People v. Sherrod, Docket No. 8093

• Decision Date: 30 March 1971
• Docket Number: Docket No. 8093,No. 3,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Curtis SHERROD, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 221

188 N.W.2d 221

32 Mich.App. 183

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Curtis SHERROD, Defendant-Appellant.

Docket No. 8093.

Court of Appeals of Michigan, Division No. 3.

March 30, 1971.

Released for Publication July 8, 1971.

A. Winton Dahlstrom, Whitehall, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Paul M. Ladas, Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and R. B. BURNS and KELLEY, ^* JJ.

PER CURIAM.

Appearling his jury conviction of armed robbery ¹, defendant poses substantially two questions.

I. Should the trial court have permitted the defendant to call alibi witnesses although no notice of alibi was given?

The alibi statute ² reads as follows:

'Sec. 20. 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, * * * 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.

'Sec. 21. 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 * * * of such defendant as set forth in the preceding section.'

The complaint filed in district court alleged the offense on a named victim at Muskegon Heights on or about February 21, 1969. At the preliminary examination, during which the defendant was personally present and was represented by counsel who cross-examined the witnesses, the victim and other persons testified more exactly to the date, hour, and place. At the conclusion of the examination the district judge ordered the prosecutor to notify counsel for defendant within 10 days as to the date, time, and place on which reliance would be placed at trial, and bound the defendant over for trial.

At the defendant's arraignment six days later he stood mute. Neither at the arraignment nor during the intervening 3 1/2 months until the trial did the defendant give notice of alibi or take any action to require the prosecutor to fix the date, time, and place on which reliance would be placed.

Assuming that the district court had authority to make the order as to fixing of the date, time, and place within 10 days after the preliminary examination, that court lost jurisdiction to enforce its order upon the filing of its return to circuit court. M.C.L.A. § 766.13 (Stat.Ann. 1954 Rev. § 28.931); In re Elliott (1946), 315 Mich. 662, 675, 24 N.W.2d 528. Had the defendant believed it necessary to fix the date, time, and place for the purpose of giving notice of an alibi defense, he should have moved the circuit court for an appropriate order either under the provisions of M.C.L.A. § 767.51 (Stat.Ann.1954 Rev. § 28.991) or under the court's inherent authority to act in the interests of justice. The defendant cannot now be heard to complain of a situation created by his own inaction.

The court set June 19 as the date of trial. When the defendant failed to appear for trial his bond was cancelled and a bench warrant issued for his arrest. After defendant was apprehended the court set the trial date as July 1. Defendant made no motion for a continuance. ³

On July 1, just before the trial began, defendant's counsel requested permission to present alibi witnesses. He made the same request at the conclusion of the people's case. The court denied each request. The record sustains the court's unchallenged reasons for denial:

'It seems * * * this Defendant should have advised his counsel that he had an alibi for that date and time. Now, obviously, he didn't do this until yesterday * * * I am quite well aware of the difficulty of defense counsel * * * particularly when the Defendant is in jail ⁴ and can't be outside helping counsel find names and getting addresses correct, so on and so forth. But, what concerns me in this case is that this Defendant did not * * * and has not, at least on the face of things, cooperated with his counsel * * * where counsel can ascertain who these alleged alibi witnesses are, what their names are, where they live, and give counsel an opportunity to have them * * * present in the time that the Statute calls for, * * * to give notice to the Prosecutor. Now, I lay that lack firmly on the shoulders of the Defendant. It seems to me that the very first thing the Defendant would tell his counsel, if in truth such facts existed, that I wasn't even there at that time and date. Yet, apparently he didn't do this until yesterday.'

At trial the victim and other witnesses testified to the same date, time, and place as they had testified at the preliminary examination almost 4 months before. Defendant's couns...