People v. Igaz

• Decision Date: 03 December 1982
• Docket Number: Docket Nos. 53708,57598
• Citation: 119 Mich.App. 172,326 N.W.2d 420
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Cameron IGAZ, a/k/a John C. Fogerty, Defendant-Appellant. 119 Mich.App. 172, 326 N.W.2d 420
• Court: Court of Appeal of Michigan — District of US

Page 420

326 N.W.2d 420

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Cameron IGAZ, a/k/a John C. Fogerty Defendant-Appellant.

Docket Nos. 53708, 57598.

119 Mich.App. 172, 326 N.W.2d 420

Court of Appeals of Michigan.

Submitted April 14, 1982.

Decided Aug. 18, 1982.

Released for Publication Dec. 3, 1982.

[119 MICHAPP 176] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George B. Mullison, Pros. Atty., and Thomas J. Rasdale, Asst. Pros. Atty., for the People.

Jan Armon, Ann Arbor, for defendant-appellant on appeal.

Before DANHOF, C.J., and R.B. BURNS and WAHLS, JJ.

[119 MICHAPP 177] PER CURIAM.

Defendant appeals from five different convictions, to wit: absconding on bond, M.C.L. Sec. 750.199a; M.S.A. Sec. 28.396(1), unauthorized use of a telephone, M.C.L. Sec. 750.219a; M.S.A. Sec. 28.416(1), breaking and entering an unoccupied dwelling, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305, larceny in a building, M.C.L. Sec. 750.360; M.S.A. Sec. 28.592, and extortion, M.C.L. Sec. 750.213; M.S.A. Sec. 28.410. The cases were consolidated on appeal. Due to the distinct nature of the various trials, we will discuss each case individually.

I. Absconding on Bond.

Defendant was convicted for absconding on bond, contrary to M.C.L. Sec. 750.199a; M.S.A. Sec. 28.396(1). He was sentenced to a sentence of 4 to 6 years, to be served consecutively with his sentences for the other offenses and received credit for 188 days. The charge for absconding on bond arose when defendant, who was out on bond, failed to appear for a scheduled trial on outstanding charges ¹. Defendant was arrested a few days later and, without counsel present, appeared before the trial court. The court ordered him held without bond. The trial judge based his decision on the fact that, in the past, defendant also had failed to appear before other judges when required to do so.

Defendant raises several issues on appeal, only one of which requires reversal. The issue raised is whether the judge violated defendant's right to counsel by instructing defendant not to discuss his testimony with his own counsel during the noon recess, which fell in the middle of defendant's cross-examination.

The only time Michigan Courts have addressed [119 MICHAPP 178] this issue was in People v. Prevost, 219 Mich. 233, 189 N.W. 92 (1922). In Prevost the court instructed all witnesses not to talk with any of the attorneys. During the cross-examination of defendant the trial court took a recess. Defendant was forbidden from conferring with his counsel during the break. The Supreme Court affirmed. Although People v. Prevost specifically has not been overruled, it is no longer viable law in light of Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976), and its progeny. In Geders a defendant on the eve of his cross-examination was forbidden from consulting with his attorney during the overnight recess. The United States Supreme Court ruled that this order violated defendant's Sixth Amendment right to counsel. The decision did cite the Prevost case. However, the holding in Geders did not reach the issue of whether or not the denial of access to counsel during a shorter recess would violate the Sixth Amendment.

The right to assistance of counsel is fundamental. The purpose of prohibiting an attorney and defendant from consulting during recesses is to deter impropriety. The fear is that testimony will be fabricated in light of the testimony already given. However, Geders, supra, 91, 96 S.Ct. at 1336, held:

"There are a variety of ways to further the purpose served by sequestration without placing a sustained barrier to communication between a defendant and his lawyer. To the extent that conflict remains between the defendant's right to consult with his attorney during a long overnight recess in the trial, and the prosecutor's desire to cross-examine the defendant without the intervention of counsel, with the risk of improper 'coaching,' the conflict must, under the Sixth Amendment, be resolved in favor of the right to the assistance and guidance of counsel. Brooks v. Tennessee, 406 U.S. 605 [92 S.Ct. 1891, 32 L.Ed.2d 358] (1972)."

[119 MICHAPP 179] We believe that under the present state of the law the balance must be struck in favor of preserving the right to counsel, even where a short recess is involved. ² This extension of Geders finds support in several United States Court of Appeals decisions. United States v. Bryant, 545 F.2d 1035 (CA 6, 1976); United States v. Conway, 632 F.2d 641 (CA 5, 1980); United States v. Allen, 542 F.2d 630 (CA 4, 1976); United States v. Vesaas, 586 F.2d 101 (CA 8, 1978). See also, United States v. DiLapi, 651 F.2d 140 (CA 2, 1981); contra, Bailey v. Redman, 657 F.2d 21 (CA 3, 1981).

In conclusion, based on the infringement of defendant's Sixth Amendment right to counsel, his conviction for absconding on bond is reversed.

II. Unauthorized Telephone Calls.

Defendant was convicted for unauthorized use of a telephone, contrary to M.C.L. Sec. 750.219a; M.S.A. Sec. 28.416(1). Between March and June, 1979, defendant made at least 160 calls from the coin phone located in the county jail. The bulk of them were billed as third-party calls to defendant's brother, Michael Igaz. The cost of the largest single telephone call amounted to $25.60. The grand total of all the calls defendant billed to the third parties was approximately $1,200, but the prosecutor only charged defendant with making unauthorized calls valued at $736.04.

Apparently, defendant did have permission to use his brother's telephone once or twice. However, defendant's brother testified that he never granted defendant permission to bill third-party calls to his telephone.

In the past defendant had confrontations with [119 MICHAPP 180] the telephone company because of unauthorized use of telephones. On another occasion he signed an agreement with the telephone company wherein he confessed placing unauthorized calls and agreed to repay the telephone company for them. In exchange, the telephone company refrained from prosecuting the defendant. The defendant made only one payment under the agreement. Eventually, defendant was charged with unauthorized use of a telephone.

First, defendant argues that he was erroneously prosecuted under the unauthorized use of a telephone statute, M.C.L. Sec. 750.219a; M.S.A. Sec. 28.416(1), because various telephone calls cannot be aggregated to satisfy the requirement that calls must exceed $100 in value before a person is guilty of a felony. M.C.L. Sec. 750.219a; M.S.A. Sec. 28.416(1) provides:

"Any person who knowingly obtains or attempts to obtain telephone service or the transmission of a telephone message by the use of any false or fictitious telephone credit number or telephone number, or by the use of any telephone credit number or telephone number of another without the authority of the person to whom such credit number or telephone number was issued, is guilty of a misdemeanor. If the total value of telephone service obtained in a manner prohibited by this section exceeds $100.00, the offense shall be prosecuted as a felony." (Emphasis supplied.)

We cannot help but conclude that the term "total value" used in the statute sanctions aggregating the various telephone calls to satisfy the requirement that a felony is committed if the total calls placed exceed $100 in value. This interpretation is not only consistent with the plain wording of the statute but also is dictated by logic. One could make a single call over $100 in value. However, that situation is the exception. These calls [119 MICHAPP 181] were all made in a relatively short time span and could be viewed as one continuous call.

Defendant relies on People v. Robinson, 97 Mich.App. 542, 296 N.W.2d 99 (1980), to support his position. In Robinson the Court affirmed the dismissal of a charge of larceny by false pretences over $100, M.C.L. Sec. 750.218; M.S.A. Sec. 28.415. There, nine distinct and separate transactions were merged to reach the $100 figure. Robinson does not change our position. There, the statute specifically stated that before a felony could be charged the value of the item had to exceed $100. This imposes a requirement on the prosecution to demonstrate a continuous time sequel and single intent. The use of the words "total value" in the unauthorized use of a telephone statute demonstrates an intent to allow the prosecution to aggregate calls that are disjointed in time when charging defendant with a felony.

Defendant argues that, if the calls may be aggregated, the statute is void for vagueness. In People v. Herron, 68 Mich.App. 381, 382, 242 N.W.2d 584 (1976), the standard for determining when a criminal statute is void for vagueness was set forth:

" '[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.' Lanzetta v New Jersey, 306 US 451, 453; 59 S Ct 618; 83 L Ed 888 (1939)."

We believe the words of the statute are quite clear.

The next issue to consider is whether or not defendant was denied effective assistance of counsel when his own attorney elicited in the telephone trial that defendant twice earlier had been [119 MICHAPP 182] investigated for the same conduct. Again, the standard against which the performance of counsel is measured is: But for the mistake complained of would defendant have had a reasonably likely chance of acquittal? People v. Brady Smith, 108 Mich. 338, 310 N.W.2d 235 (1981).

The defense had a major obstacle to overcome: the testimony of defendant's brother. Defendant's brother testified that he had not given defendant permission to charge the calls. Moreover, defendant had signed a confession. The defense counsel, rather than let the confession remain in evidence unaddressed, tried to elicit from defendant...