Opinion
Docket No. 78-5152.
Decided November 7, 1979.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Assistant Prosecuting Attorney, for the people.
Buth, Wood Weidaw (by George S. Buth and Stephen M. Tuuk), for defendant on appeal.
Before: N.J. KAUFMAN, P.J., and R.M. MAHER and D.C. RILEY, JJ.
The defendant appeals as of right from his conviction by jury of the charge of delivery of heroin, MCL 335.341(1)(a); MSA 18.1070(41)(1)(a).
The basis of the charges against the defendant stemmed from an alleged heroin purchase at a barbershop by an addict-informer named Douglas King. Despite objections by defense counsel, Mr. King was allowed to testify that he had made approximately 20-25 prior purchases of heroin from the defendant. The defendant, testifying on his own behalf, denied participation in the alleged sale, or in any sale of drugs on a prior occasion. The defendant was impeached by evidence of a prior conviction for burglary.
On appeal, the defendant contends that the trial court erred by admitting into evidence testimony regarding defendant's prior bad acts. We agree.
In People v Wilkins, 82 Mich. App. 260, 267-270; 266 N.W.2d 781 (1978), we found that it is erroneous to admit evidence of the defendant's prior bad acts unless: (1) there is substantial evidence that the defendant actually perpetrated the bad acts in question; (2) there are special circumstances of the prior bad acts which tend to prove one of the statutory elements; and (3) the defendant's motive, intent, absence of mistake or accident, scheme, plan, or system must be material to the determination of defendant's guilt of the charged offense. Evidence is not material unless it is disputed. Even if the above requirements are satisfied, the trial court must weigh the probative value of the evidence against its likely prejudicial effect, and must exclude the evidence if the latter predominates. See also, People v Adan, 83 Mich. App. 326; 268 N.W.2d 397 (1978).
The instant case fails to satisfy all of the factors mentioned in Wilkins, supra, especially the third. See People v Rustin, 406 Mich. 527; 280 N.W.2d 448 (1979), where the Supreme Court recently held that admission of testimony by an undercover agent concerning a prior sale of narcotics by the defendant constituted reversible error.
Reversed and remanded for a new trial.
I concur separately based on People v Rustin, 406 Mich. 527; 280 N.W.2d 448 (1979).