270 N.W.2d 697 (Mich.App. 1978), 30524, People v. Smith

Docket Nº:Docket No. 30524.
Citation:270 N.W.2d 697, 85 Mich.App. 32
Opinion Judge:Before CAVANAGH, P J, and BRONSON and KELLY
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ricky Dale SMITH, Defendant-Appellant.
Attorney:[85 Mich.App. 36] David S. Brady, Traverse City, for defendant-appellant. Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Michael J. Houlihan, Pros. Atty., for plaintiff-appellee.
Judge Panel:Before CAVANAGH, P.J., and BRONSON and KELLY, JJ.
Case Date:August 07, 1978
Court:Court of Appeals of Michigan

Page 697

270 N.W.2d 697 (Mich.App. 1978)

85 Mich.App. 32

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.

Ricky Dale SMITH, Defendant-Appellant.

Docket No. 30524.

Court of Appeals of Michigan.

August 7, 1978

Released for Publication Oct. 20, 1978.

Page 698

[85 Mich.App. 36] David S. Brady, Traverse City, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Michael J. Houlihan, Pros. Atty., for plaintiff-appellee.

Before CAVANAGH, P.J., and BRONSON and KELLY, JJ.

BRONSON, Judge.

Defendant Ricky Dale Smith was convicted, upon his plea of guilty, of one count of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797. He appeals as of right. A detailed statement of facts is necessary to our disposition of this case.

In the first months of 1976 the police departments in Flint and Traverse City began investigations of numerous armed robberies in those two cities. Suspicion centered on two people, one Jack Lown, an escapee from Michigan's prison system, and defendant. Both police departments discovered that Lown and defendant were staying at the Flint residence of Lown's sister.

On March 31, 1976, Flint police had the house in question under constant surveillance. The Traverse City police, in order to solidify their investigation, sent copies of latent fingerprints taken from the premises of one of the robberies in question to a Detective Dale Rose, a fingerprint evidence expert, for comparison with the known [85 Mich.App. 37] fingerprints of Lown and defendant. Detective Rose reported that the fingerprints taken from the crime scene matched those of both suspects. On the basis of all of the information obtained by the Traverse City police, including the fingerprint identification, an arrest warrant was obtained for Lown and Smith by the Traverse City police.

On March 31, the Traverse City police informed the Flint police of the existence of the warrants and that they were on their way to Flint to arrest Lown and Smith. While the Traverse City police were en route to Flint, the Flint police on surveillance duty at the house saw two men drive away from the house. The police followed the car and stopped it as it reached the city limits. When the police approached the car they observed a revolver lying on the floor of the car and what they believed to be a small safe on the back seat, partially covered by a blanket. Smith and Lown were arrested for armed robberies in both Flint and Traverse City, the items in the car were seized, and the prisoners taken to the Flint police station.

At the police station, defendant, after being advised of his Miranda rights, was questioned by Sergeant Albritton of the Flint police beginning about 7:30 p. m. At this time defendant made no incriminating statements concerning himself, but did indicate knowledge of Lown's criminal activities in Traverse City.

Defendant also indicated that he would consent to a search of the Flint residence and would turn over evidence of some of the crimes. The search was undertaken, with defendant and Vicky Cooper, defendant's girlfriend and Lown's sister, signing consent forms. In the search some evidence of the Traverse City crimes, including a police [85 Mich.App. 38] radio and part of a coin collection, was turned over to the police by defendant.

Page 699

At about 10 p. m. on the night of the defendant's arrest Detective Bobier of the Traverse City police arrived in Flint with the arrest warrants. After being advised of his rights defendant was questioned by Detective Bobier and made several confessions as to his involvement in the Traverse City cases. Detective Bobier also talked to defendant on the following day, April 1, and obtained a signed confession as to one of the Traverse City offenses.

Defendant remained in the Flint jail. On April 3, the Traverse City police returned to Flint and transferred defendant to Traverse City. The delay was alleged to have been for the purpose of allowing the Flint authorities to decide whether they would press any charges against defendant for offenses occurring in Flint.

On April 4, Detective Bobier spent several hours with defendant and obtained a number of typed confessions concerning the Traverse City offenses. Detective Bobier admitted that he sought to obtain these statements on April 4 because he knew that his chances of getting them after defendant was arraigned and provided with an attorney were minimal. Defendant was arraigned the next day, April 5, on four counts of armed robbery.

Subsequent to his arraignment defendant moved to suppress his confessions and the evidence obtained in the search. The court heard both motions on June 14, 1976. The court ruled that the confessions were admissible and that the consent search was valid.

On June 15, 1976, defendant pled guilty in Traverse City to one count of armed robbery, in connection with the robbery of the Tanz Haus restaurant on March 13, 1976. As consideration for [85 Mich.App. 39] his plea the prosecution agreed to dismiss and/or stop prosecution on the three other Traverse City charges.

Sometime after June 16, 1976, the Traverse City police became aware that Detective Rose, the fingerprint expert involved in the present case, had been intentionally falsifying evidence in recent cases. The fingerprint evidence concerning defendant was rechecked with the Michigan State Police, resulting in a finding that Detective Rose had lied about the matching of defendant's prints to those found at the scene of the Traverse City robbery.

After being made aware of this information, defendant filed a second motion to suppress his confessions and a motion to withdraw his plea. The court heard these motions on August 4, 1976. The court held that the confessions were still admissible, but granted the motion to withdraw the plea.

On August 6, 1976, defendant again pled guilty in connection with the Tanz Haus robbery. As consideration for this plea the prosecution again agreed not to pursue the other charges, and in addition agreed that defendant could raise on appeal the denials of his motions to suppress his confessions and the evidence obtained in the search.

I.

The first issue which confronts us is one of first impression in Michigan whether a plea agreement by which a defendant reserves the right to appeal nonjurisdictional issues is valid and enforceable. 1 Cases from other jurisdictions are split on this issue.

[85 Mich.App. 40] In United States v. Cox, 464 F.2d 937 (CA 6, 1972), the Sixth Circuit Court of Appeals held that qualified pleas 2 were not valid and enforceable, even though consented to by the prosecutor and the trial court. The court stated:

Page 700

"The procedure employed in the case at bar is at variance with the general, well-settled rule that a guilty plea 'normally rests on the defendant's own admission in open court that he has committed the acts with which he is charged.' * * * When made by the accused, knowingly, willingly and with the benefit of competent counsel, a plea of guilty waives all non-jurisdictional defects." (Citations omitted.) 464 F.2d at 940.

After discussing the exception to the plea-waiver rule where the defendant raises a constitutional challenge to the statute underlying the conviction, as outlined in Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), the Cox Court held:

"It would appear, therefore, that the Haynes rule is of limited applicability and is constricted to a narrow class of constitutional questions. It is applicable only where the jurisdiction of the trial court to proceed on the criminal charges is directly placed in question. The Haynes rule does not apply in cases where a guilty plea has been entered despite the presence of non-jurisdictional constitutional questions, usually arising out of the Fourth and Fifth amendments.

"This is not to say that there is not substantial support for extending the Haynes rule to most guilty plea situations. However, despite the existence of that [85 Mich.App. 41] respectable authority, we decline to adopt as a rule in the Sixth Circuit the procedure allowed by the district court in the instant case.

"To the extent this procedure allows a defendant to plead guilty, contingent on his right to appeal on nonjurisdictional grounds from his own plea, it is not logically consistent and is against the trend of recent case authority. There is a fundamental and basic inconsistency between knowingly and intelligently entering a voluntary plea of guilty, and then appealing from the judgment entered on the basis of that plea." (Footnote omitted.) 464 F.2d at 941-942.

The Cox Court went on to discuss the dilemma faced by a criminal defendant who, having lost on a motion to suppress evidence that will in all probability lead to his conviction, has to decide whether to go to trial or accept a plea bargain. The Court reasoned, quite correctly, that in light of the plea waiver doctrine one of the critical factors in this decision is the likelihood that following the trial the decision on the motion to suppress will be overturned on appeal. The defendant, and his counsel, must weigh the chances of a reversal on appeal with the benefit to be gained from a possible charge or sentence plea bargain.

Contrasting this common situation to the case at bar, the Court stated:

"However, the district court allowed defendants the best of two worlds. They were allowed to plead guilty to reduced charges, while reserving their right to appeal as if they had maintained their innocence through trial. They therefore obtained from a no doubt harried prosecutor, in consideration of their plea, an advantage they may not have received had they gone to trial on their pleas of guilty to charges of armed robbery. Under Santobello (404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971)), * * * the defendants have the right to hold the prosecutor to his side of the bargain. It strains...

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