People v. Parker

237 N.W.2d 572, 65 Mich. App. 592, 1975 Mich. App. LEXIS 996

Opinions

Bronson, P. J.

Defendant was found guilty by a jury of gross indecency, contrary to MCLA 750.338b; MSA 28.570(2), and rape of a female under the age of 16, contrary to MCLA 750.520; MSA 28.788. He was sentenced to a prison term of from 15 years to 25 years, and appeals by right.

On the first day ,of trial, after defendant had previously filed a notice of alibi, the prosecutor informed the court that she intended to call several witnesses in rebuttal. These witnesses were three young women who were allegedly sexually assaulted by the defendant on other occasions. The prosecutor contended that the manner of those attacks was sufficiently similar to the present circumstances to show a common scheme or plan under the "prior similar acts” statute, MCLA 768.27; MSA 28.1050. Defense counsel objected, but the trial judge cut him off, stating that, "I think at this time she has carried out her responsibilities. She gave you notice”.

At trial, defendant’s alibi was that he was at a lodge meeting at the time of the crime, without access to an automobile. Defendant himself testified, and several other witnesses were called to verify those events. After defendant finished presenting his case, the prosecutor moved to indorse the three rebuttal witnesses upon the information. The trial judge granted that motion over defense counsel’s objection, and the three women were allowed to testify as to the sexual assaults committed upon them by defendant.

Defendant contends here that the trial judge committed reversible error by (1) permitting the prosecutor to indorse the three rebuttal witnesses on the information after defendant had already presented his proofs, and (2) permitting the prosecutor to call the three women as rebuttal witnesses instead of presenting their testimony in the case in chief. Since we hold that the trial judge committed reversible error in allowing the prosecutor to call these witnesses in rebuttal, we do not need to reach defendant’s first objection.

In our system of justice, the prosecutor is required to proceed with all of his proofs before defendant presents his evidence. The prosecutor is not allowed to "sandbag” by presenting a minimal case, allowing defendant to present his story, and then chipping away at that defense with more evidence of the surrounding circumstances of the crime, People v Sacharczyk, 16 Mich App 710; 168 NW2d 639 (1969). As part of defendant’s right to a fair trial, the prosecutor is not allowed that one final play to the jury, People v Rose, 268 Mich 529; 256 NW 536 (1934).

One exception exists to this general rule on the order of proof — evidence denominated as "rebuttal evidence” can be introduced after defendant rests his case. Due to the importance of the normal rule, this exception is very narrowly drawn. The evidence sought to be later added must meet this test:

"Generally, the only type of contradictory evidence that is admissible is that which directly tends to disprove the exact testimony given by a witness.” People v McGillen #1, 392 Mich 251, 268; 220 NW2d 677 (1974). (Emphasis added.)

The prosecutor on appeal argues that proof of a common scheme "rebuts” the alibi defense. It is said that alibi goes to prove misidentification, while the common scheme strengthens the direct identification testimony. We must reject that view.

Identification in general is simply part of the prosecutor’s case in chief. Our Supreme Court has spoken to this issue in People v Bennett, 393 Mich 445; 224 NW2d 840 (1975), where defendant raised the alibi defense that he was at home at the time of the crime. On rebuttal a witness who had spent time with defendant in jail was allowed to testify that defendant told him that he "had another fellow to kill when he get out”. It was unclear whether that was being introduced under a common scheme, as here, or as an admission, but the Court concluded:

"However, under either of these descriptions — that it was an admission or part of a scheme — it would be admissible, only in the people’s case in chief.” Bennett, supra, 449.

Bennett is directly applicable here and requires reversal.

We do not rest our decision on precedent alone, for we feel that the Bennett approach makes good sense. It is true that an alibi defense raises the issue of identification, but the whole of the prosecutor’s case goes to proving defendant’s identification as used in that broad sense. If we accepted the prosecutor’s argument here, the rebuttal rule for all practical purposes would not exist in cases where an alibi defense is raised. Considering the importance of the order of proof in insuring defendant a fair trial, we cannot let that happen.

Our ruling here does not leave the prosecutor powerless to rebut an alibi defense which raises facts outside the circumstances of the crime itself. In fact, the classic rebuttal testimony involves a claim by defendant that he was at a place other than the scene of the crime at the time it occurred. The prosecutor is allowed to show through rebuttal witnesses that others were at the alibi location and did not see defendant. Similarly, witnesses can be called to testify that they saw defendant at a third location during part of the time period involved. See, People v Tocco, 60 Mich App 130; 230 NW2d 341 (1975), People v Smalls, 61 Mich App 53; 232 NW2d 298 (1975). The prosecutor has a wide range of rebuttal testimony available to him to rebut alibi testimony.

It should be noted that this holding does not impose significant burdens on the prosecutor. The defendant is required to give notice to the prosecutor of his intention to assert an alibi defense at least 10 days before trial, MCLA 768.20; MSA 28.1043. The prosecutor is at that time put on notice that the defendant is alleging misidentification through an alibi defense, and that the prosecutor should call his witnesses to show a common scheme. The prosecutor can then simply call these witnesses in his case in chief instead of waiting until after defendant’s proofs.

Reversed and remanded.

D. E. Holbrook, Jr., J., concurred.