People v. Hurst, Docket No. 19328

• Decision Date: 11 March 1975
• Docket Number: No. 2,Docket No. 19328,2
• Citation: 229 N.W.2d 492,59 Mich.App. 441
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rufus HURST, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 492

229 N.W.2d 492

59 Mich.App. 441

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rufus HURST, Defendant-Appellant.

Docket No. 19328.

Court of Appeals of Michigan, Division No. 2.

March 11, 1975.

Released for Publication, June 4, 1975.

James R. Neuhard, State App. Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Bruce A. Barton, Pros. Atty., for plaintiff-appellee.

Before ALLEN, P.J., and T. M. BURNS and MAHER, JJ.

ALLEN, Presiding Judge.

This appeal involves the issue of first impression of whether 'lawful' confinement is an element of the Michigan prison escape statute, M.C.L.A. § 750.193; M.S.A. § 28.390, which must be proven by the prosecution, or whether the defendant must raise 'illegal' confinement as a defense. It is not disputed that on June 12, 1973, and for some time prior thereto, defendant was confined at the Dalton farm barracks at Jackson Prison, that he escaped on the night of June 12, 1973, and was apprehended at a private home the morning of June 13. He was tried by jury, found guilty, and, on December 6, 1973, sentenced to a consecutive term of 1 1/2 years, with 177 days credit for time served in Jackson Prison between arrest and sentencing.

At trial, the prosecution attempted to establish the lawfulness of defendant's confinement on June 12, 1973, by introducing in evidence a certified copy of defendant's judgment of sentence, commonly called a mittimus. It would have shown lawful confinement. The prosecutor's theory was that the mittimus was admissible under the business entry rule, M.C.L.A. § 600.2146; M.S.A. § 27A.2146, the certified copy of sentence provision, M.C.L.A. § 800.50; M.S.A. § 28.1419, and M.C.L.A. § 600.2106; M.S.A. § 27A.2106, allowing for the admission of certified copies of court orders, judgments, and decrees into evidence. The trial judge disallowed the evidence, relying upon People v. Lewis, 294 Mich. 684, 293 N.W. 907 (1940), which held that the business records rule only applied to civil cases. ¹ Defense counsel made no claim that defendant was wrongfully incarcerated or that he was ever given permission to leave prison grounds. Instead, at the conclusion of the prople's proofs, counsel moved for a directed verdict for defendant on the ground that legal confinement was an element of the offense charged and had not been proved. The motion was denied.

Michigan's present escape law, the pertinent parts of which are set forth below, ² does not make the lawfulness of confinement an element of the offense. This is in contrast to an earlier Michigan statute defining the offense of aiding or facilitating the escape 'of any prisoner there lawfully committed or detained'. ³ It is in contrast to the Federal prison escape statute defining the offense as escape from confinement 'on a charge of felony, or conviction of any offense'. 18 U.S.C.A. § 751. ⁴ It is in contrast with a few state statutes whose language mandates a showing of lawful conviction. ⁵ Citing People v. Hamaker, 92 Mich. 11, 52 N.W. 82 (1892), and other cases cited in the footnotes 4 and 5, defendant contends the burden of proof is on the prosecution. Obviously, these cases are distinguishable since each contains language which, unlike M.C.L.A. § 750.193; M.S.A. § 28.390, expressly makes lawfulness of confinement an element of the offense. Defendnt has cited no case which holds that the prosecutor must prove legal confinement as part of the offense where the statute under which defendant was charged, like Michigan's, omits language of lawful confinement. The implication of Hamaker, supra, is that had the statute omitted the words 'prisoner there lawfully committed or detained' proof of the legality of the incarceration would not have been an element of the corpus delicti:

'If any force is to be given to the language employed in section 9245 How.St., 'lawfully committed or detained,' then the information under which the respondent was convicted fails to state any offense. We think that force must be given to these words; that in creating the statutory offense--to aid or facilitate the escape of a prisoner from jail or prison--the legislature intended to offense to be complete only on condition that the person thus aided or whose escape was facilitated must be there lawfully committed or detained.' 92 Mich. 11, 16, 52 N.W. 82, 83.

It is true that a defendant cannot be convicted of the crime of prison escape if his incarceration is unlawful. People v. Alexander, 39 Mich.App. 607, 197 N.W.2d 831 (1972). But this does not answer the question of whether the prosecution must prove lawfulness as part of its case or whether it is an issue for the defendant to raise. Without expressly so deciding, Alexander, supra, implies it is a matter for the defendant to raise. In that case, the defendant took the stand on his own behalf and attempted to show that under the proper method of computing dead time, his sentence would have expired prior to his escape. On appeal, he attached to his brief a certificate of discharge purporting to show such fact. Our Court stated:

'It is our opinion that defendant should not have been prosecuted for the crime of escape if at the time he left prison he was illegally incarcerated. We do not have, however, sufficient information to determine whether or not defendant was in fact being unlawfully incarcerated at the time of his escape although defendant has attached to his brief what appears to be a certificate of discharge which provides that defendant's sentence would terminate on April 1, 1970. It would, therefore, appear that there is some basis for defendant's claim.

'Since the issue was not properly litigated below, we are remanding for a determination of the legality of defendant's incarceration.' 39 Mich.App. 607, 611, 197 N.W.2d 831, 883.

Prisons, unlike inns and hotels, admit their guests only upon receipt of highly qualified credentials. It is reasonable to conclude that the Legislature, knowing that persons are not incarcerated without documentation therefor, deliberately omitted language requiring proof in the first instance of the legality of the confinement. In those instances where confinement is illegal, the person confined is protected under the procedure followed in Alexander, supra, by being able to raise the issue at trial. Once a defendant asserts the illegality of his confinement as a matter of defense the question of the admissibility of the mittimus is raised. ⁶ Given the state of the law at the time of trial, People v. Lewis, 294 Mich. 684, 293 N.W. 907 (1940), the trial court's ruling was understandable. The court also stated the admission of the mittimus would deny defendant his right of confrontation. Recently the Supreme Court in People v. Kirtdoll, 391 Mich. 370, 217 N.W.2d 37 (1974), has overruled Lewis holding that the business records rule applies to criminal as well as civil cases. In so doing, the decision made it clear that the right of confrontation was not violated where trustworthy records are admitted into evidence. 391 Mich. 370, 385--390, 217 N.W.2d 37. While Kirtdoll dealt with hospital records under the general business entry statute, M.C.L.A. § 600.2106; M.S.A. § 27A.2106, the same reasoning applies to the admissibility in evidence of court records. M.C.L.A. § 600.2106; M.S.A. § 27A.2106 reads:

'A copy of any order, judgment or decree, of any court of record in this state, duly authenticated by the certificate of the judge, clerk or register of such court, under the seal thereof, shall be admissible in evidence in any court in this state, and shall be prima facie evidence of the jurisdiction of said court over the parties to such proceedings and of all facts recited therein, and of the regularity of all proceedings prior to, and including the making of such order, judgment or decree.'

Nothing in the records indicates the court record of judgment of sentence was not trustworthy and valid on its face. Accordingly, we hold that a mittimus was admissible and will be admissible in future cases.

Defendant's second claim of error related to the sentence credit of 177 days granted on the consecutive sentence of 1 1/2 years. When the sentence was imposed December 6, 1973, two conflicting opinions on the issue were extant. People v. Patterson, 49 Mich.App. 269, 279, 212 N.W.2d 22 (1973), decided October 1973, held a smaller sentence credit might be imposed despite the fact that between the date of arraignment and the date of sentence, defendant was already serving time in prison on a prior charge. In the course of its decision the court observed:

'Finally, the practical effect of granting sentence credit to prison inmates who commit a crime while in prison will be minimal. In the exercise of their discretion, circuit court judges may impose sentences taking into consideration the sentence credit to which the defendant is entitled. We think it preferable to give effect to the remedial nature of the credit-granting statute and rely upon judicial discretion to impose sentencing rather than to deny defendant the sentence credit to which he is entitled.' 49 Mich.App. 269, 279, 212 N.W.2d 22, 28.

One month after Patterson, another panel of this Court in People v. Bachman, 50 Mich.App. 682, 686, 213 N.W.2d 800 (1973), held time spent in prison between arraignment and sentence cannot be given as a credit. In May 1974, the Supreme Court resolved the conflict, reversing the Patterson decision and sustaining Bachman. People v. Patterson, 392 Mich. 83, 90, 219 N.W.2d 31 (1974). In accordance with the second Patterson decision, the Department of Corrections is not allowing the 177-day credit on defendants' escape sentence. ⁷ The practical effect in the case before us is that Rufus Hurst will serve a longer sentence than the sentence imposed by the trial court.

Defendant argues that at the time of sentence, Judge Britten determined that defendant's sentence should be one year...