People v. Walker

• Decision Date: 06 September 2007
• Docket Number: Docket No. 266208.
• Citation: 276 Mich. App. 528,741 N.W.2d 843
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee v. Darnell WALKER, Jr., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

741 N.W.2d 843

276 Mich. App. 528

PEOPLE of the State of Michigan, Plaintiff-Appellee v. Darnell WALKER, Jr., Defendant-Appellant.

Docket No. 266208.

Court of Appeals of Michigan.

Submitted August 7, 2007, at Lansing.

Decided September 6, 2007, at 9:00 a.m.

Released for Publication November 27, 2007.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Stuart J. Dunnings III, Prosecuting Attorney, Susan L. LeDuc, Chief, Appellate Division, and Joseph B. Finnerty, Assistant Prosecuting Attorney, for the people.

Lea Ann Hammers, for the defendant.

Before: WHITBECK, C.J., and TALBOT and ZAHRA, JJ.

PER CURIAM.

Defendant Darnell Walker, Jr., appeals as of right from his jury convictions of possession of less than 25 grams of cocaine,¹ and possession of marijuana.² The trial court sentenced Walker, as a second-offense habitual offender,³ to 34 to 180 months' imprisonment for the cocaine possession conviction, and, as a third-offense habitual offender,⁴ to one year imprisonment for the marijuana possession conviction. Walker received one year's credit on his marijuana possession sentence for time served in jail. We affirm in part and reverse in part.

I. Basic Facts and Procedural History

On July 13, 2003, Lansing police officers were dispatched to investigate a claim of shots fired. The description of a vehicle associated with the incident led police officers to Walker's residence. Walker was a parolee at the time. Lansing Police Officer Deborah Robinson conducted a pat-down search of Walker for weapons; she said that she felt a soft, lumpy mass in both front pockets of Walker's shorts. Officer Robinson then placed Walker in the backseat of her patrol car; Officer Robinson stated that Walker was not under arrest at the time and that he was not handcuffed. Officers subsequently searched the vehicle that was associated with the shooting incident and found a handgun.⁵ Officer Robinson stated that she then placed Walker under arrest, explaining that she took him out of the patrol car, handcuffed him, and conducted a search incident to the arrest. Officer Robinson testified that she found money in Walker's left front pocket but did not find anything in his right front pocket.

Officer Robinson transported Walker to the Lansing Police Department detention center. Once there, because whatever she had originally felt in Walker's right pocket was no longer present when she searched him incident to the arrest, she checked the inside of her patrol car "to make sure nothing had either fell [sic] out or he had taken something out." Officer Robinson testified that her search of the vehicle revealed two bags in the backseat stuffed between the floorboard and the flex-glass partition. She stated that the bags contained "possible crack cocaine" and "possible marijuana." Lab tests confirmed that the bags did contain cocaine and marijuana. Officer Robinson testified that she knew the substances had not been there before she placed Walker in the backseat because she thoroughly checked her car before and after every shift, and because she had not transported anyone else before Walker during her shift.

A felony complaint and warrant for possession of less than 25 grams of cocaine and possession of marijuana were issued on October 30, 2003. Walker was arraigned on December 8, 2003. Attorney Frederick J. Blackmond, Jr., filed his appearance as defense counsel on December 18, 2003. On December 19, 2003, Walker signed a waiver of his statutory right to a preliminary examination within 14 days of arraignment.⁶ A preliminary examination hearing was held on January 13, 2004, and the district court ordered that Walker be bound over on the charges in the complaint.

Following adjournments of trial pending several cancelled hearing dates for a motion to suppress, Blackmond moved to withdraw as defense counsel on July 9, 2004. Blackmond asserted that Walker, who had retained him, was not paying him, kept sending him letters, and was "again going against [his] advice." Blackmond indicated that Walker told him that if he did not do as Walker asked, Walker would sue him. The trial court granted Blackmond's motion to withdraw.

Attorney James Siver was appointed to represent Walker on September 24, 2004, and trial was again adjourned pending more defense motions. On January 26, 2005, Siver filed three motions: a motion requesting that the trial judge recuse herself from the case or allow defense counsel to withdraw; a motion to suppress; and a motion to dismiss. The trial court denied Siver's recusal motion, but allowed him to withdraw from representing Walker. Pursuant to the parties' stipulation, the trial court entered an order adjourning the hearings on the motions to suppress and dismiss, pending appointment of new counsel. However, trial was noticed for March 17, 2005.

On March 15, 2005, attorney Henry Derrick Ethridge filed an appearance on Walker's behalf, and on March 17, 2005, the parties stipulated to again adjourn Walker's trial. The stipulation contained the following provision:

DEFENDANT UNDERSTANDS that under MCR 6.004(D)(1), the "prosecutor must make a good faith effort to bring a criminal charge to trial within 180 days . . .;" however, Defendant recognizes that his new counsel needs the opportunity to prepare for trial, as well as determine what pre-trial motions should be filed on Defendant's behalf.

An order adjourning trial until further notice was entered on that same day.

On April 19, 2005, a hearing was held on Walker's motions to dismiss and suppress. With respect to his motion to dismiss, Walker asserted that there had been an unreasonable delay since his arraignment in violation of the 180-day rule⁷ and, alternatively, in violation of his constitutional right to a speedy trial.⁸ Walker pointed out that his parole had been revoked on January 13, 2004, and that he had been detained in a state prison since that time. The prosecution argued that 200 days of the delay were attributable to Walker, that it had made a good-faith effort to bring the matter to trial, and that Walker failed to show any prejudice.

The trial court observed that the "reason behind [the] 180-day rule is so that the prosecutor can't take what would normally be concurrent sentences and turn them into consecutive sentences by waiting and waiting and waiting to proceed against a prisoner[.]" The trial court held that the 180-day rule did not apply because Walker was on parole at the time of the offense and, if convicted, the sentences would be consecutive. The trial court also concluded that there was no violation of Walker's constitutional right to a speedy trial because the delays were partly his fault, making the total delay not attributable to Walker well under 18 months.

Walker also argued that the evidence against him should be suppressed because (1) the police unreasonably detained him on the basis of an informant's tip, (2) he was unlawfully arrested when he was placed in the back seat of the police car for 45 minutes without probable cause, and (3) his vehicle was searched without his consent or in the absence of an exception to the warrant requirement. The trial court held that the search of the vehicle was valid on the grounds of both consent and probable cause.

Following a three-day trial held May 31, 2005, through June 3, 2005, Walker was convicted and sentenced as stated above.

II. The 180-Day Rule

A. Standard of Review

Walker argues that the prosecutor violated the 180-day rule because the prosecutor was notified, at the latest, by the date of Walker's arraignment on December 8, 2003, that Walker was in the custody of the Department of Corrections; yet, his trial did not occur until approximately 18 months after his arraignment and nearly two full years after the alleged offenses.

This Court reviews de novo questions of statutory interpretation.⁹ Nonconstitutional preserved error requires reversal if a defendant establishes it was more probable than not that the error caused a miscarriage of justice.¹⁰

B. Entitlement to Assert a Claim Under the 180-Day Rule

The statutory 180-day rule provides, in relevant part, as follows:

Whenever the department of corrections receives notice that there is pending in this state any untried warrant, indictment, information, or complaint setting forth against any inmate of a correctional facility of this state a criminal offense for which a prison sentence might be imposed upon conviction, the inmate shall be brought to trial within 180 days after the department of corrections causes to be delivered to the prosecuting attorney of the county in which the warrant, indictment, information, or complaint is pending written notice of the place of imprisonment of the inmate and a request for final disposition of the warrant, indictment, information, or complaint.[¹¹]

The purpose of the rule is to dispose of untried charges against prison inmates so that sentences can run concurrently.¹² If the defendant is not brought to trial within 180 days after notice to the prosecution, the court loses jurisdiction and the charges must be dismissed with prejudice.¹³

It was previously held that the 180-day rule did not apply when the pending charge subjected the defendant to mandatory consecutive sentencing, such as when the person committed a crime while on parole.¹⁴ That exception was overruled, however, in People v. Williams,¹⁵ with limited retroactive effect "to those cases pending on appeal in which this issue has been raised and preserved." Because this case was pending at the time and the issue was preserved, Williams applies here.¹⁶ Therefore, the trial court erred in holding on the basis of the pre-Williams rule that the 180-day rule did not apply.

Under the Williams rule, the 180-day rule applies to any untried charge against any prisoner, with limited statutory exceptions for those offenses committed by incarcerated and escaped prisoners.¹⁷ Here, because Walker was neither...