People v. Malone
| Decision Date | 27 July 1989 |
| Docket Number | Docket No. 95284 |
| Citation | 442 N.W.2d 658,177 Mich.App. 393 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Christopher MALONE, Defendant-Appellant. 177 Mich.App. 393, 442 N.W.2d 658 |
| Court | Court of Appeal of Michigan — District of US |
[177 MICHAPP 395] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Robert E. Weiss, Pros. Atty., Donald A. Kuebler, Chief, Appellate Div., and Gladys L. Christopherson, Asst. Pros. Atty., for the People.
Joseph J. Farah, Flint, for defendant-appellant on appeal.
Before BEASLEY, P.J., and WEAVER and CAVANAGH, JJ.
On March 14, 1986, a jury convicted defendant, Christopher Malone, of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549. Defendant was sentenced to serve not less than thirty nor more than fifty-five years in prison, to be served consecutively to a sentence defendant was serving in Illinois. Defendant appeals, raising three issues.
First, defendant contends that he was not timely brought to trial under the Interstate Agreement [177 MICHAPP 396] on Detainers. 1 The IAD is a uniform law which prescribes procedures by which a prisoner may demand the prompt disposition of charges pending against him in a state other than the one in which he is imprisoned and prescribes procedures by which a state may obtain, for trial, a prisoner who is incarcerated in another state. 2 The act sets forth two time limits within which trial must be commenced against a defendant serving time in another state. Which time limit is applicable depends upon whether the defendant affirmatively requests final disposition. Where the defendant does so, Article III of the act controls, providing:
(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officers' jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: Provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. [Emphasis added.]
Where the defendant does not affirmatively request final disposition on the detainer, Article IV of the act provides:
[177 MICHAPP 397] (c) [T ]rial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. [Emphasis added.]
On July 19, 1985, the State of Illinois sentenced defendant to serve four years in prison for violating probation for a robbery conviction. On July 29, 1985, the warden of the Illinois correctional facility acknowledged receipt of the Michigan warrant 3 and stated that a copy had been served upon defendant. Apparently, on that same date, defendant signed an "Agreement on Detainers Form II" containing notice of his place of confinement and a request for final disposition on the pending complaint. Defendant then gave this form to an Illinois prison official for transmission to the appropriate Michigan authorities, pursuant to Article III(b) of the IAD. Thus, the time limitation of Article III controls. The prosecutor here in Michigan received the form on August 28, 1985, and thereupon utilized a "Form VII" to request that Illinois correctional officials turn over custody of defendant for purposes of trial.
On September 26, 1985, defendant was returned to Michigan. The following day, defendant was arraigned in the district court. On October 7, 1985, the date of the pretrial conference, the presiding district court judge disqualified himself, with the consent of both parties, since he had presided over the preliminary examination of another individual involved in the criminal events out of which the charges against defendant arose. Accordingly, defendant's[177 MICHAPP 398] preliminary examination was adjourned to October 21, 1985. Following the preliminary examination on October 21, 1985, before another district court judge, defendant was bound over to the circuit court to be arraigned on November 12, 1985. On November 12, 1985, the arraignment was adjourned to November 18, since no information had yet been filed. Defense counsel consented to this adjournment. On November 18, 1985, defendant entered a plea of not guilty, and a trial date of February 14, 1986, was set. On February 14, trial was adjourned so as to enable defense counsel to secure a transcript of defendant's preliminary examination. Trial commenced on February 28, 1986.
The first question we need address is when did the 180-day time period begin to run? Defendant argues that we should look to the date he signed the request for final disposition and turned it over to Illinois prison officials, July 29, 1985. The prosecution, on the other hand, argues that the date it received that request, August 28, 1985, is the proper starting point. This issue was recently addressed by this Court in People v. Marshall, 4 wherein we stated:
In this case, contrary to the prosecutor's argument that the 180-day period had not been triggered since notice of defendant's first request of March 11, 1985, for final disposition was never served on the Berrien County prosecutor's office, we hold that defendant complied with the notice requirement of Article III(a) when he served his disposition request to the Wisconsin prison authorities.... Defendant was not tried within the 180-day period and the prosecutor did not establish good cause for the delay. Therefore, the [177 MICHAPP 399] conviction in this case is vacated and the charges dismissed. [Emphasis added; citations omitted.]
Accordingly, the 180-day period was triggered on July 29, 1985, and ran out on January 27, 1986. 5
While defendant's trial did not, on its face, commence within 180 days, Article III of the IAD provides that the trial court may grant reasonable continuances for good cause shown in open court in the presence of defendant or defense counsel. Further, any delays caused by the defendant or to accommodate the defendant are to be discounted from the time period calculations. 6 We believe that the adjournment of defendant's preliminary examination from October 7, 1985, to October 21, 1985, arising out of the disqualification of the judge who had heard the companion case against one of defendant's cohorts, was for good cause and in accommodation of defendant's interests. That fourteen-day period must be excluded from our time calculations. Also, the arraignment adjournment from November 12, 1985, to November 18, 1985, was necessary and reasonable and, further, consented to by defense counsel. Finally, the trial adjournment from February 14, 1986, to February 28, 1986, to enable defense counsel to secure a copy of defendant's preliminary examination transcript must be discounted from the calculation. In sum, thirty-four days of reasonable and necessary delay occurred which should be excluded from our calculation of the 180-day time limit, thus bumping the deadline back from January 27, 1986, to [177 MICHAPP 400] February 28, 1986. 7 Defendant's trial commenced on this date and was, therefore, timely under the IAD.
Defendant also argues that certain evidence was improperly admitted, claiming that it was discovered through an unreasonable search and seizure. The physical evidence at issue was a billy club and some bloody clothing found on the rooftop of a supermarket. Police were led to the roof by the statements of a coperpetrator. These statements were suppressed as involuntary in the coperpetrator's trial. 8 Defendant now argues that the items found on the rooftop should have been suppressed as fruit of the poisonous tree. 9
At the outset, we note that defendant failed to raise this challenge below. 10 Generally, this Court will not review an issue raised for the first time on appeal. In any event, we find the claim to be without merit.
The fruit of the poisonous tree doctrine calls for the exclusion of evidence only where that evidence was obtained as a result of official impropriety directed against the party moving for suppression. In Wong Sun v. United States, 11 a defendant argued that certain evidence against him should be suppressed, since its discovery was the result of information...
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