People v. Clifton Fuqua
379 N.W.2d 442
Mich. Ct. App.
1985
Check Treatment
Per Curiam.

After a jury trial, defendant was convicted of armed robbery, MCL 750.529; MSA 28.797. Defendant was sentenced to imprisonment for from 15 to 30 years, and he appeals as of right.

Defendant argues that the charges аgainst him should have been dismissed with prejudice, because his preliminary examination was not con *253 ducted within 12 days of his arraignment in district court as required by MCL 766.1; MSA 28.919 and MCL 766.4; MSA 28.922. When defendant raised this issue in district court, the judge dismissed the charges against defendant without prejudice. Defendant was promptly rearraigned in district court, and a preliminary examination was conducted within 12 days of the new arraignment.

In People v Weston, 413 Mich 371, 376; 319 NW2d 537 (1982), the Court required dismissal without prejudice where the 12-day rule had been violated. We decline to go beyond Weston to impose the extraordinary remedy of dismissal with prejudice for a trivial delay not affеcting the integrity of the fact-finding process. Defendant’s claim that dismissal of the charges against him without prejudice constituted harrassment is untenable, because the charges against defendant were dismissed on defendant’s own motion in accordance with Weston.

Defendant complains of the following remarks by the prosecutor ‍​‌​​‌​​‌​‌​​‌​​‌​​​​‌​​‌‌‌​​‌‌​‌‌‌​‌​‌‌‌​‌‌​‌​​‌‍in closing argument relating to lesser included offenses:

"Now, folks, at the end of the trial and when Judge Warren instructs you on this case, he’s going to give you a long list of instructions. When he gets to the instructions which deal with the crimes involved in this case, he’s going to give you a list оf crimes other than armed robbery. They’re going to be what are called the necessarily included offenses; or the offenses that if an armed robbery’s committed, these are necessarily included therein. But I submit, folks, that the proofs that have been shown here show armed robbery as having occurred, a stickup. A gunman came in and took money. That’s an armed robbery. It’s not larceny frоm a person, it’s not larceny in a building, it’s not larceny over, it’s not any of these other crimes. It’s not a felonious assault, it’s an armed robbery. No more, no less. We, the people who represent you in the Prose *254 cutor’s office that deal with these all the time, we review the facts of these cases. We decide what crime to charge based on our knowledge of the criminal law. And if we’ve charged an armed robbery, and I submit that I’ve been here through this trial and I submit that an armed robbery’s been proven and that these other crimes, though you will be instructed on those crimes, those aren’t the crimes that occurred.” (Emphasis added.)

This argument violated thе well-known rule that the prosecutor may not ask the jury to convict the defendant on the basis of the prosecutor’s personal knowledge and the prestige of his office rather than on the evidence. People v Quick, 58 Mich 321, 324; 25 NW 302 (1885); People v Dane, 59 Mich 550, 552-553; 26 NW 781 (1886); People v Hill, 258 Mich 79, 88-89; 241 NW 873 (1932); People v Ignofo, 315 Mich 626, 631-636; 24 NW2d 514 (1946); People v Humphreys, 24 Mich App 411, 414-415; 180 NW2d 328 (1970); People v Farrar, 36 Mich App 294, 298-299; 193 NW2d 363 (1971). Defendant made no objection to the argument at issue, but we will nevertheless reverse despite the absence of an objection if the goal of an objection, a curative instruction, would have been futile. See, for example, People v Hall, 396 Mich 650, 655; 242 NW2d 377 (1976). The argument at issue is so egregious that we cannot say that a curative instruction would have obviated the resulting prejudiсe. Compare People v Ignofo, supra, People v Humphreys, supra, and People v Farrar, supra.

We will address some of the other issues raised by defendant to prevent them from arising on remand. Defendant argues that reversible error is presented by cross-examination ‍​‌​​‌​​‌​‌​​‌​​‌​​​​‌​​‌‌‌​​‌‌​‌‌‌​‌​‌‌‌​‌‌​‌​​‌‍and argument concerning the failure of a defense alibi witness to come forward and tell his story to the police before trial. We agree with panels of this Court in People *255 v Lafayette, 138 Mich App 380, 389; 360 NW2d 891 (1984), and People v McClow, 40 Mich App 185, 193; 198 NW2d 707 (1972), that such questioning and argument is permissible.

The rationale for permitting such questioning and argument is that the credibility of a witness may be attacked by showing that he or she failed to speak when it would have been natural to do so if the facts accorded with his or her testimony. See People v McClow, supra, p 193, and People v Diaz, 98 Mich App 675, 683; 296 NW2d 337 (1980).

We note, however, that many jurisdictions which permit such an attack on the credibility of a defense alibi witness nevertheless recognize that an assumption that it is natural for a defense alibi witness to tell his or her story to the police is not always warranted and impose restrictions on the circumstances in which such an attack may be made. For example, in People v Dawson, 50 NY2d 311; 428 NYS2d 914; 406 NE2d 771 (1980), the cоurt permitted such an attack on the credibility of a defense witness only if the prosecution laid a foundation showing that the witness was aware of the charges against defendant and their nature, that the witness had reason to recognize that he or she possessed exculpatory information, that the witness had a reasonable motive to exonerate the defendant, and that the witness was familiar with the means to make such information available to the police. The New York court also required the trial court to give a cautionary instruction indicating that the witnеss had no duty to come forward and tell his or her story, and the court barred such an attack on the credibility of a defense witness if the witness had been advised by the defense attorney not to tell his оr her story to the police. See also, Commonwealth v Brown, 11 Mass App 288; *256 416 NE2d 218 (1981), and People v Watson, 94 Ill App 3d 550; 50 Ill Dec 21; 418 NE2d 1015 (1981).

Upon retrial, before the prosecutor is allowed to impeach an alibi witness for failure to come forward and tell his story to the pоlice before trial, an adequate foundation must be laid. There must be some showing, on the record, as to why it would have been natural for the alibi witness to relate his story to the police.

We find the cases that disagree with this position to be distinguishable. People v Grisham, 125 Mich App 280; 335 NW2d 680 (1983), while stating that panels of this Court ‍​‌​​‌​​‌​‌​​‌​​‌​​​​‌​​‌‌‌​​‌‌​‌‌‌​‌​‌‌‌​‌‌​‌​​‌‍disagree on the issue, is not on point. Grisham dealt with the pretrial conduct of a nonalibi witness. Although People v Kraai, 92 Mich App 398; 285 NW2d 309 (1979), concerned an alibi witness, the case does not focus on the alibi witness’s pretrial conduct as inconsistent with trial testimony, but rather focuses on the prosecutor’s attack on the witness’s charaсter as a bad citizen. Furthermore, the defendant in Kraai was on trial for first-degree criminal sexual conduct and the alibi witness was impeached by the prosecutor on the grounds that she was remiss in not rеporting her knowledge of the defendant’s escape.

Defendant also argues that the trial court erred by permitting testimony by one of the victims of the robbery that he recognized defendant as the person who attempted a short-change scheme several weeks before the robbery at the store later robbed. Four requirements must be met before evidence of а prior bad act by the defendant may be admitted: (1) there must be substantial evidence that defendant actually committed the bad act; (2) there must be some special quality or circumstancе of the bad act tending to prove one or more of the matters specified in MRE 404(b); (3) the *257 matters specified in MRE 404(b) which the bad act tends to prove must be material to determination of the dеfendant’s guilt; and (4) the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice. People v Golochowicz, 413 Mich 298, 309; 319 NW2d 518 (1982).

Here, the testimony of the victim provided substantial evidence that defendant actually attempted the short-change scheme. Identity is one of the matters specified in MRE 404(b), and ‍​‌​​‌​​‌​‌​​‌​​‌​​​​‌​​‌‌‌​​‌‌​‌‌‌​‌​‌‌‌​‌‌​‌​​‌‍the victim’s prior contact with defendant was particularly relevant to show that the viсtim was able subsequently to identify accurately defendant as the robber. See, for example, People v Kachar, 400 Mich 78, 95; 252 NW2d 807 (1977). On the record made at defendant’s first trial, we cannot say that the trial court erred by concluding that the probative value of this evidence on the issue of identity was not substantially outweighed by the danger of unfair prejudice. Evidence of the short-change scheme will be admissible absent а material change in circumstances on retrial.

. Defendant argues that his stop and subsequent arrest by the police were illegal and that various evidence, including testimony concerning thе victims’ identification of defendant at a lineup, should have been suppressed as obtained through exploitation of the primary illegalities. A trial court’s ruling at a suppression hearing will not bе disturbed on appeal unless clearly erroneous. People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983). A stop must be based on individualized articulable suspicion. Delaware v Prouse, 440 US 648, 662; 99 S Ct 1391; 59 L Ed 2d 660 (1979); United States v Brignoni-Ponce, 422 US 873, 881-882; 92 S Ct 2574; 45 L Ed 2d 607 (1975); People v Burrell, supra, p 450. An arrest without a warrant *258 is permissible only if the arresting officer has probable cause to believe that the suspect has committed or is committing an offense. See, for example, Michigan v DeFillippo, 443 US 31, 36; 99 S Ct 2627; 61 L Ed 2d 343 (1979). The arresting officers here stationed themselves at a blockade point on a major highway leаding away from the town in which the robbery was committed. They received over the radio a description of the robbers and their vehicle. At roughly the correct time for a vehicle to travеl from the town in which the robbery was committed to the blockade point, the officers observed a vehicle roughly corresponding to the description they received over the radio. Under these circumstances, the officers’ stop of the vehicle was adequately based on an individualized articulable suspicion that the occupants of the vehicle were thе robbers.

The description of the robbers received by the officers over the radio included such details as height and build, facial hair, and clothing. After the stop, the officers were able to observe that the occupants of the vehicle corresponded closely to the descriptions of ‍​‌​​‌​​‌​‌​​‌​​‌​​​​‌​​‌‌‌​​‌‌​‌‌‌​‌​‌‌‌​‌‌​‌​​‌‍the robbers. This additional circumstance provided the officers with probable cause to believe that the occupants of the vehicle were, in fact, the robbers. On this record, the trial court’s decision not to suppress the evidence at issue was not сlearly erroneous.

Other issues raised by defendant may not arise in their present form on retrial and therefore will not be addressed.

Reversed and remanded for further proceedings consistent with this opinion. We retain no jurisdiction.