                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     December 22, 2015
               Plaintiff-Appellee,

v                                                                    No. 315323
                                                                     Wayne Circuit Court
WILLIAM LYLES, JR.,                                                  LC No. 12-008021-FC

               Defendant-Appellant.


                                          ON REMAND

Before: BECKERING, P.J., and HOEKSTRA and GLEICHER, JJ.

PER CURIAM.

        This case is before us on a remand from the Michigan Supreme Court. Specifically,
following a jury trial, defendant appealed as of right his conviction for first-degree murder, MCL
750.316. In a previous opinion, based on the trial court’s failure to give an instruction on the use
of defendant’s proffered character evidence, we determined that a miscarriage of justice had
occurred and we reversed defendant’s conviction and remanded for a new trial. People v Lyles,
unpublished opinion of the Court of Appeals, issued July 22, 2014 (Docket No. 315323). The
prosecutor then appealed to the Michigan Supreme Court. The Michigan Supreme Court vacated
our previous decision and remanded to this Court with instructions that we consider whether the
trial court’s failure to give the requested instruction was harmless. People v Lyles, __ Mich __;
__ NW2d __ (2015). That is, we have been directed on remand to consider whether it
“‘affirmatively appear[s]’ that it is more probable than not that the error was outcome
determinative.” See id., quoting People v Lukity, 460 Mich 484, 496; 596 NW2d 607 (1999).
Applying this standard, we conclude that the trial court’s failure to give the requested character
instruction was not harmless. Consequently, we again reverse defendant’s conviction and
remand for a new trial.

        According to the evidence introduced at trial, the victim, Andrew Weathers, was stabbed
to death in his bed in the early morning hours of December 28, 1983. At the time of his death,
Weathers lived with his cousin Louise Kountz, her two daughters, Melissa Kountz and Kimberly
Stokes, and Jimmy Godwin, a friend of the family. While the members of the household slept
that evening, the perpetrator broke into the home through a basement window, turned off the
electricity, placed the family’s dog in the freezer, and then proceeded upstairs to stab Weathers,
using a knife from the home’s kitchen. A noise awakened the others in the home, at which time

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Weathers was found murdered. Melissa Kountz and Kimberly Stokes went next door to call the
police, and on their way out of the home they saw a shadowy figure, whom they believed to be
defendant, based on the size and smell of the individual.

       Both girls knew defendant because he had been involved in a romantic relationship with
their mother, Louise Kountz, for several years leading up to Weathers’s death, and at one time
defendant also resided in the home. Defendant had moved out of the home in the summer of
1983, by which time his relationship with Louise Kountz had ended. According to the
prosecution’s evidence at trial, defendant’s relationship with Louise Kountz had been violent and
abusive, and this violence continued after the relationship concluded. For some unexplained
reason, defendant purportedly blamed Weathers for the demise of the relationship, and he told
Melissa Kountz during a telephone conversation that he was “going to get” Weathers. After the
murder, one of Kountz’s daughters testified to discovering a pair of defendant’s shoes in the
home with sponges taped to the soles of the shoes.

        A warrant was issued for defendant’s arrest in 1984, but defendant left the state of
Michigan shortly after Weathers’s death, and he was not apprehended until almost 30 years later,
in July of 2012. At that time, defendant gave a statement to police in which he denied killing
Weathers and denied breaking into Kountz’s house in December of 1983. According to
defendant, he and Kountz broke up because of “an age difference” and because defendant was
unemployed. Defendant denied threatening Louise, and he in fact asserted that he was “scared of
her family,” which prompted him to leave town. At trial, defendant maintained that the evidence
did not establish his guilt beyond a reasonable doubt and, to support his claim that he had not
killed Weathers and to refute the evidence of violence submitted by the prosecution, defendant
presented opinion and reputation evidence regarding his peaceful character. Ultimately,
defendant was convicted of first-degree murder.

        As noted, following his conviction, defendant appealed as of right to this Court. We
reversed and remanded for a new trial based on the trial court’s failure to give an instruction on
the use of defendant’s character evidence. In particular, in contrast to the violence described by
several of the witnesses, defendant presented evidence of his peaceful character in the form of
reputation and opinion testimony from a woman who had known defendant all her life and lived
on defendant’s street for many years. See generally MRE 404(a)(1); MRE 405. Despite this
evidence, and despite defense counsel’s request for an instruction on the use of this character
evidence, the trial court failed to read M Crim JI 5.8a, which states:

       (1) You have heard evidence about the defendant's character for
       [peacefulness/honesty/good sexual morals/being law-abiding/(describe other
       trait ) ]. You may consider this evidence, together with all the other evidence in
       the case, in deciding whether the defendant committed the crime with which
       (he/she) is charged. Evidence of good character alone may sometimes create a
       reasonable doubt in your minds and lead you to find the defendant not guilty.

In particular, as it relates to this case, the trial court failed to instruct the jury that it could use
evidence of defendant’s character for peacefulness when deciding whether defendant committed
the crimes, and that evidence of “good character alone may sometimes create a reasonable doubt
in your minds and lead you to find the defendant not guilty.” Given defendant’s request for this

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instruction and the evidence supporting the giving of this instruction, we determined previously
that, on the facts of this case, the trial court’s failure to instruct the jury on the use of defendant’s
character evidence constituted a miscarriage of justice requiring reversal of defendant’s
conviction and remand for a new trial. Lyles, unpub op at 5.

        The Supreme Court vacated our prior decision and remanded to this Court. In doing so,
the Supreme Court did not suggest that we were mistaken in our conclusions that an instruction
on character evidence was warranted given the evidence presented by defendant at trial and that
the trial court erred by failing to properly give such an instruction. Instead, the Supreme Court
specifically directed that we consider whether the trial court’s failure in this regard was harmless
under the standard set forth in Lukity, 460 Mich at 496.

        In this respect, judicial review of a preserved, nonconstitutional error, including a trial
court’s failure to give a requested jury instruction, is amenable to harmless error review under
MCL 769.26. See Lukity, 460 Mich at 495; People v McKinney, 258 Mich App 157, 163; 670
NW2d 254 (2003). This provision states:

        No judgment or verdict shall be set aside or reversed or a new trial be granted by
        any court of this state in any criminal case, on the ground of misdirection of the
        jury, or the improper admission or rejection of evidence, or for error as to any
        matter of pleading or procedure, unless in the opinion of the court, after an
        examination of the entire cause, it shall affirmatively appear that the error
        complained of has resulted in a miscarriage of justice. [MCL 769.26.]

MCL 769.26 “presumes that a preserved, nonconstitutional error is not a ground for reversal
unless after an examination of the entire cause, it shall affirmatively appear that it is more
probable than not that the error was outcome determinative. Lukity, 460 Mich at 495-496
(quotation marks omitted). Consequently, the burden is on defendant to “demonstrate that after
an examination of the entire cause, it shall affirmatively appear that the error asserted has
resulted in a miscarriage of justice.” Id. at 495 (quotation omitted). “In making this
determination, the reviewing court should focus on the nature of the error in light of the weight
and strength of the untainted evidence.” People v Rodriguez, 463 Mich 466, 474; 620 NW2d 13
(2000), quoting People v Elston, 462 Mich 751, 766; 614 NW2d 595 (2000). See also People v
Mitchell, 301 Mich App 282, 286; 835 NW2d 615 (2013). “The object of this inquiry is to
determine if it affirmatively appears that the error asserted undermines the reliability of the
verdict.” Lukity, 460 Mich at 495 (quotation marks and citations omitted). “In other words, the
effect of the error is evaluated by assessing it in the context of the untainted evidence to
determine whether it is more probable than not that a different outcome would have resulted
without the error.” Id.

        In this case, with respect to the nature of the error, as discussed, the trial court failed to
properly instruct the jury on the use of defendant’s proffered character evidence relating to his
peaceful nature, and in particular failed to instruct the jury that evidence of good character alone
could provide grounds for reasonable doubt. In effect, this error by the trial court eviscerated the
significance of defendant’s character evidence, which was crucial to his defense, and wholly
undermined his effort to establish that he was a peaceful person who could not have committed
such a vicious murder. As is evident from the evidence he introduced at trial, defendant’s

                                                  -3-
proposed defense was to deny responsibility for the murder and to support that denial with
evidence of his peaceful character. In his statement to police, defendant denied any involvement
with the killing, he denied breaking into the home, he denied threatening Kountz, and he in fact
claimed that he fled the state in fear of Kountz’s family. At trial, his attorney then argued that
there was no evidence tying defendant to the murder, and counsel attempted to bolster the
credibility of defendant’s denials, and to refute the prosecution’s evidence of defendant’s past
violence, by introducing evidence that defendant was a peaceful individual. Yet, despite this
evidence, which was at the very heart of defendant’s defense, the trial court failed to instruct the
jury that evidence of good character alone could create a reasonable doubt. By failing to give the
key part of the instruction requested by defendant, the trial court prevented the jury from having
the opportunity to properly weigh defendant’s character evidence.1 Cf. People v Silver, 466
Mich 386, 393; 646 NW2d 150 (2002) (“Not to give them an instruction that allowed them to
agree with defendant's view of the events in this case undermines the reliability of the verdict.”);
Rodriguez, 463 Mich at 474 (finding outcome determinative error where the jury received no
instruction on an issue that was “crucial to the defendant's defense and was clearly supported by
the evidence”).

        Further, considering the nature of this error in the context of the evidence presented by
the prosecution, we are persuaded that defendant has met his burden of demonstrating that it is
more probable than not that a different outcome would have resulted without the error. Lukity,
460 Mich at 495-496. The evidence of defendant’s guilt was far from overwhelming. The
murder at issue occurred approximately 30 years ago and, at the time of trial, most of the
evidence relating to the crime had been lost or destroyed. The building where the records for the
case were stored was damaged by flooding and break-ins, such that nothing remained of the
original case file. Consequently, there were no crime scene photographs, no murder weapon, and
no original witness statements to police. There were no fingerprints or DNA evidence linking
defendant to the crime, and the shoes purportedly recovered in the home are gone. At trial, the
prosecution did not introduce police records or hospital records pertaining to the abuse defendant
purportedly inflicted on Louise Kountz or others in the household. Some of the police officers
involved with the original murder investigation died before trial. Likewise, Louise Kountz died
before trial and was thus unable to testify about the nature of her relationship with defendant,
Weathers’s interference, if any, in that relationship, or the events surrounding Weathers’s
murder.



1
  The prosecution suggested in its submissions to the Michigan Supreme Court that defendant
cannot show it is more probable than not that the error was outcome determinative because
defense counsel did not focus on defendant’s character evidence during closing arguments. We
find this argument unpersuasive. Whether or not defense counsel referenced defendant’s
character evidence during closing, the fact remains that character evidence was introduced at trial
and counsel specifically requested that the trial court instruct the jury on the use of this evidence.
Regardless of whether counsel emphasized this evidence during closing, a properly instructed
jury should have been told that the character evidence could, on its own, create a reasonable
doubt.


                                                 -4-
        Moreover, of the witnesses who did testify at trial, most could say nothing that could
place defendant in the home on the night of the murder. The evidence placing defendant at the
scene of the crime came from Kountz’s daughters. Both of these women, who were teenagers
when the murder occurred, testified that defendant was in the house that night. However,
notably, neither actually claimed to see defendant. Instead, they both saw “a shadow” of
defendant’s general size and shape, and they smelled “stale cigarettes,” an odor they associated
with defendant.2 In other words, the prosecution’s attempt to establish that defendant was in the
home that night rested largely on eyewitness identification of a shadow, at night, in a house with
no electricity.

        Aside from this minimal identification evidence linking defendant to the crime scene, the
prosecution presented evidence of defendant’s flight from Michigan after Weathers’s death,
which, though relevant, is insufficient, without more, to sustain a conviction. See People v
Coleman, 210 Mich App 1, 4; 532 NW2d 885 (1995). In addition to the evidence of defendant’s
flight, much of the prosecution’s case rested on establishing that defendant had a motive for the
crime insofar as defendant purportedly blamed Weathers for interfering with defendant’s
relationship with Kountz. The evidence of motive was hardly compelling given that it was
unclear from the evidence presented at trial why defendant would have blamed Weathers of all
people for the demise of his relationship.3 And, in any event, although certainly relevant in a
homicide prosecution, motive is not an element of the crime and, on its own, motive is not
sufficient to establish a first-degree murder conviction. See People v Unger, 278 Mich App 210,
223; 749 NW2d 272 (2008); People v Sowders, 164 Mich App 36, 42; 417 NW2d 78 (1987).
Fairly considered, the majority of the prosecution’s case was devoted to establishing that
defendant had a violent history and a tumultuous relationship with Kountz in particular. But, this
purportedly violent past does not place defendant in the home on the night of the murder and it
does not, on its own, establish that defendant killed Weathers. Moreover, in our view, the fact
that defendant’s allegedly violent past was so important to the prosecution’s case only
compounded the trial court’s error in denying defendant an instruction on the potential effect of
his character evidence. Defendant’s best defense to this evidence of his past violence was his
evidence regarding his peaceful character, which was rendered largely ineffective by the trial
court’s failure to properly instruct the jury on its use.


2
  We note also that the prosecutor presented evidence that, after the murder, one of Kountz’s
daughters saw a pair of defendant’s shoes in the kitchen, with sponges on the bottom of the
shoes. The shoes were unavailable at trial, and, though the prosecutor argued that defendant
wore the shoes that night to quiet his movements in the house, no explanation was provided for
why, if that were the case, the shoes were left behind in the kitchen. In other words, the nexus
between these shoes and the homicide is tenuous at best.
3
  No one at trial gave any explanation as to why defendant would have targeted Weathers as the
cause for the breakdown in his relationship with Louise. For example, there was evidence that
one of Kountz’s daughters struck defendant with a poker, that Godwin physically fought
defendant, and that another man who lived in the home at one point picked up a cast iron skillet
to strike defendant. In contrast, there was no such evidence of Weathers fighting with defendant
or intervening on Louise’s behalf.


                                               -5-
        Ultimately, considering the entire cause, we are persuaded that the trial court’s failure to
give the requested character evidence instruction eviscerated the effect of defendant’s proffered
character evidence and that such an error cannot be considered harmless in light of the evidence
relied upon by the prosecution. Consequently, we conclude that defendant has met his burden of
establishing that it is more probable than not that the error was outcome determinative. See
Lukity, 460 Mich at 496. We therefore reverse defendant’s conviction and remand for a new
trial.

       Reversed and remanded. We do not retain jurisdiction.



                                                             /s/ Jane M. Beckering
                                                             /s/ Joel P. Hoekstra
                                                             /s/ Elizabeth L. Gleicher




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