People v. Kline
| Decision Date | 04 May 1982 |
| Docket Number | Docket No. 51310 |
| Citation | 318 N.W.2d 510,113 Mich.App. 733 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald KLINE, Defendant-Appellant. 113 Mich.App. 733, 318 N.W.2d 510 |
| Court | Court of Appeal of Michigan — District of US |
[113 MICHAPP 734] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and David G. Edick, Asst. Pros. Atty., for the People.
Ronald A. Molter, Detroit, for defendant-appellant.
Before BASHARA, P. J., and KAUFMAN and BANKS, * JJ.
This case raises a number of issues surrounding the defendant's plea of guilty to armed robbery.
First, defendant argues that the trial court erred when it did not suppress evidence seized at the time defendant and others were arrested. Defendant was arrested on the anonymous tip of a citizen shortly after the armed robbery of a clothing store in the City of Detroit. Based only on the citizen's tip, the police went to 15876 Santa Rosa, announced their presence and broke into the residence when they heard movement inside. Evidence then seized connected the defendant and others with the armed robbery. The trial court refused to suppress evidence seized without a warrant on the basis that the officers were in "hot pursuit". We disagree. Payton v. New York, 445 U.S. 573, 589-590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), People v. Casey, 102 Mich.App. 595, 599, 302 N.W.2d 248 (1980), aff'd 411 Mich. 179, 305 N.W.2d 247 (1981), People v. Strelow, 96 Mich.App. 182, [113 MICHAPP 735] 190-192, 292 N.W.2d 517 (1980). However, because defendant pled guilty, we find the unlawful search and seizure issue waived. Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).
The second issue concerns the extent to which a trial judge should participate in plea and sentence negotiations. The record herein shows that, in the plea-taking process, the trial judge cross-examined the defendant at length and actively bargained with him from the bench. 1 It is apparent that it [113 MICHAPP 737] was the judge who negotiated the plea and the sentence in this case.
While it is true that the court rule, GCR 1963, 785.7(2)(a), (b) and (4)(b), does not expressly prohibit a trial judge from entering into plea negotiations, the better rule is, we feel, embodied in F.R.Crim.P. 11(e). 2 See United States v. Werker, 535 F.2d 198 (CA 2, 1976), and Griffith v. Wyrick, 527 F.2d 109 (CA 8, 1975). We also agree with thoughts expressed by Judge Kelly in People v. Mathis, 92 Mich.App. 670, 674-675, 285 N.W.2d 414 (1979), and [113 MICHAPP 738] People v. Bennett, 84 Mich.App. 408, 413-414, 269 N.W.2d 618 (1978), that the trial judge "should be called upon in open court to approve the plea bargain reached by the adversaries, but should not be the instigator of, nor the conduit for, negotiations". Mathis, 675.
However, although the trial judge acted imprudently by participating in plea and sentence negotiations, we decline to reverse on that ground since such participation is not expressly prohibited by court rule, statute or Supreme Court ruling. We would instead urge that the Supreme Court consider the amendment of GCR 1963, 785 to expressly prohibit such plea and sentence negotiations.
Finally, we observe that trial counsel and the trial court had before them substantial evidence that, at the time of the plea, defendant's mental capacity was in question. Because a defendant must be competent in order to plead guilty, People v. Matheson, 70 Mich.App. 172, 245 N.W.2d 551 (1976), we remand to the trial court and direct that new counsel, other than the attorney who represented the defendant in the plea proceedings, be appointed. We further direct that the trial court commit the defendant to the Center for Forensic Psychiatry for an evaluation of competency.
Remanded.
* James L. Banks, 8th Judicial Circuit Judge, sitting on Court of Appeals by assignment pursuant to Const.1963, Art. 6, Sec. 23, as amended 1968.
Did you discuss it ahead of time or at the time the actions occurred, whether he knew it and continued the criminal enterprise. That would be sufficient also. I have a question under the circumstances.
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