PEOPLE OF MI V NORMAN GRAY
Annotate this Case
Download PDF
Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice
Justices
Maura D. Cor rigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
Opinion
____________________________________________________________________________________________________________________________
FILED APRIL 24, 2002
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 119756
NORMAN GRAY,
Defendant-Appellant.
________________________________
PER CURIAM
I
On November 15, 1998, an armed robbery occurred at a gas
station in Livingston County.
The station owner recognized
the robber as a regular customer. Additionally, the crime was
recorded by a surveillance camera.
robber
bore
the
insignia
of
a
The jacket worn by the
local
business.
This
information led police to this defendant within a few days, at
which time the defendant was arrested and charged with armed
robbery.
Before the jury trial, the defendant filed a notice of
alibi as required by MCL 768.20.
The defendant listed five
witnesses, three of whom eventually testified at trial.
In
cross-examining these witnesses, the prosecutor asked each
whom
they
had
told
about
the
defendant’s
alibi.
The
prosecutor sought to impeach the witnesses by showing that
they had not come forward before trial with exculpatory
information about the defendant.
The
defendant
robbery.1
That
Court
was
convicted
by
the
jury
of
armed
The defendant appealed to the Court of Appeals.
affirmed
the
conviction
and
sentence
in
an
unpublished per curiam opinion.
II
Of the issues raised on appeal by the defendant, only one
merits discussion.
The defendant claims that there was a
denial of due process, US Const, Am XIV, when the prosecutor
implied, during cross-examination of the alibi witnesses, that
the witnesses had had an obligation to come forward with their
exculpatory evidence. The defendant relies on People v Fuqua,
146 Mich App 250; 379 NW2d 442 (1985), to support his claim
that a proper foundation had not been laid for the impeachment
of the alibi witnesses.
In Fuqua, the Court stated:
We note, however, that many jurisdictions
which permit such an attack on the credibility of a
defense alibi witness nevertheless recognize that
an assumption that it is natural for a defense
alibi witness to tell his or her story to the
police
is
not
always
warranted
and
impose
restrictions on the circumstances in which such an
1
The defendant received a life sentence as an habitual
offender, fourth offense. MCL 769.12.
2
attack may be made.
* * *
[B]efore the prosecutor is allowed to impeach
an alibi witness for failure to come forward and
tell his story to the police before trial, an
adequate foundation must be laid.
There must be
some showing, on the record, as to why it would
have been natural for the alibi witness to relate
his story to the police. [Id. at 255-256.]
The Court in Fuqua, citing People v Dawson, 50 NY2d 311; 428
NYS2d
914;
evidentiary
406
NE2d
771
foundation
(1980),
might
suggested
require
the
that
such
an
prosecutor
in
appropriate instances to show that a witness was aware of the
charges against the defendant, that the witness had reason to
recognize that he possessed exculpatory information, or that
the witness was familiar with how to make the information
available to the police or prosecutor.
[Id. at 255.]
III
We take this opportunity to overrule Fuqua and instead
adopt the reasoning of People v Phillips, 217 Mich App 489;
552 NW2d 487 (1996). In Phillips, the Court concluded that no
special foundation is necessary before the trier of fact may
be apprised that an alibi witness failed to come forward
earlier with exculpatory information.
The panel in Phillips
at 494 observed:
While we agree that the trier of fact can be
assisted in this important task [of assessing the
credibility of alibi witnesses] with information
regarding the reasons that an alibi witness would
have been more or less likely to come forward with
alibi information before trial, we do not conclude
3
that the prosecutor must lay any particular
foundation before questioning a witness who has not
come forward before trial.
Presumably, if there
are good reasons for a witness’ failure to come
forward earlier, these will be brought out during
the direct [or redirect] examination of the alibi
witness by defense counsel.
The Fuqua rule can only operate to deprive the trier of
fact of relevant information about the credibility of an alibi
defense by imposing the obligation upon the prosecutor to
establish that it would have been natural for the witness to
have come forward at an earlier time.
The rule fails to take
into account the likelihood that a witness who would fabricate
an alibi would also be likely to fabricate reasons for not
having come forward earlier. As the panel in Phillips further
observed:
The foundational rule of Fuqua would take this
important issue [of the credibility of alibi
accounts] from the factfinder in many cases. Under
Fuqua, unless an alibi witness testifies in a
fashion indicating that it would have been natural
to come forward earlier, a prosecutor cannot
impeach that witness by reference to the failure to
come forward earlier. However, a witness who would
fabricate an alibi account would also likely
fabricate reasons for failing to come forward
earlier. The prosecutor thus would be left without
a foundation for impeaching the witness with
respect to this issue or arguing that the witness’
failure to come forward earlier suggests the alibi
story was a recent fabrication. As a result, the
factfinder would be left with no opportunity to
consider the timeliness of the witness’ account in
weighing the credibility of that account.
A juror or other factfinder is certainly
qualified to consider whether offered reasons for
an alibi witness’ delay in coming forward make
sense, ring true, or are otherwise persuasive. The
timeliness of an alibi account may be highly
probative of its truthfulness; it may, in fact, be
4
the best or only way to determine whether the alibi
is credible. A witness should not be able to take
the timeliness issue from the factfinder by
fabricating “good” reasons for not coming forward
earlier. We conclude that the trial court did not
err in overruling defense counsel’s objections to
the cross-examination questions at issue. The
credibility of an alibi witness, regarding both the
alibi account and the failure to come forward
earlier with that account, should not be taken from
the jury through the imposition of any special
foundational requirement. [Id. at 495-496.]
We concur with this analysis.
A defendant in a criminal case has a right to present a
defense, but that right is not cloaked with protection from
vigorous cross-examination.
A tardily raised or incredible
claim of alibi may be challenged as part of the truth-seeking
process that is a criminal trial.
631; 281 NW 384 (1938).
People v Hepner, 285 Mich
Where a defendant puts forth an alibi
defense, that defense can be challenged by cross-examination
concerning unexplained delays in its assertion or untruths in
its substance.
In the case at bar, the trial court properly allowed
cross-examination of the witnesses who testified in support of
defendant’s alibi defense.
The trier of fact must have the
necessary information to assess the credibility of witnesses
and determine the reliability of the evidence presented.
IV
The Court of Appeals properly affirmed the defendant’s
conviction and sentence.
We adopt the reasoning of Phillips
and hold that it is unnecessary for a prosecutor to establish
5
any special foundation before cross-examining an alibi witness
about
the
witness’
failure
to
have
come
forward
with
information at an earlier time.
Affirmed.
CORRIGAN , C.J., and CAVANAGH , WEAVER , KELLY , TAYLOR , YOUNG , and
MARKMAN , JJ., concurred.
6
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
