People v. Merritt

• Citation: 238 N.W.2d 31,396 Mich. 67
• Decision Date: 29 January 1976
• Docket Number: A,No. 4,4
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Charles MERRITT, Defendant-Appellant. pril Term. 396 Mich. 67, 238 N.W.2d 31
• Court: Supreme Court of Michigan

Page 31

238 N.W.2d 31

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Charles MERRITT, Defendant-Appellant.

No. 4, April Term.

396 Mich. 67, 238 N.W.2d 31

Supreme Court of Michigan.

Jan. 29, 1976.

William L. Cahalan, Pros. Atty., Patricia J. Boyle, Principal Atty., Research, Training & Appeals, Raymond P. Walsh, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

State Appellate Defender Office by Stuart M. Israel, Asst. Defender, William T. Street, Research Asst., Detroit, for defendant-appellant.

WILLIAMS, Justice.

We are asked in this case to determine whether a trial judge abused his discretion in precluding defendant from testifying about an alibi or from presenting his alibi witnesses under our state's former alibi notice statute, M.C.L.A. § 768.20; M.S.A. § 28.1043. Further, we are asked to consider whether the alibi notice statute is constitutional, or if it violates defendant's rights to due process and to compulsory process. We hold there was such an abuse of discretion. We therefore reverse the conviction and remand for a new trial. It is therefore unnecessary to reach the issue of constitutionality in this case.

I--FACTS

Defendant Joseph Charles Merritt appeared with retained counsel and was arraigned on a charge of armed robbery in the taking of a wallet containing $8 to $10 on November 19, 1971. A trial date of January 18, 1972 was established at pre-trial conference. Defendant notified counsel of the existence of alibi witnesses two weeks before trial. However, because he was ill with the flu, counsel was unable to investigate these witnesses until Saturday, January 15, and did not complete his interviews until Monday, January 17. A notice of alibi was not filed until the following day, January 18, the first day of trial. This was contrary to the alibi statute then in effect, M.C.L.A. § 768.20; M.S.A. § 28.1043, which required such notice to be filed at least four days before trial.

In order to avoid the consequences of the late filing, counsel made a motion to adjourn. The first hearing on the adjournment motion was on January 12, but counsel was absent because of illness. A second hearing the next day resulted in what the judge characterized as a 'Mexican stand-off' at the last hearing five days later. The prosecution objected to the adjournment motion and the defense rejected a consolidation of the trials of defendant and another man, Richard Firth, who had been apprehended at the same time. By now, the judge suggested, matters were out of his hands, and he recommended that the waiver of the four-day alibi notice provision be considered the next day, when the matter would be brought to trial before another judge.

Trial proceeded the following day in front of another judge. The prosecution motion for consolidation was rendered unnecessary when defendant Firth's counsel accounced Firth's intention to plead guilty to a reduced charge.

Defense counsel renewed his motion for adjournment, and was referred back to the first judge, who apparently denied it. The prosecution again objected to late filing of the alibi notice and the objection was sustained. Despite the ruling, defense counsel filed the notice, listing four witnesses who would sustain defendant's alibi.

During the course of the trial, defense counsel made two other attempts to present the alibi defense. On the first occasion, he renewed his motion to assert the defense, and explained he had received the alibi information from his client 10 days before trial, but because of his illness was unable to interview the witnesses. Further, he maintained that since the purpose of a notice of alibi was to provide notice, the prosecution had that, and were now able to check out the purported witnesses. The prosecution objected, claiming this delay was caused by the defendant's own conduct, and he should not be permitted to use it for his benefit. The judge denied the motion:

'Well, this Court is not inclined to give heavy reliance to rules which are essentially technical and doesn't often, but the rule requiring minimal notice to the People of so significant a defense as alibi is something more than a technical rule. I think its purpose has been demonstrated in this case. For that reason, the Motion is denied.'

The trial progressed. Shortly before the prosecution called its two last witnesses, defense counsel suggested that denial of the motion to present the alibi defense referred only to the charge to the jury. He should, therefore, he argued, be permitted to present witnesses to show defendant was elsewhere. However, he was unable to present requested legal precedent to support this position.

Counsel requested the judge to use his discretion and to admit the evidence anyway. The judge denied the request:

'In view of those circumstances, there appears to be no justification for the notice not having been given to the Prosecutor according to the legislative intention. Certainly, the giving of the notice on the day of the trial, which is three months after the alleged event where counsel is present and retained, is not, in this Court's judgment, valid excuse.

'The Order will be, gentlemen, that the statute be complied with and I direct Defendant and counsel for both sides not to suggest to the jury, directly orindirectly, through any evidence offered by the Defendant or any other witness, that alibi is the defense. That Order is made, exercised in the Court's discretion and consistent with M.S.A. 28.1044.'

The court also instructed counsel to be sure defendant himself did not refer to alibi in his testimony. The defense rested without presenting evidence. Defendant was convicted and sentenced to 10 to 25 years imprisonment. The Court of Appeals affirmed without discussion in a memorandum opinion. We granted leave to appeal June 24, 1974. 392 Mich. 751, 219 N.W.2d 433.

II--THE STATUTE

At the time of trial, the statute requiring defense counsel to file a notice of alibi not less than four days before trial did not require automatic exclusion of the evidence. Instead, the statute required the court to use its discretion to determine whether the preclusion sanction was warranted by a particular failure to timely file. ¹

The pertinent statutory language at the time of this case reads:

'Whenever a defendant in a criminal case not cognizable by a justice of the peace shall propose to offer in his defense testimony to establish an alibi on behalf of the defendant, or of the insanity of such defendant either at the time of the alleged offense or at the time of trial, such defendant shall at the time of arraignment or within 10 days thereafter but not less than 4 days before the trial of such cause file and serve upon the prosecuting attorney in such cause a notice in writing of his intention to claim such defense and the names of witnesses to be called in behalf of such defendant to establish such defense known to him at that time. Names of other witnesses may be filed and served before or during the trial by leave of the court and upon such conditions as the court shall determine. In cases of a claimed alibi such notice shall include specific information as to the place at which the accused claims to have been at the time of the alleged offense.' M.C.L.A. § 768.20; M.S.A. § 28.1043.

'In the event of the failure of a defendant to file the written notice prescribed in the preceding section, the court may in its discretion exclude evidence offered by such defendant for the purpose of establishing an alibi or the insanity of such defendant as set forth in the preceding section.' M.C.L.A. § 768.21; M.S.A. § 28.1044.

The United States Supreme Court has recently upheld the constitutionality of requiring a notice of alibi, Williams v. Florida, 399 U.S. 78, 83, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), but did not reach the question of the constitutionality of the preclusion sanction. ² Three years later, when the Court invalidated an alibi notice statute for failure to provide reciprocal discovery, Wardius v. Oregon, 412 U.S. 470, 472, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), it once again did not reach the preclusion issue. ³ Since defendant at trial in the instant case contested only the discretion of the trial judge under the statute, it is not necessary for this Court, too, to decide the constitutionality of the preclusion sanction at this time.

III--APPLICATION OF ALIBI STATUTE

According to the United States Supreme Court, the rationale behind the notice of alibi statute is that

'(T)he ends of justice will best be served by a system of liberal discovery which gives both parties the maximum possible amount of information with which to prepare their cases and thereby reduces the possibility of surprise at trial.' Wardius v. Oregon, 412 U.S. 470, 473, 93 S.Ct. 2208, 2211, 37 L.Ed.2d 82, 87.

Further, '(g)iven the ease with which an alibi can be fabricated the State's interest in protecting itself against an eleventh-hour defense is both obvious and legitimate.' Williams v. Florida, 399 U.S. 78, 81, 90 S.Ct. 1893, 1896, 26 L.Ed.2d 446, 450. Thus, the statute 'was not intended as a disparagement of the defense', Connery v. State, 499 P.2d 462, 465 (Okl.Cr.App.1972), but 'statutes providing for the defense of alibi are intended to erect safeguards against its wrongful use and give the prosecution time and information to investigate the merits of such defense.' State v. Martin, 2 Ariz.App. 510, 514--515, 410 P.2d 132, 136--137 (1966). The procedure is 'for the benefit and protection of the public'. People v. McFadden, 347 Mich. 357, 363, 79 N.W.2d 869, 872 (1956).

State judgments as to the appropriate time for such notice differ, from, for example, the day of arraignment, ⁴ to three days before trial, ⁵ seven days before trial, ⁶ four days after prosecutor's demand, ⁷ five days before trial, ⁸ or four days before trial. ⁹ If timely notice is not filed, most states require that the alibi notice be excluded within the...