People v. Travis, Docket No. 93072

CourtSupreme Court of Michigan
Citation505 N.W.2d 563,443 Mich. 668
Docket NumberDocket No. 93072,No. 1,1
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Robert TRAVIS, Defendant-Appellant. Calendar,
Decision Date01 May 1993

Richard Thompson, Pros. Atty., Oakland County, Michael J. Modelski, Chief, Appellate Div. by Janice A. Kabodian, Asst. Pros. Atty., Pontiac, for plaintiff-appellee.

State Appellate Defender Office by Randy E. Davidson, Asst. Defender, Detroit, for defendant-appellant.

OPINION

ROBERT P. GRIFFIN, Justice.

The notice-of-alibi statute requires advance notice of a criminal defendant's intention to present alibi testimony in a trial of felony charges, as well as a corresponding notice of the prosecution's intent to offer evidence in rebuttal of that defense. M.C.L. § 768.20; M.S.A. § 28.1043. 1 Over defendant's objection, the trial court admitted the testimony of two rebuttal witnesses despite failure of the prosecution to provide notice before trial, and defendant then was convicted by a jury of breaking and entering with intent to commit larceny 2 and of assault and battery. 3 On appeal, the Court of Appeals found fault with the prosecution, but concluded that defendant "was not denied a fair trial by the late filing," and affirmed the convictions. 4

We granted leave to appeal and now reverse the decision of the Court of Appeals. 440 Mich. 889, 487 N.W.2d 760.

I

At about 5:30 a.m. on October 15, 1988, fifty-two year-old Samuel Harmon was drinking a cup of coffee in his Hazel Park home when he heard a noise, looked around, and saw a man with a stocking over his head standing at the end of his kitchen table. When the intruder started toward him, Harmon jumped up and jerked the stocking off the intruder's head. During a struggle that ensued, Harmon was struck and almost lost consciousness. The intruder then tied Harmon's hands and gagged him. Harmon heard the intruder enter the bedroom and dump jewelry from his wife's jewelry box. While the intruder was in the bedroom, Harmon escaped to the house of a neighbor, who removed the restraints and called the police. Harmon described his assailant to police as a white male in his late twenties or early thirties, five feet eight inches tall, weighing between 160 and 180 pounds, wearing blue jeans, either a sweatshirt or T-shirt, and a black leather jacket.

A few days later, Harmon was asked to look at a book of photographs at the Hazel Park police department. He selected defendant's photograph from the book, and stated that it looked identical to his assailant except for differences in the hair and mustache. Thereafter, on December 14, 1988, defendant was arrested and charged with breaking and entering with intent to commit larceny and with assault and battery. Six days later, at his preliminary examination, he was identified by Harmon as the intruder and was bound over as charged. His trial was scheduled for August 14, 1989.

Twenty days before the scheduled trial date, defendant filed a written notice of his intent to claim an alibi defense, naming one witness. However, the prosecution provided no response to this notice before trial.

When trial began as scheduled on August 14, 1989, defense counsel reserved his opening statement. The prosecution proceeded with its case in chief, and Harmon again identified defendant as the intruder. On the second day of trial, after the prosecution rested, defense counsel delivered an opening statement in which he informed the jury that an alibi defense would be presented supported by the testimony of two witnesses, Diane Deladurantaye and Sherry Detzler.

Thereafter, Ms. Deladurantaye testified that on Friday, October 14, she and defendant were at a bar in Utica from about 10:00 p.m. until 2:30 a.m. She drank soft drinks while defendant drank whiskey. He was "[p]retty drunk" by the time they left the bar and proceeded to her father's house, also in Utica. There, defendant continued drinking while they talked until 4:45 a.m. According to her testimony, she left the house at 5:05 or 5:10 a.m., and defendant was "[o]ut cold." She claimed that she returned between 7:30 and 7:45 a.m., awoke defendant, and drove him to work. She described defendant as "very hung over" and wearing a brown work uniform, the same clothing he had worn the night before.

Following the testimony of Ms. Deladurantaye on Tuesday, August 15, the court declared a recess of the trial. Because the next day, Wednesday, was the regular motion day, the court scheduled the trial to resume on Thursday, August 17. However, on the intervening Wednesday, the prosecutor filed a notice of intent to present witnesses to rebut defendant's alibi.

When the trial resumed on Thursday, the defense presented the testimony of its second witness, Ms. Detzler. She testified that she worked with the defendant at a local manufacturing plant, and that she saw him at work shortly after noon on Saturday, October 15. She described his appearance on that day as "severely hung over."

Following the testimony of Ms. Detzler, the defense rested, and the trial prosecutor then moved "to add a couple witnesses to the information to rebut ... the defense of alibi." In support of this motion, he explained that when defendant's notice of alibi was received in the prosecutor's office, it had been handed to one of his colleagues to whom the case was originally assigned. Apparently, that person had not placed the notice in the case file because it was not in the file when the case was reassigned. The trial prosecutor maintained that he did not learn of the defendant's intention to present an alibi defense until August 14, the day the trial opened. He further indicated that, on the same day, he first learned from a police detective that there were witnesses who could rebut the alibi. He then interviewed one of these witnesses, Renee Jones, on the morning of the second day of trial.

Arguing that it would not be unfair for the trial court to grant his motion and allow him to call the rebuttal witnesses, the trial prosecutor pointed out that the defense counsel was also able to interview witness Jones on the second day of trial, and that both he and defense counsel were in possession of a statement made by a second rebuttal witness, Gregory Moore, Jones' brother. He also contended that the trial court was required to grant his motion by People v. Wilkerson, 63 Mich.App. 470, 234 N.W.2d 571 (1975).

Defense counsel vigorously opposed the motion, arguing that he had filed notice of his alibi defense in accordance with the statute, and that there was no satisfactory excuse for the prosecution's failure to contact the alibi witness and to file a timely notice if he wished to offer rebuttal testimony. Characterizing the late motion as "sandbagging," he complained that the prosecution had waited until after the first alibi witness had testified before affording defense counsel any opportunity to interview rebuttal witnesses. Defense counsel argued that any confusion that may have existed in the prosecutor's office could not be charged against the defense, and that the trial prosecutor's conduct had prevented him from making an informed choice of trial strategy on defendant's behalf.

The trial court granted the prosecution's motion, finding that it would be "totally unjust" to exclude the testimony of the rebuttal witnesses.

The prosecution then presented the testimony of two rebuttal witnesses who lived in Hazel Park near the home of complainant Harmon. The first witness, Jones, testified that the defendant was at her house between 2:30 and 3:00 a.m. on the morning of the break-in. She stated that defendant was accompanied by her ex-husband, who was intoxicated, and that she observed defendant driving a truck with the words "Interlocking Block" 5 painted on the door. She described the defendant as wearing a black jacket, blue jeans, and tennis shoes.

The second rebuttal witness, Moore, testified that he saw defendant walking down the street at 5:30 or 6:00 a.m. that morning. He said defendant was wearing dark clothing, but could not recall whether he was wearing a jacket.

The jury returned a verdict convicting defendant as charged. Thereafter, defendant pleaded guilty to a charge of being an habitual offender, third offense, and was sentenced to ten to thirty years in prison.

In the Court of Appeals, defendant argued that the notice-of-alibi statute requires the prosecution to demonstrate the exercise of due diligence in obtaining the names of rebuttal witnesses and filing the required notice of rebuttal. The appeals panel disagreed, concluding that "the trial court has discretion to allow the untimely filing of a notice of rebuttal, even if the filing occurs during the course of trial." 6

We then granted leave to appeal, limited to: "whether the trial court erred in allowing the prosecutor to file the notice of rebuttal witnesses and to thereafter call those witnesses to rebut the alibi defense." 440 Mich. 889, 487 N.W.2d 760 (1992).

II

A majority of states, as well as the federal courts, require advance notice of an alibi defense. 2 LaFave & Israel, Criminal Procedure, § 19.4, pp. 511-512; see also note, Constitutional implications of notice-of-alibi provisions, 21 Wayne L.R. 1415 (1975). 7 Such provisions share a common purpose: to prevent the surprise introduction of an alibi defense. 8 As this Court observed in People v. Merritt, 396 Mich. 67, 77, 238 N.W.2d 31 (1976):

"[T]he statute 'was not intended as a disparagement of the defense,' Connery v. State, 499 P2d 462, 465 (Okla Crim 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 ArizApp 510, 514-515; 410 P2d 132, 136-137 (1966). The procedure is 'for the benefit and protection of the public.' "

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