Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Docket Number
Attorney(S)
  • Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy C. Scallen, Assistant Prosecuting Attorney, for the people. Ruby Ruby, P.C., for defendant on appeal.
Judges
  • BASHARA, J.
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Docket Number
Attorney(S)
  • Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy C. Scallen, Assistant Prosecuting Attorney, for the people. Ruby Ruby, P.C., for defendant on appeal.
Judges
  • BASHARA, J.
See more information ...
Smart Summary

Case Summary: People v. Hunter, Docket No. 78-5185 (Mich. Ct. App. Mar. 4, 1980)

Factual and Procedural Background

Defendant was convicted by a jury of two counts of kidnapping (MCL 750.349; MSA 28.581), armed robbery (MCL 750.529; MSA 28.797), and first-degree criminal sexual conduct (MCL 750.520b; MSA 28.788(2)). Prior to trial defense counsel filed a notice of alibi pursuant to MCL 768.20; MSA 28.1043. During trial the prosecutor twice referenced that alibi notice before the jury: first by requesting judicial notice of the notice of alibi and later through questioning of a police witness who identified names contained in a document. Defense counsel moved for a mistrial and objected when the prosecutor attempted to have the notice admitted as a "judicial admission." The trial court struck the prosecutor's initial jury remark, instructed the jury to disregard lawyers' statements ordered stricken, and ultimately denied admission of the alibi notice as too prejudicial. Defendant testified but did not present the alibi defense. Following closing argument in which the prosecutor referred to the alibi matter, the defendant was convicted. The Court of Appeals reversed and remanded for a new trial.

Legal Issues Presented

  1. Whether the prosecutor's remarks and questions referencing the defendant's pretrial notice of alibi (before the defendant presented any alibi) constituted an impermissible comment on the defendant's right to remain silent and unlawfully shifted the burden of proof to the defendant.
  2. Whether references to the filing of a notice of alibi may be used by the prosecution to impeach or otherwise argue weakness in the defendant's case when the defendant has not presented an alibi at trial.

Arguments of the Parties

Defendant's Arguments

  • The prosecutor erroneously and prejudicially referred to the defendant's alibi notice before the defendant put forth any alibi at trial, in violation of the defendant's right to remain silent and thereby shifting the burden of proof.
  • Defense counsel moved for a mistrial and objected to admission of the notice of alibi when the prosecutor sought to have it treated as a judicial admission.

People's (Prosecution's) Position

  • The prosecutor sought to take judicial notice of the defendant's alibi notice and later attempted to elicit from a police witness and the defendant that a document containing names (the alibi notice) existed and that statements were taken from named individuals.
  • The prosecutor attempted to admit the notice as a "judicial admission" and, in closing argument, used the absence of alibi witnesses at trial to argue the weakness of the defendant's case.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
People v Shannon, 88 Mich. App. 138; 276 N.W.2d 546 (1979) Authority holding that prosecutor's and trial court's references to appearance and subsequent failure of an alibi witness to testify impermissibly shifted burden of proof to defendant; explanation of the purpose of the notice of alibi requirement (to permit prosecution investigation, not to inform the jury). The court relied on Shannon as controlling authority to conclude that the prosecutor's comments and questions regarding the notice of alibi were prejudicial and impermissible, warranting reversal and remand for a new trial.
People v Merritt, 396 Mich. 67; 238 N.W.2d 31 (1976) Supports the proposition that the notice of alibi requirement exists to enable the prosecution to investigate the merits of an alibi defense prior to trial. Cited to explain the proper purpose of the alibi-notice statute and to show that revealing the notice to the jury is inconsistent with that purpose.
People v McFadden, 347 Mich. 357; 79 N.W.2d 869 (1956) Earlier authority referenced in connection with the purpose of the alibi notice rule. Used to support the statement that the notice requirement protects the public by informing the prosecution so it may investigate, not to inform the jury of a defendant's proposed defense.

Court's Reasoning and Analysis

The court reviewed the trial record showing multiple references by the prosecutor to the defendant's pretrial notice of alibi: an initial statement requesting the court take judicial notice of the alibi notice in the jury's presence, questioning of a police witness outside the jury's presence that nonetheless identified names contained in a document, and an attempt to admit the notice as a "judicial admission" when the defendant testified. The trial court struck the prosecutor's first remark and instructed the jury to disregard stricken statements, and it denied admission of the alibi notice as too prejudicial.

Relying principally on People v. Shannon, the court explained the distinction between two scenarios: (1) where a defendant testifies to an alibi and the prosecution comments on the nonproduction of corroborating witnesses (permissible as pointing out weakness in the defendant's case), and (2) where the defendant presents no testimony supporting an alibi and the prosecution comments on the absence of alibi witnesses (impermissible because it shifts the burden of proof to the defendant). The court found that references to the filing of an alibi notice prior to the defendant actually putting forth an alibi defense function as an impermissible comment on the defendant's right to remain silent.

The court reasoned that treating the procedural requirement of filing an alibi notice as a waiver of the substantive right to remain silent would be improper. Accordingly, any reference to the filing of an alibi notice before the defendant presents an alibi at trial is prejudicial and unlawful.

Holding and Implications

Holding: The convictions were reversed and the case was remanded for a new trial.

Implications:

  • The Court held that references by the prosecution (or court) to a defendant's pretrial filing of an alibi notice, before the defendant actually presents an alibi at trial, constitute an impermissible comment on the defendant's right to remain silent and may impermissibly shift the burden of proof to the defendant.
  • The direct consequence for the parties is reversal of the convictions and remand for a new trial. The opinion applies existing precedent (notably People v. Shannon, People v. Merritt, and People v. McFadden) to resolve the issue and does not purport to set aside those authorities; instead it enforces the rule that the alibi-notice requirement is for prosecutorial investigation, not for informing the jury of a proposed defense.
Show full summary ...

PEOPLE v HUNTER

BASHARA, J.

Defendant was convicted by a jury of two counts of kidnapping, MCL 750.349; MSA 28.581, armed robbery, MCL 750.529; MSA 28.797, and criminal sexual conduct in the first degree, MCL 750.520b; MSA 28.788(2).

Defendant makes several allegations of error, only one of which requires serious discussion. It is defendant's claim that the prosecutor erroneously and prejudically referred to his alibi notice even though defendant did not raise the defense of alibi during trial.

Defense counsel filed a notice of alibi prior to trial, pursuant to MCL 768.20; MSA 28.1043. Before any indication that the defendant would testify, the prosecutor made the following statement before the jury:

"Your Honor, before I start with this witness here, I'd like the Court to take judicial notice of People's Proposed Exhibit Number 4 and that would be an Alibi Notice that has been filed with this Court on behalf of the Defendant."

Defense counsel immediately moved for a mistrial and asked that the jury be excused. After extensive discussion, the trial judge denied the motion but, in the presence of the jury, ordered the prosecutor's remarks stricken. He further instructed that the comments and statements of the lawyers were not to be considered as evidence, nor were they to consider anything the court ordered stricken from the record.

Subsequently, out of the presence of the jury, the prosecutor indicated that he wished to bring out the question of defendant's notice of alibi. After being cautioned by the court not to mention the notice of alibi, the following questions were asked of a police witness:

"Q Ma'am, did you receive a Document from the Defendant with a couple of names mentioned on the Document?

"A Yes, I did.

"Q And did you read the allegations contained in the Document?

"A Yes.

"Q And did you take statements from those people?

"A Yes.

"Q That were mentioned in that Document?

"A Yes.

"Q Who are those people mentioned in that Document and their names?

"A Barry Singleton and Willie Martin.

"MR. KING [prosecutor]: I have no further questions."

Defendant took the stand and testified in his own behalf. He did not offer the alibi defense. On cross-examination, the prosecutor immediately attempted to introduce the notice of alibi by asking defendant if he could identify a document filed in the Recorder's Court. Defense counsel objected and asked that the jury be excused.

The ensuing colloquy revealed that the prosecutor was attempting to get the notice of alibi admitted as a "judicial admission". The trial judge indicated that admission of the document would be too prejudicial and denied the prosecutor's plea to introduce it. When the jury was returned, the next series of questions were:

"Q Now, where were you on August 28th?

"A August 28th?

"Q Yes.

"A At any particular time, I was here in the City of Detroit.

"Q Where were you that night?

"A The night of August 28th I was at 10302 Maplelawn, it's in the City of Detroit.

"Q Who lives there?

"A My mother-in-law."

In closing argument, the prosecutor made the following comments:

"Then the Police Department checked out alibi witnesses. You didn't see any alibi witnesses here so Officer Stevenson said she took statements from those witnesses, you didn't see the Defendant's mother-in-law testify, but he said he was over to her house that night.

* * *

"Now, he brought out that his brother, Kenneth, told the Defense Counel [sic] the names of two alibi witnesses. Now Mr. O'Connell has been around a long time —

* * *

"Now, maybe my hearing's bad, I thought I heard the Defendant say my brother told the Defense Counsel and we had ten days to file an alibi before trial. This trial did not sneak up on him on August 29th, 1977. His brother allegedly tells his Defense Counsel about witnesses on May 5th, 1978, and lo and behold, it's not his mother-in-law.

* * *

"But look at the other footwork, the alibi witnesses. May 5th, 1978, Gary Singleton, Willie Morgan, he had to have them ten days before trial and have them say, `Hey, we didn't do anything — ."

We are of the opinion that the statements and questions propounded as hereinbefore reflected were so prejudicial that reversal is required. In People v Shannon, 88 Mich. App. 138; 276 N.W.2d 546 (1979), the defendant filed notice of alibi. However, after speaking with the alibi witness, defense counsel chose not to call him. The defendant himself did not testify. This Court found that the prosecutor's and trial court's references to the appearance of the alibi witness and his subsequent failure to testify impermissibly shifted the burden of proof to the defendant.

In Shannon, the Court stated the purpose of the notice of alibi requirement:

"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." 88 Mich. App. 138, 144.

The only feature distinguishing Shannon from the case at bar is that the defendant, in that matter, did not testify. However, the Court was careful to point out the difference between cases allowing prosecutorial comment upon defendant's failure to produce a corroborating witness:

"Where a defendant testifies to an alibi and calls no additional witnesses to support it, the prosecution, by commenting on the nonproduction of corroborating alibi witnesses, is merely pointing out the weakness in defendant's case. When, however, the defendant produces no testimony to support an alibi, the prosecutor, by commenting on the nonproduction of alibi witnesses, is not exposing a weakness in defendant's case, but is rather improperly shifting the burden of proof to the defendant." Id., 145.

We conclude that any reference made to the filing of a notice of alibi prior to the defendant's actually putting forth an alibi defense constitutes an impermissible comment on the defendant's right to remain silent. To find otherwise would elevate the procedural requirement of filing the notice of alibi into a waiver of defendant's substantive right to remain silent.

Reversed and remanded for a new trial.

Use AI to get other relevant cases.
Try AI Pro free for 7 days Upgrade to AI Pro

Comments

PEOPLE v. HUNTER
(Mar 4, 1980)