People v. McCoy

• Decision Date: 02 August 1974
• Docket Number: No. 12,12
• Citation: 392 Mich. 231,220 N.W.2d 456
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arsner Burnett McCOY, Defendant-Appellant. 392 Mich. 231, 220 N.W.2d 456
• Court: Michigan Supreme Court

Page 456

220 N.W.2d 456

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arsner Burnett McCOY, Defendant-Appellant.

No. 12.

392 Mich. 231, 220 N.W.2d 456

Supreme Court of Michigan.

Aug. 2, 1974.

William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief App. Dept., Gerard A. Poehlman, Asst. Pros. Atty., Detroit, for plaintiff-appellee

Leonard C. Jaques, Detroit, for defendant-appellant; Carl Ziemba, Detroit, of counsel.

Before the Entire Bench.

WILLIAMS, Justice (For Reversal).

My sister Coleman has well and fully set forth the facts and issues in this case. However, I find reversible error in the judge's alibi instruction and in his failure to balance his denigrating of the alibi defense with appropriate instructions on the credibility of an alleged accomplice, the prosecutor's only witness putting defendant at the scene of the crime. Additionally, certain of the prosecutor's remarks were less than proper.

I. THE ALIBI INSTRUCTION

The alibi instruction follows:

'The defense in this case it is claimed intends to show an alibi of the defendant. Well this is a defense that is legitimate. If it is true that this defendant was not in a condition where he could have committed this crime or was not at the place where the crime was committed that should and would be a perfect defense. But in the consideration of that class of the defense it is necessary for you to take into consideration the fact, and it is your duty as jurors to examine carefully the evidence on that point, scrutinize any evidence in relation to the alibi. An alibi is a defense that is easily proven and hard to disprove. Therefore you will be careful and cautious bearing upon the question of alibi. I say If it is established and you believe the evidence, in other words if you believe that the defendant was not in a position so that he could have committed the crime or could not have been there, of course, that is an absolute defense.' (Emphasis added) (25a--26a)

The words in italics, '(a)n alibi is a defense that is easily proven . . .' and 'if it is established . . .' strongly imply that it is the burden of defendant to prove his alibi by preponderance of the evidence. This is erroneous. The prosecutoralways retains the burden of proving the defendant was at the scene of the crime at the time of the crime, and all the defendant need do is to raise a reasonable doubt thereof. People v. Marvill, 236 Mich. 595, 211 N.W. 23 (1926); 2 Underhill's Criminal Evidence (5th ed) § 441, p. 1113; 1 Gillespie Michigan Criminal Law and Procedure (2d ed) § 429, p. 521. See also People v. Lee, 391 Mich. 618, 641, 218 N.W.2d 655 (1974).

It is recognized that this form of charge is not without some background. 2 Gillespie Michigan Criminal Law and Procedure (2d ed) § 9036, p. 1211; People v. Portenga, 134 Mich. 247, 96 N.W. 17 (1903); People v. Tice, 115 Mich. 219, 73 N.W. 108 (1897). There was also no objection below. Nonetheless, it is an unlawful instruction and this Court can and has reviewed such matters Sua sponte. People v. Crittle, 390 Mich. 367, 370--371, 212 N.W.2d 196 (1973); People v. Harrison, 386 Mich. 269, 275, 191 N.W.2d 371 Importantly, as my sister Coleman points out, the alibi instruction was preceded by a separate paragraph, a proper general instruction on the presumption of innocence and that that presumption never shifts. This instruction and its proximity tends to mitigate the error of the alibi instruction taken by itself, but the instructions as a whole have further deficiencies which we will examine.

(1971); People v. Dorrikas, 354 Mich. 303, 316, 92 N.W.2d 305 (1958).

II. FAILURE TO INSTRUCT ON ACCOMPLICE TESTIMONY

The Judge's denigration of the alibi defense in the instant case must be compared with this failure to properly caution the jury on accepting the testimony of the accomplice.

A. RULE AS TO INSTRUCTION ON CREDIBILITY OF ACCOMPLICES

The dangers inherent in receiving the testimony of an accomplice are spelled out in 30 Am.Jur.2d, Evidence, § 1148, p. 323 (notes omitted):

'The facts that the testimony of accomplices is not of the most satisfactory character and that it is attended with serious infirmities are matters recognized by the decisions and are too obvious and well understood to call for extended exposition. Testimony of an accomplice has been held to be fraught with weakness due to the effect of fear, threats, hostility, motives, or hope of leniency. The consideration of the infirmities of this kind of testimony goes to the credibility of the evidence and the law requires that such testimony be closely scrutinized and accepted with caution. From Crown political prosecutions, and before, to recent prison camp inquisitions, a long history of human frailty and governmental overreaching for conviction has justified distrust in accomplice testimony. It has been said that a skeptical approach to accomplice testimony is a mark of the fair administration of justice.'

This Court has recognized that defendant has a right to have a special cautionary instruction given to the jury concerning such testimony.

'We think it is the duty of a judge to comment upon the nature of such testimony (of an accomplice), as the circumstances of the case may require; to point out the various grounds of suspicion which may attach to it; to call their attention to the various temptations under which such witness may be placed, and the motives by which he may be actuated; and any other circumstances which go to discredit or confirm the witness, all of which must vary with the nature and circumstances of each particular case.' People v. Jenness, 5 Mich. 305, 330 (1858).

This forthright position has been nibbled at, as my sister Coleman has so ably noted, to the point that it is probably fair to say that the matter is within the discretion of the judge, People v. Dumas, 161 Mich. 45, 125 N.W. 766 (1910), except that once requested, a charge should probably be given. ¹ E.g., People v. Zesk, 309 Mich. 129, 14 N.W.2d 808 (1944), where we stated, 'The trial judge probably would have charged the jury to carefully consider the weight of the accomplice's testimony had defendant's counsel made the request.' 309 Mich. 129, 133, 14 N.W.2d 808, 809. ²

While no definitive rule has appeared in the federal courts, the omission of a cautionary instruction as to uncorroborated accomplice testimony has constituted reversible error in the first, second third, fifth, eighth, ninth, tenth circuits, and the District of Columbia. ³ 17 A.L.R. Fed. 249, 291--292. 'The court must instruct the jury that testimony of accomplices must be carefully scrutinized weighed with great care, and received with caution.' United States v. Birmingham, 447 F.2d 1313, 1317 (CA 10, 1971).

B. THE BALANCED PRESENTATION

This was a case where the only evidence the prosecutor offered linking defendant with the crime was an eyewitness who could not make a positive identification of the defendant and testimony of an accomplice who was positively identified and who later pled guilty to the lesser charge of second-degree murder.

While defendant and his witness testified that they had been watching television at the witness's house all day, the prosecutor's witness, the accomplice, placed him at the crime. It is no exaggeration then to say that the prosecutor's case rested on the uncorroborated testimony of this accomplice and his credibility as a witness.

The issue, therefore, came down to whom to believe, the defendant and his witness or the accomplice.

The jury was told by the judge that the alibi should be regarded with skepticism; 'to examine carefully the evidence on that point, scrutinize any evidence in relation to the alibi. An alibi is a defense that is easily proven and hard to disprove. Therefore you will be careful and cautious bearing upon the question of alibi.'

Testimony of the comparable witness on the prosecution's side was not limited by any such cautionary instructions.

While the judge offered instructions advising the jury to weigh the credibility of all witnesses, only the defense witness was singled out by an instruction denigrating his testimony. While a general instruction may, conceivably substitute for a special cautionary instruction, it is error to give only selective cautionary instructions. Defendant has the right to have a balanced presentation made to the jury.

III. PROSECUTOR: 'WE DON'T BRING CASES UNLESS WE'RE SURE'

Prior to trial defendant had been released following failure of the eyewitnesses '(T)he Detroit, Police Department, the detectives in the Homicide Bureau, these detectives you see in court today, and myself from the Prosecutor's office, we don't bring cases unless we're sure, unless we're positive. So the defendant, Mr. McCoy, was let go at that time because the evidence wasn't enough to be positive. That's why he was arrested a month later because a month later the evidence was positive.' (17a)

to positively identify him at the initial lineup, and was only brought back into custody following a detective's interview with the accomplice. In his rebuttal summation to the jury, the prosecutor stated:

We understand that the prosecutor was faced with the problem of answering defendant's argument concerning his initial release. He claims he was speaking to the question of identification, and not guilt. However, even viewed in this favorable light, his remarks were less than proper.

IV. CONCLUSION

The combination of an erroneous alibi instruction, failure to balance the defendant-denigrating alibi instruction with an appropriate instruction on the credibility of an accomplice's testimony, plus improper closing remarks of the prosecutor are convincing that the defendant did not receive a fair and balanced trial.

For cases tried after the publication of this opinion, it will be deemed reversible error (1) to denigrate the alibi defense 'as easily proven and hard to disprove' or to suggest that it is the burden of the...