People v. Shannon

• Decision Date: 16 January 1979
• Docket Number: Docket No. 78-207
• Citation: 88 Mich.App. 138,276 N.W.2d 546
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Edward SHANNON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 546

276 N.W.2d 546

88 Mich.App. 138

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Edward SHANNON, Defendant-Appellant.

Docket No. 78-207.

Court of Appeals of Michigan.

Jan. 16, 1979.

Released for Publication March 29, 1979.

Ostrowski, Wilson, Belanger & Boman, P.C. by Ray H. Boman, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Brian Marzec, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and MAHER and RILEY, JJ.

RILEY, Judge.

We address a question of first impression in this state: whether, in a trial where defendant did not testify or offer any proof, the trial court committed reversible error by instructing the jury that the witness listed in defendant's notice of alibi was present but defendant did not call him, and by allowing the prosecutor to comment on same?

Defendant Joseph Shannon was convicted by a jury on September 30, 1977, of receiving and concealing stolen property valued over $100, M.C.L. § 750.535; M.S.A. § 28.803, and was sentenced to a term of 40 to 60 months imprisonment. The evidence at trial showed that complainant's automobile was taken from the front of his house on August 5, 1977, at approximately 1:20 a. m. Police officers Carrol and Prince arrived at the complainant's house and made a police report. As they were returning to the station, they observed an automobile with its headlights off. A view of the license number revealed it to be the complainant's stolen auto. The officers pursued the car for about a block before it stopped, at which time they saw two individuals exit. A chase proved futile; however, Officer Prince later observed the driver of the vehicle walking down the street and apprehended him. The officer identified him at trial as the defendant. A search of the vehicle disclosed five new tires, three packages of bedsheets, an eight-track tape deck, a movie projector and a box of slides. The complainant testified that none of these items belonged to him.

Defendant filed a notice of alibi pursuant to M.C.L. § 768.20; M.S.A. § 28.1043. During the trial, the proceedings were delayed while the alibi witness was brought from Jackson Prison. However, after talking to the witness, defendant's trial counsel decided not to call him. Further, the defendant himself did not testify.

The prosecutor asked the trial court to instruct the jury that defendant had filed a notice of alibi and the alibi witness was present, but the defendant had decided not to call him to testify. Defendant objected, but the trial court ruled that a police officer could testify that the alibi witness was present.

Consequently, the police officer was not called to the stand as defense counsel, faced with the officer's testimony, instead agreed to the trial court's instruction to the jury on the alibi witness's whereabouts. The trial court informed the jury as follows:

"THE COURT: Ladies and gentlemen, before we proceed or before I proceed to make a few remarks, I want to apologize to you again for the delay.

"As you know, we were waiting for the arrival of a witness. You are instructed that the witness, Norman Avery, the witness listed in the Notice of Alibi filed by the defense in this matter has arrived and is available, but the defense has decided not to call the witness."

The prosecutor further referred to the nonproduction of the alibi witness in his closing argument "Let me leave you with this observation, ladies and gentlemen. All the testimony of the People's witnesses, Mr. McBain, Police Officer Prince and Carroll and Sergeant Friedman, all that testimony was uncontroverted. It was unchallenged by the Defendant's alibi witness. The same witness we waited a day for, the same witness who finally arrived and was available to testify, the same witness whom the defense chose not to call."

Defendant maintains on appeal that these comments, by impermissibly shifting the burden of proof to the defendant, were so prejudicial as to remove from him the benefits of a fair trial. We agree and reverse.

The prosecution principally contends ¹ that the court committed no error in taking notice of defendant's alibi pleading as such pleadings may be introduced into evidence as part of the "public records" exception to the hearsay rule. M.C.L. § 600.2107; M.S.A. § 27A.2107. Therefore, it reasons, informing the jury of defendant's notice of alibi and subsequent failure to call a witness was not erroneous because this information could already have been introduced at trial. Assuming, Arguendo, the validity of this contention, it would only permit the lower court's action to survive an attack based upon hearsay and does not reach the issue of whether defendant is unfairly prejudiced by such practice. There are numerous motions, pleadings and briefs in a court file that may be public record, but would not be admissible at trial because of their prejudicial impact. ²

Informing the jury of defendant's failure to produce an alibi witness where he had previously given notice unduly denigrates defendant's case when he later chooses to present no evidence. At issue is the jury's ability to draw an impermissible inference of guilt from defendant's decision not to call an alibi witness and its relation to his involvement in the charged crime. A jury is left with the impression that by defendant's unsuccessful attempt to follow through with his alibi, guilt is rendered more presumable and apparent.

But the failure to produce an alibi witness is not necessarily inconsistent with a defendant's innocence. A witness may be withheld for a myriad of reasons, tactical or otherwise, such as a prior criminal record, or because of his susceptibility to cross-examination on collateral issues. Moreover, an alibi witness may suddenly refuse to testify, or change his testimony, which appears to have been a possibility in this case. For the same reasons it may be tactically unwise for the defendant to offer explanation to the jury of his reasons for not producing the witness.

It is axiomatic that defendant's failure to testify may not be commented upon by court or prosecutor. M.C.L. § 600.2159; M.S.A. § 27A.2159; People v. Hider, 12 Mich.App. 526, 529-530, 163 N.W.2d 273 (1968); People v. Jordan, 7 Mich.App. 28, 30, 151 N.W.2d 242 (1967). Defendant is under no duty to take the stand or proffer evidence, but rather may remain silent protected by the presumption of innocence. This continuing presumption of innocence serves as the basis for the requirement that the state has a never-shifting burden to prove guilt beyond a reasonable doubt. The lower court's instruction to the jury in effect restricted this presumption by allowing the jury to make adverse inferences from the alibi witness's failure to testify. If no adverse inference can be drawn from defendant's election, we see no reason to permit it in cases where he further elects not to better defend himself, here, through an alibi witness. ³

Further, there is no useful purpose served by informing the jury of defendant's original intention to produce an alibi and his subsequent decision not to call a supporting witness. The notice of alibi requirement was provided for the benefit and protection of the public. People v. Merritt, 396 Mich. 67, 77, 238 N.W.2d 31 (1976); People v. McFadden, 347 Mich. 357, 363, 79 N.W.2d 869 (1956). Its purpose is to enable the prosecution to investigate the merits of such a defense prior to trial, Merritt, supra, and not to alert the jury of the defendant's proposed defense.

Finally, we note that recent amendments to the Federal Rules of Criminal Procedure have made reference to a defendant's notice of alibi inadmissible. F.R.Crim.P. 12.1 requires notice of alibi similar to Michigan's statute. In addition, Rule 12.1(f) provides as follows:

"(f) Inadmissibility of Withdrawn Alibi. Evidence of an intention to rely upon an alibi defense, later withdrawn, or of statements made in connection with such intention, is not admissible in any civil or criminal proceeding against the person who gave notice of the intention."

In sum, we conclude that the lower court's instruction in the present case constituted reversible error. For the reasons cited...