People v. Baines

• Decision Date: 04 April 1978
• Docket Number: Docket No. 30299
• Citation: 266 N.W.2d 839,82 Mich.App. 438
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Erick C. BAINES, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 839

266 N.W.2d 839

82 Mich.App. 438

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Erick C. BAINES, Defendant-Appellant.

Docket No. 30299.

Court of Appeals of Michigan.

April 4, 1978.

Released for Publication June 27, 1978.

Gerald S. Surowiec, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., Paul C. Louisell, Asst. Pros. Atty., for plaintiff-appellee.

Before MAHER, P. J., and CAVANAGH and KAUFMAN, JJ.

PER CURIAM.

Defendant, who had been charged with armed robbery and carrying a concealed weapon, pled guilty to assault with intent to rob being armed, M.C.L.A. § 750.89; M.S.A. § 28.284, and on March 26, 1974, he was placed on probation for four years. On October 25, 1975, while on probation, defendant was arrested again for armed robbery and carrying a concealed weapon. As a result, probation violation proceedings were instituted with defendant's arraignment on August 26, 1976, and resumed on September 6, 1976. At the outset of the probation violation hearing, defense counsel pointed out that charges of armed robbery and carrying a concealed weapon the same charges which formed the basis of the probation violation charge were pending against the defendant. Defense counsel argued that not to delay the revocation hearing until the underlying criminal prosecution had been culminated would result in the defendant's being placed in double jeopardy. Noting that no trial date had yet been scheduled, the trial court refused to delay the revocation hearing. Probation was revoked and defendant now appeals.

The issue, more artfully framed on appeal, is whether the trial court's refusal to adjourn the probation revocation hearing pending disposition of the underlying criminal charge violated defendant's Fifth Amendment right against self-incrimination.

This issue is not easily resolved. The dilemma it poses has been stated as follows:

"When the state holds a revocation hearing initially, therefore, a criminal trial in some cases properly may follow. The possibility of such a subsequent trial forces the defendant to decide whether to present a defense at the revocation hearing. Since, at the criminal trial, the state may be able to use evidence that the defendant presents at the initial proceeding, the defendant is confronted with the choice of either producing evidence at the revocation hearing and thus providing the state with incriminating evidence, or not producing evidence and thus forgoing a valuable defense. For example, suppose the state's only evidence that the defendant was at the scene of the crime is hearsay, and therefore admissible at the revocation hearing but inadmissible at trial. In this situation, the defendant will undoubtedly be forced either to forgo a defense at the revocation hearing (such as, 'He hit me first') or provide one that can later be used by the state to establish a critical element of...