People v. Wimbley

• Decision Date: 06 August 1981
• Docket Number: 50867,Docket Nos. 50866
• Citation: 310 N.W.2d 449,108 Mich.App. 527
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leroy WIMBLEY, Defendant-Appellant. 108 Mich.App. 527, 310 N.W.2d 449
• Court: Court of Appeal of Michigan — District of US

Page 449

310 N.W.2d 449

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leroy WIMBLEY, Defendant-Appellant.

Docket Nos. 50866, 50867.

108 Mich.App. 527, 310 N.W.2d 449

Court of Appeals of Michigan.

Aug. 6, 1981.

Released for Publication Sept. 28, 1981.

[108 MICHAPP 529] Thomas J. Rasdale, Bay City, for plaintiff-appellee.

Susan J. Smith, Detroit, for defendant-appellant.

[108 MICHAPP 530] Before R. B. BURNS, P. J., and ALLEN and GILLESPIE, ^* JJ.

PER CURIAM.

On December 6, 1979, defendant was convicted by a jury of two counts of delivery of marijuana, M.C.L. § 335.341; M.S.A. § 18.1070(41), and one count of conspiracy to deliver marijuana, M.C.L. § 750.157a; M.S.A. § 28.354(1). In another jury trial, on December 11, 1979, defendant was convicted of delivery of cocaine. M.C.L. § 335.341; M.S.A. § 18.1070(41). These four convictions were obtained under the Controlled Substance Act of 1971, since repealed and replaced, 1978 P.A. 368. Defendant appeals from all four convictions. Since many of the issues raised are common to both appeals, the cases have been consolidated.

Defendant was arrested and incarcerated in Ohio on December 9, 1978. While incarcerated, on December 10, 1978, a detainer was lodged against the defendant by the Bay City prosecutor's office. On December 15, 1978, defendant learned that a detainer was lodged against him. Defendant was sentenced in Ohio in February, 1979, and pursuant to the Interstate Agreement on Detainers (hereinafter, IAD), M.C.L. § 780.601; M.S.A. § 4.147(1), a detainer again was placed against him in March, 1979.

On July 18, 1979, the prosecutor's office requested that the governor of Ohio immediately approve the defendant's release to Michigan. The request was granted; defendant returned to Michigan August 28, 1979, and was arraigned on August 30, 1979.

The defendant brought motions to dismiss based on noncompliance with Articles III and IV of the IAD and denial of his right to a speedy trial, which were denied. The defendant filed an application[108 MICHAPP 631] for leave to appeal to this Court which was denied on December 11, 1979.

The first issue on appeal is whether or not the IAD, M.C.L. § 780.601 et seq.; M.S.A. § 4.147(1) et seq., was violated in two respects. The defendant claims that letters sent to his wife, or at least the copy of a letter which his Ohio attorney forwarded to the prosecutor's office, substantially complied with the notice requirements set forth in Article III of the IAD and thereby the convictions must be dismissed. We disagree.

Article III provides, in part, as follows:

"(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 * * *." (Emphasis supplied.)

Article V(c) of the IAD provides the following remedy in the event that Article III is violated:

"(c) If the appropriate authority shall refuse or fail to accept temporary custody of said person, or in the event that an action on the indictment, information or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in Article III or Article IV hereof, the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing[108 MICHAPP 532] the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.

This Court on several occasions has stressed that the notice requirement of the IAD must be complied with strictly. People v. Beamon, 83 Mich.App. 121, 268 N.W.2d 310 (1978); Edmond v. Dep't. of Corrections, 78 Mich.App. 196, 202, 259 N.W.2d 423 (1977). The defendant did not give the required written notice to the prosecutor to invoke the Act. Informal letters do not satisfy the notice requirement of the Act. Edmond, supra.

The defendant claims that Article IV(a) of the IAD was violated when he was not afforded a hearing prior to his transfer to Michigan. We summarily reject this claim. Article IV(a) provides:

"The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with Article V(a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated: Provided, That the court having jurisdiction of such indictment, information or complaint shall have duly approved, recorded and transmitted the request: And provided further, That there shall be a period of 30 days after receipt by the appropriate authorities before the request be honored, within which period the governor of the sending state may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner."

The right to contest the delivery to another state is lost when an inmate, who contests the legality of delivery to the other state, fails to move the governor of the sending state to disapprove the [108 MICHAPP 533] transfer. Cody v. Morris, 623 F.2d 101 (C.A.9 Cir., 1980); State v. Thompson, 133 N.J.Super. 180, 336 A.2d 11 (1975). The defendant contends that his right to a speedy trial, guaranteed by the Sixth Amendment, was violated. In People v. Grimmett, 388 Mich. 590, 605-606, 202 N.W.2d 278 (1972), pursuant to Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Michigan Supreme Court adopted the following balancing test to resolve denial of speedy trial claims:

" 'Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.' "

Recently this Court has held that failure to assert the right to a speedy trial is strong support that the constitutional guarantee was not violated. People v. Ewing, 101 Mich.App. 51, 55, 301 N.W.2d 8 (1980). The Supreme Court in Barker, supra, 407 U.S. 532, 92 S.Ct. 2193, also emphasized that "failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial".

The defendant first mentioned the speedy trial issue in a motion to dismiss heard on November 26, 1979. This cannot be construed as an assertion of the right to a speedy trial since this motion contended that the defendant's rights already had been violated. Therefore, the factor in Grimmett, supra, namely, that defendant assert his right to a speedy trial, is not satisfied. Prejudice to the defendant's case is not presumed until the passage of eighteen months. People v. Collins, 388 Mich. 680, 202 N.W.2d 769 (1972). The defendant argues that the right to a speedy trial accrues when a warrant for arrest is issued. Under this analysis there would be a 26 [108 MICHAPP 534] month delay. However, United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 3 L.Ed.2d 468 (1971), held that the right to a speedy trial is not triggered until a person is arrested. Only twelve months passed between the time when the defendant was arrested in Ohio and the time when he was ultimately brought to trial in Michigan. Where twelve months passed between arrest and trial, defendant had to establish that the delay prejudiced his case, which he failed to do. People v. Butcher, 46 Mich.App. 40, 207 N.W.2d 430 (1973).

In Barker, supra, 407 U.S. 533, 92 S.Ct. 2193, a passage on the interrelationship of the four factors to consider a speedy trial claim stated:

"We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process." (Emphasis added.)

After balancing the factors in Grimmett, supra, we find no basis on which to hold that the defendant's constitutional right to a speedy trial was denied.

There are four remaining issues raised by defendant. The defendant argues that his constitutional right to a jury representative of the community was denied when five jurors, who either expressed personal doubts about marijuana laws or stated they might be prejudiced in drug cases, were dismissed for cause.

The voir dire of the jury is challenged for the first time on appeal. The prosecutor affirmatively agreed to the dismissal of four of the five jurors [108 MICHAPP 535] and was silent, not indicating an objection, during the dismissal of one juror for cause.

As a general rule, to challenge the voir dire of the jury on appeal, objection should be taken immediately when the jurors are excused. People v. Costea, 19 Mich.App. 166, 172 N.W.2d 488 (1969). Where there are no previous objections to the dismissal of jurors, this Court will reach the issue only if the defendant demonstrates prejudice by the jury ultimately selected. People v. Clyburn, 55 Mich.App. 454, 222 N.W.2d 775 (1974). The defendant offers no evidence to indicate that he was prejudiced by the jury impanelled. To the contrary, no objections were raised during the voir dire of the jury, indicating that the competency or...