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In Malone, supra at 399, the defendant's case was delayed because the district judge assigned to preside over the scheduled preliminary examination disqualified himself on the basis of a conflict of interest.
Summary of this case from People v. StoneOpinion
Docket No. 95284.
Decided June 6, 1989.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Robert E. Weiss, Prosecuting Attorney, Donald A. Kuebler, Chief, Appellate Division, and Gladys L. Christopherson, Assistant Prosecuting Attorney, for the people.
Joseph J. Farah, for defendant on appeal.
Before: BEASLEY, P.J., and WEAVER and CAVANAGH, JJ.
On March 14, 1986, a jury convicted defendant, Christopher Malone, of second-degree murder, MCL 750.317; MSA 28.549. Defendant was sentenced to serve not less than thirty nor more than fifty-five years in prison, to be served consecutively to a sentence defendant was serving in Illinois. Defendant appeals, raising three issues.
First, defendant contends that he was not timely brought to trial under the Interstate Agreement on Detainers. The IAD is a uniform law which prescribes procedures by which a prisoner may demand the prompt disposition of charges pending against him in a state other than the one in which he is imprisoned and prescribes procedures by which a state may obtain, for trial, a prisoner who is incarcerated in another state. The act sets forth two time limits within which trial must be commenced against a defendant serving time in another state. Which time limit is applicable depends upon whether the defendant affirmatively requests final disposition. Where the defendant does so, Article III of the act controls, providing:
MCL 780.601 et seq.; MSA 4.147(1) et seq.
People v Browning (On Reh), 108 Mich. App. 281, 290; 310 N.W.2d 365 (1981).
(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officers' jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: Provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. [Emphasis added.]
Where the defendant does not affirmatively request final disposition on the detainer, Article IV of the act provides:
(c) [ T] rial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. [Emphasis added.]
On July 19, 1985, the State of Illinois sentenced defendant to serve four years in prison for violating probation for a robbery conviction. On July 29, 1985, the warden of the Illinois correctional facility acknowledged receipt of the Michigan warrant and stated that a copy had been served upon defendant. Apparently, on that same date, defendant signed an "Agreement on Detainers Form II" containing notice of his place of confinement and a request for final disposition on the pending complaint. Defendant then gave this form to an Illinois prison official for transmission to the appropriate Michigan authorities, pursuant to Article III(b) of the IAD. Thus, the time limitation of Article III controls. The prosecutor here in Michigan received the form on August 28, 1985, and thereupon utilized a "Form VII" to request that Illinois correctional officials turn over custody of defendant for purposes of trial.
No one seems to know who sent a copy of the warrant to Illinois. At the evidentiary hearing below, the prosecutor speculated that the Michigan State Police may have done so.
On September 26, 1985, defendant was returned to Michigan. The following day, defendant was arraigned in the district court. On October 7, 1985, the date of the pretrial conference, the presiding district court judge disqualified himself, with the consent of both parties, since he had presided over the preliminary examination of another individual involved in the criminal events out of which the charges against defendant arose. Accordingly, defendant's preliminary examination was adjourned to October 21, 1985. Following the preliminary examination on October 21, 1985, before another district court judge, defendant was bound over to the circuit court to be arraigned on November 12, 1985. On November 12, 1985, the arraignment was adjourned to November 18, since no information had yet been filed. Defense counsel consented to this adjournment. On November 18, 1985, defendant entered a plea of not guilty, and a trial date of February 14, 1986, was set. On February 14, trial was adjourned so as to enable defense counsel to secure a transcript of defendant's preliminary examination. Trial commenced on February 28, 1986.
The first question we need address is when did the 180-day time period begin to run? Defendant argues that we should look to the date he signed the request for final disposition and turned it over to Illinois prison officials, July 29, 1985. The prosecution, on the other hand, argues that the date it received that request, August 28, 1985, is the proper starting point. This issue was recently addressed by this Court in People v Marshall, wherein we stated:
170 Mich. App. 269, 277; 428 N.W.2d 39 (1988).
In this case, contrary to the prosecutor's argument that the 180-day period had not been triggered since notice of defendant's first request of March 11, 1985, for final disposition was never served on the Berrien County prosecutor's office, we hold that defendant complied with the notice requirement of Article III(a) when he served his disposition request to the Wisconsin prison authorities. . . . Defendant was not tried within the 180-day period and the prosecutor did not establish good cause for the delay. Therefore, the conviction in this case is vacated and the charges dismissed. [Emphasis added; citations omitted.]
Accordingly, the 180-day period was triggered on July 29, 1985, and ran out on January 27, 1986.
Actually, the 180th day would have been January 25, 1986. However, as that date fell on a Saturday, the period ran until the following Monday, January 27, 1986. MCR 1.108(1).
While defendant's trial did not, on its face, commence within 180 days, Article III of the IAD provides that the trial court may grant reasonable continuances for good cause shown in open court in the presence of defendant or defense counsel. Further, any delays caused by the defendant or to accommodate the defendant are to be discounted from the time period calculations. We believe that the adjournment of defendant's preliminary examination from October 7, 1985, to October 21, 1985, arising out of the disqualification of the judge who had heard the companion case against one of defendant's cohorts, was for good cause and in accommodation of defendant's interests. That fourteen-day period must be excluded from our time calculations. Also, the arraignment adjournment from November 12, 1985, to November 18, 1985, was necessary and reasonable and, further, consented to by defense counsel. Finally, the trial adjournment from February 14, 1986, to February 28, 1986, to enable defense counsel to secure a copy of defendant's preliminary examination transcript must be discounted from the calculation. In sum, thirty-four days of reasonable and necessary delay occurred which should be excluded from our calculation of the 180-day time limit, thus bumping the deadline back from January 27, 1986, to February 28, 1986. Defendant's trial commenced on this date and was, therefore, timely under the IAD.
People v Cook, 95 Mich. App. 645, 653; 291 N.W.2d 152 (1980), lv den 412 Mich. 882 (1981); People v Harris, 148 Mich. App. 506, 513; 384 N.W.2d 816 (1986).
See n 5.
Defendant also argues that certain evidence was improperly admitted, claiming that it was discovered through an unreasonable search and seizure. The physical evidence at issue was a billy club and some bloody clothing found on the rooftop of a supermarket. Police were led to the roof by the statements of a coperpetrator. These statements were suppressed as involuntary in the coperpetrator's trial. Defendant now argues that the items found on the rooftop should have been suppressed as fruit of the poisonous tree.
This Court affirmed the suppression in People v Williams, 163 Mich. App. 744; 415 N.W.2d 301 (1987).
Citing Wong Sun v United States, 371 U.S. 471; 83 S Ct 407; 9 L Ed 2d 441 (1963).
At the outset, we note that defendant failed to raise this challenge below. Generally, this Court will not review an issue raised for the first time on appeal. In any event, we find the claim to be without merit.
On appeal, defendant conditionally argues that he was denied effective assistance of counsel arising out of defense counsel's failure to object to introduction of this evidence. Defendant's argument is stated to be conditional upon our determination that "but for the counsel's failure to act, the [evidentiary issue] would warrant reversal." Since, as discussed infra, our determination on the evidentiary issue is to the contrary, we need not address defendant's ineffective assistance claim.
The fruit of the poisonous tree doctrine calls for the exclusion of evidence only where that evidence was obtained as a result of official impropriety directed against the party moving for suppression. In Wong Sun v United States, a defendant argued that certain evidence against him should be suppressed, since its discovery was the result of information unlawfully obtained from a codefendant. The Supreme Court rejected this argument, holding that, while the evidence could not be used against his codefendant, it could be used against him since, as to him, it was free of the taint of official impropriety. The same may be said in the instant case. There was no official impropriety against this defendant.
Supra.
Wong Sun, supra, 371 US at 492.
Furthermore, standing to challenge a search or seizure is not automatic. Rather, the challenger must have a special interest in the area searched or the article seized. The test is whether he had a reasonable expectation of privacy in the object or area of the intrusion. Defendant could have no expectation of privacy which society is prepared to recognize as reasonable in the items on the supermarket rooftop. As no cognizable interest was infringed upon by the seizure of the items, there was no proverbial poisoned tree from which taint could arise as to this defendant. The evidence was properly admitted.
People v Smith, 420 Mich. 1, 20; 360 N.W.2d 841 (1984).
Id. at 21.
Finally, defendant contends that the trial judge erred in imposing a consecutive sentence. The prosecutor concedes the point. A consecutive sentence may not be imposed unless specifically authorized by statute. The sentencing judge appears to have relied on MCL 768.7b; MSA 28.1030(2), which regards felonies committed while another felony charge is "pending." The instant offense was committed on June 21, 1985. At that time, defendant was on probation for a robbery in Illinois. An offense is not "pending" if probation has been ordered. Thus, this scenario does not fall within the ambit of the statute. Accordingly, pursuant to MCR 7.216(A), it is ordered that the sentence for second-degree murder should run concurrently with the Illinois sentence for violation of probation.
People v Chambers, 430 Mich. 217, 222; 421 N.W.2d 903 (1988).
People v Leal, 71 Mich. App. 319; 248 N.W.2d 252 (1976), lv den 399 Mich. 821 (1977).
People v Henry, 107 Mich. App. 632, 636; 309 N.W.2d 922 (1981).
Affirmed, except as to modification of the sentence.