People v. Merritt

Coleman, J.

(dissenting). Undergirding the majority opinion are two significant extensions of present case and statutory law as to alibi witnesses which give rise to this dissent. In fact, the relevant statute¹ as well as its successor which is the present statute² would be rendered virtually meaningless.

In this armed robbery case, notice of alibi was presented on the day of trial. Defendant claims that the judge abused his discretion (1) in not allowing a continuance and (2) not allowing him to testify as to his alibi.

First, the majority rely primarily upon People v Charles O Williams, 386 Mich 565; 194 NW2d 337 (1972). However, a considerable expansion of that rationale is necessary to the result.

Second, we do not agree that the statute in effect in 1972 should be interpreted to permit a defendant to raise the defense of alibi during trial when he has failed to give prior notice as required by law. The majority opinion sweeps into its ambit and renders impotent the new statute which provides- with specificity for fairness to people and defendant:

"If the defendant fails to file and serve the written notice prescribed in section 20, the court shall exclude evidence offered by the defendant for the purpose of establishing an alibi * * * .”

Section 20 affords discretion to the judge to continue the matter under given circumstances.

I.

Justice Williams urges a standard for judging abuse of discretion more strict than that stated in Spalding v Spalding, 355 Mich 382; 94 NW2d 810 (1959), as follows:

"We have held repeatedly, and we again hold, that we will not interfere with * * * discretion * * * in these cases unless a clear abuse thereof is manifest in the result reached below * * * . Where, as here, the exercise of discretion turns upon a factual determination made by the trier of the facts, an abuse of discretion involves far more than a difference in judicial opinion between the trial and appellate courts. The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an 'abuse’ in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.” 355 Mich 382, 384-385.

However, the finding of an abuse of discretion under the facts of Williams is cited favorably:

"In view of the facts that: 1) defendant was asserting a constitutional right — the right to counsel; 2) he had a legitimate reason for asserting this right — an irreconcilable bona fide dispute with his attorney over whether to call his alibi witnesses; 3) he was not guilty of negligence; and 4) the trial court was incorrect in stating that defendant had caused the trial to be adjourned several times — we hold that the trial court abused its discretion in denying defendant’s counsel’s motion to withdraw and in preventing defendant from changing attorneys and granting a continuance in this case.”

Even assuming the Williams finding was appropriate to that case, we find it inapposite to the facts now under scrutiny. Here, delay was not requested because of the assertion of any constitutional right (right to counsel in Williams); there was no dispute as to the calling of witnesses; defendant and also his counsel were guilty of negligence (or delaying tactics).

The trial judge exercised discretion and stated the reasons:

"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 or indirectly, 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 MSA 28.1044. ” (Emphasis added.)

This is an adequate expression by the court that (1) defendant did not have a legitimate reason for failure to file notice of alibi until the date of the trial when the court, counsel, jurors, witnesses and others were gathered; and (2) defendant was guilty of negligence in failure to comply with the statute.

Regardless, we are not convinced that the Williams case, relied upon by the majority (erroneously in my opinion), is correct under Michigan law. The majority opinion and Williams urge that discretion in denying a continuance should be judged by a stricter standard in criminal cases, as opposed to civil cases. Such an argument ignores both a court rule and a statute, neither of which were discussed by Williams or the majority opinion in the instant case.

MCLA 768.2; MSA 28.1025 provides:

"The trial of criminal cases shall take precedence over all other cases; but this provision shall not be interpreted to mean that trials of civil cases shall not be interspersed between trials of criminal cases triable before a jury at any term of court. No adjournments, continuances or delays of criminal causes shall be granted by any court except for good cause shown in the manner provided by law for adjournments, continuances and delays in the trial of civil causes in courts of record: Provided, That no court shall adjourn, continue or delay the trial of any criminal cause by the consent of the prosecution and accused unless in his discretion it shall clearly appear by a sufficient showing to said court to be entered upon the record, that the reasons for such consent are founded upon strict necessity and that the trial of said cause cannot be then had without a manifest injustice being done.” (Emphasis added.)

GCR 1963, 503.1 provided at the time of trial:

"It is the policy of this rule to encourage the diligent preparation and trial of cases. Continuance for any cause shall not be granted unless a showing is made and the court ñnds that the grounds for continuance do not arise out of the fault or negligence of the moving party and the court finds that substantial justice more nearly will be obtained.” (Emphasis added.)

Thus, the Legislature has provided that continuance be granted on the same grounds as in civil actions. (The Court by this case has decided the opposite.) GCR 503.1 has provided that continuance not be granted where it arises out of the party’s fault or negligence. (This Court has added other criteria to the end that it makes no difference who is at fault.) Many Michigan cases have recognized application of our legislative and GCR standard for judging abuse of discretion in criminal cases.³

As Justice Williams states, "[discretion of judges in excluding alibi testimony in the absence of timely notice has usually been upheld” in Michigan and elsewhere on both state and federal levels. He also says, "[t]he trial court’s exercise of discretion in these instances will not be disturbed unless it is 'discretion manifestly unreasonable, or exercised on untenable grounds’ ”. Much precedent is cited for these statements. We agree.

In Michigan, the courts have been consistent.⁴ Two members of this Court while in the Court of Appeals have upheld the required notice of alibi. See People v Ware, 28 Mich App 434; 184 NW2d 533 (1970); People v Chamberlain, 15 Mich App 541; 166 NW2d 815 (1969); People v Tyrone Williams, 38 Mich App 146; 195 NW2d 771 (1972). In Williams, the Court of Appeals noted that defendant

"informed the judge of his wish to present an alibi defense on the first day of trial. At that time the judge questioned Williams and Williams said that 'three weeks ago’ he had informed his lawyer of his alibi defense. The judge determined that there had been ample opportunity to present timely notice of alibi. In such circumstances the judge justifiably refused to permit Williams to introduce witnesses in support of his alibi.”

Under any standard so far proposed, the trial judge properly exercised his discretion.

II.

Most importantly, we cannot agree that defendant should be enabled to do indirectly what he cannot do directly, to wit: trap the prosecutor by surprise alibi testimony of his own at the time of trial.

The reasoning of my colleagues results in precisely the ill sought to be avoided by statute and court rule. If followed, the statutes and court rules minimize the probability of "gamesmanship”, delaying tactics, wasted resources and last-minute fabrications by defendant as well as of surprise alibi testimony by the defendant.

Conclusion.

"Fair trial” is a two-edged sword and should b<_ designed to insure fairness to both defendant and people. By the majority opinion, defendant could personally interject a concocted alibi defense at any point in trial and leave the people without opportunity to investigate and rebut. It is a one-sided rule which is not likely to bring about fundamental fairness. It is a rule which invites abuse. Also, it is the more injurious because it would encompass as well the successor statute now in effect. The so-called "preclusion sanction” rationale would apply equally to the prior statute and the present version.

We agree with the first paragraph of III of the majority opinion which cites precedent in support of the requirement of notice prior to the use of alibi evidence. Alibi evidence can be easily fabricated. "[Safeguards against its wrongful use” must be erected. Requirement of notice is "for the benefit and protection of the public”.

To allow alibi testimony from any source without adequate notice would allow a distortion of the truth.

For the reasons above, we would affirm.

Fitzgerald, J., concurred with Coleman, J.

1 MCLA 768.20, 768.21; MSA 28.1043, 28.1044.

2 MCLA 768.21; MSA 28.1044 as amended by 1974 PA 63.

3 See People v Fleisher, 322 Mich 474; 34 NW2d 15 (1948) in which this Court upheld a denial of a motion for continuance where defendant’s wife, his only alibi witness, was ill for several months and the motion was not heard until the day before trial. The Court noted:

“Obviously Selik had knowledge of his wife’s illness during all the time intervening since August 26th, on which date she was hospitalized. Also, he knew that his wife was his only available alibi witness who could corroborate his testimony in that respect. That he did not advise his counsel of Mrs. Selik’s condition until just shortly prior to the service of the motion for continuance ought not to enable Selik to take advantage of his self-made situation with which he confronted the trial court. * * * [Defendant] was not entitled to have his wife’s testimony at the trial as an alibi witness, because he failed to comply with the statute * * * .” (Emphasis added.)

Similarly, in People v Kotek, 306 Mich 408; 11 NW2d 7 (1943), this Court observed:

" 'The matter of delaying a trial to enable a party to get his witnesses is one so peculiarly within the discretion of the trial judge, that we should not feel warranted in reviewing said discretion, except in a very extreme case.’ Gold v Detroit United Railway, 169 Mich 178, 180 [134 NW 1118 (1912)].

" 'It was entirely within the discretion of the court to refuse a delay for the purpose of procuring witnesses. * * * The judge was possessed of all the facts, and was in a far better position than are we to judge of the propriety of a delay.’ People v Foote, 93 Mich 38 [52 NW 1036 (1892)].”

In People v Knox, 364 Mich 620; 111 NW2d 828 (1961), this Court commented: "It has been repeatedly recognized by this Court that a trial judge has discretion in granting or refusing a motion [for continuance], and that this Court will not interfere unless there has been a palpable abuse of such discretion.”

Also see, People v Eamaus, 207 Mich 442; 174 NW 177 (1919).

4 See People v McFadden, 347 Mich 357; 79 NW2d 869 (1956); People v Longaria, 333 Mich 696; 53 NW2d 685 (1952); People v Sherrod, 32 Mich App 183; 188 NW2d 221 (1971); People v George Johnson, 5 Mich App 257; 146 NW2d 107 (1966); People v Watkins, 54 Mich App 576; 221 NW2d 437 (1974); People v Williams, 11 Mich App 62; 160 NW2d 599 (1968); People v Crawford, 16 Mich App 92; 167 NW2d 814 (1969). For examples of the many Court of Appeals cases recognizing the trial judge’s discretion, see People v Barbara, 23 Mich App 540; 179 NW2d 105 (1970), People v Ciatti, 17 Mich App 4; 168 NW2d 902 (1969), People v McClendon, 21 Mich App 142; 175 NW2d 340 (1970), People v Rastall, 20 Mich App 264; 174 NW2d 33 (1969), People v DerMartzex, 29 Mich App 213; 185 NW2d 33 (1970).