Opinion
Docket No. 21738.
Decided January 26, 1976.
Appeal from Recorder's Court of Detroit, James Del Rio, J. Submitted January 8, 1976, at Detroit. (Docket No. 21738.) Decided January 26, 1976.
Jack W. Crawford was convicted of delivery of heroin. Defendant appeals. Affirmed but remanded for resentencing.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training and Appeals, and Robert W. Horn, Assistant Prosecuting Attorney, for the people.
Theodore B. Sallen (Alvin C. Sallen, of counsel), for defendant.
Defendant's nonjury trial resulted in his conviction for delivery of heroin, MCLA 335.341(1)(a); MSA 18.1070(41)(1)(a). The trial judge was ill at time of sentencing, and defendant was sentenced by a substitute judge.
On this appeal, defendant attacks the sentencing procedure and also asserts reversible error in the admission of certain testimony obtained by monitoring.
GCR 1963, 531 authorizes the substitution of judges as occurred in this case, but GCR 1963, 785.8(2) requires the judge to "give defendant and his lawyer a reasonable opportunity to advise the court of any circumstances they believe the court should consider in imposing sentence". GCR 1963, 785.12 requires "both parties shall be given an opportunity at time of sentencing to respond to the presentence report and to explain or controvert any factual representations disclosed".
Neither of the above requirements was satisfied here. The sentencing judge stated:
"Now, I have simply agreed to pass sentence since Judge Lassiter is in the hospital, or rather he is out now and is home ill. I have simply agreed to pass sentence for Judge Lassiter because Judge Lassiter is my alternate judge and you know when the judge is out sick, he passes his sentence on to his alternate judge and I am his alternate and I am passing the sentence that he wishes passed. Do you understand that?
"Well, here's the thing. If it were my case it would be something different. All I am doing is sitting instead of another judge. So, what I am talking about, the sentence that I pronounced is the decision of my alternate judge. It is his case and I can't do something with someone else's case that I might do with my own. If it were my case, it would probably be a different situation. But, you see, it is his case and I have to do what he requests me to do and he has requested me to do this."
Neither defendant nor his attorney was afforded the opportunity of addressing the court as contemplated by the rules above quoted. We remand for compliance with those rules, preferably by the trial judge.
The argument on the claimed inadmissible testimony is founded on People v Beavers, 393 Mich. 554; 227 N.W.2d 511 (1975). By its own terms Beavers is prospective only and applies to police conduct occurring after its release, People v Livingston, 64 Mich. App. 247; 236 N.W.2d 63 (1975). The police conduct involved here occurred prior to Beavers.
Affirmed but remanded for compliance with GCR 1963, 785.8(2) and 785.12.