*1 1979] v Burt v BURT PEOPLE 6, 1978, at Detroit. De 77-4371. Submitted December Docket No. 27, 1979. February cided robbery Burt, Defendant, convicted of unarmed Terrance Crockett, III, Detroit, George J. At trial W. Court of Recorder’s crime, he at the time of the the alibi defendant offered on television. a football four friends were proposed introduce the Detroit News to but, attempts to after several the alibi evidence Guide to rebut attempt foundation, lay his abandoned During see it. introduce by that it for the reason but were refused T.V. Guide appeals. Defendant Held: was not in evidence. ruling that the T.V. Guide erred in While the trial court prove programs might were scheduled to introduced to what be aired, Appeals judicial notice that the Court of takes any Washington games or between and Dallas football between day professional on the teams were televised other 24, 1976, and, therefore, harm- the error is December less, likely trial would not in that the outcome of a new different.
Affirmed. J., for the reason N. concurred in the result jury to consider the trial court instructed the He would be hesi- evidence and exhibits which were admitted. appeal judicial of a fact tant to take notice for the first time on for which no was offered below. Opinion of the Court Appeal — — 1. Notice. and Error Evidence Judicial Appellate propriety of the notice courts can review the taken can even take notice on the court below and
their own initiative of facts not noticed below. [1, [2] 5 Am Jur Am Jur 2d, 2d, References Evidence §§ Appeal and Error 739. for Points in Headnotes 89 Mich op op — — Judicial Notice Rules Evidence. judicially noticed fact must be one accurate and ready accuracy resort whose sources can- *2 reasonably questioned; question the of whether or not a given game given day played was on a (MRE 201[b][2]). judicial notice Kaufman, N. J.
Concurrence Appeal — — Notice. and Error Judicial reviewing to take notice for court should be hesitant appeal time on of a fact for which no was offered the ñrst below. Kelley, Attorney General,
Frank J. Robert A. Derengoski, General, Cahalan, L. Solicitor William Prosecuting Attorney, Reilly Wilson, Prin- Edward cipal Appeals, Attorney, Bernacki, and Frank J. Prosecuting people. Attorney, Assistant for the appeal. Galvin, Patricia Rossi for defendant on P.J., Before: and N. J. Beasley, Bronson JJ. by jury Per Curiam. Defendant was convicted robbery, contrary 750.530; of unarmed to MCL appeals right, sentence, MSA 28.798. After he as raising issues, two one of which merits discus- sion.
Defendant offered as an alibi that he and four friends were a football on televi- alleged trial, at sion cross-examination, the time of the crime. At on prosecutor the asked three of the alibi and defendant had witnesses which teams played game. in the presence jury,
Out of the the De- announced that he intended to introduce the troit News T.V. Guide in evidence to rebut Burt v Opinion of the Court testimony witnesses. He offered alibi notice of its authen- to take trial objection, ticity. ruled, over defendant’s evi- admitted into the T.V. Guide could be on to aired was scheduled to what dence show day as but it not admissible actually appeared on television of what evidence that day. jury courtroom, reentered the
When identify proposed had his witness attempts lay to a foundation After several exhibit. evidence, into of the T.V. Guide for admission prosecutor attempt his to introduce abandoned informa- reason that his witness lacked the for the lay necessary tion foundation.
During trial asked the permit In the them see the Guide. *3 they presence jury, the that could court said The examine the T.V. Guide. stated: not not an It’s "The reason for that is that it’s exhibit. evidence.” court made an Defendant contends that ruling that the T.V. erroneous when determined probative as of what Guide not admissible appeared actually television, on but was admissi- showing purpose of what was scheduled for the ble Although not for- evidence was to be shown. argues mally admitted, that had defendant differently, not have would ruled physical presence exposed of and and been concerning Guide, defen- the T.V. discussion dant’s prejudiced. case not have been would newspaper admissible, evi- Where extrinsic required.1 authenticity of its Gener- dence is not ally, newspapers hearsay however, are evidence facts are admissi- stated within them and 902(6).
1 MRE 89 Mich op prove such facts.2 A T.V. Guide ble evidence is an out-of-court statement of what was sched- being uled. If it was prove offered i.e., asserted, the truth of the matter as actually evidence of what was aired so as to rebut hearsay. alibi, defendant’s it would be The T.V. concerning Guide defied cross-examination its reli- ability. brought The could have in a testify witness from the television station to or kept by records the station in introduced regular course of business. trial that ruled the T.V. Guide was prove actually aired,
not admissible to what was but for what was scheduled. We find what was scheduled to be aired to be irrelevant in this case. MRE 401 states:
" having any 'Relevant evidence’ means evidence tendency to make the existence of fact that is of consequence to the the action more probable probable or less than it would be without evidence.”
Showing way what was scheduled would in no dispute alibi; defendant’s the relevant evidence would be that the football defen- which they dant and the alibi witnesses claimed were alleged crime, at the time of the was not However, aired at that time. the T.V. Guide would purpose, merely be inadmissible for as it is hearsay incompe- evidence of the facts stated and prove actually tent to what was on the date shown *4 question. in ruling
We must then consider if the erroneous by grounds the In for reversal. determin- ing harmless, whether error was we take into
2 CJS, Evidence, 726, p 32 § v Burt of although the T.V. Guide was that consideration jury formally evidence, the into admitted never exposed inferred well have to it could and was questioning pur- prosecutor’s line of from being pose We also introduced. was for which T.V. to see that when consider during in- their Guide in evi- the T.V.uide was them that structed by them. could not be viewed dence and 201(c), judicial may take MRE a Under requested MRE or to do so. notice whether 201(c) any judicial taken at notice allows proceeding. very stage least, the At the rule pro- implies appellate can review that courts by judicial priety taken the court notice of on their even take notice and can below judi- not noticed below.3 own initiative cially facts "capable one of accu- fact must be noticed ready resort sources rate and reasonably questioned”.4 accuracy whose cannot find it of accurate demonstration We unques- resorting easily accessible sources game accuracy a tioned whether football and played Washington Dallas, or be- between any professional teams, on other football tween the 24, 1976, and have of December afternoon done so. jury’s
Consequently, if find even we exposure prejudicial, we to the Guide was do necessary the, not find it to return case for new fact, trial. take notice We Washington Dallas, or football between professional teams, was between other namely, Decem- televised on date Mich L Rev 509 McCormick, MRE 201(b)(2). (1943). (2d ed), 333, pp See, Comment, *5 89 Mich by Kaufman, J. Concurrence 24, Therefore,
ber any harmful inferences made by upon the jury seeing the T.V. Guide would be erased by a new trial in which the prosecution could offer testimony of an official programmer from the station which would appear to raise questions serious regarding the credibility of the alibi witnesses.
We, therefore, find under circum- case, stances of the the outcome of the trial would likely changed retrial; upon therefore, error is found to be harmless.
Affirmed. result).
N. J. (concurring I con- cur in the result reached by the majority on the basis that the jury was told to consider only the evidence and exhibits admitted. The judge ex- pressly stated that the jury could not examine the Guide, because it was not an exhibit. I am hesitant to take judicial notice for the first time on appeal of a fact for which was offered below. Compare CJS, Evidence, 13(b), pp 841- § CJS, and 22A Law, 531, Criminal pp