PEOPLE OF MI V ANTONIO DAVIS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 14, 2007
Plaintiff-Appellant,
v
No. 273422
Wayne Circuit Court
LC No. 06-004397
ANTONIO DAVIS,
Defendant-Appellee.
Before: Servitto, P.J., and Jansen and Schuette, JJ.
PER CURIAM.
Defendant is charged with first-degree murder, MCL 750.316, felon in possession of a
firearm, MCL 750.224f, and possession of a firearm during the commission of a felony, MCL
750.227b. After a pretrial motion hearing, the trial court denied the prosecution’s motion to
admit statements defendant made while in jail, holding that since some of the statements made
reference to defendant’s alibi, admitting the statements would impermissibly shift the burden of
proof to defendant. The prosecution appeals by leave granted.1 Because the probative value of
the evidence would not be substantially outweighed by the danger of unfair prejudice, we
reverse.
On appeal, the prosecution argues that the trial court abused its discretion by holding that
the three recorded jailhouse conversations were inadmissible. We agree.
This Court reviews preserved evidentiary issues for an abuse of discretion. People v
Katt, 468 Mich 272, 278; 662 NW2d 12 (2003). A trial court abuses its discretion when it
chooses an outcome that is outside the range of reasonable and principled outcomes. People v
Babcock, 469 Mich 247, 269; 666 NW2d 231, on rem 258 Mich App 679; 672 NW2d 533
(2003).
1
The prosecution’s application for leave with this Court was initially denied. The prosecution
then filed an application for leave to appeal with the Supreme Court and, in lieu of granting leave
to appeal, the Supreme Court remanded the case to this Court for consideration as on leave
granted.
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The prosecution argues that defendant’s jailhouse statements concerning alibi and selfdefense defenses are party admissions, and hence, admissible as non-hearsay, pursuant to MRE
801(d)(2)(A). An admission by a party-opponent is not hearsay if the statement is offered
against a party and is the party’s own statement. MRE 801(d)(2)(A); People v Lundy, 467 Mich
254, 257; 650 NW2d 332 (2002). “[A]ny out-of-court statement made by a defendant which is
offered against that defendant is an admission.” People v Brown, 120 Mich App 765, 782; 328
NW2d 380 (1982).
Defendant’s party admissions must satisfy MRE 401, MRE 402, and MRE 403 to be
admissible. Generally, relevant evidence is admissible, and evidence is relevant if it has any
tendency to make the existence of any fact that is at issue more probable or less probable than it
would be without the evidence. MRE 401; MRE 402; People v Crawford, 458 Mich 376, 388;
582 NW2d 785 (1998). However, relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury. MRE 403; People v Sabin (After Remand), 463 Mich 43, 58; 614 NW2d 888, on
second rem 242 Mich App 656; 620 NW2d 19 (2000).
The prosecution argues that defendant’s jailhouse statements are relevant as
circumstantial evidence of defendant’s guilt, regardless of whether defendant testifies, because
they are false exculpatory statements. False exculpatory statements made to police or in sworn
testimony may be offered as circumstantial evidence tending to show a defendant’s guilty
conscience, where the defendant tries “to lead suspicion and investigation in some other direction
by false or covert suggestions or insinuations.” People v Wackerle, 156 Mich App 717, 720-722;
402 NW2d 81 (1986) quoting People v Arnold, 43 Mich 303, 305-306; 5 NW 385 (1880)). The
reasoning behind the rule is that the giving of false testimony is “so unlike the conduct of
innocent men that [the false statements] are justly regarded as giving some evidence of a
consciousness of guilt.” Id. at 722 (quoting Arnold, supra at 305-306).
Here, the jailhouse statements would not qualify as false exculpatory statements because
defendant did not give the statements to law enforcement or through prior testimony. People v
Wackerle, supra. Furthermore, the prosecution does not intend to show that the statements are
false. Rather, the prosecution apparently intends to let the jury decide which statement is false.
Thus, we hold that defendant’s jailhouse statements do not qualify as false exculpatory
statements.
Conflicting statements, however, as opposed to false exculpatory statements, do not need
to be given to law enforcement or through testimony, nor do they need to be proven false, in
order to be admissible as substantive evidence. Conflicting statements are two or more selfserving, contradictory, exculpatory statements regarding an incriminating fact, given out of
court. People v Cowell, 44 Mich App 623, 624-626; 205 NW2d 600 (1973). “[C]onflicting
statements tend to show a consciousness of guilt and are admissible as admissions.” Cowell,
supra at 625. This Court stated the rule for conflicting statements, in relevant part:
It may be shown [] that accused made two or more conflicting statements out of
court in reference to an incriminating fact; and this right is not affected by the fact
that accused does not become a witness. Inconsistent statements relevant to the
crime charged are not limited to use for impeachment purposes; they have
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substantive effect as tending to show a consciousness of guilt.” [Id. at 626
(quoting 22A CJS Criminal Law § 738, pp 1094-1095).]
The two jailhouse conversations regarding defendant’s possible alibi were made out of
court, they conflict with the statement defendant gave to police, and are relevant to the crime
charged. They are also exculpatory and self-serving. For instance, defendant told police that he
and his cousin went to speak to someone and his cousin shot the man, thus placing himself at the
scene. In one of the recorded telephone conversations, however, defendant indicated that a lady
saw him at work until 9:00 p.m. that night so that he could not have been at the crime scene. We
find that the majority of defendant’s statements qualify as conflicting statements, and therefore,
are relevant as circumstantial evidence tending to show defendant’s guilt.
Given that the jailhouse conversations are relevant, this Court must determine whether
their admission would cause unfair prejudice to defendant. The trial court agreed with defendant
that the probative value of the statements is substantially outweighed by the danger of unfair
prejudice to defendant. The trial court held that if the jury was presented “with evidence that
there is an alibi witness who could substantiate that defendant was not at the scene of the crime,
the jury would likely draw an impermissible inference of guilt from defendant’s decision not to
call the alibi witness.” The trial court stated that defendant’s situation was “similar to where a
prosecutor attempts to comment on a defendant’s failure to put forth an alibi defense after he has
filed a notice of alibi defense . . . which is tantamount to shifting the burden of proof. . . ”
Pursuant to MCL 768.20, a defendant must give the prosecutor written notice of an intent
to present an alibi at least ten days before the start of the trial. The purpose of the notice
requirement is to allow the prosecution “to investigate the merits of such a defense prior to trial,
and not to alert the jury of the defendant’s proposed defense.” People v Shannon, 88 Mich App
138, 144; 276 NW2d 546 (1979) (citation omitted).
It is error requiring reversal for the court or prosecution to comment that a defendant has
filed an alibi notice before the defendant testifies because it “constitutes an impermissible
comment on the defendant’s right to remain silent.” People v Hunter, 95 Mich App 734, 738739; 291 NW2d 186 (1980) (error requiring reversal for the prosecutor to request that the trial
court take judicial notice of the defendant’s alibi notice). Likewise, if a defendant gives notice of
alibi, but then fails to present any alibi evidence, it is error requiring reversal for the prosecutor
to comment on the failure of the defendant to call alibi witnesses. Shannon, supra at 141-143
(error requiring reversal for the prosecutor, in his closing argument, to comment that the
prosecution’s testimony was uncontroverted by the defendant’s alibi witness, “the same witness
whom the defense chose not to call.”)
This Court in Shannon explained that the statutory notice requirement for an alibi defense
puts the defendant in the position of having to serve notice, even though his defense may be
incomplete at the time of filing. Shannon, supra at 144 n 3. To allow a prosecutor to comment
on a defendant’s failure to call alibi witnesses, after requiring him to file a notice of an alibi if
there was any possibility he would present one, would be “unduly prejudicial.” Id. In addition,
this Court in Hunter, supra at 738-739, opined that “any reference made to the filing of a notice
of alibi, prior to the defendant’s actually putting forth an alibi defense constitutes an
impermissible comment on the defendant’s right to remain silent. To find otherwise would
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elevate the procedural requirement of filing the notice of alibi into a waiver of defendant’s
substantive right to remain silent.” Id. at 739.
Defendant argued at the motion hearing that the facts of this case are akin to defendant
filing a statutory alibi notice, and the trial court agreed. However, defendant did not file a notice
of alibi, and we hold that his jailhouse statements were not the functional equivalent of filing a
notice of alibi. Filing a notice of alibi is a statutory requirement for a defendant to preserve the
ability to present an alibi. The judiciary protects defendants from due process violations that
may occur due to the statutory requirement by holding that it is error requiring reversal for the
prosecution to comment on the alibi notice prior to the defendant testifying. However, in cases
where the defendant does not file notice, he cannot expect the same heightened levels of
protection, given that there is no case law or statute that holds that it is error requiring reversal
for a prosecutor to enter into evidence a defendant’s relevant statements that happen to mention
an alibi.
Whether the probative value of the evidence is substantially outweighed by the danger of
unfair prejudice depends on whether the evidence is only marginally probative and whether the
jury will give it undue or preemptive weight. Crawford, supra 398. Here, defendant did not file
a notice of alibi, and the prosecutor would not be commenting on defendant’s failure to call an
alibi witness. Consequently, there is only minimal danger that the jury would make any
impermissible inference. Thus, the prejudicial effect of the evidence would not be substantially
outweighed by its probative value. We hold that the trial court erred in its determination that the
jailhouse conversations were inadmissible.
Reversed.
/s/ Deborah A. Servitto
/s/ Kathleen Jansen
/s/ Bill Schuette
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