Williams, J. Kavanagh, C. J., and Levin, J., concurred with Williams, J. Lindemer and Ryan, JJ., took no part in the decision of this case. Coleman, J. (dissenting). Fitzgerald, J., concurred with Coleman, J.
1. -- Alibi -- Notice -- Discretion.
A trial Judge had discretion under the former alibi notice statute to grant a continuance instead of excluding the evidence of alibi where notice of the defense was not given in conformity with the statute (MCL 768.20; MSA 28.1043).
A trial Judge commits reversible error if he does not recognize that he has discretion and therefore fails or refuses to exercise it.
3. Motions -- Discretion.
A motion addressed to a trial court's discretion may be reversed only upon finding of an abuse of discretion by the trial Judge.
4. -- Notice -- Alibi -- Preclusion Sanction -- Constitutional Law.
The exclusion of alibi evidence for failure to timely file a notice of alibi creates an exception to the right of a defendant to produce witnesses, and in deciding whether exclusion was an abuse of discretion, competing interests must be weighed: do the risk of false testimony and the interruption in the orderly administration of Justice justify this intrusion on the defendant's right? (US Const, Am VI; Const 1963, art 1, § 20; MCL 763.1, 768.20; MSA 28.854, 28.1043).
5. -- Alibi -- Exclusion -- Discretion.
Prejudice to the prosecution and dereliction of the defendant in the late filing of a notice of alibi are matters to be considered in the exercise of the trial Judge's discretion to exclude evidence of alibi, and where the trial Judge made no findings on these matters in excluding the evidence, the evidence should not have been excluded.
6. Statutes -- Construction.
Where there is doubt about how inclusively a statute should be construed to apply, if the mischief that it was enacted to remedy can be perceived it will be construed to apply only so far as is needed in order to effectuate the remedy and when words may have two possible meanings, the spirit and purpose of the statute should prevail over its strict letter.
7. -- Alibi -- Exclusion -- Defendant Testifying.
The statute permitting a trial Judge, in his discretion, to exclude "evidence offered" of an alibi where the defendant has not filed a timely notice of alibi was enacted for the benefit and protection of the public by giving the prosecution time to investigate proposed witnesses before trial, avoiding an adjournment during trial and thus facilitating orderly, uninterrupted trials; there is not the same necessity for such an investigation of the defendant himself, and because "evidence offered" is not unequivocal, it should not be construed to condition the defendant's right to testify in his own behalf.
8. -- Alibi -- Exclusion -- Defendant Testifying.
A defendant may testify that he was not at the scene of the crime charged even though his alibi witnesses are not permitted to testify because of a failure to file a timely notice of alibi (MCL 768.20).
Coleman and Fitzgerald, JJ.
9. -- Alibi -- Notice -- Discretion.
A trial court properly exercised discretion under the former alibi notice statute to exclude evidence of an alibi in the absence of notice of alibi before the day of the trial where delay was not requested because of the assertion of any constitutional right, there was no dispute as to the calling of witnesses between the defendant and his attorney, and the defense was guilty of negligence or delaying tactics in failing to give notice in compliance with the statute (MCL 768.20, 768.21; MSA 28.1043, 28.1044).
10. -- Trial -- Continuance.
A continuance in a criminal case should be granted for "good cause" on the same grounds as in civil actions, and discretion in denying a continuance should not be Judged by a stricter standard in a criminal case (MCL 768.2; MSA 28.1025; GCR 1963, 503.1).
11. -- Alibi -- Notice -- Discretion.
Discretion of Judges in excluding alibi testimony in the absence of timely notice under the former alibi notice statute is usually upheld unless it is manifestly unreasonable or exercised on untenable grounds.
"Fair trial" is a two-edged sword and a rule of should be designed to insure fairness to both defendant and the people.
13. -- Alibi -- Trial -- Preclusion Sanction.
A defendant must not be permitted to interpose an alibi defense at any time during trial, regardless of failure to follow the legal requisites; the "preclusion sanction" rationale, which permits evidence of alibi under some circumstances in spite of failure to give timely notice of alibi, applies equally to the prior statute and the present version (MCL 768.20, 768.21; MSA 28.1043, 28.1044, as amended by 1974 PA 63).
The opinion of the court was delivered by: Williams
Joseph C. Merritt was charged with armed robbery. At the time, the alibi notice statute, MCL 768.20; MSA 28.1043, required a written notice of the defense of alibi to be filed not less than four days before trial, and permitted the court in its discretion to exclude alibi evidence when the prescribed notice was not filed. A notice of alibi was not filed until the first day of trial, and the Wayne Circuit Court, James L. Ryan, J., denied the defendant's motion that he be permitted to present alibi witnesses. Defendant was convicted. The Court of Appeals, V. J. Brennan, P. J., and J. H. Gillis and O'Hara, JJ., affirmed (Docket No. 14191). Defendant appeals. Held:
1. Where the trial Judge has excluded the alibi testimony rather than grant a continuance, the defendant's right to have compulsory process for obtaining witnesses in his favor has been jeopardized and the standard is somewhat stricter than that generally applied. It is improper to exclude the defense where neither serious abuse of the right on the part of the defendant nor prejudice to the people's case have been demonstrated. The issues become: do the possible risk of false testimony and the interruption in the orderly administration of Justice justify this intrusion on defendant's right?
2. The circumstances relevant to resolving these issues include prejudice to the prosecution and dereliction on the part of the defendant. In the instant case the trial Judge made no observations as to prejudice to the prosecution or dereliction on the part of the defendant; therefore, the evidence of alibi should not have been excluded, and there was an abuse of discretion in excluding it.
3. The issue of the constitutionality of the former alibi notice statute is not reached because the finding of abuse of discretion is dispositive.
4. The statute permitting exclusion of evidence of alibi is construed to apply to exclusion of witnesses other than the defendant. Even if the defendant fails to give proper notice of alibi and the testimony of alibi witnesses is not allowed, the defendant may himself testify as to his absence from the scene of the crime.
Reversed and remanded for a new trial.
Justice Coleman, with whom Justice Fitzgerald joined, Dissented for the reason that the trial court made an adequate finding that the defendant did not have a legitimate reason for failing to file notice of alibi until the date of the trial and that he was guilty of negligence in failing to comply with the statute, and a continuance should be granted in a criminal case on the same grounds as in a civil case and discretion in denying a continuance should not be Judged by a stricter standard in a criminal case. Under the court rule in effect at the date of trial a continuance should not have been granted where it arose out of a party's fault or negligence. The former statute should not be interpreted to permit a defendant to raise alibi during trial when he has failed to give prior notice as required by law. The rationale by which the introduction of alibi is allowed even without prior notice would apply equally to the present alibi statute. Alibi evidence can be easily fabricated and to allow alibi testimony from any source without adequate notice would allow a distortion of the truth.
We are asked in this case to determine whether a trial Judge abused his discretion in precluding defendant from testifying about an alibi or from presenting his alibi witnesses under our state's former alibi notice statute, MCLA 768.20; MSA 28.1043. Further, we are asked to consider whether the alibi notice statute is constitutional, or if it violates defendant's rights to due process and to compulsory process. We hold there was such an abuse of discretion. We therefore reverse ...