*1
before trial. The has a with a days notice of rebuttal at least five before trial or at such other option preserves time as the court direct. The court’s discretion to fix the timeliness of notice in view of the testimony, circumstances and to allow rebuttal even where notice is not filed until after commencement of trial. exercising discretion, 2. In its a trial court should consider prejudice the amount of resulted from the failure to disclose, nondisclosure, the reason for the extent to which the mitigated by subsequent harm caused nondisclosure was events, weight properly supporting admitted evidence v Travis arising guilt, factors out of and other relevant defendant’s of the case. circumstances case, The its 3. In this court abused discretion. severely explanation prejudiced; only defendant’s case was provide prosecution’s notice of rebuttal offered failure *2 simple confusion; by the the failure to dis- was harm caused events; mitigated by subsequent could the evidence close not be substantial, guilt, supporting not defendant’s while was the explanation overwhelming; decision and the trial court’s of its inadequate light prejudice the suffered the defen- was of of the be that the conviction dant. Because it cannot concluded miscarriage justice, re- not a of reversal and defendant was required. for a trial is mand new Riley, concurring, plain language of that the Justice stated 768.20; entirety two 28.1043 in its delineates MCL MSA viewed pathways grant subsec- sufficient notice of alibi witnesses: trial; require permits tions 1 and 2 notice before subsection the when late notice and endorsement of an alibi witness moving party the of the witness was unavail- shows that name required the and it could able at time the notice was diligence. The the of due have been available exercise prevent surprise purpose is to of the notice-of-alibi statute prohibit the introduction introduction of an alibi defense and Maintaining surprise prosecution the due rebuttal witnesses. defeat, preserves diligence does not but rather standard purpose of notice-of-alibi statute. case, prosecutor clearly comply with failed to In this given Nor until the middle of trial. subsection 2. No notice was requirements meet of subsection did the readily were available the names of witnesses because in the exercise would have been discovered diligence. Obtaining giving notice of witnesses due not be and should the realm of reasonable behavior within excused the detriment the defendant. Reversed and remanded. Attorney Kelley, General, L. J. Thomas
Frank
Thompson,
Casey,
General,
Pros-
Solicitor
Richard
Ap-
«ecuting Attorney,
Modelski, Chief,
Michael J
pellate
Kabodian,
Division,
A.
Assis-
and Janice
people.
Prosecuting Attorney,
for
tant
Randy
Appellate
(by
David-
E.
Defender
State
son)
defendant.
Griffin, advance notice of a criminal defendant’s intention present testimony felony to charges, alibi in a trial of corresponding
as well as a of the notice prosecution’s intent to offer evidence rebuttal of 768.20; that defense. MCL 28.1043.1 MSA Over objection, defendant’s the trial court admitted the despite of two rebuttal witnesses failure provide trial, notice before jury and defendant then was convicted breaking entering with intent to commit lar- ceny2 battery.3 appeal, and of assault and On
1 (1) felony proposes If a defendant in a case to offer in his defense alleged an establish alibi at the time of the offense, arraignment arraignment the defendant shall at the time of days on the information or within 15 after that case, days but not less than before the trial of the or at such directs, upon pros other time as the court file and serve ecuting attorney writing a notice in of his intention to claim contain, particularly that defense. The notice shall known to the defendant or the defendant’s as is attorney, *3 the names of witnesses to be called behalf of the defendant to establish specific that defense. The defendant’s notice shall include infor place mation as at which the accused claims to have alleged been at the time of the offense. (2) days receipt Within 10 after the of the defendant’s notice case, days but not later than 5 before the trial of the or at such direct, may prosecuting other attorney time as the court upon shall file and serve which shall ecuting attorney, the defendant a notice of rebuttal contain, particularly pros- as is known to the whom the pros- the names of the witnesses ecuting attorney proposes to cadi in rebuttal to controvert defendant’s defense at the trial of the case. (3) prosecuting attorney Both the defendant and the shall be continuing duty promptly a under to disclose the names of additional witnesses which come to the attention of either party subsequent filing respective provided their notices as Upon in upon party this section. motion with notice to the other showing by moving party a the name of am required additional witness was not available when the notice (1) (2) by subsections or was filed and could not have been diligence, available the exercise of due the additional wit- moving party testify ness be called as a witness purpose establishing rebutting for the or an alibi defense. 750.110; MCL MSA 28.305. 750.81; MCL MSA 28.276. Travis Opinion op the Court prosecution, Appeals Court of found fault with the a but concluded that defendant "was not denied filing,” fair trial the late and affirmed the convictions.4 granted appeal
We leave to and now reverse the Appeals. decision of the Court of
I fifty-two- 15, 1988, At 5:30 a.m. about October drinking cup year-old Samuel Harmon was coffee in his Hazel Park home noise, ing he heard a when around, and saw a with a
looked man stock- standing over at the end of his his head kitchen him, When the intruder started toward table. stocking jumped up jerked
Harmon During struggle off the intruder’s head. ensued, Harmon was struck and almost lost con- sciousness. The intruder then tied Harmon’s hands gagged him. Harmon heard the intruder enter dump jewelry his the bedroom and from wife’s jewelry in the box. While the intruder was bed- escaped neighbor, room, of a Harmon the house police. who removed the restraints and called Harmon white male in his late twenties or five feet police his assailant as a described early thirties, eight weighing tall, inches between pounds, wearing jeans, and 180 blue either a jacket. T-shirt, sweatshirt or and a black leather days later, A few Harmon was asked to look at a photographs police at the Hazel Park book department. photograph He selected defendant’s book, from the to his assailant and stated that it looked identical
except for differences in the hair Thereafter, 14, 1988, on December and mustache. defendant was arrested and breaking
charged with 4Unpublished opinion per Appeals, decided curiam of the Court of 121820) (Docket 20, 1. No. at November 443 Mich Opinion op the Court larceny entering with intent to commit days battery. later, at his Six
with assault preliminary examination, he was identified over as the intruder and was bound Harmon as August charged. 14, His trial was scheduled 1989. days
Twenty date, scheduled notice of his intent defendant filed a written naming defense, How- one witness. claim an alibi ever, provided response to this no notice before trial. began August 14, as scheduled on
When trial opening his state- defense counsel reserved prosecution proceeded its ment. The chief, with case again and Harmon identified defendant day trial, after the the intruder. On the second prosecution rested, defense counsel delivered an opening jury statement in which he informed presented supported that an would alibi defense be witnesses, of two Diane Deladu- Sherry rantaye and Detzler. Deladurantaye
Thereafter, Ms. testified that on Friday, 14, she and defendant were at a October p.m. in Utica from 10:00 until 2:30 a.m. bar about She drank soft drinks while defendant drank whis- key. "[pjretty they He was drunk” the time left proceeded house, the bar and in Utica. to her father’s also drinking There, defendant continued According they while talked until 4:45 a.m. to her testimony, she left the house at 5:05 or 5:10 a.m., "[o]ut and defendant was cold.” She claimed that she returned between 7:30 and 7:45 awoke a.m., defendant, and drove him to work. She described "very hung wearing defendant as over” and clothing uniform, work the same he had brown night worn the before.
Following Deladurantaye of Ms. August Tuesday, the court declared a recess *5 People Travis v Opinion op the Court Wednesday, day, was the next the trial. Because of day, regular the scheduled motion court Thursday, August However, 17. trial to resume prosecutor Wednesday, intervening filed on the present to rebut witnesses of intent to a notice defendant’s alibi. Thursday, the de- trial resumed on
When the presented wit- of its second fense she worked testified that ness, Detzler. She Ms. manufacturing plant, a local the defendant at with shortly noon after him at work that she saw appear- Saturday, his 15. described She October on ance hung "severely day over.” on that Following Detzler, the de- of Ms. prosecutor then moved rested, trial and the fense couple the information witnesses "to add support of this In . rebut motion, . . the defense alibi.” explained notice defendant’s that when he prosecutor’s office, it in the was received of alibi colleagues to whom to one of his been handed had the case was Apparently, assigned. originally that placed person file in the case the notice had not the case was file when not in the it was because prosecutor reassigned. that maintained trial The intention learn of defendant’s did not he day August present until defense an alibi that, opened. on the further indicated He the trial police day, detective from a learned he first same rebut could witnesses who there were witnesses, of these one then interviewed He alibi. Renee day morning the second Jones, on the trial.
Arguing
unfair for
it
not be
that would
grant
him to call the
allow
motion and
his
court
pointed
out
witnesses,
trial
rebuttal
that
witness
to interview
also able
counsel was
the defense
day
trial,
the second
Jones on
possession of
counsel were
he
defense
both
the first alibi witness had testified affording any opportunity defense counsel to interview rebuttal counsel witnesses. Defense argued any that confusion that have existed prosecutor’s charged in the office could not be against prosecutor’s defense, and that the trial prevented making conduct had formed choice of trial him from in- an
strategy on defendant’s be- half. granted prosecution’s motion,
The trial court finding unjust” "totally it that would be to exclude of the rebuttal witnesses. prosecution presented
The then two rebuttal witnesses in Park who lived Hazel complainant near the home of Harmon. The first witness, Jones, testified that the defendant was at her house between 2:30 and 3:00 a.m. on the morning of the break-in. She stated that defendant accompanied ex-husband, was her who was intoxicated, and that she observed defendant driv ing "Interlocking a truck with the words Block”5 painted on the door. She described the defendant wearing jacket, jeans, as shoes. a black blue and tennis 5Interlocking product employer. block is a sold defendant’s Travis Opinion op the Court witness, Moore, The second rebuttal testified walking that he saw defendant down the street at morning. 5:30 or 6:00 a.m. He said defendant wearing clothing, dark but could not recall wearing jacket. whether he was jury convicting The returned a verdict defendant charged. pleaded guilty Thereafter, defendant charge being offender, an habitual third of- thirty years fense, and was sentenced to ten to prison. Appeals, argued
In the Court of defendant requires the notice-of-alibi statute to demonstrate the diligence exercise due obtaining the names of rebuttal witnesses and filing required appeals notice of rebuttal. The panel disagreed, concluding that "the trial court untimely filing has discretion to allow the of a filing during rebuttal, notice of even if the occurs the course of trial.”6 granted appeal,
We then leave to limited to: allowing "whether the trial court erred in *7 prosecutor to file the notice of rebuttal witnesses and to thereafter call those witnesses to rebut (1992). 440 alibi defense.” Mich 889
II majority states, A as well as the federal require courts, advance notice of an alibi defense. pp Israel, 2 Procedure, § 19.4, LaFave & Criminal implications 511-512; note, see also Constitutional provisions, Wayne of notice-of-alibi 21 LR 1415 (1975).7 provisions purpose: Such share a common 6 supra 4Note at 1. 7 jurisdictions, Michigan, require Some like such notice statute. See, e.g., seq.; 22-3218; Ind Stat Ann 35-36-4-1 et Kan Stat Ann Nev Ann, 22, 174.087; 585; Rev Stat Stat tit Okla SD Cod Laws 23A-9-1 § 971.23(8). 77-14-2; seq.; et Utah Code Ann Wis Stat Ann Others reach
676
668
Opinion op the Court
surprise
prevent
an alibi
introduction of
v Mer-
Court
As this
observed
defense.8
(1976):
ritt,
67, 77;
31
396
238 NW2d
Mich
disparage-
as a
"was not intended
statute
[T]he
State,
defense,”
P2d
Connery v
ment
462,
(Okla
1972),
App
but "statutes
Crim
are
providing
of alibi
intended
for
defense
wrongful
give
safeguards against
use and
erect
the
its
prosecution time
information to investi-
Martin, 2
gate
of such
State v
the merits
App
defense.”
(1966).
132,
510, 514-515;
Ariz
410 P2d
136-137
protection of
procedure is "for the
The
the
benefit
public.”
provi
introduced,
notice of alibi
When first
such
prosecution
provided
only
no
sions aided
comparable discovery rights
defendants, viz.,
prosecution
required
inten
to disclose its
wit
tion to
an alibi or to name rebuttal
rebut
e.g.,
However,
See,
1970 CL 768.20.
nesses.
Oregon,
470, 472;
2208;
93 S Ct
Wardius v
US
(1973),
Supreme
L Ed
2d 82
the United States
that "the
Process
Court ruled
Due
Clause
Fourteenth Amendment
of alibi rules unless
forbids
enforcement
rights
reciprocal discovery
are
given to criminal defendants.”
See,
12.1;
goal through
e.g., FR
DC R
the same
Crim P
court
Crim P
rules.
12.1;
3.200;
10(11);
P
R
Fla R Crim P
Iowa R Crim
Minn Crim
9.02(l)(c);
provisions,
P
dant
R Crim P
Under some
the defen
Ohio
12.1.
give
prosecution requests
16-7-102;
required
it.
is not
notice unless the
See, e.g.,
12.1;
P
Colo
Ann
La
Crim
FR Crim
Rev Stat
Code
Michigan’s, place
provisions,
art
the burden on
P
the defendant to
727. Other
like
employ
notify
intent
See,
19-519;
10(11);
e.g.,
R
alibi defense.
Idaho Code
Iowa Crim P
Ohio
P
R Crim 12.1.
stated,
'hip
"[ajlibi has
As one commentator has
been termed
pocket’
it
of the ease with which
can be manufac
defense because
Epstein,
in the
hours of trial.”
Advance
tured
introduction
final
alibi,
Criminology
J Crim L
Other
notice
&
*8
favoring
provisions
notice
the deter
considerations
rence of
31-32.
of alibi
include
savings
perjury
preparation
Id. at
and the
and trial time.
v Travis
Opinion of the Court
response Wardius,
notice-of-alibi stat-
our
In
reciprocal discovery.
require
amended to
ute was
requires notice to
statute
sion appellate People Alexander, 82 v See decisions.10 (1978), App 466 621, 627-628; 267 NW2d Mich App 317, 320-321; 282 People Wilson, 90 Mich v panels However, of the Court other NW2d expressed Appeals a view followed have Pointing supra. dissenting Judge Wilson, in Allen filing a notice of rebut- that allow to the words may direct,” time as the court other tal "at such 28.1043(2), Judge 768.20(2); MSA MCL Allen opined under court continues that the trial discretion to retain of the statute version amended and, may permit circumstances, rebut- some under filed until notice is not even where tal App Mich trial. 90 of the commencement after People dissenting.) v J., See also 322. (Allen, App 531, 535; 288 NW2d Coulter, 94 Mich App (1980); People 719, 724- Stinson, 113 Mich v (rebuttal (1982) insanity 725; 318 NW2d defense). App People Bell, 306; 425 NW2d
In (1988), witnesses alibi where the defendant's prosecution, uncooperative, hear- were testimony, ing to discover was unable their recognizing While of a rebuttal witness. existence provision, language mandatory in the sanction judge panel had that ruled the Bell to allow under such circumstances discretion filing after commence- notice even of a rebuttal "Any interpretation of the other trial: ment of pre-1974 Merritt, supra, Although case under involved a statute, comparison this Court noted dictum "[a] version of the that, among changes, the language other indicates the old and new of preclusion mandatory.” Mich n 1. sanction is now v Travis Opinion of the Court phrase other 'at such would render statute meaningless.” 169 Mich the court directs’ time as App 309. agree panels concluded those that have
We with language at other time as "or such preserves may trial court’s dis- court direct” notice in view to fix the timeliness of cretion circumstances.11 purpose Otherwise, of the no- defeated, and the statute be tice-of-alibi process relegated game "poker to the status of a *10 right always players enjoy an absolute which played.” v Flor- their cards until Williams conceal ida, 1893; 26 L Ed 2d 82; 90 S Ct 399 US (1970). Legislature intended to conclusion that
Our in the hands of discretion leave such by indicated, believe, examination an court is we fashioning the in that was struck of the balance current statute. pro- Although accused must place he at which information about vide alleged offense to have been when claims requires respects the statute occurred, only in other prospective witnesses— notice of the names regard- given.12 and without information addresses without ing to be of the the nature furnishing adequate tools needed Instead of procedure pro- discovery, reciprocal this effective "general must alert” and than a little more vides contemplate would not limited disclosure that such many surprise in cases. the element eliminate Although with leaves the trial court the statute imposes wording provision the sanction also that The provision exclusion of rebut supports That mandates this conclusion. a notice of to file and serve "fails where the tal evidence provided 20 . . . .” MCL upon in section defendant as rebuttal added.) 28.1044(2). Thus, provi (Emphasis 768.21(2); the sanction MSA grant necessarily 20 that § into account the words takes sion ("or as the court at such other time to the trial court discretion direct”). MCL 768.20(1), (2); MSA 28.1043(1), Opinion of the Court or disallow to allow discretion considerable timely a when witnesses of rebuttal course, a decision filed, such not
notice has may been upon if the court’s review overturned be is abused. discretion the standards to consider turn now
We govern of that dis- exercise trial court’s should cretion.
III
adopt
urges
Court to
case,
this
defendant
In this
diligence”
control
standard
a "due
points
Defendant
discretion.
of its
court’s exercise
analogy
the notice of alibi
3 of
to subsection
specifically
of a
allows addition
statute, which
"[u]pon
to the other
motion with notice
witness
moving party
showing
upon
party
of an additional witness
the name
available
not have been
. . . and could
available
diligence
. . . .” MCL
of due
the exercise
28.1043(3).
768.20(3); MSA
argument,
support
defendant relies
of this
In
pan-
Appeals’
which
decisions
two Court
*11
diligence”
applied
late
standard to the
a "due
els
People
filing
Diaz, 98
notice. In
v
a rebuttal
(1980),
App
675;
day affirmed The Court of of trial. noting witnesses decision, that two of alibi this prosecu- trial and the located before could not be possible rebuttal witness unaware of the tion was Thus, ex- the Court the defendant testified. until plained, properly admitted trial court "the showing the name on a based required and could notice was available when not not have been available exercise of due in the 681 Travis v Opinion of the Court App Similarly, diligence.” Bell, in 681. 98 Mich uncooperative supra, witnesses were alibi where hearing prosecution, their testi- without and mony, of a to discover the existence was unable panel reverse the witness, the refused to rebuttal App diligence. finding judge’s 169 Mich of due trial 309. quarrel in the the result with
While we do adopt cited, decline to we nevertheless two cases controlling diligence, in alone, standard as the due judging or notice. timeliness of alibi rebuttal supra, Merritt, whether the in As we stated with the discretion "varies has its court abused inevitably case, involve must of each facts weighing competing involved.” interests People Williams, 565, 82; also v Mich see 573; 194 NW2d fact that federal of the We are conscious to allow or disallow have discretion courts also rebuttal wit- alibi or of an undisclosed way Although their bound we are no ness.13 example, The federal it find instructive. we do 12.1(d) pro- provision, P FR Crim notice-of-alibi party fails to sanction where an exclusion vides respect comply with rule. As is true with the provisions states, number of our sister in a similar the federal good exception: provides "[F]or an
rule
exception
grant
shown,
an
the court
cause
requirements
FR
any
rule.”
...
of this
12.1(e).14
P
Crim
Myers,
1036, 1043
F2d
States v
In United
(CA
Appeals
1977),
5,
United States Court
to be
considerations
the Fifth Circuit identified
reviewing
weighed
of its
exercise
a trial court’s
under Rule
discretion
12.1:
10(11)(d);
See,
United States
e.g.,
Ind Stat
DC R Crim
Ann 35-36-4-3.
Portillo,
P
12.1(e);
F2d
Fla R Crim
P
(CA
3.200;
Iowa Crim
1980).
R
P
*12
This test has involving failure to in cases the defense16 and to any to list all notice,17 as a failure as well file witnesses. Myers, rebuttal called four
In response defendant’s in its not listed witnesses the unlisted The trial court allowed notice of alibi. testify defen- later denied the witnesses testimony and docu- to strike their dant’s motions mentary appeal, the court reversed On evidence. prejudice finding to the decisions, that "the these defense was substantial unabated,” and remained to recon- id., counsel was unable defense because strategy light of the undisclosed rebut- his sider tal witnesses. reason for nondisclosure other evidence
Moreover, found that the and that the the court
was "feeble” against was "weak.” the defendant Thus, the conviction was reversed. Id. linguistic between our differences
Mindful of rule, find nevertheless the federal we statute and at 1324. Creamer, 1987); 1979); United States v [15] See, e.g., See, e.g., F2d See, United States v United e.g., 1097, 721 F2d United States United States v Clark States v Carter, 342, (CA v United White, 756 F2d [344] 8, 1982); Wood, (CA Carter, 583 F2d Causey, States, 780 F2d 310, 11, 1983); United States v [312] n 15 834 F2d 396 A2d (CA supra. 555, United States 3, 1985); (CA 6, 560-561 1277, 1282, Portillo, 1978). United States v (CA 6, v n n 2 (DC Woodard, (CA 1986); supra App, 6, *13 People 683 Travis v Opinion op the Court appropriate provides Myers an stan the test judge of to the exercise discretion which dard in trial our notice-of-alibi the court vested only the into This test takes account statute. diligence prosecution, the but also conduct of the degree of harm done the and the of defendant prosecution protect in It tends to the the defense. or is at fault19 where where the defendant cases prejudice.18At the little or the defendant suffers no protect defendant when time, it tends to the same prosecution unfairly the limits the conduct Myers. strategy, of as in trial defendant’s choice IV light Examining in the in this case of the record Myers, the court in we find that trial listed factors allowing testimony of in the its discretion abused rebuttal witnesses. preju- severely First, case the defendant’s was prosecution’s untimely of disclosure diced was Because defense counsel rebuttal witnesses. only the names of rebuttal unaware not of prosecution’s witnesses, intention but present an witnesses, he was unable to make such proceed with whether informed decision "cru- decision is Such an informed alibi defense. 85, Florida, cial,” 399 US Williams v identity a witnesses is of rebuttal existence or decision, the defen- in that whether factor critical in true false.20As did court is or dant’s alibi 18See, Wood, supra. e.g., Causey n 15 1978). (CA States, See, e.g., 587 F2d McClendon United recognized importance strategic two in of this decision was 20 The panels erroneously although Appeals, of the Court decisions described the der, "mandatory.” v Alexan preclusion sanction ("While arguably how App should know a defendant testify, a alibi will has on a notice of witness whom he listed prosecution whether also be entitled know defendant should Mich Opinion op the Court
Myers, we find that the notice of F2d to evaluate the alibi statute "entitles a defendant advancing light strategy an alibi defense the named rebuttal witnesses.” given only explanation
Second, for the fail- simple ure confu- to file notice of rebuttal was prosecutor’s pros- sion office. As the explained, ecutor the alibi notice was not in his it file before trial commenced because had been colleagues neglected served place one of his who reassigned. it in the file before the case *14 Bell, Unlike Diaz and in the did which not learn of the rebuttal witnesses until after hearing testimony, the alibi in case this should have known alibi defense before trial.
Third, the severe harm caused the nondisclo- mitigated by subsequent sure could not be events. challenge The crux of defendant’s is that had he prosecution’s known of the intention rebut his might present alibi, he have decided not to that However, defense. once the alibi defense was an- jury, nounced to the ited. This defendant’s choices lim- were prejudice mitigated, could have been and defense counsel would have been able to reevalu- ate the alibi
defense, had the notified possibility open- him of the ing of rebuttal before his merely allowing However, statement. him the opportunity the interview witnesses before their mitigate prejudice. did not this recognize Myers,
Fourth, unlike the court in we rebuttal”), rely People Wilson, supra will on that witness in and v at ("Unless trial, rely service is made before a defendant cannot notice, thereof, upon formulating strategy, or lack and (SD surprised”). Fogg, Supp will NY, be See also Jackson 465 F 1978) (explaining that defense counsel had known that "[i]f offered, rebuttal evidence would be examination ... he could it have dealt with in his proceeded or he could have with two instead of witnesses”). three alibi v Travis Opinion of Court strong support- in this is evidence case there finding guilt. ing jury’s Harmon of defendant’s pulled off and his assailant’s mask testified he He his face from a short distance. was observed clothing physi- his able to cal assailant’s describe appearance a selected defendant from book photographs given police. him He stated neigh- around the that he had seen defendant positively him at the identified both borhood and preliminary trial. examination and at although
Nevertheless, be evidence sub- overwhelming. no stantial, it is There is indi- property any recov- cation that stolen fingerprints defendant, were ered from and no Furthermore, from Harmon’s house. obtained shortly Harmon, a similar the attack nearby at house. Defendant incident occurred participated line-up case, but was not in that perpetrator victims.21 as the identified of the rebut- held that exclusion The trial court unjust.” "totally We dis- tal would be weighs Myers agree. factors Our assessment excluding testimony of the rebuttal in favor witnesses: explanation prosecutor’s for failure requirement comply was feeble with the notice prejudice best, the to defendant was serious at *15 continuance, and the not be cured could although against substantial, defendant, evidence overwhelming. Furthermore, was not inadequate explanation was of its decision court’s prejudice suffered defendant in view of the strategy. making defense an informed choice of allowing court erred in Thus, that the trial we find the rebuttal testimony._ 21Deladurantaye at that was a her testified there break-in also night, She did that she chased intruder.
house
the same
police apprehended
The
was the intruder.
not think that defendant
description
given;
matching
man was not
she had
that
man
defendant.
Error in the admission’ of evidence is not grounds for reversal where the error is harmless. People Robinson, 551, 563; 194 NW2d linking only The direct evidence defen- charged testimony dant to the crimes was Thus, the victim. before notice that rebuttal wit- testify, nesses would be allowed case envi- essentially sioned defense counsel was a credi- bility contest between the victim and the alibi jury It witnesses.22 cannot be said that would credibility have decided this contest in the same way testimony. had it not heard rebuttal Be- cause arewe unable to conclude that the convic- miscarriage justice, tion of defendant was not a requires 769.26; error reversal. MCL MSA 28.1096.
V above, For the reasons stated we hold allowing testimony trial court erred in two rebuttal witnesses.
Accordingly, we reverse the decisions of the trial Appeals court and the Court of and remand’this case for a new trial.
Cavanagh, C.J., Levin, Brickley, Boyle, JJ., Mallett, J. Griffin, concurred with (concurring). agree majority Riley, J. I with the that MCL 768.20 et the in the instant case violated
seq.; seq., MSA 28.1043 et and that Nevertheless, error was not harmless. because deciding contest, credibility jury In this would have been required dant, assailant, weigh such evidence as Harmon’s identification of defen- testimony his that he detected no odor of alcohol on his thought and his that he he cut the defendant eye against above the such evidence as the of defense drinking night, severely witnesses that defendant had been hung morning, eye. over that and had cut no above his *16 v Travis Riley, J. Opinion apply appropri- majority the I fails to find the 3 of the delineated in subsection ate standard prosecutor vio- whether the statute determine separately. act, the I write lated
I man- 1 of notice-of-alibi statute the Subsection pertinent part: dates proposes to offer felony in a case
If a defendant an alibi at testimony to establish in his defense offense, alleged the defendant shall time of the the the information or arraignment the time of at arraignment but not less days after that within case, of or at days than 10 before directs, file and serve time the court other as such upon writing attorney a notice prosecuting claim defense. his intention [MCL 28.1043(1).] 768.20(1); MSA places Likewise, statute subsection upon prosecutor: reciprocal duty receipt defen- days after Within days later but not than notice dant’s case, time as the court or at such other trial of the may direct, prosecuting attorney shall file of rebuttal upon a notice the defendant serve contain, particularly is known as shall which names of the wit- attorney, prosecuting the nesses proposes to attorney prosecuting whom de- the defendant’s controvert in rebuttal call 768.20(2); MSA the case. at the fense [MCL 28.1043(2).] Additionally, 3 of the act details subsection exceptions 2: 1 and to subsections attorney prosecuting and the the defendant Both continuing duty disclose under be
shall 443 Mich Opinion Riley, J. *17 promptly the names of additional witnesses which party subsequent to the of to come attention either filing section. party that available when the notice (1) respective provided in their notices as this Upon to the motion with notice other upon showing by moving party the the name of an additional witness was not required by subsections (2) or was filed and could not have been avail- diligence, by able the exercise of due the addi- moving by party tional witness to be called testify purpose for of as witness establish- ing MSA 768.20(3); rebutting or an alibi defense.’ [MCL
28.1043(3).] long purpose This Court has held that of statutory construction is to find and enforce the Twp Leoni of Taylor, Legislature. intent 20 (1870). 148, Mich 154-155 the Legislature Because presumed is craft the law to carefully convey its intentions, the plain meaning unambiguous of an v Mei and clear statute must be enforced. Storey Inc, (1988). jer, 376; 431 Mich 429 169 NW2d course, meaning provision Of of a may be clarified an examination of the whole statute. State, Secretary Collins v of 656, 666; 384 Mich (1971). Furthermore, 187 423 NW2d if the applica legislation tion ambiguous particular, of is in a case, statute, then reference "object of the the harm which it is designed remedy” appro is In re priate to effectuate the Legislature’s intent. $5,264, Forfeiture of 242, 248; 439 NW2d
II Although majority correctly finds seq.; et violated MCL 768.20 MSA seq., et 28.1043 opinion miscon- unfortunately workings strues internal of the statute. The plain language statute, viewed in its en- v Travis Riley, J. Opinion grant pathways tirety, sufficient two delineates delin- Subsections notice alibi witnesses. requires pathway notice which eate the usual example, unambigu- before trial. Subsection procedure ously to be the normal indicates notify is a defendant followed the state days later than five alibi witnesses no rebuttal that date unless the trial court alters before trial permit Although before trial. subsections timing notice, the trial court to alter the the statutory set envisions that date be framework trial. appear to focus 1 and While subsections (i.e., garden variety, pretrial notice alibi witness *18 parties are and know who the alibi witnesses when them), un- 3 delineates the locate can subsection pathway is a witness to be followed when usual parameters newly the for normal discovered after passed (e.g., alibi notice have when trial). day the In until witness is not located exceptions words, 3 the subsection outlines other permits 3 late 1 2. to and Subsection subsections witness when of an alibi and endorsement notice the the normally (1) moving party name of the can show the notice at time witness was unavailable by required 1 and subsections would be (2) available 2, the not have been and name "could diligence by . . . MCL of due the exercise 28.1043(3).1 768.20(3); MSA purpose majority, As noted 1 fact, majority for which at situations *19 flexibility cope rigors sufficient with the of a bypass trial docket trial, not to subsection 3. Legislature upon If the intended to endow the trial ability court to admit alibi witnesses even though given beginning notice was after the meeting requirements trial without of subsec- 3, tion it could have written much clearer and 2 Epstein, alibi, See also Advance notice of 55 J Crim L & Criminol ogy 768.21; MCL MSA 28.1044. Travis Riley, J. Opinion upon phrase language forthright relied than the majority. interpretation majority’s Furthermore, requirements of strict eviscerates subsection statutory framework noted, the 3. As subsection permits during only surprise if alibi witnesses diligence stric- the due meets introduction their tures of subsection renders hold otherwise 3.4 To meaningless. all, the After 3 all but subsection Legislature cre- to have understood should not be requirements 3 when of subsection the strict ated 2 could and of subsections standard the lesser prosecutor Even the the same witnesses. admit recognizes 28.1043(1) 768.20(1) (2); MSA "MCL that (2) specific time own have their Contrary opposed 3. frames,” to subsection maintaining majority, the due the assertions purpose of diligence defeat the does not standard Finally, preserves it. statute, but notice-of-alibi the granting ability prosecutors defendants during trial under witnesses introduce alibi more is standard of discretion more lenient abuse " players enjoy game 'poker an akin in which to a right always until their cards conceal absolute ” supra quoting Williams, at played,’ at ante prosecutors ensuring defendants and 82, comply than 3.5 with subsection
III
clearly
failed
case, the
instant
In the
given
comply
2—no notice
with subsection
apply
diligence
should
standard
the due
counters
Defendant
Yet,
subsec
mandated in either
standard is
2.
no such
to subsection
2.
1 or subsection
tion
authority
not
Furthermore,
majority’s
is
of federal
utilization
"good
its
explicitly
cause” as
defines
persuasive
law
federal
because
12.1(e).
requirements. FR Crim P
exceptions to its notice
standard for
Michigan,
"good
hand,
adopted
cause”
has
the other
subsection 3.
enacted
but instead
standard
*20
443 Mich Opinion
Riley, J.
until
the middle of trial.
did the
Nor
requirements
First,
meet the
3.
subsection
readily
names
the witnesses were
available
police reports
trial from
and the detective
Second,
in the case.
the witnesses would have been
diligence.
discovered with the exercise of due
Al-
though
diligence
statute,
undefined
due
has
by Michigan
"doing every-
been defined
thing
courts as
everything possible.” People
reasonable, not
App
Bell,
306, 309;
169 Mich