People v. Fiorini
| Decision Date | 21 August 1978 |
| Docket Number | Docket No. 77-695 |
| Citation | 271 N.W.2d 180,85 Mich.App. 226 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Americo J. FIORINI, Defendant-Appellant. 85 Mich.App. 226, 271 N.W.2d 180 |
| Court | Court of Appeal of Michigan — District of US |
[85 MICHAPP 228] James R. Neuhard, State Appellate Defender, by John A. Lydick, Asst. Appellate Defender, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., Larry L. Roberts, Asst. Pros. Atty., for plaintiff-appellee.
[85 MICHAPP 229] Before MAHER, P. J., and J. H. GILLIS and McGREGOR, * JJ.
Defendant was arrested and charged with armed robbery, M.C.L. § 750.529; M.S.A. § 28.797. He was convicted by jury trial on December 17, 1976, and later sentenced to life imprisonment.
On May 20, 1976, Cook's Pharmacy in Redford Township was robbed. An armed robber, disguised, robbed the pharmacy of money and drugs. An employee followed the robber in his car to a motel a short distance away and then notified police. When the police arrived they proceeded to the room the suspect had entered. Through the window they observed defendant stacking money on the dresser and they saw several pill bottles on the bed. An officer then arrested defendant and confiscated the pills, the money, and several items bearing the name Cook's Pharmacy. Defendant appeals his conviction as of right.
Defendant makes several claims of error. He argues that the trial court erred in refusing his request to instruct the jury on alibi. We find no error.
It is true that in People v. Burden, 395 Mich. 462, 236 N.W.2d 505 (1975), the Supreme Court stated that if requested an alibi instruction must be given. But the present case differs from Burden. There was at least some testimony given in Burden which supported an alibi defense, if believed by the jury. In the instant case no evidence of an alibi defense was given. Although defendant does not have the burden of proof on the alibi issue, he has the burden of producing at least some evidence in support of his claim of alibi, possibly [85 MICHAPP 230] sufficient evidence to raise a reasonable doubt. People v. Marvill, 236 Mich. 595, 211 N.W. 23 (1926). Defendant here presented no proper evidence in support of an alibi, not even his own testimony. 1
Those cases dealing with the defense of insanity provide an apt analogy. Just as one must do more than merely assert an insanity defense to become entitled to a jury determination, People v. Livingston, 57 Mich.App. 726, 226 N.W.2d 704 (1975), so one must present some evidence of an alibi defense beyond its mere assertion. The court should not give instructions not supported by the evidence. People v. Dembinski, 62 Mich.App. 583, 233 N.W.2d 662 (1975). In this case an instruction on alibi would have misled the jury into believing that defendant had presented evidence of alibi, when in fact he had not. Defendant was not entitled to an alibi instruction.
Defendant also contends that it was error for the trial court to charge the jury must be [85 MICHAPP 231] convinced of defendant's guilt, not beyond all reasonable doubt but beyond a reasonable doubt, in order to convict. He asserts that the following sentence in the court's instructions constitutes error:
"Each and every one of you must be satisfied beyond a reasonable doubt note, if you will, I did not say 'beyond all reasonable doubt'; I said 'beyond a reasonable doubt' after deliberating that the defendant is guilty before you can return a verdict of guilty."
As given the phrase is ambiguous. It may be read as advising the jury that "beyond all reasonable doubt" is not the proper standard to use for conviction. It may also be read as charging the jury that the proper standard is "beyond a reasonable doubt", thus differentiating the two standards. Defendant argues that the two are the same and that the jury was thus confused. It is not clear that a jury would necessarily be confused by the instructions as defendant suggests.
When an allegedly erroneous instruction is subject to two or more interpretations, it is proper to read the instructions in their entirety to determine if the trial court resolves the ambiguity by other comments it makes and instructions it gives. People v. Beard, 78 Mich.App. 636, 261 N.W.2d 27 (1977). An ambiguity exists in the present case: reading the instructions as a whole is an appropriate mechanism to resolve the ambiguity. The instructions as a whole clearly state that the prosecution must prove the defendant guilty beyond a reasonable doubt. The proper standard of proof was set out by the trial court.
Defendant next claims that the prosecutor's failure to endorse and produce a res gestae witness requires reversal. The prosecutor is required to [85 MICHAPP 232] endorse only those witnesses known to him at the time the information is filed. People v. Erb, 48 Mich.App. 622, 211 N.W.2d 51 (1973). He is, however, required to exercise due diligence in seeking to ascertain the identities of any witnesses. People v. Simpson, 57 Mich.App. 320, 225 N.W.2d 748 (1975). The prosecutor may be excused from producing a res gestae witness if he makes a showing that he used due diligence in attempting to produce the witness or if the witness's testimony would be cumulative. People v. Buero, 59 Mich.App. 670, 229 N.W.2d 880 (1975).
In this case there was no showing of due diligence by the prosecutor, nor sufficient evidence of cumulativeness to justify nonproduction on those grounds. The court erred in submitting the issue of nonproduction to the jury in the absence of sufficient evidence to permit a jury to find due diligence or cumulativeness. People v. Yarborough, 61 Mich.App. 303, 232 N.W.2d 394 (1975).
Moreover, it was error for the trial court to attempt to cure the prosecutor's failure to endorse a res gestae witness by instructing the jury that they were entitled to infer that the nonproduced witness's testimony would be unfavorable to the prosecution. Such an instruction is not sufficient in all cases in which a res gestae witness was not endorsed. In People v. Harris, 56 Mich.App. 267, 224 N.W.2d 57 (1974), in which the Court found that the testimony of the missing witness would have been definitely favorable to the defendant, the failure to use diligence to produce that witness was reversible error, despite the court's curative instruction. Likewise, People v. Gordon, 60 Mich.App. 412, 231 N.W.2d 409 (1975), holds that the curative instruction at issue is not always sufficient.
[85 MICHAPP 233] "If the witness's testimony gives complicated or detailed corroboration of the defendant's version of the facts or if the testimony contains complicated or detailed rebuttal of prosecution evidence, the only remedy may be a new trial." 60 Mich.App. at 417, 231 N.W.2d at 412.
Here we cannot say with certainty that the testimony of the unproduced res gestae witnesses does not fall within the Harris or Gordon or a similar exception. The trial court's instruction did not remedy its error.
It was also error for the trial court to deny defendant's motion for a new trial, which alleged failure to endorse and produce res gestae witnesses. There was no hearing as mandated by People v. Robinson, 390 Mich. 629, 213 N.W.2d 106 (1973), to determine whether due diligence has been exercised or whether the witnesses' testimony was likely to be cumulative.
However, in this case, there was overwhelming evidence against defendant which renders the trial court's errors harmless. The rationale of harmless error was discussed in People v. Hadley, 67 Mich.App. 688, 691-692, 242 N.W.2d 32, 34 (1976).
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