People v. Matthews , 163 Mich. App. 244 ( 1987 )

E. F. Oppliger, J.

This case arises from the armed robbery of a party store. Defendant was charged as the driver of the getaway vehicle. After a jury trial, defendant was convicted of armed robbery, MCL 750.529; MSA 28.797. He was sentenced to three to twenty years imprisonment. In his appeal as of right, defendant raises the single issue of whether the trial judge erred in refusing to instruct the jury on alibi, CJI 7:2:01, and on alibi-perfect defense, CJI 7:2:02.

At approximately 9:15 p.m. on January 9, 1986, Jalal Abuaita was working at the Brown Street Market when a man wearing a ski mask and carrying a gun entered the store, demanded all the money in the cash register, and, after receiving the money, fled on foot. After waiting a moment, Abuaita ran outdoors and, seeing a car with three young men in it, told them that he had been robbed, pointed to the fleeing robber, and asked them to follow him. One of the passengers in the car, Tim Rourke, testified that he watched the robber run to a red pickup truck with a toolbox in the bed. The car in which Rourke was a passenger drove by the pickup truck just as the robber reached it and opened the passenger side door. By illumination provided by the truck’s dome light, Rourke saw the driver, who later was identified as the defendant. Rourke also obtained five of the six numbers of the pickup truck’s license plate number. He gave that information to the police.

Based on the partial license plate number, police went to an address on the outskirts of Flint where they found a red pickup truck with a toolbox in the bed and a ski mask on the seat. The five numbers provided by Rourke matched with the license plate on the truck. The sixth number was blocked by the truck’s trailer hitch. Police officers knocked on the door of the residence, were granted permission to enter by the defendant’s mother, and found the defendant hiding in a storage area on the second floor.

The defendant raised an alibi defense at trial, claiming that he was talking on the telephone with his girlfriend, Roberta Carter, during the time when the robbery occurred. Although defendant did not testify, his sister testified that, when she and defendant’s mother went to the store at approximately 9:10 p.m., defendant was talking with Carter. Carter testified that she talked with defendant from 9:00 to 9:30 p.m.

The trial judge denied defendant’s request that the jury be instructed on alibi and alibi-perfect defense, CJI 7:2:01 and 7:2:02. The jury convicted defendant after deliberating for approximately one-half hour.

On appeal, defendant claims that the trial judge erred in denying defendant’s request for the alibi jury instructions.

In denying defendant’s request for the alibi instructions, the trial judge relied on the Use Notes for the instructions which state that they are not to be given "where the defendant is charged as an aider or abettor, or in similar situations.” In addition, the trial judge stated that, regardless of the Use Notes, she would not give the perfect defense instruction, CJI 7:2:02, citing People v Prophet, 101 Mich App 618, 625-628; 300 NW2d 652 (1980).

We conclude that the trial judge erred in refusing defendant’s requested alibi instructions. The Use Notes to the instructions, without providing any reasoning or authority, simply state that the instructions are not to be given when a defendant is charged as an aider or abettor. The Commentary to the instructions is silent as to the reasoning for the Use Notes. Nor is there any case law in which the Use Notes are discussed. However, from our review of other authorities, it appears that the Use Notes are based on the fact that an aider and abettor is not always physically present at the time when the crime for which he is charged is committed. Tomlinson v United States, 68 US App DC 106, 109; 93 F2d 652, 655-656 (1937). Thus, according to 75 Am Jur 2d, Trial, § 729, pp 656-657, a defendant is entitled to have the court instruct the jury on the defense of alibi "unless the crime charged does not require the presence of the defendant at the time and place of its commission, as where he is charged as an aider and abettor.” See also, 23A CJS, Criminal Law, § 1203, p 526.

Since the charge against defendant arose from his involvement as the driver of the getaway vehicle, his presence was an essential element of the people’s case. Consequently, we conclude that the trial judge erred in refusing to give the alibi instructions, regardless of the Use Notes restriction for cases in which a defendant is charged as an aider and abettor.

It is appropriate to restate our Supreme Court’s admonition in People v Petrella, 424 Mich 221, 277; 380 NW2d 11 (1985):

[W]e remind the bench and bar once again that the Michigan Criminal Jury Instructions do not have the official sanction of this Court. Their use is not required, and trial judges are encouraged to examine them carefully before using them, in order to ensure their accuracy and appropriateness to the case at hand.

We also note that the trial judge erred to the extent that she relied on People v Prophet, supra, as an additional reason for refusing to give the alibi-perfect defense instruction, CJI 7:2:02. In Prophet, this Court held only that the failure of the trial judge to instruct the jury on CJI 7:2:02 constituted harmless error when the jury was properly instructed on CJI 7:2:01. Prophet is inapplicable since the trial judge in the instant case refused to give either alibi instruction.

Having concluded that the trial judge erred in refusing to give the requested instructions, the next issue is whether the error requires reversal. We hold that it does not.

We are aware of the general rule that, when requested, an alibi instruction must be given. People v McGinnis, 402 Mich 343; 262 NW2d 669 (1978). Nonetheless, we conclude that the failure to give the requested instructions does not require reversal in the instant case for two reasons. First, the evidence against defendant was overwhelming. An eyewitness identified defendant as the getaway driver and obtained a thorough description of the pickup truck, including the fact that it was red and that it had a toolbox in the truck bed. The witness also obtained five of the six numbers of the truck’s license plate. Police traced the license number to an address where they found a red truck with a toolbox in the bed whose license number matched the numbers provided by the eyewitness. Police entered the residence and ultimately found the defendant hiding in a storage area of the second floor.

Second, the jury was fully apprised of the defendant’s defense. Defendant presented the testimony of his sister and his girlfriend that he was at home talking on the telephone at the time the robbery occurred. During closing argument, defense counsel argued that defendant was talking on the telephone at the time the robbery occurred and that, on the facts presented, the jury should infer that someone else was with the robber at the time of the robbery. In addition, the jury was instructed that the burden of proof rested with the prosecutor and that the prosecutor had to prove beyond a reasonable doubt that defendant "intentionally aided or abetted another in the commission of this crime by providing the getaway vehicle.” Even though the instructions to a jury may be somewhat imperfect, there is no error if they " 'fairly presented to the jury the issue to be tried and sufficiently protected the rights of [the] defendant.’ ” People v Bender, 124 Mich App 571, 574-575; 335 NW2d 85 (1983), quoting People v Kalder, 284 Mich 235, 241-242; 279 NW 493 (1938). Since the jury convicted defendant, they necessarily rejected his alibi claim.

We find the error in the instant case harmless under MCR 2.613 and we decline to reverse under MCL 769.26; MSA 28.1096, as in our opinion, after an examination of the entire cause, it does not appear that the error complained of has resulted in any miscarriage of justice.

Affirmed.