People v. Chavies, Docket No. 199997

• Citation: 593 N.W.2d 655,234 Mich.App. 274
• Decision Date: 26 February 1999
• Docket Number: Docket No. 199997
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee Cross-Appellant, v. Ossie CHAVIES, Defendant-Appellant Cross-Appellee.
• Court: Court of Appeal of Michigan (US)

Page 655

593 N.W.2d 655

234 Mich.App. 274

PEOPLE of the State of Michigan, Plaintiff-Appellee Cross-Appellant, v. Ossie CHAVIES, Defendant-Appellant Cross-Appellee.

Docket No. 199997.

Court of Appeals of Michigan.

Submitted Dec. 9, 1998, at Detroit.

Decided Feb. 26, 1999, at 9:10 a.m.

Released for Publication May 19, 1999.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Patrick M. Muscat, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by P.E. Bennett), for the defendant on appeal.

Before: MICHAEL J. KELLY, P.J., and HOOD and MARKEY, JJ.

HOOD, J.

Defendant appeals as of right from his jury trial convictions of second-degree murder, M.C.L. § 750.317; MSA 28.549, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; MSA 28.424(2). ¹ Defendant was sentenced to consecutive terms of two years for the felony-firearm conviction and twenty-five to fifty years for the murder conviction. While this appeal was pending, the trial court granted defendant's motion to vacate the convictions. That order was stayed, however, and the prosecutor cross appealed as of right. We reverse the order vacating defendant's convictions. All the issues discussed are questions of first impression in Michigan.

On cross appeal, the prosecutor first argues that the trial court erred in vacating defendant's convictions on the basis of the 180-day rule, M.C.L. § 780.131; MSA 28.969(1). Specifically, the prosecutor argues that the rule does not apply to parolees such as defendant and that the Department of Corrections failed to fulfill its statutory duty to notify the prosecutor of defendant's status and to request speedy disposition of the charges. Lastly, the prosecutor argues that the statute was not violated because the prosecution made a good-faith effort to try defendant within the time allowed.

The statutory version of the 180-day rule provides:

Whenever the department of corrections receives notice that there is pending in this state an untried warrant, indictment, information or complaint setting forth against any inmate of a correctional facility in this state a criminal offense for which a prison sentence might be imposed upon conviction, the inmate shall be brought to trial within 180 days after the department of corrections causes to be delivered to the prosecuting attorney ... written notice of the place of imprisonment of the inmate and a request for final disposition ... by certified mail. [MCL 780.131(1); MSA 28.969(1)(1).]

"The request shall be accompanied by a statement setting forth the term of commitment[,] ... the time already served, the time remaining[,] ... the amount of good time or disciplinary credits earned, the time of parole eligibility [,] ... and any decisions of the parole board relating to the prisoner." Id. A defendant is entitled to sentence credit, not necessarily dismissal, for delays caused by lack of notice from the Department of Corrections. See MCR 6.004(D)(2) and Note.

The 180-day period begins either (a) when "the prosecutor knows that the person charged with the offense is incarcerated in a state prison or is detained in a local facility awaiting incarceration in a state prison, or " (b) when "the Department of Corrections knows or has reason to know that a criminal charge is pending against a defendant incarcerated in a state prison or detained in a local facility awaiting incarceration in a state prison." MCR 6.004(D)(1) (emphasis added). "For purposes of [the above] subrule, a person is charged with a criminal offense if a warrant, complaint, or indictment has been issued against the person." MCR 6.004(D)(1).

Dismissal for a violation of the 180-day rule is appropriate "if the prosecutor fails to make a good faith effort to bring the charge to trial within the 180-day period." MCR 6.004(D)(2); see also People v. Bell, 209 Mich.App. 273, 278, 530 N.W.2d 167 (1995). However, any time during which there is no charge pending is not a "delay" chargeable to either party. People v. Wickham, 200 Mich.App. 106, 111, 503 N.W.2d 701 (1993).

In this case, the trial court received no evidence and made no findings of fact concerning the reasons for the delay. Therefore, resolution of the notice and good-faith issues would require that the case be remanded for an evidentiary hearing and fact finding. See MCR 7.216(A)(5). However, given our holding later in this opinion that the 180-day rule does not apply to defendant, we conclude that a remand would be a waste of judicial resources and therefore decline to consider the notice and good-faith issues.

The murder in this case occurred on January 10, 1995, while defendant was on parole and, perhaps, on escape status. ² Defendant was arrested on the same day, but his parole was not revoked until February 6, 1995. He completed his prior sentence and was released from parole on April 1, 1996, but apparently remained incarcerated while awaiting trial on the murder charge.

It is well settled that the 180-day rule does not apply to an incarcerated parolee unless and until parole is revoked. People v. Von Everett, 156 Mich.App. 615, 618-619, 402 N.W.2d 773 (1986) (citing cases). That is because, "until the revocation of parole, a paroled prisoner who is being detained locally, and against whom a parole hold has been filed, is neither, because of the hold, awaiting incarceration in a state prison nor an inmate of a penal institution to whom the 180-day rule applies." Von Everett, supra at 618, 402 N.W.2d 773. In other words, "until revocation of parole, the accused [parolee] is not being detained in a local facility to await incarceration in a state prison." Id. at 619, 402 N.W.2d 773.

Further, "the purpose of the 180-day rule is to dispose of untried charges against prison inmates so that sentences may run concurrently." Bell, supra at 279, 530 N.W.2d 167; see also People v. McCullum, 201 Mich.App. 463, 465, 507 N.W.2d 3 (1993). Thus, the rule is inapplicable to pretrial detainees--which was apparently defendant's status following the expiration of his original sentence. See People v. Walker, 142 Mich.App. 523, 527-528, 370 N.W.2d 394 (1985). We continue our analysis, however, because the record is less than clear concerning defendant's correctional status.

Again, the statutory goal of allowing sentences to be served concurrently "does not apply in a case where a mandatory consecutive sentence is required upon conviction." McCullum, supra at 465, 507 N.W.2d 3 (offense committed while in custody); see also People v. Connor, 209 Mich.App. 419, 425-429, 531 N.W.2d 734 (1995) (prison escape and habitual offender enhancement). This view has been adopted by a majority of our Supreme Court, albeit in separate opinions. See People v. Smith, 438 Mich. 715, 717-718, 719, 475 N.W.2d 333 (1991) (lead opinion by Levin, J., joined by Griffin and Mallett, JJ.; concurring opinion by Boyle, J., joined by Riley and Griffin, JJ.). We note that consecutive sentencing is mandatory when someone commits a crime while on parole. See M.C.L. § 768.7a(2); MSA 28.1030(1)(2).

Here, it is undisputed that the murder occurred while defendant was on parole. Even if his parole had not been revoked or his prior sentence had not expired, concurrent sentences were impossible because, if found guilty, defendant would receive mandatory consecutive sentences. See M.C.L. § 768.7a(2); MSA 28.1030(1)(2). We are thus convinced that the trial court erred as a matter of law in applying the 180-day rule to defendant in this case and therefore reverse its order vacating defendant's convictions. We now move on to the merits of defendant's appeal.

On his direct appeal, defendant argues that the trial court erred in admitting the grand jury testimony of two witnesses. Specifically, defendant argues that the testimony was inadmissible hearsay (MRE 802), that the witnesses' lack of memory at trial was not "inconsistent" with their grand jury testimony (MRE 801), that the witnesses were "unavailable" because of their lack of memory, and that their prior testimony was inadmissible because defendant was not permitted to cross-examine them before the grand jury (MRE 804). Defendant also argues that his constitutional right of confrontation was violated because, since the witnesses remembered nothing, they could not be subjected to meaningful cross-examination about their grand jury testimony. We agree in part and disagree in part.

Clearly, out-of-court statements offered for their truth are usually inadmissible hearsay. See MRE 801(c); MRE 802. However, MRE 801(d)(1)(A) provides that

[a] statement is not hearsay if ... [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.... [Emphasis added.]

In this case, it is clear from the record that the two witnesses testified before a one-man grand jury under penalty of perjury. The first question is whether their trial testimony--where they claimed to remember nothing about the murder or about their prior statements--was inconsistent with their grand jury testimony, where the witnesses recalled the events in question and implicated defendant.

Federal courts have long held that, for purposes of FRE 801(d)(1)(A), "inconsistency is not limited to diametrically opposed answers but may be found in evasive answers, inability to recall, silence, or changes of position." See United States v. Dennis, 625 F.2d 782, 795 (C.A.8, 1980); see also United States v. Russell, 712 F.2d 1256, 1258 (C.A.8, 1983); United States v. Distler, 671 F.2d 954, 958 (C.A.6, 1981). Although federal authority is not binding on this Court, it is persuasive given the...