People v. Mayes

Decision Date21 September 1977
Docket NumberDocket No. 26073
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Allen Dee MAYES, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Cornelius Pitts, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, App. Chief Asst. Pros. Atty., Anne B. Wetherholt, Asst. Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P. J., and BRONSON and ROBINSON, * JJ.


Defendant was convicted of possession of heroin with intent to deliver. M.C.L.A. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a). He appeals as of right, raising several issues.

The most difficult issue raised by defendant involves his sentence of 12 to 20 years, which was made consecutive to a Federal sentence. Defendant was convicted in Federal court on September 10, 1974. He was sentenced in that case on November 21, 1974. The crime for which he was convicted in the instant case occurred on October 16, 1974.

The statute on which the trial court relied in imposing the consecutive sentence, M.C.L.A. § 768.7b; M.S.A. § 28.1030(2), provides:

"When a person, who has been charged with a felony and pending the disposition of the charge, commits a subsequent offense which is a felony, upon conviction or acceptance of a guilty plea of the subsequent offense, the sentences imposed for conviction of the prior charged offense and any subsequent offense, may run consecutively." (Emphasis added.)

The problem we face is what is meant by "pending the disposition of the charge" in this statute.

In People v. Sanders, 58 Mich.App. 512, 228 N.W.2d 439 (1975), the Court held that an action is still "pending" for purposes of M.C.L.A. § 768.7b; M.S.A. § 28.1030(2), during the polling of the jury. However, in so holding, the Court did not try to define the outer parameter of a "pending" action, it simply held that an action was pending when the jury was being polled.

People v. Leal, 71 Mich.App. 319, 248 N.W.2d 252 (1976), held that a charge was no longer pending once the defendant had been sentenced. 1

The rationale of the statute authorizing consecutive sentencing was explained in People v. Bonner, 49 Mich.App. 153, 158, 211 N.W.2d 542, 545 (1973):

"The purpose of the statute is to deter persons accused of one crime from committing others by removing the security of concurrent sentences should conviction result on any or all of the crimes so committed. Such a purpose is laudable, rational and the statute reasonably tends to achieve that purpose." (Citation omitted.)

If consecutive sentences were not allowed, a defendant in a pending action would have the security of knowing that the sentence for a second felony committed will run concurrently with the sentence imposed for the first felony. The sentence for the second felony would be minimized. Thus, the Legislature passed M.C.L.A. § 768.7b; M.S.A. § 28.1030(2) to deter charged persons from committing a second felony by removing the security that the sentence must run concurrently with the first. In order to achieve the deterrent effect obviously intended by the Legislature, we will construe this statute liberally under existing case law.

People v. Leal, supra, held that a charge is no longer "pending" for purposes of this statute after sentencing. Conversely, a charge should be deemed pending until sentencing in order to effectuate the intent of the Legislature. 2

We need not decide the farthest reach of M.C.L.A. § 768.7b; M.S.A. § 28.1030(2) here. In the instant case, the second felony was committed before sentencing on the first charge. It was therefore committed "pending disposition of that charge". The consecutive sentence imposed by the trial judge was proper.

The evidence against defendant in this case was obtained in a search of premises located in the City of Detroit at which defendant and several others were present pursuant to a search warrant signed by a judge of the Detroit Common Pleas Court. Defendant contends that Recorder's Court has exclusive jurisdiction to issue such warrants under M.C.L.A. § 726.11; M.S.A. § 27.3561, and that the search was therefore illegal. This precise issue was decided by this Court in People v. Moss, 68 Mich.App. 614, 244 N.W.2d 1 (1976). Detroit Common Pleas judges may issue search warrants for premises within the City of Detroit.

Defendant raises several other alleged defects with the search warrant. First, he contends that the reliability and credibility of an undisclosed informant, upon whose information the warrant was issued, was not adequately established. This contention is meritless. The affidavit states that the informant had given reliable information in the past and that he personally observed the heroin at the subject premises. Credibility and reliability were adequately established. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); People v. Davis, 72 Mich.App. 21, 248 N.W.2d 690 (1976). Second, the police complied with M.C.L.A. § 780.656; M.S.A. § 28.1259(6) in executing the warrant. The corroborated testimony of one officer established that he yelled, "Police officers. I have a search warrant. Open the door". As the police were refused admittance after announcing their authority and purpose, they could properly break into the house to execute the search warrant. Third, there is no evidence that the information in the warrant was stale. The affidavit recites that it had been "just received" on the day the warrant was issued. Finally, there was no need for the warrant to be approved by a prosecutor. M.C.L.A. § 764.1; M.S.A. § 28.860 applies only to arrest warrants.

Defendant contends that the trial court erred by allowing evidence of possession of weapons by the occupants of the premises searched. This evidence was properly admitted as part of the res gestae of the execution of the search warrant. See People v. Kayne, 268 Mich. 186, 255 N.W. 758 (1934); People v. Jones, 64 Mich.App. 659, 236 N.W.2d 531 (1975); People v. Andrews # 1, 52 Mich.App. 719, 218 N.W.2d 379 (1974), modified, 392 Mich. 775, 220 N.W.2d 36 (1974).

Defendant argues that the trial judge's comments during trial "pierced the veil of judicial impartiality". We have examined the record in this case closely and find no evidence of partiality. See People v. McIntosh, 62 Mich.App. 422, 234 N.W.2d 157 (1975); People v. Rogers, 60 Mich.App. 652, 233 N.W.2d 8 (1975).

Defendant claims...

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  • People v. Speed
    • United States
    • United States Appellate Court of Illinois
    • June 2, 1982 supporting the inference that the informant had been at the residence of the defendant on the same day. (People v. Mayes, 78 Mich.App. 618, 261 N.W.2d 22, 25 (1977).) And see State v. Partin, 88 Wash.2d 899, 567 P.2d 1136, 1139 (1977) (affidavit reciting that information had been "just r......
  • People v. Flynn
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    • Court of Appeal of Michigan — District of US
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    ...supra, at 29, 46 N.W. at 104. See also People v. Durfee, 62 Mich. 487, 490-491, 29 N.W. 109, 29 N.W. 109 (1886); People v. Mayes, 78 Mich.App. 618, 623, 261 N.W.2d 22 (1977). Since the identity of the officers executing the search warrant was essential to the prosecution's case in terms of ......
  • People v. Howey
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    • Court of Appeal of Michigan — District of US
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    ...259 N.W.2d 1 (1977), citing McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). See also, People v. Mayes, 78 Mich.App. 618, 622, 261 N.W.2d 22 (1977). Defendant claims that the allowance of certain remarks in the prosecutor's rebuttal argument constitutes reversible erro......
  • People v. Gillam, Docket No. 78-3423
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    • November 5, 1979 a consideration in judging a search warrant's vitality. See People v. Willis, 243 Mich. 164, 219 N.W. 609 (1928); People v. Mayes, 78 Mich.App. 618, 261 N.W.2d 22 (1977); People v. Gould, 61 Mich.App. 614, 233 N.W.2d 109 (1975). One must look to the history of criminal activity involved;......
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