People v. Delongchamps
| Decision Date | 22 January 1981 |
| Docket Number | Docket Nos. 48557,48558 |
| Citation | 302 N.W.2d 626,103 Mich.App. 151 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald Frederick DELONGCHAMPS and Harvey Ross Mick, Defendants-Appellants. 103 Mich.App. 151, 302 N.W.2d 626 |
| Court | Court of Appeal of Michigan — District of US |
[103 MICHAPP 154] Richard G. Chosid, Bloomfield Hills, for defendants-appellants.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Thomas J. Rasdale, Pros. Atty., for plaintiff-appellee.
Before DANHOF, C. J., and KELLY and SULLIVAN, * JJ.
Following a jury trial, defendants [103 MICHAPP 155] were convicted of possession of marijuana with intent to deliver, M.C.L. § 333.7401(2)(c); M.S.A. § 14.15(7401)(2)(c), and sentenced to two to four years imprisonment. They appeal as of right.
On appeal, defendants argue that the trial judge should have disqualified himself from hearing their cases because he was a prosecuting attorney within that circuit within the preceding two years.
Disqualification of a judge is covered by GCR 1963, 912. GCR 1963, 912.3 provides that a motion to disqualify must be filed within ten days after a case has been assigned to a judge or at least ten days before trial, whichever is earlier. If a motion is not timely filed, untimeliness is a factor in deciding whether the motion should be granted.
In the present case, defendants did not raise the issue in a timely fashion. Counsel for defendants made a motion for disqualification of the judge on the first day of trial.
Defendants assert that the judge should be disqualified under GCR 1963, 912.2(4):
We must decide whether the trial judge was an attorney for a party by virtue of his employment by the county as a prosecutor. We are assisted by People v. Dycus, 70 Mich.App. 734, 246 N.W.2d 326 (1976). In Dycus, the defendant argued that the trial judge should have disqualified himself because he was admittedly related within the fourth degree of consanguinity to the prosecuting attorney who neither appeared nor participated personally[103 MICHAPP 156] in the proceedings. The predecessor rule to GCR 1963, 912.2 (GCR 1963, 405.1(4)) referred to disqualification of a judge related within the fifth degree of "any of the attorneys or counsellors for any party." This Court held that the prosecuting attorney is not the attorney or counsellor for any party unless he appears personally and participates in the action. We are further assisted by Informal Ethics Opinion CI 368:
We hold that the judge is not an attorney for a party within the meaning of the court rule by virtue of his former employment by the county as a prosecutor where the judge did not appear personally and participate in the action. We note that the judge in the present case found that he could perform his duties impartially and that defendants made no allegation of partiality.
Defendants next argue that the trial court denied them a fair trial by refusing to order the people to produce the informant who supplied the information leading to the search of defendants' rented vehicle and consequently their arrests. Defendants claim that the informer, "Jo", is a res gestae witness because he may be the only witness who saw either of the defendants handle the 43 pounds of marijuana which was found in the trunk of their car or may be able to testify that a [103 MICHAPP 157] prowler broke into the trunk of the car and placed the marijuana therein.
We review the lower court's decision as to the status of the witness under the clearly erroneous standard. People v. Abrego, 72 Mich.App. 176, 179, 249 N.W.2d 345 (1976). We conclude that the trial court's decision is not clearly erroneous. The informant here was not a res gestae witness but rather supplied the information sufficient to establish probable cause to stop and search defendants' car. He was not a participant in the crime with which defendants were charged. See People v. Davis, 72 Mich.App. 21, 248 N.W.2d 690 (1976). See also, People v. Kinnebrew, 75 Mich.App. 81, 86, 254 N.W.2d 662 (1977).
Defendants also argue that the trial court abused its discretion by refusing to allow defense inquiry into who had "pried open" the trunk of the rented car in which the contraband was found.
In an apparent attempt to bolster the defense theory that someone might have broken into the car and placed the bale of marijuana in it, or to uncover the informant's identity, defense counsel questioned surveillance police officers as to whether someone told them the trunk had been pried open, why it was pried open, when it was pried open, etc. (since the officers had no personal knowledge in that area). Detective Gwizdala testified that, from his examination of the trunk, it had been pried at, but not opened. After defense counsel asked these questions of Detective Gwizdala, the court ruled that he could not continue to question the officers in this manner unless they had personal knowledge.
We find no abuse of discretion on the part of the trial court. Defense counsel was trying to avoid the effect of the hearsay rule by innuendo and inference.[103 MICHAPP 158] The record supports the trial court's ruling that it was irrelevant that someone told the officers about the trunk.
Defendants next argue that M.C.L. § 333.7401(2)(c); M.S.A. § 14.15(7401)(2) (c), is unconstitutional because it violates the title-object clause of the Michigan Constitution, Const. 1963, art. 4, § 24.
We find this issue to be without merit. It was disposed of by this Court in People v. Trupiano, 97 Mich.App. 416, 296 N.W.2d 49 (1980).
Defendants also argue that the circuit court lacked jurisdiction to try defendants because the proceedings were initiated by an arrest warrant issued by a nonattorney magistrate in violation of Const. 1963, art. 6, § 19.
This panel addressed this issue in People v. Ferrigan, 103 Mich.App. 214, 302 N.W.2d 855 (1981). In Ferrigan, we concluded that issuance of search warrants by magistrates does not contravene Const. 1963, art. 6, § 19. Magistrates are not judges of the district court, but serve at the pleasure of the judges of the district court. M.C.L. § 600.8507; M.S.A. § 27A.8507. They have limited jurisdiction, M.C.L. §§ 600.8511, 600.8512; M.S.A. §§ 27A.8511, 27A.8512, and a party may seek a de novo review of the magistrate's decision as of right in the district court. M.C.L. § 600.8515; M.S.A. § 27A.8515. Defendants additionally claim that issuance of a warrant by a nonattorney violates due process. This is without merit. Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972).
Defendants next argue that the evidence is insufficient to support their convictions. They claim the element of knowing possession was not...
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