People v. Burwick
People v. Burwick
Opinion of the Court
Defendant, Joe Cecil Burwick, was convicted by a jury of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and felony-firearm, MCL 750.227b; MSA 28.424(2). He was sentenced to the mandatory two-year term for the felony-firearm conviction to be followed by two years on probation for the assault conviction and he appeals as of right.
This case arose out of events occurring on May 21, 1980, when defendant allegedly shot Jose Rodriguez. Rodriguez and his wife of ten years, Brenda, had been separated for approximately three months. Jose was seeing Sue Ann Diamond socially and Brenda was seeing defendant. However, Jose was not pleased that Brenda was seeing defendant and he had threatened defendant in the past. The two men had fought when Jose found defendant and Brenda in a bedroom at the Rodriguez home. Defendant also testified that "he [Jose] would step out behind another vehicle and throw a tire iron at my car when he’d see me going down the road”.
On the day of the shooting, Jose visited Diamond and arranged to use her car so that he could go to his mother’s house. Jose drove past Brenda’s house and he knew defendant was there. While at his mother’s house, he telephoned Brenda asking to speak with defendant. Defendant did not speak with Jose and he left Brenda’s house in his orange Mustang. Jose then drove over to Brenda’s house to see what was going on between the defendant and Brenda. Jose and Brenda spoke in front of Brenda’s house for approximately 45 minutes.
Jose testified as follows. As he and Brenda spoke, Brenda stopped and pointed to an orange Mustang which was aproximately one block away. He then entered Diamond’s car and pursued the Mustang. A chase ensued which ended when he passed the Mustang, pulling in front of it. He forced the Mustang to stop. While passing the Mustang, he saw defendant, who was alone in the car, wave something in his right hand. When the cars stopped, he exited from his car and took two or three steps toward the Mustang. Out of the half-open window on the driver’s side of the Mustang, defendant shot him three or four times. After defendant left the scene, he drove back to Brenda’s house. He asked Brenda to take him to the hospital, but instead, she telephoned Diamond, saying that she was bringing him over to Diamond’s house. Diamond took him to the hospital.
Defendant testified that he was at the home of Jerry Ousley where a birthday party for Ousley’s wife was being held that evening. Although he left Ousley’s house several times that afternoon and evening, he did not leave the neighborhood. Ousley and two other witnesses verified defendant’s alibi. They testified that defendant left the party only for short periods of time and never in his car.
Defendant’s first claim is that error occurred when a prosecution witness testified on direct examination to the existence of alibi witnesses before defendant took the stand or called any alibi witnesses. We disagree.
Prior to trial, defendant filed a notice of alibi,
The prosecution’s first witness was Sergeant Eric Bush, the investigating officer. On direct examination, the following colloquy occurred:
"Q. Now, do the names Jerry and Rebecca Ousley, Robert and Candice Baker, and Ellen Chadwick ring a bell?
”A. Yes, sir.
”Q. How is it that you know or have heard of them?
"A. They were presented by your office as alibi witnesses that should be interviewed.
"Q. Did you, in fact, try to make contact with these people?
’A. I did.
”Q. Would you tell us what contact you made, or efforts to that effect.”
Defendant objected on the ground that he had not yet presented any alibi witnesses. The people responded saying that they hoped to show that the witnesses listed on the notice of alibi had refused to talk to the investigating officer. The objection was sustained. Later that day, defendant moved for a mistrial based on the above exchange. The motion was denied. On August 23, 1982, defendant moved for a new trial on two grounds, one of which was the reference to the alibi defense in the exchange between the prosecutor and Bush. The motion was denied.
Denial of a motion for a new trial is within the
In People v Shannon, 88 Mich App 138; 276 NW2d 546 (1979), the defendant filed a notice of alibi, the witness was not called to testify and the defendant did not take the stand. In its instructions, the trial court informed the jury that the witness listed in the notice of alibi was available but that the defense decided not to call the witness. During closing argument, the prosecutor referred to the nonproduction of the alibi witness. On appeal, defendant claimed that the comments impermissibly shifted the burden of proof and, as a result, he was denied a fair trial. This Court agreed and held that: "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.” 88 Mich App 143. The Court also determined that the purpose of filing notice of alibi is to enable the prosecution to investigate the merits of the defense prior to trial, not to alert the jury to defendant’s proposed defense. There was no useful purpose served in informing the jury of the defendant’s original intention to present an alibi defense and his later decision not to call the alibi witness. Reversible error was found in both the court’s instruction and the prosecutor’s comments.
Similarly, reversible error was found in People v Hunter, 95 Mich App 734; 291 NW2d 186 (1980). Before there was any indication that the defendant would testify, while in the jury’s presence, the prosecutor requested the court to take judicial
Contrary results were reached in People v Dean, 103 Mich App 1; 302 NW2d 317 (1981), and People v Bouknight, 106 Mich App 798; 308 NW2d 703 (1981), lv gtd 412 Mich 871 (1981).
In Dean, supra, although the Court disapproved "of any mention by the prosecution of the filing of notice of an alibi defense before defendant actually elects to proceed with such a defense”, reversal was not mandated. 103 Mich App 8. The prosecutor had commented during jury voir dire and opening argument that defendant had filed a notice of alibi; however, there was no objection to the
In Bouknight, supra, the judge indicated to the jury on voir dire that an alibi defense would be presented. The defendant took the stand and presented an alibi defense. Finding no reversible error, the Court stated: "In situations where the jury has been apprised of the defendant’s filing of the notice of alibi by the court or the prosecutor where the defendant does not present an alibi defense, the comment impermissibly shifts the burden of proof to defendant.” 106 Mich App 808. However, the burden was not shifted to defendant and the Court found that defendant was not prejudiced by the trial court’s comments.
In the instant case, we also find that defendant was not prejudiced by the inadvertent remark mentioning "alibi” and the complained-of testimony because he testified at trial and presented alibi witnesses. We agree with the Bouknight panel that comments on a defendant’s notice of alibi or anticipated alibi defense prior to the introduction of that defense are to be discouraged. Furthermore, as in Bouknight, we find Shannon and Hunter distinguishable from the facts in the instant case.
There was no abuse of discretion in the trial court’s denial of defendant’s motion for a new trial on this issue.
Furthermore, in the instant case, although some
Our review of the record shows that defendant’s remaining allegation of error is without merit.
Affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.