evidence to support such a theory. The trial court noted Sequoia's testimony that vagrants and crack cocaine addicts frequented Rice's neighborhood, but this falls far short of tending to establish that a crack cocaine addict killed Rice. In short, the trial court's reasoning for finding that a preponderance of the evidence did not establish forfeiture by wrongdoing is highly flawed in numerous respects.
More importantly, the trial court entirely ignored other significant evidence supporting the theory that defendant procured Rice's unavailability by having him killed. The trial court failed to address: (1) the eyewitness testimony of Carrie and Sequoia identifying defendant's close friend Stokes as the shooter in the April 23, 2015, fatal shooting; (2) the expert testimony establishing that the same firearm used to shoot at Rice on March 31, 2015, was also used to kill him on April 23, 2015; (3) the expert testimony indicating that a cell phone associated with defendant was in frequent communication very close to the time of the homicide with a cell phone linked to Stokes that traveled from Pennsylvania to the area of the murder and then back to Pennsylvania; and (4) Morris's testimony that defendant sent Morris a written message in August or September of 2015 telling her to communicate to Stokes that he should "lay low" and that "[n]obody has snitched, so he cool, just stay out the way[,]" thereby suggesting that defendant and Stokes were complicit in criminal activities. The trial court's inexplicable failure to address any of this evidence renders its analysis highly unpersuasive. We are left with a definite and firm conviction that the trial court made a mistake in its factual findings. A preponderance of the evidence establishes that defendant engaged in or encouraged wrongdoing that was intended to and did procure Rice's unavailability. The trial court's decision therefore fell outside the range of reasonable and principled outcomes.
To be sure, Carrie's credibility is subject to question given that she initially told police that defendant was the shooter in the April 23, 2015 incident, but she unequivocally identified Stokes as the shooter at trial, and the trial court did not discredit her testimony given the court's failure to even address it. Further, Sequoia's testimony identifying Stokes at trial was also unequivocal.
Although the trial court rejected the applicability of the doctrine of collateral estoppel, defendant's appellate brief seems to suggest that collateral estoppel may be used as an alternative ground to affirm the trial court's decision. That is, defendant suggests that his acquittal in the murder case should preclude litigation in this case concerning whether he procured Rice's unavailability by having him killed. We disagree with defendant's argument.
"Generally, the proponent of the application of collateral estoppel must show that (1) a question of fact essential to the judgment was actually litigated and determined by a valid and final judgment, (2) the same parties had a full and fair opportunity to litigate the issue, and (3) there was mutuality of estoppel." People v Trakhtenberg, 493 Mich 38, 48; 826 NW2d 136 (2012) (quotation marks and citation omitted). In the murder case, defendant was acquitted of first-degree premeditated murder. "First-degree murder is the intentional killing of another, done with premeditation and deliberation." People v DeLisle, 202 Mich App 658, 660; 509 NW2d 885 (1993). In a criminal case, the prosecutor is required to prove the defendant's guilt beyond a reasonable doubt. People v Likine, 492 Mich 367, 407; 823 NW2d 50 (2012). By contrast, the admission of evidence under MRE 804(b)(6) requires the prosecutor to show by a preponderance of the evidence that the defendant engaged in or encouraged wrongdoing that was intended to and did procure the declarant's unavailability. Burns, 494 Mich at 115. The jury in the murder case could have concluded that the prosecutor failed to establish the element of premeditation or deliberation or that the prosecutor failed to prove guilt beyond a reasonable doubt. "[A]n acquittal does not necessarily mean that the defendant did not engage in criminal conduct." People v Ewing, 435 Mich 443, 451; 458 NW2d 880 (1990) (opinion by BRICKLEY, J.). "A verdict of acquittal demonstrates only a lack of proof beyond a reasonable doubt; it does not necessarily establish the defendant's innocence." Id. at 452 (quotation marks and citation omitted). Therefore, the issue of whether defendant engaged in or encouraged wrongdoing that was intended to and did procure Rice's unavailability was not necessarily determined by the jury's acquittal of defendant for first-degree premeditated murder. The trial court thus properly determined that the doctrine of collateral estoppel was inapplicable.
At defendant's request, the jury was not instructed on second-degree murder.
The prosecutor next argues that the trial court abused its discretion in ruling that evidence of defendant's prior acquittals for other crimes may be admitted at the trial in this case. We agree. A trial court's evidentiary determinations are reviewed for an abuse of discretion, but any preliminary questions of law on the issue are reviewed de novo. People v Railer, 288 Mich App 213, 219; 792 NW2d 776 (2010).
All relevant evidence is generally admissible. MRE 402; Railer, 288 Mich App at 219. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MRE 401. But relevant evidence is subject to exclusion "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." MRE 403.
In People v Bolden, 98 Mich App 452, 460-462; 296 NW2d 613 (1980), this Court found no error in the exclusion of evidence that the defendant had previously been acquitted of charges related to similar acts evidence. This Court reasoned, in relevant part:
[T]he jury should not be confused by the additional information of an acquittal which could mislead them into believing that the defendant absolutely did not commit the prior similar acts. The fact that another jury harbored a reasonable doubt as to defendant's guilt of the other offense does not negate the substantive value of the testimony to establish identity, scheme, plan, etc. in the case at bar. The issue should not be clouded by encouraging speculation regarding the verdict reached in a separate trial on a separate offense involving a different complainant. [Id. at 461.]This Court stated that the acquittals were irrelevant and immaterial. Id. at 462. This Court in Bolden, 98 Mich App at 460-461, also relied for its holding on the following language in People v Oliphant, 399 Mich 472, 498 n 14; 250 NW2d 443 (1976):
Offering evidence of a prior crime, for which defendant has been acquitted, to a jury embarked on a distinct inquiry, as here, does not involve asking the second jury to convict defendant for the prior crime. It does not involve the second jury contradicting the first jury, since the first jury did not find that defendant did not commit the crime, only that the People had not proved that he had beyond a reasonable doubt. [Emphasis added.]
In a partial dissent in Bolden, Judge Allen expressed disagreement with the majority's conclusion that the defendant's prior acquittals were properly excluded. Bolden, 98 Mich App at 463-464 (ALLEN, J., concurring in part and dissenting in part). Judge Allen stated: "To the extent that a prior acquittal of the alleged similar act of the defendant reflects on the accuracy of the charge that defendant committed that act, then the defendant should be entitled to show that another jury determined that he did not commit the similar act." Id. at 464. Judge Allen opined that defendant's "acquittal of the similar acts charges has a strong tendency to make more probable the fact that he did not actually commit those alleged similar acts, than it would be if that evidence had not been admitted." Id.
In People v Nabers, 103 Mich App 354, 364; 303 NW2d 205 (1981), rev'd on other grounds by 411 Mich 1046 (1981), amended 313 NW2d 284 (1981), a panel of this Court expressed "support" for Judge Allen's reasoning in his Bolden partial dissent. In Nabers, the defendant's trial for another crime had ended in a hung jury. Id. The Nabers panel stated that Judge Allen's reasoning in Bolden "holds true where defendant was not convicted due to a hung jury." Id.
We note that most of the federal circuits, including the Sixth Circuit, have held that evidence of prior acquittals is generally inadmissible. See United States v Gricco, 277 F3d 339, 352-353 (CA 3, 2002), overruled on other grounds by United States v Cesare, 581 F3d 206, 208 n 3 (CA 3, 2009). The court noted in Gricco that judgments of acquittal "may not present a determination of innocence, but rather only a decision that the prosecution has not met its burden of proof beyond a reasonable doubt." Gricco, 277 F3d at 353. It was also noted in Gricco, 277 F3d at 353, that, even if evidence of acquittals were admissible, exclusion under FRE 403, the federal counterpart to MRE 403, "would be justified - and highly recommended - because the danger of jury confusion would greatly outweigh the evidence's probative value." See also United States v Bisanti, 414 F3d 168, 173 (CA 1, 2005) ("[A]cquittals are not generally probative of the defendant's innocence in the case at trial and the information has a tendency to confuse the jury rather than assist it. It is also potentially prejudicial to the government.") (citation omitted). But see State v JM, Jr, 438 NJ Super 215, 234 n 15; 102 A3d 1233 (2014) (criticizing Bolden and stating that Michigan and most of the federal circuits were in the minority of jurisdictions by precluding the admission of evidence of an acquittal in response to other acts evidence), aff'd as mod 225 NJ 146; 137 A3d 490 (2016).
The decisions of lower federal courts are not binding on this Court but may be considered as persuasive authority. People v Jackson, 292 Mich App 583, 595 n 3; 808 NW2d 541 (2011).
In the murder case, the trial court ruled that evidence of defendant's prior acquittal of charges related to the June 2013 shooting was admissible. The trial court embraced the position adopted in Nabers and rejected the proposition that the pertinent language in Nabers was dicta. Citing JM, Jr, the trial court stated that the view expressed in Nabers was consistent with the position of most jurisdictions. Then, following defendant's acquittal in the murder case, the prosecution again sought to preclude evidence of prior acquittals and indicated that it was not going to call any of Rice's family members other than Winston, who was the brother of Rice's fiancée. In addition, the prosecution withdrew its notice of intent to present other acts evidence in this case. The trial court nonetheless ruled that defendant could admit evidence of his prior acquittals as a means to attack the credibility of Lately and any of Rice's family members that are called because the acquittals could help to establish those witnesses' motivation to lie.
We conclude that the language in Nabers expressing approval of Judge Allen's partial dissent in Bolden constitutes dicta because neither party in Nabers appears to have raised as an issue the admissibility of an acquittal. The analysis in Bolden is consistent with the position of most federal circuits, as reflected in Gricco. The fact that a jury acquitted defendant of other crimes is not relevant in this case because it does not tend to make more or less likely any fact of consequence to the determination of this case. See Bolden, 98 Mich App at 460-462. Defendant's prior acquittals do not necessarily establish his innocence of the crimes charged in those cases, but only that the prosecutor had failed to meet its burden of proof beyond a reasonable doubt. See Oliphant, 399 Mich at 498 n 14; Gricco, 277 F3d at 353. Further, any minimal probative value would be substantially outweighed by the danger of juror confusion. See Bolden, 98 Mich App at 461; Gricco, 277 F3d at 353. That is, evidence of defendant's acquittals could mislead the jury or invite speculation regarding the earlier verdicts. See Bolden, 98 Mich App at 461.
The trial court asserted that evidence of defendant's prior acquittals could be relevant to challenge the credibility of Lately or of any Rice family members who testify by showing that they harbor a motivation to lie. Assuming that prior acquittals could be admissible under such a theory, the trial court failed to engage in any balancing of such a purported probative value against the risk of juror confusion noted in Bolden and Gricco. There was ample evidence that could be used to challenge the credibility of these prosecution witnesses without posing a risk of juror confusion. There is abundant evidence of an escalating violent feud between defendant and Rice's family. The fact that defendant had been acquitted of earlier offenses would be essentially cumulative of such evidence in terms of showing a possible bias or motivation to lie on the part of Rice's family members. Lately's credibility was likewise subject to challenge on numerous grounds, not the least of which is the evidence concerning his corrupt behavior as a police officer and his admitted lying to other police officers in relation to this case, as well as his plea agreement that required him to testify in this matter. It is simply unnecessary to admit evidence of defendant's prior acquittals as a means to challenge the credibility of any of these witnesses, and the risk of juror confusion would substantially outweigh any minimal probative value. Accordingly, the trial court's decision to admit evidence of defendant's prior acquittals fell outside the range of reasonable and principled outcomes.
For example, Winston testified at the murder trial regarding recurring acts of violence between the two sides of this dispute. Winston stated that one of his friends was beaten up by defendant and his friends and that Winston's gun was taken, and Winston later participated in shooting at a house in retaliation for shots having been fired at his mother's house. --------
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Deborah A. Servitto
/s/ Mark J. Cavanagh