People v. Luckett

• Decision Date: 06 March 1974
• Docket Number: No. 3,Docket No. 16576,3
• Citation: People v. Luckett, 216 N.W.2d 460, 52 Mich.App. 33 (Mich. App. 1974)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. S. L. LUCKETT, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 460

216 N.W.2d 460

52 Mich.App. 33

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. S. L. LUCKETT, Defendant-Appellant.

Docket No. 16576.

Court of Appeals of Michigan, Division No. 3.

March 6, 1974.

Released for Publication April 9, 1974.

James S. Brady, Roach, Twohey, Benson & Brady, Grand Rapids, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller, Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and BRONSON and VanVALKENBURG,* JJ.

R. B. BURNS, Presiding Judge.

Defendant was convicted of assault with intent to commit armed robbery, M.C.L.A. § 750.88; M.S.A. § 28.283. The sole issue on appeal concerns the admissibility of his alibi defense.

Defendant allegedly stole a watch at about 5:00 a.m. on March 31, 1972. Without having first filed a notice of alibi, the defense offered a witness who testified that he and the defendant were someplace alse when the robbery allegedly occurred. The prosecutor made no objections to the introduction of this evidence. Instead, the trial proceeded to its conclusion and final arguments were heard without the admissibility question ever being raised by either side. However, the trial court, on its own motion, instructed the jury to disregard defendant's alibi evidence. This instruction was timely objected to by defendant.

It was error for the trial court to give such an instruction on its own initiative. The prosecution waives its objection to defendant's failure to provide alibi notice when it accepts the introduction of such evidence without protest. People v. Miller, 250 Mich. 72, 74--75, 229 N.W. 475, 476 (1930).

Reversed and...