288 N.W.2d 587 (Mich.App. 1979), 78-2663, People v. Ferguson

Docket Nº:Docket Nos. 78-2663, 78-5170.
Citation:288 N.W.2d 587, 94 Mich.App. 137
Opinion Judge:CYNAR, Presiding Judge.
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Elmer FERGUSON, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willie Vernon PRATT, Defendant-Appellant.
Attorney:William W. [94 Mich.App. 140] Allsopp, Saginaw, for defendant-appellant in No. 78-2663. [94 Mich.App. 141] Joseph S. Scorsone, Saginaw, for defendant-appellant in No. 78-5170. [94 Mich.App. 140] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert L. Kaczmarek, Pros. Atty., Linda ...
Judge Panel:[94 Mich.App. 141] Before CYNAR, P.J., and MacKENZIE and CORKIN, [*] JJ.
Case Date:December 05, 1979
Court:Court of Appeals of Michigan

Page 587

288 N.W.2d 587 (Mich.App. 1979)

94 Mich.App. 137

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.

Elmer FERGUSON, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.

Willie Vernon PRATT, Defendant-Appellant.

Docket Nos. 78-2663, 78-5170.

Court of Appeals of Michigan.

December 5, 1979

Page 588

Released for Publication Feb. 28, 1980.

Page 589

William W. [94 Mich.App. 140] Allsopp, Saginaw, for defendant-appellant in No. 78-2663.

[94 Mich.App. 141] Joseph S. Scorsone, Saginaw, for defendant-appellant in No. 78-5170.

[94 Mich.App. 140] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert L. Kaczmarek, Pros. Atty., Linda Berns Wright, William D. White, Asst. Pros. Attys., for plaintiff-appellee.

[94 Mich.App. 141] Before CYNAR, P.J., and MacKENZIE and CORKIN, [*] JJ.

CYNAR, Presiding Judge.

Defendant Ferguson was convicted by a jury of possession of a controlled substance with intent to deliver, M.C.L. § 335.341(1)(a); M.S.A. § 18.1070(41) (1)(a), 1 and was sentenced to 8 to 20 years imprisonment. He appeals as of right.

Page 590

Defendant Pratt was also convicted by a jury of possession of a controlled substance with intent to deliver, M.C.L. § 335.341(1)(a); M.S.A. § 18.1070(41) (1)(a), and sentenced to 6 to 20 years imprisonment. He too appeals as of right.

The evidence adduced at the joint trial of the defendants established the following facts.

On March 26, 1977, under authority of a search warrant, the Saginaw Police Department conducted a raid upon an apartment within the city. Upon arriving the officers involved looked through a living room window and saw two individuals sitting on a couch. As they knocked and announced their identity and purpose, they saw a third person exit the living room quite rapidly. Receiving no response from within, and concerned that narcotics were going to be disposed of, they obtained entry by using a battering ram.

The officers noticed that the bathroom door, visible from the living room, was open. Approaching the bathroom, they saw defendants Ferguson and Pratt, as well as codefendant Eugene Johnson, near the toilet. Pratt was holding a small vial [94 Mich.App. 142] which Ferguson pushed out of his hand, sending heroin onto the floor as well as into the commode.

Pratt was also found to be in possession of packets of heroin, while Ferguson had on his person a syringe, a spoon, and some currency. Johnson had scattered about the bathroom floor some $80 as well as a substantial quantity of heroin.

In the kitchen, the officers found narcotics paraphernalia, including aluminum foil and spoons, and discovered more heroin on the kitchen floor.

On appeal, defendants raise a host of issues. Initially, defendant Ferguson contends that the trial court lacked jurisdiction to try his case, because of noncompliance with the so-called 180-day rule 2 on the part of the prosecutor. Specifically, Ferguson charges that the prosecution failed to [94 Mich.App. 143] take any affirmative steps to timely bring the case to trial, and thereby did not meet its burden of engaging in good faith Action in this regard. In support of this assertion, he relies upon People v. Hill. 3

In this case, Ferguson was sentenced on a prior charge May 16, 1977, and detained pending incarceration thereon, which began the running of the 180-day period under the standard articulated in People v. Hill, supra, 280-281, 262 N.W.2d 641, 4 as

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defendant had already been charged in the instant prosecution. Trial did not begin until December 13, 1977, some 212 days later. This establishes a prima facie violation of the 180-day rule, requiring the prosecution to show some good faith action on its part to ready the case for trial within the 180-day period. People v. Hill, supra, 281, 262 N.W.2d 641; People v. Wright, 89 Mich.App. 244, 250, 280 N.W.2d 836 (1979).

Whether this standard is satisfied is basically an ad hoc determination, arrived at by a review of the unique circumstances of the case. We find sufficient good faith action on the part of the prosecutor to ready the case for trial within the statutory period so as to satisfy the mandate of People v. Hill.

[94 Mich.App. 144] Defendant Ferguson was arraigned on May 16, 1977, the same day he was sentenced on a prior charge. His trial counsel shortly thereafter filed two motions, to which the prosecutor responded promptly by brief and which were argued in May and June. On September 19, 1977, a trial notice was sent to him, with the trial date set for December 13, 1977. On November 18, 1977, Ferguson filed a motion to suppress evidence alleged to have been seized illegally, which motion was heard and denied November 28, 1977. Finally, on December 8, 1977, a writ of habeas corpus ad prosequendum was sought and issued, and trial commenced December 13.

We find these actions consonant with a good faith effort to commence the proceedings in a timely fashion. Each was directed at readying the case for trial, although some actions were taken in response to defense motions. As the bulk of these efforts took place within 180 days of the date the statutory period began to run, taken as a whole they are sufficient good faith action to meet the demands of People v. Hill. Cf., People v. Wright, supra, 252-253, 280 N.W.2d 836; People v. Farmer, 16 Mich.App. 148, 151, 167 N.W.2d 597 (1969).

Defendants next attack the search warrant used to gain entry into and to search the apartment in which they were arrested. Defendants claim that the warrant was defective in that the supporting affidavit failed to detail adequately the credibility of an unnamed police informant and the reliability of the information which served as the basis for issuing the disputed warrant. We find this claim to be without merit.

The affidavit 5 in this case is far more detailed [94 Mich.App. 145] than that found sufficient in

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either People v. Johnson, 68 Mich.App. 697, 243 N.W.2d 715 (1976), or People v. Thomas, 86 Mich.App. 752, 273 N.W.2d 548...

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