People v. Von Everett

• Decision Date: 31 March 1987
• Docket Number: Docket No. 85198
• Citation: 156 Mich.App. 615,402 N.W.2d 773
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronnell VON EVERETT, Defendant-Appellant. 156 Mich.App. 615, 402 N.W.2d 773
• Court: Court of Appeal of Michigan — District of US

Page 773

402 N.W.2d 773

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronnell VON EVERETT, Defendant-Appellant.

Docket No. 85198.

156 Mich.App. 615, 402 N.W.2d 773

Court of Appeals of Michigan.

Submitted Aug. 5, 1986.

Decided Oct. 22, 1986.

Released for Publication March 24, 1987.

Leave to Appeal Denied March 31, 1987.

[156 MICHAPP 617] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Conrad J. Sindt, Pros. Atty., and Samuel I. Durham, Jr., Asst. Pros. Atty., for the people.

Schaeffer & Meyer by J. Thomas Schaeffer, Marshall, and Hirsch & Hofman by Norman J. Fryer, Jr., Battle Creek, for defendant-appellant.

Before HOOD, P.J., and HOLBROOK, Jr. and PETERSON, ^* JJ.

PER CURIAM.

Defendant appeals as of right from his jury trial conviction for armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. Defendant was sentenced to from fifteen to thirty years imprisonment with the sentence to be served concurrently with a sentence for which defendant was on parole at the time of the armed robbery. Defendant raises seven issues on appeal, none of which we find meritorious.

Defendant first contends that his conviction should be vacated and the charges against him dismissed with prejudice for failure of the prosecutor to comply with Michigan's 180-day rule. M.C.L. Sec. 780.131; M.S.A. Sec. 28.969(1). Defendant was arrested on August 29, 1984, in Oklahoma for parole violation. He waived extradition and was returned to Michigan and incarcerated in the Calhoun County Jail on September 7, 1984, when he was arrested for the instant armed robbery and for an unrelated charge.

Defendant was served with a notice of probation violation and detainer on September 20, 1984, while in the Calhoun County Jail. On February 27, 1985, defendant filed a motion claiming that he had not been afforded his right to trial within 180 days of his arrest. On March 6, 1985, the Department[156 MICHAPP 618] of Corrections again served a detainer for parole violation charging the same violations as before. On March 7, 1985, defendant filed a complaint for writ of habeas corpus, alleging that he was entitled to be released because he was not afforded a hearing on the alleged parole violations within forty-five days after he was available for return to a state correctional facility in violation of the provisions of M.C.L. Sec. 791.240a; M.S.A. Sec. 28.2310(1).

The judge determined on March 11, 1985, that there had been no violation of the statute because the forty-five-day period did not begin to run because the defendant was not in fact returned to a state correctional facility and he was not available for return to such a facility during the pendency of the other charges. Rather, the pendency of the other charges authorized the holding of the defendant. Defendant's trial for armed robbery began the next day, March 12, 1985.

The argument that the circuit court had no jurisdiction to try defendant for armed robbery because defendant's trial did not commence within 180 days of his arrest in Oklahoma is without merit. It is uncontested that defendant's parole was not revoked prior to his trial for armed robbery. Beginning with People v. Wright, 128 Mich.App. 374, 340 N.W.2d 93 (1983), this Court has consistently held that until revocation of parole, a paroled prisoner who is being detained locally, and against whom a parole hold has been filed, is neither, because of the hold, awaiting incarceration in a state prison nor an inmate of a penal institution to whom the 180-day rule applies. In Wright, the Court pointed out that only if a violation of parole is established by a preponderance of the evidence can parole be revoked, and even if a violation is established, the parole board may by [156 MICHAPP 619] law decline to revoke parole. Id., at 379, 340 N.W.2d 93. Hence, until revocation of parole, the accused is not being detained in a local facility to await incarceration in a state prison. See also People v. Sanders, 130 Mich.App. 246, 343 N.W.2d 513 (1983); People v. Rose, 132 Mich.App. 656, 347 N.W.2d 774 (1984); People v. Hastings, 136 Mich.App. 380, 356 N.W.2d 645 (1984), rev'd on other grounds 422 Mich. 267, 373 N.W.2d 533 (1985); People v. Shipp, 141 Mich.App. 610, 367 N.W.2d 430 (1985), lv. den. 422 Mich. 934 (1985).

In Sanders, supra, this Court rejected the notion that a parolee is an inmate of a state penal institution or incarcerated in a state prison for purposes of the 180-day rule. Rather, "[a]lthough every parolee remains in the legal custody and under the jurisdiction of the Department of Corrections, that parolee is free from the enclosures of a prison facility." 130 Mich.App. at 251, 343 N.W.2d 513. Although People v. Hegwood, 109 Mich.App. 438, 311 N.W.2d 383 (1981), applied the 180-day rule to a person who was participating in a "transitional corrections program" at the time of the alleged second offense, the Sanders Court noted that in Hegwood the defendant was on a "preparole status" at the time of the alleged second offense. 130 Mich.App. at 250-251, 343 N.W.2d 513. In the case at bar, defendant was on parole, not on "preparole status," and, hence, his contention that his status was any different from that of the defendant in Wright, supra, and the defendants in the other cases following Wright, must fail.

Defendant next contends that the trial court abused its discretion in denying his motion to suppress the use of evidence of prior convictions for breaking and entering and uttering and publishing for impeachment purposes. The prosecutor sought to introduce evidence of these prior convictions[156 MICHAPP 620] to impeach defendant's testimony that he was out of the state at the time of the armed robbery--testimony which contradicted that of two key prosecution witnesses who identified him at trial as one of the armed robbers. In allowing the prosecution to introduce evidence of these two convictions, the trial judge utilized the factors set forth in People v. Crawford, 83 Mich.App. 35, 39, 268 N.W.2d 275 (1978), and MRE 609.

The trial judge obviously recognized his discretion, since he refused to admit evidence of one of defendant's prior convictions for breaking and entering for fear of its cumulative impact. The judge specifically chose to admit evidence of two of defendant's prior convictions for breaking and entering and uttering and publishing, concluding that the convictions for theft and false statement bore directly on the issue of defendant's credibility. Those crimes were not substantially similar to the charged offense, nor did they involve substantially the same conduct for which defendant was on trial. Moreover, the defendant testified and was able to put on a defense that he was not in the state of Michigan when the alleged armed robbery occurred. Thus, we conclude that the trial judge's decision was not violative of fact or logic and did not amount to an abuse of discretion.

Defendant further alleges that the trial court abused its discretion by refusing to grant his motion for a mistrial when the investigating officer allegedly eavesdropped on a conversation between defense counsel and one of the prosecution witnesses during a break in the trial. Prior to the commencement of the second day of trial, defense counsel alleged that as he was interviewing prosecution witness Tonia Chaney Smith in a conference room in the courthouse, the investigating officer was outside the room eavesdropping on [156 MICHAPP 621] their conversation. The prosecutor stated that although he had no personal knowledge of what had happened, the investigating officer assured him that he did not hear anything.

The trial judge let it be known that he was appalled at such apparent impropriety. However, he denied defendant's motion for mistrial unless defense counsel was later able to show that Smith's testimony proved to be "somehow contrary or damaging to statements made previously to [defense counsel]." Defense counsel's cross-examination of Smith ultimately focused upon defendant's physical appearance around the time of the armed robbery. In closing argument, defense counsel attempted to show, based on Smith's testimony, that the two eyewitnesses who identified the defendant at the apartment at the time of the armed robbery were mistaken. The record clearly reflects that defense counsel never brought to the court's attention any problems with Smith's testimony and never indicated that her testimony was contrary to what defense counsel was told in the initial interview.

Denial of a mistrial motion rests within the sound discretion of the trial judge and will not be reversed by this Court unless such denial constituted an abuse of discretion. To find reversible error, a trial court's denial of a defendant's motion for mistrial must have been so gross as to have deprived the defendant of a fair trial and to have resulted in a miscarriage of justice. People v. Green, 131 Mich.App. 232, 236, 345 N.W.2d 676 (1983); People v. Robertson, 87 Mich.App. 109, 111-112, 273 N.W.2d 501 (1978). While we join in the trial court's condemnation of eavesdropping, if such was the officer's intent, as an infringement of the defendant's Sixth Amendment right to counsel, we nonetheless agree that the alleged incident [156 MICHAPP 622] did not in the circumstances presented deprive defendant of a fair trial. Although defense counsel suggested that the incident might force him to alter his trial strategy, the record is devoid of any hint of actual prejudice to the defendant. Reversal is not warranted unless a defendant demonstrates prejudice...