People v. McLemore

• Decision Date: 21 February 1980
• Docket Number: Docket Nos. 78-41,78-115 and 77-4827
• Citation: People v. McLemore, 291 N.W.2d 109, 95 Mich.App. 536 (Mich. App. 1980)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Harold McLEMORE, Defendant-Appellee.
• Court: Court of Appeal of Michigan

Page 109

291 N.W.2d 109

95 Mich.App. 536

PEOPLE of the State of Michigan, Plaintiff-Appellant, v.Harold McLEMORE, Defendant-Appellee.

Docket Nos. 78-41, 78-115 and 77-4827.

Court of Appeals of Michigan.

Feb. 21, 1980.

Released for Publication April 30, 1980.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., William L. Cahalan, Pros.Atty., E. Reilly Wilson, Appellate Chief Asst. Pros.Atty. (in 78-41), Larry L. Roberts, Asst. Pros.Atty. (in 78-115 and 77-4827), for plaintiff-appellant.

Sheldon Halpern, Detroit (in 78-41), James R. Neuhard, State Appellate Defender, Rolf E. Berg, Asst. State Appellate Defender(in 78-115), Norman R. Robiner, Detroit (in 77-4827), for defendant-appellee.

Before MAHER, P. J., and BRONSON and MOORE, ^* JJ.

PER CURIAM.

I.

The prosecution appeals by leave granted from three separate orders dismissing various criminal charges then pending against the defendant.In the cases with docket numbers 78-41and78-115, defendant was charged with carrying a concealed weapon (CCW), M.C.L. § 750.227;M.S.A. § 28.424, and in the case with docket number 77-4827he was charged with three counts of first-degree murder, M.C.L. § 750.316;M.S.A. § 28.548, and one count of assault with intent to commit murder, M.C.L. § 750.83;M.S.A. § 28.278.All charges were dismissed with prejudice, mainly for failure to comply with the 120-day rule of Article IV(c) of the Interstate Agreement on Detainers, M.C.L. § 780.601 et seq.;M.S.A. § 4.147(1) et seq.(hereinafter Agreement).¹Alternative arguments are, however, advanced by defendant to support the trial courts' dismissals, including general speedy-trial requirements, and violation of Article IV(e) of the Agreement, which requires trial before return to the original place of imprisonment.

This appeal presents complex legal questions concerning the Agreement, and an equally complex factual setting.Defendant was convicted in Federal court in late 1969 of armed bank robbery, sentenced in July of 1970 to a prison term of ten years, and began serving his sentence at the Federal Correctional Institution at Terre Haute, Indiana.After serving slightly more than half of this sentence, he was scheduled for parole and transferred to the Community Treatment Center in Detroit sometime in 1975 or 1976 to prepare him for release.At some point after his return to Detroit, but before the completion of his period of residence at the Center and before the effective date of his parole, he walked away from the Center and undertook the acts that led to his arrest, and ultimately to this appeal.²He was arrested in Detroit on July 28, 1976, by agents of the Federal Bureau of Investigation on Federal charges ³ and was simultaneously arrested by local authorities on the state CCW charge (docket number 78-41).He was turned over to the Detroit Police for an investigation that evolved into the murder and assault charges (docket number 77-4827).On August 1, 1976, he was returned to Federal custody and held as a Marshal's prisoner in the Detention Unit of the Federal Correctional Institution at Milan, Michigan.⁴He was then transferred between Milan and the Wayne County Jail on several occasions for proceedings relevant to the state charges pursuant to writs of habeas corpus ad prosequendum issued by judges of Detroit Recorder's Court.Although defendant's Federal parole had been retarded on April 26, 1976, no further action was taken by Federal authorities to formally revoke his parole or indict him for escape until August of 1977, after all state charges had been dismissed and defendant returned to the general prison population at Terre Haute.⁵It is not necessary at this stage to relate all the details of the state proceedings between August of 1976 and August of 1977.It does appear, however, that in the fall of 1976, trial on the two CCW charges was postponed pending disposition of the murder and assault charges.The record reflects that if defendant was found guilty on the murder and assault charges, the CCW charges would be dropped.The record also alludes to another agreement whereby defendant would testify against others in the murder trial, in exchange for immunity.This second agreement was proposed at an earlier stage in the proceedings, and apparently fell through.⁶It is also seemingly unrelated to the postponement of the CCW charges.Before the trial could be had on any of the charges, defendant moved for dismissal and the motions were granted between March and August of 1977.

II.

The Interstate Agreement on Detainers evolved as a solution to the adverse effects produced by the lodging of detainers against prisoners based on untried indictments, complaints and informations.It was apparent to many involved in the administration of criminal justice that when a detainer was lodged by one jurisdiction against a prisoner in another jurisdiction, rehabilitative programs suffered through the anxiety and uncertainty experienced by the prisoner and through the denial of access to various prison programs and other privileges such as good-time and parole.These results often flowed automatically from the lodging of a detainer, despite the fact that a large percentage of detainers were never acted on by the issuing jurisdiction.The abuses to which detainers were subject are described by the United States Supreme Court in United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329(1978).See also, United States ex rel. Esola v. Groomes, 520 F.2d 830(CA 3, 1975).

In an attempt to remedy these abuses and aid rehabilitative programs, formal efforts began in 1948 to develop a means by which one jurisdiction could expeditiously transfer prisoners to another for resolution of pending charges.To be effective, the agreement had to be national in scope and had to avoid the often cumbersome proceedings associated with formal extradition.These efforts produced a draft of the Agreement issued under the auspices of the Council of State Governments, and in 1956 the draft was approved and included in the Council's Suggested State Legislation Program for 1957.A majority of the jurisdictions in this country now have enacted the Agreement, including Michigan and the United States.⁷

The background of the Agreement is reflected in its first article, which states:

"The party states find that charges outstanding against a prisoner, detainers based on untried indictments, informations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation.Accordingly, it is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints.The party states also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of co-operative procedures.It is the further purpose of this agreement to provide such co-operative procedures."

Article III of the Agreement provides a method by which a prisoner against whom a detainer has been lodged is given notice of the detainer and allowed to request final disposition of the pending charges.After the prisoner complies with the appropriate notice requirements, trial must be had within 180 days.Article IV provides the means by which a jurisdiction that has untried charges against the prisoner of another jurisdiction can secure the attendance of the prisoner for trial.Under Article IV trial must be had within 120 days of the arrival of the prisoner and before the return of the prisoner to the original place of imprisonment.Articles III and IV both provide for the tolling of the time periods by the grant of reasonable continuances in open court and in the presence of defendant or counsel.

III.

On appeal, the prosecution strongly argues that the Agreement is not applicable to the instant case.Several reasons are advanced in support of this conclusion.The argument that the Agreement does not apply because no change of custody actually took place is without merit.The record reflects that on several occasions defendant was lodged in the Wayne County Jail.In any event, physical custody does not have to change hands when a Federal prisoner is involved.Article V(a) specifically provides that a Federal prisoner may be brought to the place of trial while remaining in Federal custody.The prosecution's alternative argument, that the Agreement is inapplicable because the defendant was merely awaiting trial and not serving a sentence, must also fail.It is clear that a prisoner who is in custody solely pending prosecution on criminal charges does not yet have a program of rehabilitation to be disrupted.Consistent with its purposes, the Agreement does not apply unless the prisoner is actually serving a term of imprisonment.United States v. Roberts, 548 F.2d 665, 669-671(CA 6, 1977).While the defendant's incarceration at Milan was related to pending Federal charges, he was still under a sentence for the 1969 armed bank robbery conviction that will not expire until the middle of 1980.Even if paroled, a Federal prisoner remains in the legal custody of the United States Attorney General until the expiration of his term. 18 U.S.C. § 4210(a).In the instant case, after dismissal of pending state charges, the defendant was returned to Terre Haute for action on his parole.It appears that he remains in Terre Haute serving the remainder of his Federal sentence.Accordingly, the defendant remained at all times relevant to these proceedings under a prison sentence.

The prosecution's most forceful argument concerning the inapplicability of the Agreement focuses on the fact that no detainer was ever lodged against the...