People v. Fuqua

• Decision Date: 22 January 1986
• Docket Number: Docket No. 72706
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clifton FUQUA, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 442

379 N.W.2d 442

146 Mich.App. 250

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clifton FUQUA, Defendant-Appellant.

Docket No. 72706.

Court of Appeals of Michigan.

Submitted Nov. 3, 1984.

Decided Aug. 27, 1985.

Leave to Appeal Denied Dec. 18, 1985.

Released for Publication Jan. 22, 1986.

Frank J. Kelly, Atty. Gen., Louis J. Caruso, Sol. Gen., Peter D. Houk, Pros. Atty., Robert B. Ebersole, Chief Appellate Atty., and Susan L. LeDuc, Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender by Karla K. Goodman, Lansing, for defendant-appellant on appeal.

Before WAHLS, P.J., and MAHER and NOBLE ^*, JJ.

PER CURIAM.

After a jury trial, defendant was convicted of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. Defendant was sentenced to imprisonment for from 15 to 30 years, and he appeals as of right.

Defendant argues that the charges against him should have been dismissed with prejudice, because his preliminary examination was not conducted within 12 days of his arraignment in district court as required by M.C.L. Sec. 766.1; M.S.A. Sec. 28.919 and M.C.L. Sec. 766.4; M.S.A. Sec. 28.922. When defendant raised this issue in district court, the judge dismissed the charges against defendant without prejudice. Defendant was promptly rearraigned in district court, and a preliminary examination was conducted within 12 days of the new arraignment.

In People v. Weston, 413 Mich. 371, 376, 319 N.W.2d 537 (1982), the Court required dismissal without prejudice where the 12-day rule had been violated. We decline to go beyond Weston to impose the extraordinary remedy of dismissal with prejudice for a trivial delay not affecting the integrity of the fact-finding process. Defendant's claim that dismissal of the charges against him without prejudice constituted harassment is untenable, because the charges against defendant were dismissed on defendant's own motion in accordance with Weston.

Defendant complains of the following remarks by the prosecutor in closing argument relating to lesser included offenses:

"Now, folks, at the end of the trial and when Judge Warren instructs you on this case, he's going to give you a long list of instructions. When he gets to the instructions which deal with the crimes involved in this case, he's going to give you a list of crimes other than armed robbery. They're going to be what are called the necessarily included offenses; or the offenses that if an armed robbery's committed, these are necessarily included therein. But I submit, folks, that the proofs that have been shown here show armed robbery as having occurred, a stickup. A gunman came in and took money. That's an armed robbery. It's not larceny from a person, it's not larceny in a building, it's not larceny over, it's not any of these other crimes. It's not a felonious assault, it's an armed robbery. No more, no less. We, the people who represent you in the Prosecutor's office that deal with these all the time, we review the facts of these cases. We decide what crime to charge based on our knowledge of the criminal law. And if we've charged an armed robbery, and I submit that I've been here through this trial and I submit that an armed robbery's been proven and that these other crimes, though you will be instructed on those crimes, those aren't the crimes that occurred." (Emphasis added.)

This argument violated the well-known rule that the prosecutor may not ask the jury to convict the defendant on the basis of the prosecutor's personal knowledge and the prestige of his office rather than on the evidence. People v. Quick, 58 Mich. 321, 324, 25 N.W. 302 (1885); People v. Dane, 59 Mich. 550, 552-553, 26 N.W. 781 (1886); People v. Hill, 258 Mich. 79, 88-89, 241 N.W. 873 (1932); People v. Ignofo, 315 Mich. 626, 631-636, 24 N.W.2d 514 (1946); People v. Humphreys, 24 Mich.App. 411, 414-415, 180 N.W.2d 328 (1970); People v. Farrar, 36 Mich.App. 294, 298-299, 193 N.W.2d 363 (1971). Defendant made no objection to the argument at issue, but we will nevertheless reverse despite the absence of an objection if the goal of an objection, a curative instruction, would have been futile. See, for example, People v. Hall, 396 Mich. 650, 655, 242 N.W.2d 377 (1976). The argument at issue is so egregious that we cannot say that a curative instruction would have obviated the resulting prejudice. Compare People v. Ignofo, supra, People v. Humphreys, supra, and People v. Farrar, supra.

We will address some of the other issues raised by defendant to prevent them from arising on remand. Defendant argues that reversible error is presented by cross-examination and argument concerning the failure of a defense alibi witness to come forward and tell his story to the police before trial. We agree with panels of this Court in People v. Lafayette, 138 Mich.App. 380, 389, 360 N.W.2d 891 (1984), and People v. McClow, 40 Mich.App. 185, 193, 198 N.W.2d 707 (1972), that such questioning and argument is permissible.

The rationale for permitting such questioning and argument is that the credibility of a witness may be attacked by showing that he or she failed to speak when it would have been natural to do so if the facts accorded with his or her testmony. See People v. McClow, supra, p. 193, 198 N.W.2d 707; and People v. Diaz, 98 Mich.App. 675, 683, 296 N.W.2d 337 (1980).

We note, however, that many jurisdictions which permit such an attack on the credibility of a defense alibi witness nevertheless recognize that an assumption that it is natural for a defense alibi witness to tell his or her story to the police is not always warranted and impose restrictions on the circumstances in which such an attack may be made. For example, in People v. Dawson, 50 N.Y.2d 311, 428 N.Y.S.2d 914, 406 N.E.2d 771 (1980), the court permitted such an attack on the credibility of a defense witness only if the prosecution laid a foundation showing that the witness was aware of the charges against defendant and their nature, that the witness had reason to recognize that he or she possessed exculpatory information, that the witness had a reasonable motive to exonerate the defendant, and that the witness was familiar with the means to make such information available to the police. The New York court also required the trial court to give a cautionary instruction indicating that the witness had no duty to come forward and tell his or her story, and the court barred such an attack on the credibility of a defense witness if the witness had been advised by the defense attorney not to tell his or her story to the police. See also, Commonwealth v. Brown, 11 Mass.App. 288, 416 N.E.2d 218 (1981), and People v. Watson, 94 Ill.App.3d 550, 50 Ill.Dec. 21, 418 N.E.2d 1015 (1981).

Upon retrial, before the prosecutor is allowed to impeach an alibi witness for failure to come forward and tell his story to the police before trial, an adequate foundation must be laid. There must be some showing, on the record, as to why it would have been natural for the alibi witness to relate his story to the police.

We find the cases that disagree with this position to be distinguishable. People v. Grisham, 125 Mich.App. 280, 335 N.W.2d 680 (1983), while stating that panels of this Court disagree on the issue, is not on point. Grisham dealt with the pretrial conduct of a nonalibi witness. Although People v. Kraai, 92 Mich.App. 398, 285 N.W.2d 309 (1979), concerned an alibi witness, the case does not focus on the alibi witness's pretrial conduct as inconsistent with trial testimony, but rather focuses on the prosecutor's attack on the witness's character as a bad citizen. Furthermore, the defendant in Kraai was on trial for first-degree criminal sexual...