Appeal from Shiawassee, Richard Robinson, J.
Leave to appeal denied, 397 Mich 841.
M. J. Kelly, P. J., and Bronson and W. R. Peterson,* JJ.
1. -- Instructions to Jury -- Alibi Defense -- Reversible Error.
It is reversible error to denigrate an alibi defense "as easily proven and hard to disprove" when instructing a jury; and, the Court of Appeals must reverse whenever a trial court has used such offending language even though the alibi proofs are patently flimsy.
2. -- Alibi Defense -- Burden of Proof -- Reversible Error.
It is reversible error to suggest that it is the burden of the defendant to establish an alibi defense.
The opinion of the court was delivered by: Kelly
Terry E. Eaton was convicted of the sale of a controlled substance. Defendant appeals.
On November 7, 1974, defendant was convicted by a Shiawassee County Circuit Court jury of the charged offense of sale of a controlled substance, phencyclidine, MCLA 335.341(1)(b); MSA 18.1070(41)(1)(b). Defendant was subsequently sentenced to serve 24 months on probation with the first 60 days to be spent in the county jail, and was ordered to pay $200 in fines and $200 in costs. He appeals of right.
The prosecution was based on the testimony of an undercover police detective, William F. Williams, who testified that he purchased the phencyclidine from defendant at "Jake's Place", in Shiawassee County, on January 15, 1974. Defendant offered the defense of alibi. Defendant's mother, Mrs. Palucki, testified that at the time of the alleged sale her son was first with her at home and then accompanied her to the office of an attorney with whom she had an appointment. To rebut this alibi defense, the prosecution introduced testimony of two police detectives involved in the alleged sale and testimony of the attorney's secretary.
In the challenged instruction, the court stated:
"Now regarding the defense of alibi, this defense is as legitimate a defense as any other defense and you are to give the same credit to the witnesses who testified concerning it as you do to witnesses who testified to anything else.
"If you have a reasonable doubt as to whether the defendant was at Jake's Place at the time and place ...