*1 THURMOND PEOPLE Opinion Court Crimes —Rebuttal—Alibi 1. Law —Evidence—Similar Criminal Defense. by a committed defendant is crimes Evidence of other similar defense. to rebut alibi admissible by J.V. 2. Law —Evidence—Rebuttal—Discretion. Criminal is a properly evidence matter for rebuttal Whether evidence court’s discretion. in Case Chief— in 3. Criminal Law —Evidence-—Rebuttal—Issues by Way of Defense. Issues relevant and material limited the refutation of Rebuttal is evidence, bearing properly raised in on an issue i.e. evidence prosecutor’s case; in the be raised such an could one issue defense, by way evidence in chief or raised case subject to rebuttal. would be either Case in Chief. 4. Law —Evidence—Rebuttal—Issues Criminal may it bears an issue admitted where Rebuttal evidence defense; inad- evidence is not raised rebuttal pre- simply could have been because that evidence missible prosecution’s case chief. in the sented Defense. 5. Law —Evidence—Rebuttal—Alibi Criminal may past pattern of a offenses of a common Evidence to rebut an alibi defense. be admissible [1, [2] [3, [6, [8, [10] 4] 5] 7] 20 Am Jur 29 Am 11] 75 Am Am Am Jur Jur Am Jur Jur Jur 2d, 2d, Courts 233. References 2d, 2d, 2d, Evidence § 2d, § Evidence §§ Evidence Trial Trial 876 et § § 269. § 321. Points 250, 269. seq. in Headnotes People v Thurmond 6. Witnesses —Criminal Law —Rebuttal—Notice—Statutes—Dis- cretion.
Testimony prosecution witnesses for the must be *2 excluded of rebuttal is not where notice served on defense however, statute; provided by gives counsel as the statute also given to to trial court discretion allow notice after the (MCLA period normally required by 768.20[2]; statute MSA 28.1043[2]). 7. Witnesses —Criminal Law —Rebuttal—Late Notice —Discre- tion —Statutes. allowing A prosecution trial court’s exercise of discretion in three testify proper, although rebuttal witnesses to was formal ser- trial, vice of notice of was not made to where defense counsel knew the existence of two of the witnesses trial, during prosecution’s well before and he was informed possibility cross-examination of defense a alibi witness of the (MCLA prosecution might call a rebuttal witness 768.20[2]; 28.1043[2]). Jury Necessarily 8. Criminal Law —Instructions to — Included Retroactivity. Offenses — jury necessarily Refusal to instruct a included offenses is generally error; however, Supreme precedent reversible Court retroactively applicable. to this is not effect Jury 9. Criminal Law —Instructions to —Included Offenses— Length Retroactivity. of Incarceration Period — charged any punishable by case where the offense is incarcera- years, tion more for than two or the court whether not re- quested may jury not instruct on lesser included offenses period for which the maximum allowable of incarceration is however, less; year Supreme precedent one or Court to this retroactively applicable. effect not Precedent—Prospective Policy. 10. Courts — Effect —New Supreme clearly A policy decision Court which sets new prospective only should be accorded effect. Jury Necessarily 11. Criminal Law —Instructions to — Included Offenses —Precedent—New Trial. requested give A case should be reversed for failure to necessarily charged on a instruction included offense where the punishable by incarceration, years crime was more than two necessarily punishable by where the included was offense incar- less, year given ceration one if and where the defendant a new would not be entitled to instruction App 310 J.V. Supreme pursuant necessarily to recent Court offense included precedent. Dunn, J. D. Richard Sub- from Appeal Wayne, (Docket 1976, at Detroit. 17, No. mitted December 26533.) appeal 1977. Leave May Decided for. applied of unarmed convicted rob-
Kelly Thurmond was commit rape. intent bery and assault with and remanded. appeals. Reversed General, Robert A. Frank J. Kelley, Attorney Cahalan, L. General, William Derengoski, Solicitor Wilson, Reilly Edward Prosecuting Re- Attorney, P. and Charles Kel- search, Training Appeals, & lett, peo- for the Prosecuting Attorney, Assistant ple. *3 Shultz),
Moore & P. C. Laurence Maloney, (by defendant. J., Maher, R. M. P. and V. J. Before: Brennan Kaufman, N. J. JJ. and Maher, accurately dissent M. P. J. The states
R. Parker, the facts. (1975), correctly testimony held that rebut an other crimes does alibi
about reversed. Defendant’s convictions must be defense. and remanded. Reversed J., Kaufman, concurred. N. J. (dissenting). Kelly Defendant
J.V. with unarmed charged robbery was Thurmond 750.530; 28.798 and as- MCLA MSA contrary contrary rape to commit with intent sault 22, 1975, 750.85; 28.280. On July MCLA Wayne in by a jury was convicted defendant v Thurmond Dissent Bkennan, Court, County Judge D. Circuit Richard Dunn presiding. made motion for trial, Defendant new which was heard denied on November 26, and August 12, 1975, Judge 1975. On Dunn sentenced the defendant to 15 years prison to terms of 10 unarmed robbery charge and to 10 years in prison on charge. Defendant appeals assault right. as of out of
Defendant’s conviction arose events occur- 15, ring in the early evening February 1975. Complainant entering Mary Kaye apart- was her Park, ment in Highland Michigan a man, when pretense under helping open door, her grab- bed her from behind and her forced into the basement. The attempted man then to remove her clothing, interrupted but was in his assault by resident, another apartment Zinger, Ms. Colleen who had complainant’s heard shouts and rushed down to investigate. grabbed The assailant com- plainant’s purse and fled from the building through 5, 1975, a basement door. April On both complainant Zinger Ms. identified defendant from a line-up as responsi- the man who had been ble for the robbery. assault and filed 4, notice of alibi defense on June 1975, and amended notice of alibi on July At trial defendant testified his own behalf. He stated that he attending was a birthday party at his aunt’s home when the incident occurred. This aunt, was corroborated by defendant’s Rimmer. Lovie She testified that the party was *4 held on February working because she was on the actual date of her birthday, February She stated that she did not morning work on the of February 15. case,
After the defense rested their the prosecu- tion moved to endorse three rebuttal witnesses. Mich Dissent V. filed notice of had
Though prosecution the defense, the trial alibi rebuttal to defendant’s the of testimony allow decision to court made the Dombrowski was Frank proposed witnesses. rebutting basis testify allowed to that wit- He testified Rimmer. credibility of Lovie morning of on the come to work ness Rimmer had Turner and Laura February 1975. Rosetta for testify purposes Tavolette allowed were or scheme. Wit- showing general plan had robbed ness that defendant Turner testified Tavolette testified on a her occasion. Witness and robbed her a that had raped defendant to the objected Defense counsel previous incident. witnesses. of each of these the trial court jury, In to the giving instruction to instruct request refused defendant’s assault and assault lesser included offenses of his properly registered battery. Defense counsel three lodged has objection. appeal, defendant On light my dis- separate allegations error. and Kauf- agreement my with brothers Maher speak allegation each feel constrained to man, raised. court argues initially the trial allowing testimony of witnesses reversibly by
erred for purpose Turner and Tavolette on rebuttal had showing plan scheme where defendant agree. defense. I do not raised alibi evidence has tradi- What matter the trial discre- tionally court’s been Utter, 74, 83-84; 185 NW v tion. 333, 341; People Ebejer, (1921); (1976). However, recent case deci- 239 NW2d legal range narrowed sions have somewhat discretion may which this exercised.
Bennett, (1975); NW2d 840 *5 People Thurmond v by V.J. Brennan, Dissent People #1, v McGillen NW2d Bennett, the Court identified the general permissible scope of rebuttal: argument
"This the office misconceives of rebuttal. Rebuttal is limited to the refutation of relevant and bearing material evidence—hence evidence on an issue properly raised ain case.
"Such issue of course could be one raised in the prosecutor’s by case in chief or one raised way of defense, and subject evidence on either would be Bennett, People supra rebuttal.” at v 449.
What must be that realized Bennett McGillen do prohibit simply evidence because that evidence presented could have been in the prosecution’s case chief. Evidence may correctly be if it is admitted offered to refute prosecution’s issue raised in the case chief "by way People Parker, v defense”. (1975) (dissent 597; 237 by J.).
Brennan, Where rebuttal evidence bears an issue by defense, raised the trial court is not by allowing in error its admission. Bennett, People supra v 449. at I feel presentation defendant’s of an alibi injected defense an issue into the which justi- case fied the rebuttal witnesses Turner and Tavolette concerning the common pattern past offenses. see no connection be- tween this situation and one where the prosecu- improperly tion by manufactures an issue denials he elicits on cross-examination.
Bennett, at 449. supra Evidence similar acts served in this case to disprove the of misi- theory implicit dentification in presenting an alibi de- Parker, fense. supra at I must therefore conclude that court by admitting this
did not discretion abuse its testimony. mandatory pro- argues that
Defendant next apply to this case. See visions 1974 PA 28.1044(2). agree *6 768.21(2); I with this MCLA proposition. MSA testimony result, I that As a believe where notice rebuttal must be excluded witnesses on defense counsel as of rebuttal provided served not 28.1043(2).2 768.20(2); in MCLA recognize court However, the trial retains I also given to rebuttal be notice of discretion to allow by normally required period the statute after the may the court is, other time as —that "at such 28.1043(2). 768.20(2);MSA direct”. MCLA affirming I there reason believe was sufficient allowing the court’s discretion exercise testify on such late the to three rebuttal witnesses Specifically, of the defense counsel knew notice. and Turner Tavolette existence of both witnesses during Further, well prosecution’s trial. he was informed before one defense al- cross-examination might possibility prosecution call ibi witness the the I feel trial court was within rebuttal witnesses. allowing by his the endorsement discretion 1 prosecuting attorney note of "If the fails to file and serve a 20a, provided upon in section the the defendant as 20 or rebuttal court shall exclude evidence offered the or 20a. If the notice by prosecution in rebuttal to the specified relevant to defense in section defendant’s evidence state, attorney given by prosecuting the does not attorney, particularly prosecuting name of a as as is known to the the insanity, the called in of the defense of alibi witness to be rebuttal by the the of a witness which is court shall exclude offered purpose rebutting prosecuting attorney defense.” for the that 28.1044(2). 768.21(2);MSA MCLA days receipt but the of the defendant’s notice "Within after case, days other not time as the court serve the trial of the or at such later than before direct, may prosecuting attorney file and the shall contain, upon as a notice of which shall the defendant rebuttal prosecuting attorney, particularly the of the is known names as prosecuting proposes attorney to call in whom witnesses to controvert MCLA defense at the trial of case.” 28.1043(2). 768.20(2);MSA v Thurmond testimony of these three witnesses without filing formal service of notice to trial. finally alleges the trial court in refusing
erred to instruct on the lesser included offenses of assault and assault and battery. per- ceive no error here. 21-22,
Defendant’s trial occurred July 1975. On 18, 1975, December Michigan Supreme Court decided two cases appear which to bear directly on Jones, present People Ora matter. 379; 236 (1975); People Chamblis, NW2d 461 Appearances can deceiving. Jones,
In Ora supra, the Court ruled that revers- ible error occurs where the trial court refuses on request to instruct on necessarily included of- Jones, fenses. People v supra Ora at 390. However, Chamblis, supra, the Court found that policy considerations did permit the trial court *7 instruct on lesser included offenses involving im- prisonment for less year than a where charged the offense punishable was by incarceration for more than two years. People Chamblis, v supra at 427- 429. Assault with intent rape may bring up to years ten in prison. Assault and assault and bat- tery are misdemeanors involving a penalty of not more than 90 days in county jail. 750.81, MCLA 750.504; 28.276, also, 28.772. See People v Chamblis, supra, at 428. outset,
At
inquiry must be made as to
whether
these decisions have retroactive
or only
prospective
In
Jones,
effect.
Ora
case of
I
can
find no indication in the decision itself as to what
Further,
the Court
intends.
I choose to break with
I perceive
premature
what
as
rulings3 of this Court
Harrison,
People
227-228;
v
71 Mich
holding on the a retroactive Ora Jones from the Su- communication later inconclusive People Lovett, preme 396 Mich v Court. (1976). Lovett, the Court nowhere NW2d specifically retroactivity. question discussed retroactivity Consequently, can I not believe do simply announced in the rule inferred because be applied I not believe Lovett. do in Jones was Ora major Supreme that a determine Court would retroactive without was Jones decision like Ora of the mat- treatment clear and substantial some ter. perceive Lovett and the in- is that I do
What
appeal
process
when
Ora
in
stant case were
alone, I
this basis
feel
Jones was released. On
(i.e.,
police step
major
denying
justified
such
extending
retroactivity)
to cases not
Jones
as
Ora
to December
appeal prior
process
18, 1975.
Appeals,
457, 458-459;
Price v Court
(1975).
case,
instant
how-
In the
225
ever,
NW2d
apply
in Ora Jones.
the rule announced
I do
Jones,
decision does
the Chamblis
Unlike Ora
position
strong
give
con
of the Court’s
evidence
limiting principle
cerning
we deal
whether
retroactively
only
applied
with here would
supra
prospectively.
Chamblis,
at 427-
v
Simply,
the Court’s deci
I feel that because
policy,
clearly
the decision can be
set new
sion
accorded
69 Mich
prospective
only
Morris,
effect.
App 545, 552, 2; n
necessarily
recognize that assault is a
included
though
rape,
with intent
offense to assault
battery
People Ross,
is not.
assault and
App 287;
Jones, Jackson, NW2d 381 478, 480-481, 245 NW2d v Thurmond Dissent V. applying Therefore, in the rule of Ora Jones to the present normally required case, reversal would where the trial court has failed to instruct on a necessarily included offense. recognize
I also that Chamblis would not nor- mally apply appeal in this case where the trial was held to the Chamblis decision date. However, I further realize that were reversal to Jones, be ordered on the of Ora basis defendant request would not be on retrial able instruc- Consequently, tion on under assault Chamblis. upon rather than return the case an error which retrial, will not constitute error on I would choose point to affirm Ross, on this instead. supra. having alleged
Thus, reviewed all the errors appeal, grounds this I can find no to reverse. I would affirm.