People v. McGinnis

256 N.W.2d 587, 76 Mich. App. 268, 1977 Mich. App. LEXIS 913

• Court: Michigan Court of Appeals
• Decided: June 20, 1977
• Docket: Docket 22997
• Status: Published

Opinions

R. M. Maher, J.

(dissenting). I must dissent. Defendant testified on his own behalf. He denied committing the offense claiming that he had spent the day in question at a Clock Restaurant and Coney Island. He further stated that while at the restaurant he spoke with a waitress named Ms. Maranucci and offered to fix her car windshield.

Prior to trial, defendant filed notice of alibi listing Ms. Maranucci as an alibi witness; she was never called as a witness.

During cross-examination the prosecutor questioned defendant concerning the failure to produce Ms. Maranucci and again commented during closing argument upon the nonproduction of defendant’s alibi witness.

Although defense counsel admitted confusion about the legitimacy of an alibi defense, he submitted a request for an alibi instruction and argued alibi to the jury. The prosecutor stated that he had no objection to the requested instruction. The trial judge refused to give an alibi instruction being of the opinion that the defense had been withdrawn. Following the trial court’s charge to the jury, defense counsel again objected to the failure to give the requested instruction.

Our Supreme Court has unequivocally stated that "if requested, an alibi instruction must be given”. People v Burden, 395 Mich 462, 466; 236 NW2d 505 (1975), People v Miller, 250 Mich 72; 229 NW 475 (1930). There is no dispute that in this case a request was made. The question is whether a defendant’s testimony alone may be sufficient to raise an alibi defense. If so, then the failure to give a requested alibi instruction was reversible error.

Alibi testimony has been defined as "testimony offered for the sole purpose of placing the defendant elsewhere than at the scene of the crime”. People v Watkins, 54 Mich App 576, 580; 221 NW2d 437 (1974). See also, People v Gillman, 66 Mich App 419, 424; 239 NW2d 396 (1976). While a defendant’s general denial of the charges against him does not constitute an alibi defense, People v Watkins, supra, if a defendant gives specific testimony regarding his whereabouts at the time in question, it is alibi testimony the same as if another witness had given the testimony, People v Merritt, 396 Mich 67; 238 NW2d 31 (1976).¹

The rationale for requiring an alibi instruction is to make sure that the jury understands that the defendant does not have to prove an alibi. People v Burden, supra, at 467. Alibi has been characterized as a defense and also a rebuttal of the people’s case.

"Thus, the 'defense’ of alibi offers the defendant two separate avenues of relief. First, if the alibi is established, a perfect defense has been shown. Perhaps more importantly, if any reasonable doubt exists as to the presence of the defendant at the scene of the crime at the time the offense was committed (if such presence is necessary to commit the crime), the defendant must also be acquitted.” People v Burden, supra, at 467.

The reasons for requiring an alibi instruction, especially when requested, do not change with the identity of the witness offering the testimony. Regardless whether a defendant says he was home sleeping, or his sister says that she was with him at the time of the crime, or he presents a charge slip signed by him in another state on the day in question, the purpose of the proffered evidence is the same — to place defendant elsewhere than at the scene thereby making it impossible for him to have committed the crime if presence is indeed necessary.

I recognize that at the time of trial in the present case the learned trial judge did not have the benefit of People v Merritt, supra. However, I do not feel that Merritt is new law. Defendant was entitled to an instruction on his theory of the case, which, as his testimony and argument to the jury clearly showed, was that he was elsewhere when the crime occurred.

I reject the argument that the instruction was unnecessary because counsel mentioned that the "defense” was withdrawn. Notice of an alibi is statutorily required for the protection of the public. People v Merritt, supra. Although failure to give notice may preclude others from giving alibi testimony, it does not preclude the defendant from testifying regarding his whereabouts at the time in question. The withdrawal of the "defense” here was the withdrawal of the notice thereby precluding third-party alibi testimony, not the defendant’s.

Additionally, although defendant, technically, did withdraw his notice of alibi, the prosecutor questioned defendant and commented extensively on the failure to produce Ms. Maranucci. These questions and comments could have easily confused the jury as to the proper burden of proof thereby compounding the prejudice resulting from the failure to give the requested instruction. Although on appeal the prosecutor argues that defendant’s defense was misidentification, at trial alibi was the defense raised and attacked and was very much at issue in this case.² Accordingly, it was error to deny the requested instruction.

The conviction should be reversed and defendant given a new trial.

1 People v Merritt, 396 Mich 67; 238 NW2d 31 (1976), involved the applicability of the preclusion sanction to testimony elicited from the defendant himself. The Court’s analysis of the purpose and intent of the alibi notice statute assumes that defendant’s testimony is alibi testimony; if not, the analysis would not have been required. The dissenting opinion in Merritt likewise includes testimony elicited from the defendant within the ambit of alibi testimony, for the thrust of that opinion is premised on that very notion.

2 Misidentification and alibi are not mutually exclusive. If a witness claims to have seen the defendant at the scene of the crime, and the defendant claims he was not there, the defendant is raising misidentification as a defense. If the defendant claims that he was not there but was in Ohio, then he is raising misidentification and alibi. If there is no positive identification, and he claims that he was in Ohio, then alibi is the defense.