People v. Holland

Griffin, J.

Defendant appeals as of right from his conviction by a jury of second-degree murder, MCL 750.317; MSA 28.549, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to sixty to ninety years for the murder conviction, to be served consecutive to the mandatory two-year sentence on the felony-firearm conviction. We affirm.

*187I

Defendant’s conviction stemmed from the shooting death of Byron Qualls, a reputed pimp and drug dealer, who was shot in the chest and buttocks at close range with a shotgun. Qualls’ body was found by highway workers in a ditch along Interstate 94, near the Michigan-Indiana border, covered by a sleeping bag and a piece of carpet. Although Qualls was known to wear a lot of jewelry, none was found on his body.

The evidence adduced at trial of defendant’s guilt for the killing was overwhelming. Defendant’s uncle, Antonio Halsey, testified at trial that defendant arrived in Chicago on July 17, 1986, driving Qualls’ 1982 Cadillac automobile. Defendant told Halsey that he had shot someone in Battle Creek. He described the wounds and how he put the victim in the trunk of the Cadillac wrapped in a carpet. According to the defendant, the victim was still alive when he was placed in the trunk; however, the victim’s pounding and screaming from inside the trunk grew fainter as the defendant drove along 1-94. Defendant admitted to Halsey that he buried the victim’s body in Indiana.

The carpet and sleeping bag found covering the victim’s body were identified as coming from the defendant’s Battle Creek apartment. A number of shotgun pellets and a piece of gold-ring chain were found embedded in the living room wall of the apartment. Blood stains were found on the living room paneling and on the wall near the stairway. Blood spots were also found in the trunk of the Cadillac. All of the identified blood matched the victim’s blood type (type O).

Odell Miller (former friend of the defendant) and Alice Humphries (former girl friend of the defen*188dant) also resided in the Battle Creek apartment in which the shooting occurred. At trial, Miller testified that he arrived at the apartment sometime after 8:00 p.m. on July 15, 1986. At that time, he observed the defendant and another man in the apartment. The unidentified man who had been shot was mumbling and lying in a pool of blood.

Defendant was apprehended in Chicago two months after the shooting. During his arrest, defendant threw away a black onyx ring which was later identified as belonging to the victim. A shotgun determined to be the murder weapon was found in defendant’s possession. Qualls’ Cadillac automobile was ultimately located on the west side of Chicago.

At trial, the defendant took the stand in his own defense. During his testimony, defendant denied shooting Qualls and presented an alibi defense. In particular, the defendant stated that, on the night of the killing, he was not in Battle Creek but was enroute to Chicago. According to the defendant, he could not have shot Qualls because at the time of the incident he was a passenger in a brown Chevrolet Nova in the company of another uncle, Darwin Halsey, along with Darwin’s girl friend. Although defendant claimed to have forgotten the girl friend’s name, it is undisputed that Doris Diane Holmes is Darwin Halsey’s girl friend and that Darwin and Ms. Holmes drive a gold Nova automobile.

In addition to his own testimony, the defendant also presented the testimony of his former girl friend Alice Humphries, who stated that the defendant was not present in the apartment when she heard gunshots. Further, Ms. Humphries testified that after the shots were heard, she observed Odell Miller with a gun in his hand.

Prior to trial, the defendant filed with the court *189a notice of alibi which gave the prosecution notice of the defendant’s intention to assert an alibi defense. The alibi notice listed as "the names of witnesses known to the defendant to be called to establish such defense”:

Darwin Halsey, 1424 South St. Louis, Chicago, Illinois, first floor apartment, [and] Diane Holmes, 1424 South St. Louis, Chicago, Illinois, basement apartment.

Further, the notice of alibi asserts the following as the defendant’s whereabouts at the time of the shooting:

The defendant claims he was between Kellogg Regional Airport, Battle Creek, Michigan, and 1424 South St. Louis, Chicago, Illinois, between 8:25 p.m. and 2 a.m. on the 15th and 16th days of July, 1986.

After the defense rested, the prosecution called Doris Diane Holmes as a rebuttal witness and successfully persuaded the lower court to read to the jury the defendant’s notice of alibi.

n

Defendant raises four issues on appeal. First, he argues that, because he did not present an alibi at trial, the lower court erred so as to require reversal in reading to the jury his notice of alibi and allowing the prosecutor to comment in closing argument as to the failure of the defendant to call alibi witnesses Darwin Halsey and Doris Diane Holmes. We would agree with the defendant if an alibi had not been presented at trial by the defense. Here, however, the defendant’s trial testimony was consistent with his notice of alibi that *190he was not present in the apartment at the time of the shooting. His testimony that he was between Battle Creek and Chicago with his Uncle Darwin Halsey and his uncle’s girl friend is an alibi. His absence from the apartment at the time of the shooting was corroborated by defense witness Alice Humphries.

As a general rule, where a defendant effectively withdraws his notice of alibi by failing to present any evidence on the defense, it is improper for the prosecution or the trial judge to comment on the defendant’s original intention to present an alibi. People v Shannon, 88 Mich App 138; 276 NW2d 546 (1979). Such comment is tantamount to shifting the burden of proof by allowing the jury to make adverse inferences from defendant’s or the alibi witness’s failure to testify:

Informing the jury of defendant’s failure to produce an alibi witness where he had previously given notice unduly denigrates defendant’s case when he later chooses to present no evidence. At issue is the jury’s ability to draw an impermissible inference of guilt from defendant’s decision not to call an alibi witness and its relation to his involvement in the charged crime. A jury is left with the impression that by defendant’s unsuccessful attempt to follow through with his alibi, guilt is rendered more presumable and apparent. [Shannon, supra at 143.]

However, it is well settled that the prosecution may comment on the filing of a notice of alibi by a defendant and upon defendant’s failure to produce corroborating witnesses after defendant has actually put forth an alibi defense. Shannon, supra; People v Hunter, 95 Mich App 734, 738-739; 291 NW2d 186 (1980); People v Dean, 103 Mich App 1; 302 NW2d 317 (1981). As stated by this Court in Shannon, supra at 145:

*191Where a defendant testifies to an alibi and calls no additional witnesses to support it, the prosecution, by commenting on the nonproduction of corroborating alibi witnesses, is merely pointing out the weakness in defendant’s case.

In Shannon, the defendant did not testify, nor did he present an alibi defense, therefore comment thereon by the prosecutor was held to be an impermissible shifting of the burden of proof. In Hunter, defendant testified, but did not offer an alibi prior to the prosecutor’s reference to the notice of alibi. Under those facts, this Court held that any reference to the defendant’s filing of a notice of alibi prior to the defendant’s actually presenting the defense would "elevate the procedural requirement of filing the notice of alibi into a waiver of defendant’s substantial right to remain silent.”

Thus, the status of the law is that, prior to defendant’s actually presenting an alibi at trial, the prosecution and trial court may not comment on defendant’s filing of an alibi notice or failure to produce corroborating witnesses. However, once the defendant presents such a defense, the prosecution is permitted to attack the alibi by commenting on the weakness of the alibi testimony. Shannon, supra; Hunter, supra. Moreover, where the defendant presents an alibi defense at trial, the prosecutor’s questions and arguments regarding the defendant’s failure to produce the alibi witnesses listed in the notice of alibi is permissible to highlight the weakness of the defense. As we stated in People v Khabar, 126 Mich App 138, 142; 337 NW2d 9 (1983):

Defendant also challenges the prosecutor’s closing comments on defendant’s failure to produce the testimony of an alibi witness listed in his notice of alibi. The remarks — which merely consti*192tuted comment on the weakness of defendant’s case — were not impermissible. People v Shannon, 88 Mich App 138,145; 276 NW2d 546 (1979).

In the instant case, defendant asserts that it was error for the court to read to the jury the notice of alibi, which listed Doris Diane Holmes and Darwin Halsey as alibi witnesses, and to allow the prosecutor to comment as to their nonproduction. In accordance with the authority cited above, the actions of the prosecutor and the trial court would be error only if the defendant had not presented the alibi defense.

An alibi is "[a] defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party.” Black’s Law Dictionary (5th ed), p 66. An alibi witness is a person whose testimony places defendant elsewhere than at the scene of the crime. People v Hooks, 139 Mich App 92, 98; 360 NW2d 191 (1984).

In the instant case, defendant took the stand and testified that at the time of the crime he was in transit between Battle Creek and Chicago. Additionally, Alice Humphries testified on direct examination by defense counsel that she was at the scene shortly after Qualls was shot and that defendant was not.

It was not until after the above-mentioned testimony that the prosecution introduced evidence of the defendant’s notice of alibi and the witnesses listed therein. Since defendant had raised the alibi, such actions were proper rebuttal to highlight the weakness of defendant’s defense. The adversarial challenge to the asserted defense did not impermissibly shift the burden of proof. Khabar, supra.

*193If error was committed by the reading of the alibi notice to the jury rather than cross-examining the defendant as to its contents,1 we hold that such an error was harmless in view of the overwhelming evidence of guilt. MCL 769.26; MSA 28.10962 and MCR 2.613(A).3

hi

Next, the defendant argues that the trial court erred by allowing the prosecution to introduce Doris Holmes as a rebuttal witness. We disagree.

Rebuttal testimony is that used to contradict, repel, explain, or disprove evidence produced by the other party, tending directly to weaken or impeach the same. People v Kelly, 423 Mich 261, 281; 378 NW2d 365 (1985). There are, however, limitations. First, if the evidence should have been introduced in the case in chief, rebuttal is improper. People v Losey, 413 Mich 346, 351; 320 NW2d 49 (1982). Second, rebuttal evidence must be on a material matter, not a collateral issue. People v Teague, 411 Mich 562, 566; 309 NW2d 530 *194(1981). Third, if the evidence was not raised in the prosecutor’s case in chief, the defense must have raised a new issue. The prosecutor is not allowed to elicit a denial from the defendant on cross-examination only to inject a new issue on rebuttal or revive the right to introduce evidence that should have been introduced in the case in chief. People v Bennett, 393 Mich 445, 449-450; 224 NW2d 840 (1975).

The testimony of Doris Holmes was offered to rebut defendant’s testimony that at the time of the murder Darwin Halsey and Darwin’s girl friend were transporting him in a brown Nova from Battle Creek to Chicago. This testimony could not have been introduced in the prosecution’s case in chief since it was relevant only in response to the defendant’s assertion of the alibi. Holmes was properly called in rebuttal to contradict defendant’s testimony. Holmes was listed by the defense as a witness in support of defendant’s alibi. When she was not called by defendant, the prosecutor properly called her to refute the alibi. Although the defendant claimed on cross-examination to have forgotten the name of his uncle’s girl friend, it is undisputed that Doris Holmes was Darwin’s girl friend and thus the person to whom the defendant was referring. The defendant’s convenient memory loss and self-serving statement that he didn’t think the name of his uncle’s girl friend was Doris Holmes should not preclude the prosecution from rebutting the obvious.

IV

As his third issue, defendant argues that he was denied his Sixth Amendment right to a speedy trial. We disagree.

In reviewing speedy trial claims, Michigan has *195adopted the federal rule as stated in Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972). The factors to be balanced in determining whether a defendant’s right to a speedy trial has been violated are (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right, and (4) prejudice to the defendant. People v Hill, 402 Mich 272, 283; 262 NW2d 641 (1978).

1. Length of delay. While a delay of six months is necessary to trigger further investigation, after eighteen months prejudice is presumed and the burden shifts to the prosecution to prove that defendant has not been prejudiced. People v Den Uyl, 320 Mich 477; 31 NW2d 699 (1948); People v Lowenstein, 118 Mich App 475, 487; 325 NW2d 462 (1982), lv den 414 Mich 947 (1982). The delay in the instant case was 193 days; prejudice is therefore not presumed.

2. Reason for delay. In order to constitute a violation of a defendant’s right to a speedy trial, the delay must be unreasonable. People v Collins, 388 Mich 680, 687; 202 NW2d 769 (1972); People v Martin, 147 Mich App 297, 303; 382 NW2d 726 (1985). We are not persuaded that the delay in bringing defendant to trial in the instant case was unreasonable. Defendant’s trial was originally scheduled to commence on May 5, 1987, within 180 days of defendant’s arrest, but was adjourned by the court until a date certain of May 19, 1987. Even though scheduling delays are attributable to the prosecution, such delays are to be given minimal weight. People v Ewing, 101 Mich App 51, 55; 301 NW2d 8 (1980). The delay in bringing the instant defendant to trial was slight and given the fact that the prosecution was required to secure many out-of-state witnesses, we do not find the delay to be unreasonable.

*1963. Assertion of right. Defendant did assert his right to a speedy trial by filing a demand for a speedy trial and by moving for release from jail. Lowenstein, supra at 489.

4. Prejudice to defendant. Lower courts recognize two types of prejudice arising from pretrial delay: (1) prejudice to the defendant’s person in the form of incarceration or anxiety over the pending charges; and (2) prejudice to the defense from loss of evidence or witnesses. People v Chism, 390 Mich 104, 114; 211 NW2d 193 (1973); Collins, supra at 694. While defendant can be presumed to have suffered some anxiety and stress while awaiting the outcome of his case, People v Harris, 110 Mich App 636, 647; 313 NW2d 354 (1981), greater specificity and harm must be shown where the other factors weigh in the state’s favor. Lowenstein, supra at 490. Defendant has failed to show any prejudice whatsoever from this delay, other than aggravation and mental stress. Given that the delay was minimal, we do not weigh this factor heavily in defendant’s favor.

Balancing these four factors, we conclude that defendant’s right to a speedy trial has not been violated. The delay was slight and was partially the result of defendant’s own actions in fleeing to another jurisdiction.

v

Finally, defendant argues that the trial judge abused his discretion by sentencing defendant to a prison term in excess of his life expectancy. We disagree.

Appellate review is limited to whether the sentencing court abused its discretion to the extent that the sentence shocks the judicial conscience of the appellate court. People v Coles, 417 Mich 523, *197550; 339 NW2d 440 (1983). To be shocking to the judicial conscience, a sentence must far exceed what a reasonable person would perceive to be an appropriate response to the crime and the criminal. Id., at 542-543.

Unlike the sentences of one hundred to two hundred years in People v Moore, 432 Mich 311; 439 NW2d 684 (1989), the instant sentence of sixty to ninety years for this twenty-three-year-old defendant is not necessarily beyond the defendant’s life. The entire interval between the defendant’s minimum sentence and his maximum sentence is not certain to occur after his death. Moore, supra at 321. The judges of this Court are not and should not be actuaries. Id., at 329. We, however, do take judicial notice that, with ever increasing life expectancies, many citizens of our state live to the age of eighty-three and beyond. In addition, although defendant claims he will never live to the age of eighty-three or eighty-five, it is noteworthy that three justices of the United States Supreme Court are in their eighties. Defendant’s argument that it will be impossible during his lifetime to serve his term-of-years sentence is based upon speculation and statistical averages which may not apply to him.

We find the sentence to be an appropriate social response to the crime and the criminal.

Affirmed.

Weaver, P.J., concurred.

It is noteworthy that the notice of alibi was read to the jury only after the defendant refused to be recalled to the stand for rebuttal purposes.

MCL 769.26; MSA 28.1096:

No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice,

MCR 2.613(A):

Harmless Error. An error in the admission or the exclusion of evidence, an error in a ruling or order, or an error or defect in anything done or omitted by the court or by the parties is not ground for granting a new tried, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice.