People v. Burwick

348 N.W.2d 307, 133 Mich. App. 141
CourtMichigan Court of Appeals
DecidedMarch 21, 1984
DocketDocket No. 67834
StatusPublished

This text of 348 N.W.2d 307 (People v. Burwick) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Burwick, 348 N.W.2d 307, 133 Mich. App. 141 (Mich. Ct. App. 1984).

Opinion

Per Curiam.

Defendant, Joe Cecil Burwick, was convicted by a jury of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and felony-firearm, MCL 750.227b; MSA 28.424(2). He was sentenced to the mandatory two-year term for the felony-firearm conviction to be followed by two years on probation for the assault conviction and he appeals as of right.

This case arose out of events occurring on May 21, 1980, when defendant allegedly shot Jose Rodriguez. Rodriguez and his wife of ten years, Brenda, had been separated for approximately three months. Jose was seeing Sue Ann Diamond socially and Brenda was seeing defendant. However, Jose was not pleased that Brenda was seeing defendant and he had threatened defendant in the past. The two men had fought when Jose found defendant and Brenda in a bedroom at the Rodriguez home. Defendant also testified that "he [Jose] would step out behind another vehicle and throw a tire iron at my car when he’d see me going down the road”.

On the day of the shooting, Jose visited Diamond and arranged to use her car so that he could go to his mother’s house. Jose drove past Brenda’s house and he knew defendant was there. While at his mother’s house, he telephoned Brenda asking to speak with defendant. Defendant did not speak with Jose and he left Brenda’s house in his orange Mustang. Jose then drove over to Brenda’s house to see what was going on between the defendant and Brenda. Jose and Brenda spoke in front of Brenda’s house for approximately 45 minutes.

[144]*144Brenda testified that Jose "pointed up the street and said, 'There he is; there’s that sonofabitch’ ” and that he then ran to his car and took off down the street. Brenda further testified that she did not see defendant’s car.

Jose testified as follows. As he and Brenda spoke, Brenda stopped and pointed to an orange Mustang which was aproximately one block away. He then entered Diamond’s car and pursued the Mustang. A chase ensued which ended when he passed the Mustang, pulling in front of it. He forced the Mustang to stop. While passing the Mustang, he saw defendant, who was alone in the car, wave something in his right hand. When the cars stopped, he exited from his car and took two or three steps toward the Mustang. Out of the half-open window on the driver’s side of the Mustang, defendant shot him three or four times. After defendant left the scene, he drove back to Brenda’s house. He asked Brenda to take him to the hospital, but instead, she telephoned Diamond, saying that she was bringing him over to Diamond’s house. Diamond took him to the hospital.

Defendant testified that he was at the home of Jerry Ousley where a birthday party for Ousley’s wife was being held that evening. Although he left Ousley’s house several times that afternoon and evening, he did not leave the neighborhood. Ousley and two other witnesses verified defendant’s alibi. They testified that defendant left the party only for short periods of time and never in his car.

Defendant’s first claim is that error occurred when a prosecution witness testified on direct examination to the existence of alibi witnesses before defendant took the stand or called any alibi witnesses. We disagree.

Prior to trial, defendant filed a notice of alibi, [145]*145listing five witnesses. During voir dire, the trial court read a list of possible witnesses which included those named on the notice of alibi to ascertain if the jurors were acquainted with any of the witnesses. In her opening statement, defense counsel, without mentioning the word "alibi”, discussed the fact that defendant was elsewhere and that witnesses would testify to that effect.

The prosecution’s first witness was Sergeant Eric Bush, the investigating officer. On direct examination, the following colloquy occurred:

"Q. Now, do the names Jerry and Rebecca Ousley, Robert and Candice Baker, and Ellen Chadwick ring a bell?

”A. Yes, sir.

”Q. How is it that you know or have heard of them?

"A. They were presented by your office as alibi witnesses that should be interviewed.

"Q. Did you, in fact, try to make contact with these people?

’A. I did.

”Q. Would you tell us what contact you made, or efforts to that effect.”

Defendant objected on the ground that he had not yet presented any alibi witnesses. The people responded saying that they hoped to show that the witnesses listed on the notice of alibi had refused to talk to the investigating officer. The objection was sustained. Later that day, defendant moved for a mistrial based on the above exchange. The motion was denied. On August 23, 1982, defendant moved for a new trial on two grounds, one of which was the reference to the alibi defense in the exchange between the prosecutor and Bush. The motion was denied.

Denial of a motion for a new trial is within the [146]*146sound discretion of the trial court. People v Mack, 112 Mich App 605, 614; 317 NW2d 190 (1981). The decision of the trial court will not be disturbed on appeal absent a showing of an abuse of discretion. People v Hence, 110 Mich App 154, 171; 312 NW2d 191 (1981).

In People v Shannon, 88 Mich App 138; 276 NW2d 546 (1979), the defendant filed a notice of alibi, the witness was not called to testify and the defendant did not take the stand. In its instructions, the trial court informed the jury that the witness listed in the notice of alibi was available but that the defense decided not to call the witness. During closing argument, the prosecutor referred to the nonproduction of the alibi witness. On appeal, defendant claimed that the comments impermissibly shifted the burden of proof and, as a result, he was denied a fair trial. This Court agreed and held that: "Informing the jury of defendant’s failure to produce an alibi witness where he had previously given notice unduly denigrates defendant’s case when he later chooses to present no evidence.” 88 Mich App 143. The Court also determined that the purpose of filing notice of alibi is to enable the prosecution to investigate the merits of the defense prior to trial, not to alert the jury to defendant’s proposed defense. There was no useful purpose served in informing the jury of the defendant’s original intention to present an alibi defense and his later decision not to call the alibi witness. Reversible error was found in both the court’s instruction and the prosecutor’s comments.

Similarly, reversible error was found in People v Hunter, 95 Mich App 734; 291 NW2d 186 (1980). Before there was any indication that the defendant would testify, while in the jury’s presence, the prosecutor requested the court to take judicial [147]*147notice of his proposed exhibit, stating it was the notice of alibi on behalf of defendant. After denying defendant’s motion for a mistrial, the trial court ordered the comment stricken from the record and cautioned the jury. Out of the jury’s presence, the prosecutor indicated that he wanted to bring out the question of defendant’s notice of alibi. The court cautioned the prosecutor not to mention the notice of alibi. During direct examination, a police witness was asked if she viewed a document from the defendant where he mentioned names, if she read the allegations contained in the document, and if she took statements from the people so named.

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Related

People v. MacK
317 N.W.2d 190 (Michigan Court of Appeals, 1981)
People v. Shannon
276 N.W.2d 546 (Michigan Court of Appeals, 1979)
People v. Hence
312 N.W.2d 191 (Michigan Court of Appeals, 1981)
People v. Bouknight
308 N.W.2d 703 (Michigan Court of Appeals, 1981)
People v. Hunter
291 N.W.2d 186 (Michigan Court of Appeals, 1980)
People v. Dean
302 N.W.2d 317 (Michigan Court of Appeals, 1981)

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348 N.W.2d 307, 133 Mich. App. 141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-burwick-michctapp-1984.