People v. Pelkey, Docket No. 67405

• Citation: 129 Mich.App. 325,342 N.W.2d 312
• Decision Date: 15 December 1983
• Docket Number: Docket No. 67405
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel PELKEY, Defendant-Appellant. 129 Mich.App. 325, 342 N.W.2d 312
• Court: Court of Appeal of Michigan (US)

Page 312

342 N.W.2d 312

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel PELKEY, Defendant-Appellant.

Docket No. 67405.

129 Mich.App. 325, 342 N.W.2d 312

Court of Appeals of Michigan.

Submitted July 20, 1983.

Decided Sept. 28, 1983.

Released for Publication Dec. 15, 1983.

[129 MICHAPP 326] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. William, Chief Appellate Asst. Pros. Atty. and Lisa Varnier, Asst. Pros. Atty., for the People.

David J. Hoffman, Pontiac, for defendant-appellant.

Before BEASLEY, P.J., and ALLEN and DENEWETH, ^* JJ.

PER CURIAM.

On July 30, 1982, defendant, Daniel Eugene Pelkey, was convicted by an Oakland County Circuit Court jury of possession of stolen property over $100, M.C.L. Sec. 750.535; M.S.A. Sec. 28.803. After being sentenced to not less than 40 months nor more than five years in prison, defendant appeals as of right.

Defendant was charged with breaking and entering an occupied dwelling with intent to commit larceny and, in the alternative, possession of stolen property over $100, ¹ arising out of the larceny of a [129 MICHAPP 327] Novi home on September 9, 1981. At trial, the prosecutor adduced evidence that members of the Novi Police Department, having learned that a television set and automobile tires were situated under a tree in a field near the scene of the breaking and entering, set up a surveillance of the area during the evening of September 10, 1981. Later that evening, defendant and Barry Dorman were arrested after they approached the area where the television set was located and Dorman picked up and carried the television set. When the police officers announced their presence, defendant ran and hid behind a tree.

Testifying on his own behalf, defendant denied participating in the breaking and entering and possession of stolen property offenses. While admitting that he had knowledge that a television set was hidden in the field, he claimed that (1) he was unaware that it was stolen property, (2) he accompanied Dorman to the field solely to determine if a television set was hidden in the area, (3) he did not expect Dorman to take the television set, (4) he refused Dorman's request for assistance in carrying the property, and (5) as a result of being startled when the police officers arrived, he hid behind a tree.

On appeal, defendant raises three issues. First, he asserts that, since 291 days elapsed from the time that the warrant was issued for his arrest to the time of trial, the trial court lost jurisdiction over the case for the prosecutor's failure to comply with M.C.L. Sec. 780.131; M.S.A. Sec. 28.969(1), which statute requires good faith action to bring an inmate to trial within 180 days after the prosecutor is informed[129 MICHAPP 328] that the accused is serving a prison sentence under sentence of another court.

Following oral arguments on the day of trial in regard to defendant's motion to dismiss based on the 180-day rule, the trial court denied the motion, holding that the delays were attributable to defendant:

"THE COURT: All right. I've heard the arguments, considered the motion, and I've reviewed the record, and the Court would find the motion to quash is denied. The prosecution and the Court did comply with the 180 day rule. The reasons this case was not tried within the 180 days are due to this Court's finding of the continued adjournments, as stated upon the record by the prosecution, were not at the request or cause of the prosecution or the Court--but at the primary request of the defense so they could be properly prepared for trial.

"When this case was placed on the stand-by, it was placed on stand-by by stipulations of the parties that they were ready to go to trial. For those reasons as stated, the motion is denied."

Where a defendant is on inmate status, the trial court does not necessarily lose jurisdiction if trial is not commenced within the 180-day period. ² Among other things, the purposes of the 180-day rule are to assure an inmate's right to a speedy trial, to give an inmate who has pending offenses an opportunity to have the sentences run concurrently, and to minimize hindrances to prison rehabilitation. ³ A lapse of more than 180 days between the time the prosecutor learns that a defendant against whom there are outstanding charges is an inmate of a penal institution and time of trial [129 MICHAPP 329] establishes a prima facie violation of the statutory provision. In order to prevent operation of the statute, the prosecutor has the burden of establishing good reason for failure to bring the case to trial within the 180-day period. ⁴

Upon review of the record, we conclude that the prosecutor proceeded promptly in preparing the case for trial. As the trial court noted, several of the delays were attributable to defendant, such as (1) a continuation of a pretrial for the purpose of obtaining a predisposition report, (2) an adjournment at defendant's request for an independent fingerprint analysis, (3) a defense motion for a remand to the district court for additional testimony, and (4) an adjournment pursuant to stipulation. Consequently, we conclude that the trial court correctly held that the 180-day rule was not violated in this case.

Second, defendant, under the doctrine set forth in People v. Bobo, ⁵ challenges the propriety of the prosecutor's cross-examination of him regarding his silence at the time of his arrest. The record reveals that the prosecutor, after interrogating defendant on his claim that he was merely present at the field when Barry Dorman picked up and carried the stolen television set, inquired whether defendant informed the police of his claimed noninvolvement in the crime:

"Q. (Interposing) [Prosecutor]: Did you tell the police, I had nothing to do with this, it was all Barry's idea?

"A. [Defendant]: They never asked, they never bothered to ask.

"Q. So you didn't say anything either?

[129 MICHAPP 330] "A. I told them this story that I'm telling you right now, yes.

"Q. Who did you tell it to?

"A. There's the officer sitting right there--right here, the one sitting right here. I believe it was him.

"Q. Okay. That's Detective Barabas?

"A. Barabas, right.

"Q. Did you tell any other officers?

"A. Not that I recall, no.

"Q. Did you tell--you didn't tell it to either of the officers who arrested you and Dorman at that time?

"A. I asked them what I was being arrested for, and they wouldn't tell me."

In Bobo, supra, ⁶ the Supreme Court held that the silence of an accused during police interrogation or in response to an accusation may not be used against him at trial, subject to the exception that a defendant's refusal to speak during interrogation is admissible to contradict his assertions at trial that he made a statement to police. Where, as here, the defendant fails to object at trial to questions concerning his silence in the face of an accusation, this Court is not precluded from reviewing an alleged infringement of his constitutional right to remain silent. ⁷

We liken this matter to People v. Hoye, ⁸ where the defendant, who was charged with armed robbery, testified at trial that he was in the vicinity when the robbery occurred, but that he did not participate in the crime. On direct examination, defendant Hoye did not assert that he recited his "innocent bystander" claim to the arresting officers. On cross-examination the prosecutor interrogated him as to the reason why he did not, in the [129 MICHAPP 331] face of an accusation, inform the police that he was merely present when the robbery occurred. As a consequence of the prosecutor's impermissible infringement on the defendant's right to remain silent, the Hoye Court reversed the defendant's conviction.

In the within matter, defendant did not claim that he advised the Novi police that he was not in complicity with Dorman in connection with the stolen property. By asking defendant if he told the police officers that he was merely present at the surveillance area, the prosecutor infringed upon defendant's constitutional right to remain silent.

Relevant to an analysis of this issue is People v. Bigge, ⁹ where our Supreme Court, more than 25 years prior to the landmark decision of Miranda v. Arizona, ¹⁰ set forth a rule protecting defendants' rights to remain silent and to be free from self-incrimination:

"The time has not yet come when an accused must cock his ear to hear every damaging allegation against him and, if not denied by him, have the statement and his silence accepted as evidence of guilt. There can be no such thing as confession of guilt by silence in or out of court. The unanswered allegation by another of the guilt of a defendant is no confession of guilt on the part of a defendant. Defendant, if he heard the statement, was not morally or legally called upon to make denial or suffer his failure to do so to stand as evidence of his guilt."

It is noteworthy that the prosecutor, after eliciting from defendant that he informed one of the arresting officers, Frank Barabas, that he did not participate in the crime, called Officer Barabas as [129 MICHAPP 332] a rebuttal witness. The rebuttal witness controverted defendant's claim that he proclaimed his innocence when arrested:

"Q. [Prosecutor]: Sir, are you familiar with the defendant in this matter, Daniel Eugene Pelkey?

"A. [Officer Barabas]: Yes, sir.

"Q. And how are you familiar with him?

"A. I was involved with the arraignment and the transporting of the subject, the initial arrest.

"Q. Did you at any point in time have an occasion to speak with him about this incident at all?

"A. Well--

"Q. This breaking and entering and possession of stolen property charges?

"A. Not directly as far as the case.

"Q. Did you ever at any time--were you ever contacted by him and a statement made to you by him?

"A. In regards to what, sir?

"Q. In regards to the incident surrounding his arrest in this...