People v. Lino
| Decision Date | 29 August 1995 |
| Docket Number | 170360,Docket Nos. 120125 |
| Citation | 539 N.W.2d 545,213 Mich.App. 89 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Luciano Chano LINO, Defendant-Appellant. (After Remand) |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Donald E. Martin, Prosecuting Attorney, Samuel R. Smith, Chief Appellate Attorney, and Guy L. Sweet, Assistant Prosecuting Attorney, for the People.
Birch, McNeil & Mowry, P.C. by Kenneth A. Birch, and Patrick K. Ehlmann, Lansing, for defendant on appeal.
Before MURPHY, P.J., and JANSEN and KACZMAREK, * JJ.
AFTER REMAND
Following a jury trial in the Ingham Circuit Court, defendant was convicted of second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549. Defendant was tried jointly with Robert Hoffman before separate juries. Hoffman was also convicted of second-degree murder. 1 Defendant was originally sentenced to forty to sixty years' imprisonment. However, after an unrelated conviction of his was reversed by this Court, People v. Lino, 190 Mich.App. 715, 476 N.W.2d 654 (1991), defendant moved for a remand of this case for resentencing, which this Court granted in an order dated September 27, 1993. On remand, defendant received a sentence of life imprisonment. Defendant now appeals as of right. We affirm his conviction but remand for resentencing.
This case involves the brutal stabbing of Douglas Perry in the City of Lansing on February 25, 1984. Kyle Brady found Perry's body in a parking lot behind a store the evening of February 25, 1984. An autopsy revealed that Perry had died as a result of multiple stab wounds. Perry suffered several stab wounds to the left upper chest and four to six stab wounds to his left upper back.
Defendant is a male prostitute and a transvestite. Apparently, Perry was a customer of defendant's. There was testimony that defendant told several people that he had "just killed some whito" and that he admitted killing Perry. Defendant also assertedly told Lonnie Labb in May 1986 that "he knocked off a trick for his money earlier and he wasn't going to get caught for it."
Defendant was not interrogated by the police until July 14, 1988. Defendant was again interrogated on August 4 and 23. In his police statements, defendant did not directly implicate himself in Perry's death, but admitted seeing him the night of his murder. Defendant testified at trial, stating that he did not stab Perry and that the witnesses who implicated him were lying or inaccurate. Nevertheless, the jury convicted defendant of second-degree murder.
Defendant first argues that the trial court abused its discretion in permitting the prosecution to add Lonnie Labb as a witness on the first day of trial where Labb had not been listed on the witness list. The trial court's decision to allow a late endorsement of a witness is reviewed for an abuse of discretion. People v. Canter, 197 Mich.App. 550, 563, 496 N.W.2d 336 (1992).
Under M.C.L. § 767.40a(1); M.S.A. § 28.980(1)(1), the prosecutor must attach to the information a list of all witnesses known to the prosecutor who might be called at trial. Under M.C.L. § 767.40a(3); M.S.A. § 28.980(1)(3), the prosecution must send its list of those witnesses it intends to produce at trial to the defendant not less than thirty days before the trial. In the present case, the prosecutor concedes that the police knew about Labb's possible testimony approximately six weeks before trial. However, Labb was never endorsed as a witness on the prosecutor's witness list.
M.C.L. § 767.40a(4); M.S.A. § 28.980(1)(4) permits the prosecutor's late endorsement of a witness at any time upon leave of the court and for good cause shown. A violation of § 40a does not require automatic dismissal. Rather, the trial court must exercise its discretion in fashioning a remedy for noncompliance with a discovery statute, rule, order, or agreement. People v. Williams, 188 Mich.App. 54, 58-59, 469 N.W.2d 4 (1991). The trial court ordered that the prosecutor was to make Labb available for an interview by defense counsel and that the prosecutor was to inform defense counsel of the substance of Labb's testimony. Defendant does not claim that Labb was not made available for such an interview or that the prosecutor did not comply with the trial court's remedy.
Defendant is not entitled to any further remedy. Contrary to defendant's claim, the trial court did fashion a remedy in this case. The court's remedy adequately protected defendant's rights. Defendant has not shown any prejudice as a result of the late endorsement. Further, the prosecutor informed the court that Labb could not be located. Under these circumstances, the trial court did not abuse its discretion in permitting the late endorsement of the prosecutor's witness.
Defendant next argues that the trial court abused its discretion in excluding evidence of a recorded recollection of exculpatory statements made by Mary Bates. Bates was codefendant Hoffman's sometime girl friend. Bates was interviewed about the stabbing and the events of February 25, 1984, shortly after the crime. Bates told the police detective that she and Kim McIntyre had borrowed Theda Sinclair's car at about the same time that defendant and Hoffman allegedly borrowed the car.
The detective's handwritten notes of the Bates interview were lost or destroyed before trial. However, sometime in 1988, the detective prepared a typewritten report from the 1984 interview notes. Bates testified at trial, but could not remember her 1984 statement, even after reviewing the detective's typewritten report. Defendant moved to admit the detective's report of the Bates interview pursuant to MRE 803(6) (). On appeal, defendant contends that the report should have been admitted as a recorded recollection under MRE 803(5).
Defendant's argument is technically not properly preserved for appeal because an issue based on one ground is not preserved by an objection at trial based on another ground. Westland v. Okopski, 208 Mich.App. 66, 72, 527 N.W.2d 780 (1994). Further, codefendant Hoffman raised this same issue in his appeal. For the reason set forth in that case, we find that the trial court did not abuse its discretion in denying the admission of the police report of Bates' interview. People v. Hoffman, 205 Mich.App. 1, 15-17, 518 N.W.2d 817 (1994).
Defendant also raises two issues regarding his sentence. He first argues that the trial court improperly resentenced him to a longer term of imprisonment (life) where there was no substantive change in his behavior and in the presentence report. Defendant also argues that his sentence violates the principle of proportionality. We find that defendant is entitled to resentencing for the reasons set forth below.
Defendant was originally sentenced to a term of forty to sixty years' imprisonment. The guidelines range had been computed at 240 to 480 months or life. However, while this appeal was pending, this Court reversed defendant's separate conviction of gross indecency. People v. Lino, 190 Mich.App. 715, 476 N.W.2d 654 (1991). Thus, defendant moved for a remand for resentencing because the reversal of his conviction would affect the guidelines range. Defendant's motion was granted by this Court in an unpublished order entered September 27, 1993 (Docket No. 120125).
On remand for resentencing, the guidelines range was recomputed to be 180 to 360 months or life. The trial court resentenced defendant to life imprisonment, stating that the life sentence was "a little bit of an advantage to" defendant depending on how he behaved in the Department of Corrections. The trial court further noted that, in changing the sentence, he was giving a little more control to defendant over his outcome.
It is defendant's contention that he was resentenced to a longer sentence and that there is a presumption of vindictiveness. Essentially, defendant argues that a term of nonmandatory, parolable life imprisonment should always be considered to be more severe than a long term of years. Previous panels of this Court have reached different conclusions regarding whether a parolable life sentence is more severe than a long term of years. In People v. Hurst (After Remand), 169 Mich.App. 160, 425 N.W.2d 752 (1988), this Court concluded that a forty- to eighty-year sentence was more severe than life imprisonment on the basis that a prisoner serving a nonmandatory term of life is eligible for parole after ten years' imprisonment. M.C.L. § 791.234; M.S.A. § 28.2304.
Taking the opposite view, panels of this Court in People v. McNeal, 156 Mich.App. 379, 401 N.W.2d 650 (1986), and People v. Lindsey, 139 Mich.App. 412, 362 N.W.2d 304 (1984), concluded that sentences of thirty-five to seventy years and thirty to sixty years, respectively, were lesser sentences than life imprisonment, even though the sentence of life imprisonment would have permitted earlier consideration for parole. The McNeal and Lindsey panels concluded that a life sentence is always greater punishment than a sentence of a term of years. Accord People v. Crawford, 161 Mich.App. 77, 82, 409 N.W.2d 729 (1987), remanded on other grounds 437 Mich. 856, 466 N.W.2d 280 (1990).
Further research into the matter leads us to conclude that a parolable life sentence is greater punishment than a long-term indeterminate sentence. As this Court has noted, if life imprisonment is imposed, under Michigan's "lifer law" a defendant is subject to the jurisdiction of the parole board and eligible for review for parole in ten years for crimes committed before October 1, 1992 or fifteen years for crimes committed on or after October 1, 1992. M.C.L. § 791.234(6); M.S.A. § 28.2304(6). However, because of the many conditions imposed before a...
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