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03/10/76 PEOPLE v. MCGEE

March 10, 1976

PEOPLE
v.
MCGEE



Appeal from Calhoun, Creighton R. Coleman, J.

D. E. Holbrook, P. J., and R. M. Maher and D. F. Walsh, JJ.

SYLLABUS BY THE COURT

-- Evidence -- Rebuttal Evidence -- Appeal and Error -- Presence at Crime -- Homicide -- Case in Chief.

Evidence which tends to prove the commission of a crime or its immediate surroundings cannot under ordinary circumstances be classed as rebutting evidence; therefore, it was reversible error in a murder trial to introduce in rebuttal of the defendant's alibi testimony evidence tending to establish the presence of the defendant at the scene of the crime which should have been introduced in the people's case in chief.

The opinion of the court was delivered by: Per Curiam

Charles McGee was convicted of first-degree murder. Defendant appeals.

Defendant was charged with first-degree murder, MCLA 750.316; MSA 28.548, for the October 6, 1972, shooting death of David Michael Baker. At the Conclusion of a four-day jury trial he was found guilty of the charged offense and subsequently sentenced to life imprisonment. This appeal is taken by right and raises several issues, one of which requires reversal. The other issues will be considered only as they may recur at a new trial.

The people's case rested primarily on the eyewitness testimony of Miss Leslie Foust. She testified that at about 8:15 p.m. on the evening of October 6, 1972, a black man who identified himself as "Jackie" came to the door of the house where she resided with the decedent Baker. The man inquired as to the whereabouts of a man known to both himself and Miss Foust and then left. A few minutes later another black man appeared at her door and asked to use the telephone. The second man appeared to Miss Foust to be one whom she had seen standing outside by a car when "Jackie" had come to the door. After this second man had gained entry he drew a gun, shot and killed Baker and then shot Miss Foust twice before leaving. The defense at trial was alibi.

During the people's case in chief no evidence was presented establishing a connection between the defendant and the person named Jackie. However, on cross-examination of the defendant it was developed by the prosecutor that a man by the name of Jackie Evans was known to the defendant. The questioning made reference to an interview the defendant had had with a Battle Creek police officer:

"A. It didn't happen. I don't have no recollection of anyone asking me about a man named William Blevens.

"Q. To help you a little bit, he lived in Albion.

"A. It still doesn't tell me anything.

"Q. And you do not recall questioning ...


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