DocketNumber： Docket 10487
Judges： Levin, Holbrook, Bronson
Filed Date： 1/24/1972
Status： Precedential
Modified Date： 11/10/2024
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Patricia J. Boyle, Assistant Prosecuting Attorney, for the people.
Gerald M. Lorence, for defendants on appeal.
Before: LEVIN, P.J., and HOLBROOK and BRONSON, JJ.
PER CURIAM.
On August 14, 1970, a Wayne County jury convicted defendant Tyrone Williams and defendant James Marlin, Jr., on charges of assault with intent to rob while armed, a violation of MCLA 750.89; MSA 28.284, and assault to do great bodily harm less than murder, a violation of MCLA 750.84; MSA 28.279.
On this appeal defendant Williams argues that the trial judge erred in refusing to permit him to introduce evidence of an alibi defense. Williams informed *148 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. MCLA 768.20; MSA 28.1043 and People v Vaughn, 31 Mich App 599 (1971).
The defendants contend that the failure of defense counsel to file a notice of alibi deprived them of the effective assistance of counsel.
In People v Jelks, 33 Mich App 425, 431 (1971), we said:
"A convicted person who attacks the adequacy of the representation he received at his trial must prove his claim. To the extent his claim depends on facts not of record, it is incumbent on him to make a testimonial record at the trial court level in connection with a motion for a new trial which evidentially supports his claim and which excludes reasonable hypotheses consistent with the view that his trial lawyer represented him adequately."
A motion for a new trial was filed in this case in which the denial of effective-assistance-of-counsel issue was raised. However, at the hearing on the motion no testimony or other evidence was offered bearing on the question whether defense counsel acted diligently and, in particular, counsel's explanation or lack of explanation for failing to file a notice of alibi has not been spread on the record. Accordingly, we have nothing before us which would justify our concluding that the defendants had evidentially supported their claim and excluded reasonable hypotheses consistent with the view that they were adequately represented by counsel.
*149 When, during the jury's deliberations, the foreman submitted a question, the judge discussed his proposed response with counsel for both parties and defense counsel did not voice any objection to the proposed response which the judge later gave to the jury's question.
The defendants further contend that the judge should have granted their request to instruct the jury on the lesser offenses of the attempt to commit the charged offenses. The contention is without merit. The record shows that the completed offenses were committed. There is no evidence in the record from which the jury could reasonably have inferred that the charged offenses were not committed and that the actions of the defendants did not go beyond the attempt stage. Accordingly, the judge properly refused to instruct the jurors that they could convict the defendants of the crimes of attempt to commit the charged offenses.
Defendant Marlin argues that he was prejudiced by the judge's refusal to permit the defendant Williams to introduce evidence of alibi. Marlin testified that he was not with Williams on the evening the crime was committed. In that context, we do not think that Marlin was deprived of a fair trial by the judge's ruling that Williams' failure to give notice of alibi deprived him of the right to produce alibi witnesses.
Affirmed.