People v. Browning
| Decision Date | 07 April 1981 |
| Docket Number | 78-3658 and 78-3659,Docket Nos. 77-2585 |
| Citation | 104 Mich.App. 741,306 N.W.2d 326 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ernest BROWNING, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Ernest BROWNING a/k/a Thomas Mims, Defendant-Appellee. 104 Mich.App. 741, 306 N.W.2d 326 |
| Court | Court of Appeal of Michigan — District of US |
[104 MICHAPP 746] Raymond A. MacDonald, Utica, for defendant-appellant in no. 77-2585.
Nel Bush, Detroit, for plaintiff-appellant in nos. 78-3658 and 78-3659.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, III, Chief Appellate Asst. Pros. [104 MICHAPP 747] Atty., George A. Best, II, Asst. Pros. Atty., for plaintiff-appellee in no. 77-2585.
Larry L. Roberts, Asst. Pros. Atty., for defendant-appellee in nos. 78-3658 and 78-3659.
Before J. H. GILLIS, P. J., and BASHARA and CYNAR, JJ.
This opinion represents appeals in three cases. In docket nos. 78-3658 and 78-3659, the prosecutor appeals from the trial court's dismissal of two first-degree murder charges, M.C.L. § 750.316; M.S.A. § 28.548, which were brought under two separate warrants (nos. 74-04988 and 74-05793). In docket no. 77-2585, defendant appeals from his conviction (as charged) of first-degree murder, M.C.L. § 750.316; M.S.A. § 28.548, and rape, M.C.L. § 750.520; M.S.A. § 28.788, 1 and from the trial court's denial of his motion to dismiss those charges (lower court docket no. 74-05901). Both appeals are taken as of right, GCR 1963, 806.1, and in each we are asked to resolve a multitude of issues arising principally under the Interstate Agreement on Detainers (IAD), M.C.L. § 780.601 et seq.; M.S.A. § 4.147(1) et seq.
The charges involved in docket nos. 78-3658 and 78-3659 were brought against defendant by warrants issued on July 2, and July 30, 1974. The charges involved in docket no. 77-2585 were brought against defendant by a warrant issued on August 3, 1974. No action occurred in any of the [104 MICHAPP 748] three files until October, 1975, when the Detroit Police Department (DPD) was advised that defendant was in custody in Brownsville, Texas, pending disposition of Federal narcotics charges. At that time, the DPD advised the Cameron County, Texas, sheriff as follows:
On November 24, 1975, defendant was sentenced to serve time in the Federal penitentiary at Terre Haute, Indiana, after his conviction on the narcotics charge. He was transferred to Terre Haute on January 21, 1976. On January 30, 1976, a LEIN message from the DPD to the Federal authorities at Terre Haute was sent as follows:
On February 2, 1976, the following letter was sent by the DPD to the authorities in Terre Haute:
On February 5, 1976, Terre Haute acknowledged receipt of the foregoing letter. On February 6, 1976, defendant received a note from his prison counselor which advised that defendant "now has an official detainer."
On February 21, 1976, defendant was transferred from Terre Haute to the Federal prison at Milan, Michigan, pursuant to a writ of habeas corpus ad prosequendum which stated as its purpose: "To stand trial on warrant # 74-04988 and # 74-05793". These are the lower court numbers in our docket nos. 78-3658 and 78-3659. Defendant was subsequently arraigned, however, on all three warrants, on February 25, 1976. Preliminary examination was likewise held on all three warrants on April 14, 1976. During this period, defendant was housed at the Federal prison in Milan. When his presence was required in Recorder's Court, he was brought to the Federal building in Detroit by United States deputy marshals and there handed over to Detroit police officers, who transported him to Recorder's Court.
[104 MICHAPP 750] Between April 14, 1976, and June 26, 1976, various pretrial conferences were scheduled and adjourned, apparently because defense counsel had not been given certain discovery materials he had requested. On June 26, 1976, defendant was transferred from Milan back to Terre Haute, primarily because trial was not scheduled to begin until four months later.
On September 20, 1976, defendant moved to dismiss the charges on which he was ultimately convicted (docket no. 77-2585) on the basis that he was returned to his original place of imprisonment before trial, in violation of Article IV(e) of the IAD. This motion was denied by Recorder's Court Judge Hobson, on March 11, 1977, because no detainer had ever been filed in that case. A similar motion to dismiss the charges in docket nos. 78-3658 and 78-3659 was granted by Recorder's Court Judge Jobes, by order dated August 17, 1978. Although defendant raised both Article IV(e) and the speedy trial provision in Article IV(c) in the latter motion, Judge Jobes premised her decision on the Article IV(e) argument.
Subsequent to the filing of both motions, but before either was ruled upon, defendant and his attorney signed a stipulation which purported (1) to waive defendant's right to trial within 180 days under Article III(a) of the IAD, (2) to waive defendant's right to trial within 120 days under Article IV(c) of the IAD, and (3) to retain any jurisdictional rights which were asserted in defendant's motions to dismiss. This stipulation was signed on November 19, 1976, subsequent to defendant's return to Milan on or about November 7, 1976, pursuant to a second writ of habeas corpus ad prosequendum issued by the Michigan authorities.
On March 25, 1977, defendant was convicted as charged in docket no. 77-2585.
[104 MICHAPP 751] The several issues presented for our consideration in this case are as follows:
(1) Whether the defendant's presence in Michigan was secured under the IAD.
(2) If so, whether the absence of a reference to the warrant in docket no. 77-2585 on the documents which triggered an application of the IAD should operate to deprive defendant of the benefits of the IAD in that case.
(3) Whether the stipulation signed by defendant and his attorney operates as a waiver of either the Article IV(c) or (e) claims.
(4) Whether, where the IAD is applicable, Article IV(c) or (e) was violated because defendant was not tried within 120 days of his transfer to Michigan or before his return to Terre Haute.
(5) Whether the transfer back before trial was in violation of Article IV(e) because
(a) defendant was always in Federal custody;
(b) defendant never waived extradition as required by Article III(e);
(c) IAD forms were never used by the state officials; or
(d) the transfer was effected in furtherance of the overriding purpose of the IAD: uninterrupted rehabilitation.
(6) Whether the trial judge in docket no. 77-2585 was empowered to try defendant, given that he was a common pleas judge assigned to sit in Detroit Recorder's Court by the Supreme Court.
(7) Whether the prosecutor's failure to produce a tape recording of an interview with a key witness and accomplice constituted a violation of a discovery order.
The IAD is a uniform law which has been enacted[104 MICHAPP 752] by a majority of the states, the District of Columbia, and the Federal government. It "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, as well as procedures by which a state may obtain for trial a prisoner who is incarcerated in another state". 2 Anno: Validity, Construction, and Application of Interstate Agreement on Detainers, 98 A.L.R.3d 160, 166 (1980).
The purpose of the IAD is to counteract the uncertainties which obstruct programs of prisoner treatment and rehabilitation when a prisoner's status is clouded by the existence of untried charges on which detainers have been lodged. Thus, the prisoner may demand final disposition of any untried indictments, informations or complaints. Article III. Under Article IV, the state may initiate the process whereby a prisoner is returned to the state for trial. In the language of the act, this latter process is begun by lodging a detainer against the prisoner. Article IV(a).
The act contains no definition of a detainer. It has been otherwise defined, however, as a "notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction". Senate Report 91-1356, 91st Cong., 2d...
To continue reading
Request your trial
-
State v. Moore
...See also People v. Yellen, 704 P.2d 306 (Colo.) cert. denied 474 U.S. 1036, 106 S.Ct. 603, 88 L.Ed.2d 582 (1985); People v. Browning, 104 Mich.App. 741, 306 N.W.2d 326 (1981); and Gilbreath v. State, 651 P.2d 699 (Okla.Crim.1982). While we think the better view and the more consistent inter......
- People v. Browning
-
Reyes v. People
...344 (6th Cir.1979); Vinson, 182 S.W.3d at 712; State v. Hill, 638 So.2d 1376, 1379-80 (Ala. Crim.App.1993); People v. Browning, 104 Mich.App. 741, 306 N.W.2d 326, 334-35 (1981). The Supreme Court has suggested that a receiving state might be permitted to transfer a prisoner back to the send......
-
People v. Jones
... ... People v. Bentley, 121 Mich.App. 36, 40, 328 N.W.2d 389 (1982); People v. Browning, 104 Mich.App. 741, 748, 752-753, 306 N.W.2d 326 (1981), aff'd on rehearing 108 Mich.App. 281, 310 N.W.2d 365 (1981) ... Defendant relies upon article IV(c) of the IAD in arguing that he was not timely tried. The relevant portion of that article provides: ... In ... ...