People v. Jones
| Citation | 228 Mich.App. 191,579 N.W.2d 82 |
| Decision Date | 20 February 1998 |
| Docket Number | Docket No. 152860 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alphonzo R. JONES, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Before O'CONNELL, P.J., and SAAD and W.J. GIOVAN *, JJ.
ON REHEARING AFTER REMAND
GIOVAN, Judge, sitting by assignment.
Defendant was convicted by jury of assault with intent to commit murder, M.C.L. § 750.83; M.S.A. § 28.278, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). He subsequently pleaded guilty to being an habitual offender, third offense. M.C.L. § 769.11; M.S.A. § 28.1083. He was sentenced to two years' imprisonment on the felony-firearm conviction, to be immediately followed by concurrent sentences of fifteen to forty years on the assault and habitual offender convictions.
Defendant appealed as of right to this Court, raising numerous allegations of error. In an opinion dated March 1, 1996, we remanded this matter to the circuit court for an evidentiary hearing addressing defendant's contention that the 180-day rule, M.C.L. § 780.131; M.S.A. § 28.969(1); MCR 6.004(D), had been violated and, in addition, to allow the circuit court to correct the judgment of sentence by vacating the sentence imposed for the offense underlying the habitual offender conviction. M.C.L. § 769.13; M.S.A. § 28.1085; People v. Gren, 152 Mich.App. 20, 27, 391 N.W.2d 508 (1986). We did not retain jurisdiction.
Defendant moved for rehearing on the issue of retention of jurisdiction, and in an order dated June 12, 1996, we held the request in abeyance pending the outcome of the evidentiary hearing. The evidentiary hearing was held in the circuit court in October 1996, the court concluding that there had been no violation of the 180-day rule. Defendant then renewed his request for rehearing in this Court. We granted the motion and now address the substance of defendant's appeal.
We agree with the circuit court that the prosecution carried its burden of demonstrating that there had been no violation of the 180-day rule. We reverse, however, on other grounds.
As set forth in M.C.L. § 780.131; M.S.A. § 28.969(1), an inmate of the Department of Corrections "shall be brought to trial within 180 days" after the prosecution is given notice of untried charges against the defendant. At the hearing on remand the parties stipulated that the defendant became a state prisoner for purposes of the 180-day rule on December 15, 1989, that the 180th day would have been June 13, 1990, and that trial began on June 19, 1990, the 186th day.
Consistent with the Supreme Court's interpretation of the statute in People v. Hendershot, 357 Mich. 300, 98 N.W.2d 568 (1959), MCR 6.004(D) requires only that the prosecutor must "make a good faith effort to bring a criminal charge to trial" within the applicable 180-day period. In the course of describing the intent of the statute the Hendershot Court said:
The statute does not require the action to be commenced so early within the 180-day period as to insure trial or completion of trial within that period. If, as here, apparent good-faith action is taken well within the period and the people proceed promptly and with dispatch thereafter toward readying the case for trial, the condition of the statute for the court's retention of jurisdiction is met. [Id., at 304, 98 N.W.2d 568.]
To start with, we should not expect the people to have a formidable task to produce evidence of good-faith efforts toward trial within the 180-day period when the trial has in fact occurred on the 186th day. In any event, the evidentiary hearing held on remand established what the defendant had expressly denied at the hearing before trial, i.e., that on the original trial date of February 23, 1990, well within the 180-day period, defense counsel asked for and was granted a seven-day adjournment to complete preparation for trial. Ten days later, another charge pending against the defendant was tried from March 5 through March 7.
On remand the trial court correctly concluded that the seven-day period representing the adjournment granted to the defendant should not be charged against the prosecutor and that there was, accordingly, no violation of the 180-day statute. Hendershot, supra. Nor is the time consumed in trying the defendant's other charge counted against the 180-day period. People v. Hill, 402 Mich. 272, 282-283, 262 N.W.2d 641 (1978).
The defendant contends that his request for an adjournment should be irrelevant because the record commands a conclusion that the prosecutor was not ready for trial on February 23, 1990. In support the defendant notes that on February 16, 1990 the prosecutor had filed a motion to be heard on February 23 to endorse two witnesses in addition to those already endorsed, that five of the seven witnesses called by the prosecution at trial were not endorsed until after February 23 because of mistake of the prosecutor, and that the prosecutor did not say on February 23 that he was ready for trial.
While we can suppose anything, there is something less than a certainty that the prosecutor would not have gone to trial on February 23 if the defendant had not requested an adjournment and had instead insisted on going to trial. One of the witnesses already endorsed on February 23 was the victim, whose account of the events was not materially contradicted at trial and whose testimony by itself would have supported the charges against the defendant. For all we know, the absence of any announcement by the prosecutor that he was prepared to go to trial is explained by his unwillingness to press an advantage against a defendant who has announced that he is not prepared to proceed to trial or, just as likely, by his recognition of the futility of attempting to do so. In any event, like the trial court, we decline to attribute greater weight to one of several possible hypotheses concerning a circumstance that never occurred than to the plain reality that the defendant requested an adjournment and the prosecutor did not. The trial court correctly determined that there was no violation of the 180-day rule.
The defendant claims that he lost the opportunity to present a witness favorable to him because of a combination of unreasonable delay by the prosecutor in bringing the case to trial and the trial court's refusal to grant the defendant a continuance until such time as the witness could be located. The prejudice claimed by the defendant is that the proposed witness, Robert Anderson, who had escaped from Maxey Boy's Training School by the time of trial, would have testified that it was he, not the defendant, who shot at the victim.
This claim of error is made, of course, after the trial, at which the defendant readily admitted that he shot at the victim, his sole defense being that he had not intended to kill him. The defendant now makes the argument that if he had had the opportunity to call Anderson as a witness, his strategy at trial might have been different. Accordingly, the defendant bases the present claim of error on the premise that he was deprived of the opportunity to present perjury in the trial court. Besides being meritless, the argument goes beyond the limits of legitimate advocacy.
Consistent with MRE 609, the trial court ruled before trial that a 1987 conviction of the defendant for breaking and entering with intent to commit larceny could be used "for credibility purposes only" if the defendant should testify.
During cross-examination of the defendant the prosecutor inquired about the breaking and entering conviction and the following exchange occurred:
After the Court repeated that the objection was sustained, and after a few intervening questions, the prosecutor continued:
Q. So you committed this B & E anyway, even though you knew it was against the law, correct ?
A. Yes.
During closing argument the prosecutor returned to his theme that the defendant's prior conviction demonstrated disregard for the law:
I'm not even going to speculate about who was screaming, but the defendant was not happy, and again this defendant completely disregarded the law as he did in the breaking and entering, which I'll get to in a moment. He disregarded the law.
After the jury was taken from the courtroom following final argument, defendant moved for a mistrial on the basis of repeated misuse of the prior conviction. The prosecutor responded that his approach had been proper:
Your Honor, it is my opinion, and I haven't heard any authority from Mr. Cleary [defense counsel] to support his position, but it's my opinion that I properly argued the prior conviction under 609 as it relates to truth, veracity as well as form of character. I utilized the same theme I...
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