*1 281 v 1981] REHEARING) (ON v
PEOPLE BROWNING 5, 1981, 77-2585, 78-3658, May 78-3659. Submitted at Docket Nos. July Lansing. 1981. Decided appeals regarding of in three cases the inter- This case consists (IAD), agreement detainers consolidated order of state on appealed Appeals. The cases involve two of the Court Detroit, murder, first-degree of Recorder’s Court Clarice of Jobes, J., charge first-degree rape, murder and of and one Detroit, Hobson, J., against Donald defen- Recorder’s Court of Browning. Appeals previously Ernest The Court of decided dant 741; People Browning, App in 104 Mich 306 this case NW2d (1981). Appeals granted Subsequently, the Court of rehear- 326 ing. Held: holdings except to all of the as to whether the Affirmed as produce tape recording prosecuting attorney’s failure to of an accomplice key witness constituted a interview with a and discovery persons for written violation of a order statements knowledge alleged with of the matters in the information. The discovery framed the defendant’s motion order was requested among things, discovery which other "[a]ll written persons having statements taken from witnesses or other knowledge”. Although the trend is toward broader criminal discovery, prosecutor required simply is not turn over his entire file to the defense. Defense counsel should state with Here, clarity just being sought discovery. some what in order, discovery where the defendant in effect wrote the [1-13, [14] [15] [16] [17] [18] 47 Am Jur Validity, Right Detainers. 98 ALR3d 160. 20 46 Am Jur 20 Am Jur 20 Am Jur evidence Am Am of accused in state courts to 21 Am Jur Jur Jur construction, 2d, 2d, 2d, Judges 2d, 2d, 2d, References possession Justices of the Peace Courts Court 18.§ Depositions Courts 17.§ 2d, Criminal Law 404 et § 25.§ 17. for Points in Headnotes prosecution. application Discovery § § inspection of Interstate 7 ALR3d 8. et seq. § seq. or disclosure of Agreement tape required prosecutor furnish the to defense counsel. Affirmed. agreed Cynar, J., part. part He and dissented concurred *2 affirming opinion in majority the trial court
with tape ruling production involving of the record- on the case IAD, However, ing. the United he would hold that under the defendant from the transfer of States is a "state” Michigan facility facility in Indiana to a federal a federal IV(e). prior He would reverse to trial did not violate lower court on issue.
Opinion of Court Agreement — — De- on 1. Criminal Law Detainers Interstate — Statutes. tainers law, agreement is a uniform enacted on detainers The interstate Columbia, states, majority the District of and the a procedures by government, prescribes which a federal disposition charges pend- prisoner may prompt demand ing against he is him in a state other than the one which obtain, procedures by may imprisoned well as which a state as (MCL trial, prisoner who is incarcerated in another state a seq.; seq.). MSA et 780.601 et 4.107[1] Agreement — — De- 2. Law Detainers Interstate on Criminal tainers. agreement purpose is to of the interstate on detainers programs pris- obstruct counteract the uncertainties which prisoner’s status is oner treatment and rehabilitation where a charges on which detainers clouded the existence of untried lodged. have been Agreement — — on De- Criminal Law Detainers Interstate tainers. agreement is A detainer under the interstate on detainers prisoner notification filed with an institution in which a pending serving advising face a sentence that he is wanted to jurisdiction. criminal in another Corpus Corpus — — Prosequendum 4. Habeas Habeas Ad Detain- ers. corpus prosequendum equivalent A writ of habeas ad is the of a agreement detainer under the interstate on detainers. Agreement — Detainers. 5. Criminal Law Interstate agreement apply The interstate on detainers does not to an serving accused defendant unless he is a who is sentence. Agreement Filing — —
6. Criminal Law Interstate on Detainers States. agreement applicable The interstate on detainers is once a de- lodged against prisoner, filing tainer is and the state must comply provisions. with its Agreement — — 7. Criminal Law Interstate on Detainers Juris- diction. agreement A violation of the interstate on detainers does not jurisdiction subject divest a trial court of over the matter of a case; trial, during it is a defense which must be raised before or or it is waived. Agreement Right — —
8. Criminal Law Interstate on Detainers — to Trial Waivers. right agreement A defendant’s under the interstate on detainers original place imprisonment may to trial before return to his be waived. Agreement — —
9. Criminal Law Interstate *3 on Detainers Pris- oners. rights by agreement The created the interstate on detainers are prisoner, protection, for the benefit of the exist for his are personal may to him and be waived. — Agreement Right— 10. Criminal Law Interstate on Detainers to Trial. right agreement A defendant’s under the interstate on detainers original place imprisonment to trial before return to his is mandatory. — Agreement — 11. Criminal Law Interstate on Detainers Transfer of Defendant. Generally receiving charged state should be under the inter- agreement responsibility state on detainers with the for the original prison transfer of a defendant back to the where request transfer is not done at the of the defendant or his attorney. Agreement — — 12. Criminal Law Interstate on Detainers Waiver Extradition. requests disposition A who final under the interstate agreement presumed on detainers is to have waived extradi-
tion. 108 Mich Agreement — 13. Criminal Law on Detainers. Interstate agreement triggered once a de- The interstate on detainers is prison- lodged effect on a tainer is because it is the detainer’s program the act was intended to er’s rehabilitation correct. Judges Appointment — — 14. Courts Statutes. Other empowered compel judge Supreme The is to direct and Court any Michigan judge court in which court in to serve as pleas by judge; to act as both the common law he is authorized judges thereof are court and recorder’s court and the included (MCL power 600.225[l][c]; 27A.225[l][c]). in this MSA — — 15. Courts Common Pleas Court Jurisdiction. jurisdiction The Detroit Common Pleas Court has and exercises criminal, proceedings, to the in all suits and both civil and justices of the same extent as was had and exercised city immediately prior peace to the of the of that consolidation (MCL seq.). seq.; MSA 27.3651 et courts 728.1 et — — 16. Courts Common Pleas Court District Courts. pleas equivalent A common court is now the of a district court. — — Judge 17. Courts Pleas Statutes. Common pleas assignment judge to The of a common recorder’s court (MCL statutory power Supreme within the Court 27A.225[2]). 600.225[2];MSA Discovery. — 18. Criminal Law Michigan toward crimi- trend and other states is broader merely participant discovery, prosecutor nal is not and the nevertheless, duty justice; a contest but has a to seek prosecution required simply is not turn over entire his file the defense. by Cynar,
Partial Concurrence and Partial Dissent J. Agreement — — Law Criminal Interstate on Detainers Transfer of Federal Prisoner. receiving charged A state should be under the interstate agreement on detainers with the transfer federal authorities *4 prison of a defendant from one federal federal another facility. Kelley, Attorney General, J. A. Frank Robert Derengoski, General, Cahalan, Solicitor William L. Prosecuting Attorney, Appeals, George Best, II, A. Michael R. Prosecuting Attorney, Assistant Larry Muller, Assistant Prosecuting Attorney, and Roberts, L. Prosecuting Assistant for the Attorney, people.
Raymond MacDonald, A. ap- defendant on peal. Rehearing
On Cy- Gillis, P.J., Before: J. H. and Bashara and nar, JJ. Gillis, opinion represents
J. H. P.J. This appeals 78-3659, three cases. In docket 78-3658 nos. and the prosecutor appeals from trial court’s dis- first-degree missal of two charges, murder MCL 28.548, 750.316; MSA brought were under (nos. two 05793). 74- separate warrants 74-04988 and 77-2585, In docket no. defendant appeals (as from first-degree his conviction charged) murder, 28.548, 750.316; MCL rape, MSA 750.520; 28.788,1 MCL MSA and from trial court’s denial of his motion to dismiss those (lower 74-05901). charges court docket Both no. appeals 1963, 806.1, are taken of right, as GCR and in each we are asked resolve a multitude of arising issues principally interstate under MCL 780.601 et agreement (IAD), on detainers seq.; seq. 4.147(1) et MSA
The charges involved docket nos. 78-3658 and 78-3659 were brought against war- defendant rants on issued 1974. The July July involved in docket no. 77-2585 were brought against on a warrant issued rape charge brought before criminal conduct sexual statutes, 266; 28.788(1) seq.; seq., 1974 PA MCL 750.520a MSA et et April became effective *5 108 Mich Opinion of the Court 3, in occurred
August 1974. No action October, the Detroit when three until files (DPD) defen- was advised Police Department Texas, Brownsville, pend- in dant custody was in At charges. federal narcotics ing disposition of County, Cameron time, the DPD advised Texas, follows: sheriff as Browning
"In re: Ernest Thomas Mism a/k/a N/M DOB 4/8/54 of our copy a certified warrant #74- "Enclosed is Murder, Degree #74-05901, both First 04988 and for in captioned subject who is lodged against the above be charges. your custody on narcotic a set of you will find our circular and "Also enclosed positive for identifica- subject’s fingerprints the wanted tion. disposition the final keep informed as to "Please us charges, your on
your subject case. If the is sentenced he will transferred where be advise institution the date and term of sentence.” 24, 1975, defendant was sentenced On November at Terre penitentiary in the federal to serve time Haute, Indiana, on the narcot- after his conviction to Terre Haute charge. ics He was transferred 30, 1976, a LEIN January January 1976. On message the DPD to the federal authorities from at Terre Haute was sent as follows: degree war- dept
"This holds two valid first murder AKA Browning AKA Thomas Mims rants Ernest & Warrant 74-05793 Thomas Minns NM DOB 4-8-54. your custody as Understand he is Warrant 74-04988. him. We Minns Place Thomas ID hold on #22831-149D. custody lodged murder warrants when had Brownsville, forwarded Texas. Were these warrants your with him to institution. We send letter and will papers warrants. Place hold for us. We will start Mon- day Thanks.” Agreement to return him under the on Detainers. 2, 1976, February following
On letter was sent the DPD to the authorities in Terre Haute: *6 copies
"Enclosed herewith are certified of our war- 74-05793, Degree rants Murder, and both for #74-04988 First request lodged and we that these be as detain- against prisoner. ers the above proceed 'Agree- "We will to return him under the ment on Detainers.’ copy
"Also enclosed is a of our circular and a set of subject’s fingerprints. the wanted you your cooperation "Thank in this matter.” 5, 1976, February On Terre Haute acknowledged receipt foregoing 6, letter. February On 1976, defendant prison received a note from his counselor which advised that defendant "now has an official detainer”. 21, 1976, February
On defendant was trans- ferred from Terre Haute to prison the federal at Milan, Michigan, pursuant to a writ of habeas prosequendum corpus ad pur- which stated as its pose: "To stand trial on warrant #74-04988 #74-05793”. These are the lower court numbers our docket nos. 78-3658 and 78-3659. Defendant arraigned, however, was subsequently on all three warrants, 25, February Preliminary ex- amination was likewise held on all three warrants 14, on April 1976. During period, defendant was housed at the federal in Milan. prison When presence court, his was required in recorder’s he brought building the federal in Detroit by United States deputy marshals and there handed 108 Opinion op the Court him officers, transported who police to Detroit
over to recorder’s court. 26, 1976, 14, 1976, June April
Between scheduled and were conferences pretrial various had counsel defense apparently because adjourned, he had materials discovery not been certain given 1976, trans- 26, defendant was requested. June On Haute, primarily to Terre ferred Milan back from four begin until not scheduled because trial was months later. moved September
On ultimately he was charges on which dismiss the 77-2585) (docket that he on the basis no. convicted imprisonment original place was returned to his IV(e) of the trial, of Article in violation before court recorder’s was denied IAD. This motion 11, 1977, no because Hobson, on March judge A similar in that case. been filed had ever detainer 78- nos. in docket motion to dismiss recorder’s court granted by 78-3659 was 3658 and 17, 1978. August Jobes, order dated judge IV(e) and *7 both Article raised Although defendant IV(c) in the in Article provision trial speedy her decision motion, Judge premised Jobes latter IV(e) argument. the Article motions, but filing of both to the Subsequent his defendant upon, either was ruled before (1) purported signed stipulation attorney right days to trial within to waive defendant’s 111(a) (2) IAD, to waive defen- Article under under Article trial right days dant’s to within (3) IV(c) IAD, any jurisdic- to retain in defendant’s which were asserted rights tional signed on stipulation was motion to dismiss. This 1976, re- 19, subsequent to defendant’s November on or about November turn to Milan corpus ad a second writ of habeas pursuant authorities. Michigan issued prosequendum by 25, 1977, On March defendant was convicted as charged in docket no. 77-2585. presented
The several issues for our considera- tion in this case are as follows:
(1) presence Whether the defendant’s in Michi- gan was secured under the IAD.
(2) so, If whether the absence of a reference to the warrant in docket no. 77-2585 on the docu- triggered application ments which an of the IAD operate deprive should defendant of the benefits of the IAD in that case.
(3) stipulation signed by Whether the attorney operates and his as a waiver of either the IV(c) (e) Article or claims. (4) applicable, Whether, where the IAD is Arti- IV(c) (e)
cle or was violated because defendant was days not tried within 120 of his transfer to Michi- gán or before his return to Terre Haute.
(5) Whether the transfer back before trial was in IV(e) violation of Article because (a) always custody; defendant was in federal (b) defendant never waived extradition as re- quired by 111(e);
(c) IAD forms were never used the state officials;
(d) the transfer was effected in furtherance of overriding purpose uninterrupted of the IAD: rehabilitation.
(6) judge Whether the trial in docket no. 77-2585 empowered try given defendant, that he pleas judge assigned was a common to sit in De- Supreme troit Recorder’s Court Court. (7) prosecutor’s produce Whether the failure to tape recording key of an interview with a witness *8 accomplice and constituted a violation of a discov- ery order. App 281
I been en- which has uniform law The IAD is a states, of the District of majority acted aby "pre- It government. Columbia, the federal and de- may prisoner a by which procedures scribes charges pending of disposition prompt mand the the one which other than him in a state against a procedures by well as as imprisoned, he is who is incar- trial a prisoner state obtain may Validity, Con- Anno: state”.2 in another cerated Agreement Application Interstate struction, of Detainers, 98 ALR3d counteract the IAD is to of purpose prisoner of programs obstruct uncertainties which prisoner’s when a rehabilitation treatment untried of existence is clouded status lodged. have been detainers charges on which disposition final Thus, demand may prisoner indictments, or com- informations untried IV, Article the state III. Under Article plaints. is a process whereby initiate may language trial. In the the state for returned to begun lodging act, process latter is IV(a). against prisoner. detainer It a detainer. no definition of The act contains however, defined, as a "notifi- has been otherwise a pris- in which filed the institution cation with sentence, that he is advising serving oner in an- criminal pending to face wanted 91-1356, 91st Report Senate jurisdiction”. other & News, p Admin Sess, Cong 3 US Code Cong, 2d (1970). Beamon, 121; 268 83 Mich In lv den (1978), 403 Mich 310; 98 ALR3d NW2d States, 11(a), a "state” includes the United Pursuant to Article States, Columbia, territory possession or of the United District the Commonwealth of Puerto Rico. *9 v 291 Opinion of the Court (1978), panel 850 Court another held that a letter from the court at recorder’s clerk officials Haute, Terre pending advised of defendant, against who was incarcerated in Terre Haute, 121, was a detainer. 83 App Mich 132. Beamon also a Alternatively, panel found that ad prosequendum was the corpus writ of habeas Id. of a equivalent detainer. ruling
The latter was made in the face of split a opinion the federal circuit courts of appeals. States, Compare, Ridgeway v United 558 F2d 357 (CA 6, 1977), Mauro, with United States v 544 F2d (CA 2, 1976), holding the latter a that such writ constitutes a detainer. In the United in United Supreme split States Court resolved the Mauro, States 340; US 1834; 98 S Ct 56 L Ed (1978), 2d 329 a case which the federal govern- ad prose- filed corpus ment three writs of habeas quendum with state authorities. Court held "a by writ issued court federal to state authorities, directing the production of a state charges, trial criminal is not detainer within the meaning of the and this [act] trigger application does [act]”. However, US the "United States is bound it when its provisions by activates [act] filing a against detainer a state prisoner and then obtains his custody by a writ means of of habeas corpus ad prosequendum”. Id.
The Supreme necessarily Court’s holding limited to the issüance a writ federal author- ities. The presents case at bar similar question, however, albeit seeking pro- here the state is prisoner. duction of a federal On question whether pro- defendant was IAD, duced court pursuant recorder’s to the he argues the October 1975 DPD letter to the 108 County, a de- Texas, constituted sheriff Cameron message January 30, 1976, tainer, LEIN as did the February 2, 1976, letter to the federal and the Haute. authorities at Terre Certainly, communications none of the written being la- from on which defendant relies suffers corpus prosequendum. ad beled a of habeas writ Texas sheriff cannot However, letter to the defendant was not constitute a detainer because serving under a federal conviction. then a sentence *10 lodging the of a of the IAD references Article IV "serving prisoners only are a term detainer to who imprisonment any party Further, the in state”. quoted we above definition of a detainer which filed the it is a "notification with states serving prisoner in is a sen- institution previously Finally, tence”. this Court considered question, and there stated: "Consistent similar Agreement apply purposes, its the does not with actually serving a term of unless the imprisonment”. People McLemore,
v 95 Mich (1980). 536, 547; NW2d message The and the letter to the Terre LEIN Haute do not suffer from the same infirmi- officials serving prison ty; then a federal was message Further, letter sentence. advised the Terre Haute both the and the that defendant officials charges Michigan. was wanted to face Without above-quoted more, such would suffice under the definition of a detainer. went The two documents further, however, and advised the federal authori- ties that defendant under the would be returned IAD. The second letter even stated that the en- "lodged closed warrants were to be as detainers against” defendant. language quoted triggered obviously
The above application an of the IAD. The notice to defendant prison an he now had his counselor that from effect the mes- is reflective official detainer sage Haute officials. had on the Terre and letter prisoners with it uncertain status Since is the lodged against the IAD them which detainers remedy, any con- to other conclusion would seeks legislation. intent of that travene the prosecutor argues, however, that, notwith- standing proceed under the DPD’s decision corpus prosequen- ad IAD, habeas once the writ of filed, was the intent to use act dum agree. States cannot As United abandoned. We Supreme supra, Mauro, once Court stated prisoner, "by lodged against a the act detainer is express applicable its terms becomes provisions”. [filing comply must with state] its US 361-362.
II Having IAD was invoked concluded language communications of the 1976 written Haute, we must now at Terre authorities charges failure note consider whether the *11 operates 77-2585 in such letters docket no. preclude application of the IAD to that "case”. an remembered, writ well, as first It will be corpus prosequendum by the issued of habeas ad Michigan likewise failed to mention authorities the third warrant. considering question, are forced
In this we acknowledge that, for the fact that defendant but to Milan and then recorder’s was transferred pursuant trigger an to a did court application detainer which prosecutor IAD, would
of try then on have been able to charges defendant third contained in the warrant.
294 108 Mich 281 V(d) the; Article IAD of states that tempo- "[t]he rary to in custody agreement referred shall be on only prosecution of purpose permitting charge charges or one or contained more indictments, untried or complaints informations which form the basis the detainer or detainers or for prosecution charge charges other on arising out of the same transaction(Emphasis supplied.) if Thus, the third warrant involved of the arising out same transaction as one warrants, or both of the noted could have been pursuant tried thereunder to the IAD.
Our files review of the lower court reveals that the three warrants arose out of three different 19, criminal occurring transactions January (number (number 74-05793), 11, April 74-04988), (number 74-05901). May must if Consequently, we determine a violation of V(d) Article occurred and preserved by defen- dant. V(d),
Under
the clear
terms of Article
a viola-
However,
tion
in this
occurred
case.
we are not
preserved
convinced that defendant
that violation.
A violation
agreement
does not divest
trial court of jurisdiction
the subject
over
matter
Casuso,
State
case.
253 NW2d
1977).
(Iowa,
It
ais
defense
must
be raised
before or
trial or it
is waived. Christian v
during
United
(DC
States,
cert
1978),
now be IAD, V(d), determined. The states the temporary custody provided the IAD is only for purposes prosecution of charges on *12 Opinion op the Court the lodged. necessity, has been Of
which detainer appli- IAD also only offered the are protections by on prosecuted the defendant is cable where lodged. has been which a detainer charges on etc., the Thus, arraigned, on defendant was when Arti- objection an based on without warrant, third V(d), to been cle be said have may case no express the IAD. We outside of prosecuted who question the whether a defendant on opinion entitled to grounds such is still object does on that, if such only say the IAD. We protections cases, in such applicable were not protections to file detainers prosecutors for open would be way charge pending against serious the least other then on numerous proceed the defendant warrants after more serious for without concern the jurisdiction, within the IAD. offered protections by in this case defendant Our conclusion does of the IAD protection right waived to any it IAD; does nor purposes to the no violence However, protection. all divest defendant result case, does the above conclusion to dismiss motion finding that defendant’s denied properly 77-2585 charges in docket no. the trial court. Ill to was entitled decided that defendant Having nos. the IAD docket protection offered 77-2585, 78-3659, no. 78-3658 in docket but the effect next consideration is issue our attorney and his stipulation signed by trial right purported which waive defendant’s III, right and his under Article days within IV, under Article but trial within days not waive further that defendant did stated 108 Mich *13 op Opinion the Court jurisdictional rights asserted in his motion already to dismiss. stipulation signed before the clearly was argument
motion to In his upon. dismiss was ruled appeal, on defendant does not address the effect of Nonetheless, the stipulation on his IAD rights. issue crucial to a proper resolution this case. Indeed, that, argues on not- prosecutor appeal withstanding application of the IAD to docket 78-3659, nos. 78-3658 and defendant’s waiver oper- to ates bar his asserted to right speedy trial under either Article III or IAD. IV of the
While the effect of a waiver on III or IV rights appear does not to been by have considered Michigan courts, are there several federal cases which are Benson, In v F Gray informative. 443 1284, (D Supp supp’d Kan, F 1978), 1209 Supp (CA 10, 1979), aff'd F2d 825 the court consid ered right whether defendant’s trial to before return original place to the imprisonment waived by his subsequent plea. finding After guilty the IAD had transfer, been by violated such 1284, 1293, 443 F Supp the district court requested additional briefs 443 F Supp waiver issue. 1284, 1294. Subsequently, supplemental opinion, the conclusion was reached the right to trial before return is prisoner. waivable (1) The most cogent ruling reasons for that were: that otherwise a prisoner request could not pre trial return legitimate for any it purpose "since would result in automatic dismissal of the indict ment”, 1209, (2) 458 F Supp that, 1212; and if such "fundamental, rights constitutional right as the counsel or waived, trial jury” could be it would be recognize anomalous waivers of IAD rights. 458 F Supp
The Gray court also addressed the manner v regard, In it be a waiver could effected. IV(e) IAD amounts to that "Article noted right procedural nothing rule and the than a more way protects the fairness in no affects it fact-finding procedure. accuracy it does Nor rights. process preserve or other due trial affect right rehabili- Rather, it an unrelated involves interruption in connection with without tation prior Thus, a claim on a sentence. incarceration under IV(e) hardly jurisdic- be construed as can Supp 1209, 1213. 458 F tional”. (CA Eaddy, F2d
In United States 1979), analyzed of waiver was as follows: the issue *14 IV,
"Despite mandatory language of Article the the Agreement the are for the of rights created benefit protection and are prisoner. They exist for his the personal therefore, omitted.) (Citations conclude, to him. We Agree- rights prisoner of the a under that may ment be waived. "* * * rights We hold substantive accorded also waived, may be even prisoner under Article IV to a rights, not of those where though prisoner is aware request in a man- an to be treated there is affirmative procedures prescribed by Article contrary to the ner IV(c) omitted.) (e).” (Citations F2d Eaddy, Gray focused Both in and courts purpose determining of the IAD in whether on a waiver of analysis
rights could Such be effected. began proposition the IAD is de- with the protect prisoner’s "right” signed uninter- to a to rupted "right” rehabilitation, to have (on outstanding jurisdictions de- in other filed) disposed finally of so tainers were original place prisoner return to the could knowledge imprisonment out- with certain charges. to such, it As difficult come accept such might right return that the trial before 108 Mich Opinion op the Court priorities require waived whose be right Similarly, before trial. trial return may days within certain number of likewise be similarly high waived, for reasons which are prisoner’s priorities. Certainly, the day our own 180- 28.969(1), may
rule,
780.131;
MCL
MSA
be
impliedly
by the
if
waived
defendant
the case
ready
time,
stands
for trial within that
but
delaying
"defendant’s
motions” cause a sufficient
delay
preclude
commencing
trial from
before
period. People Hendershot,
the end of that
(1959).
304;
Thus,
IV stipulation signed by which was attorney and his in all lower three court cases right stated that defendant waived his to trial days III, under within right as well as his IV(c). days to trial within 120 under Article Clearly, then, defendant waived whatever claim he regarding days had within trial 120 or 180 under the IAD.
Noticeably stipulation absent from the right waiver defendant’s to trial before return *15 original place imprisonment. yet, to his And he trial, was returned to Terre Haute before and he raised this fact aas basis for dismissal in his motions. right mandatory
The to trial before return is People supra, the IAD. quently, Beamon, v 134. Conse- charges upon we conclude that the lodged properly detainers were were dismissed lower the court.
V notwithstanding prosecution argues that, trial, Terre before return to Haute defendant’s (1) improper because: defendant was dismissal always custody, as marshal in federal a federal facility, prisoner, housed in a state and never was not should be his return to Terre Haute so (2) charged state; the never waived 111(e); to defendant (3) required by as the extradition IAD was never triggered IAD the forms because (4) used; and federal officials trans- were never Terre back to Haute further- ferred defendant agreement: overriding purpose ance uninterrupted rehabilitation. to Terre Haute
Defendant was transferred back begin not time when trial was scheduled at a Testimony at a federal another four months. hearing ongoing simultaneously in a case court involving defendant’s indicated that issue deputy by a United States transfer was initiated thought that he received autho- marshal who had prose- such move from an assistant rization for attorney cuting attorney. was, Because the state’s Europe question, when the transfer was without knowledge only initiated, we are left with the partly move was at of federal behest officials. at back is not done
Where
transfer
request
attorney,
or his
we believe
responsi-
charged
the state should be
with
way
bility
therefor.
In no other
can
defen-
disposition
right
return
to final
before
be
dant’s
say
adequately safeguarded.
that, if
This is
proof
given that
the state authori-
absolute
ties had
fact
were
nothing
and in
to do with the transfer
might
attempted
stop it,
be
another result
However,
case,
federal mar-
reached.
in this
*16
App
300
108 281
Opinion op the Court
apparently
permission
shal
received
to transfer
defendant from Milan to Terre Haute from some
prosecutor’s
one in the
Thus,
office.
because defen
request
clearly acquiesce
dant did not
in the
transfer and because the state has not established
against
that
the transfer was
wishes,
effected
its
try
returning
the failure to
defendant before
him
to Terre Haute constitutes a violation of Article
IV(e)
e.g.,
See,
of the IAD.
Sorrell,
United States v
(ED
Supp
1976),
413 F
Pa,
aff'd 562 F2d
(CA 1977),
cert den 436
949;
US
98 S Ct
(1978),
2858;
We also that, assertion always because custody, defendant was in federal Michigan, in Terre Haute and in the return to charged Terre Haute cannot be to the state. As People supra, McLemore, said v 546-547: argument "The Agreement does apply not change because no custody of actually place took * * * without merit. [Pjhysical custody does not have to change hands when a prisoner federal is involved. V(a) specifically provides that a prisoner federal Lincoln, sought In a dismissal of certain which a detainer prison had been filed because the officials had never right advised him of request the detainer disposition or of his final charges. App of the that, 42 Colo Appeals 512. The Colorado Court of ruled state, between the purpose and the "[t]he Agreement sights requires consequences the adverse of official over upon prosecution, be visited upon prisoner. Only way goals Agreement can the by requiring be achieved officials concerned to Agreement, learn of their duties under the perform conscientiously”. them 42 Colo remaining place may brought trial while be custody.” federal *17 prosecutor’s third assertions second and regard before trial is to the transfer back with inapplicable because defendant the IAD is 111(e) Article extradition under never waived ex- forms never used. The because the IAD were 111(e) argument is merit. Article tradition without disposition prisoner requests that, final states if a lodged has been of on which detainer 111(a)], request being the under Article [such made request of extradition. be deemed a waiver shall require language a defendant This does not Dep’t of Edmond v Neither does waive extradition. Corrections, (1977). App 196; 259 Mich NW2d lodged Edmond, In a Florida detainer was plaintiff, Michigan prisoner, against fur- no a ever but plaintiff When sued ther action was taken. directing Michigan the for a writ of mandamus Department detainer to strike the of Corrections records, writ his this ruled that such from Court plaintiff not never invoked could be issued because right disposition under Article III. his to final App 196, 203-204. Mich question the There was no in Edmond whether pretrial prisoner by IAD was return of a violated place plain- original imprisonment. There, of to his seeking rights arising under tiff was to enforce arti- Article III than Article IV. These two rather opposite are at coin. cles directed sides the same prisoner provides Article III a means which the expedite disposition forth can a final and sets prosecutor the remedies for those cases which upon proceed Article IV does not the detainer. may provides prosecutor means which presence trial likewise secure at defendant’s 108 op Opinion the Court prosecutor up sets remedies if the does not follow Thus, 111(e), on his initial Article efforts. under prisoner requests presumed who final is disposition IV, have extradition. waived Under Article when the prosecutor lodges a detainer and then requests temporary custody, waiver extradition Rather, is required. request once a for tempo- IV(a) rary made, provides custody is a 30- day period in governor sending state may disapprove request on his own mo- upon tion or In prisoner. motion way, transfer; contests if no motion is made within 30 days, it assumed that apparently prisoner has no to the objection move.
We likewise reject prosecutor’s suggestion that, because the state did not "IAD use forms” to *18 process Michigan, defendant’s return to defendant should not be by benefitted an of application the prohibition IAD’s return on before trial. argu- This ment, if accepted, would the emasculate entire agreement. lodged, Once a detainer is the IAD is triggered. This is it because is the detainer’s effect a prisoner’s on rehabilitation program which the IAD was to intended correct. we Were to hold that prosecutor’s the failure or to use refusal "IAD operates forms” to deprive of the benefits of agreement, we would be placing defendant at the of mercy prosecutor.
The final basis on which prosecutor asserts that the IAD inapplicable is that the transfer back was made in furtherance pur- of IAD’s pose: uninterrupted As rehabilitation. we con- above, however, cluded purpose the transfer does not matter. Defendant’s rehabilitation had already interrupted been by his transfer to Milan from Terre At point, Haute. the purpose of the IAD is to secure trial pending charges on in order that lodged
which a detainer has been place of original to his be returned prisoner may However, when possible. as soon as imprisonment Terre Haute before returned defendant was him, against trial, lodged was still the detainer would continue rehabilitation attempts any the fact that defen- fact and by be restricted Michigan to be returned surely going dant was acquiesced had months. If defendant within four Be- situation, might the result be different. IV(e) not, conclude that Article cause he did we in docket IAD was violated and the dismissed. properly 78-3658 and 78-3659 were nos. VI assigned 77-2585 to be heard docket no. Our Hobson, pleas judge L. a common Judge Donald to a pursuant Supreme in recorder’s court sitting 15, 1977, defendant assignment. On March Court on the basis disqualify Judge moved to Hobson to recorder’s that he was not elected properly in the denial of court. Defendant now claims error that motion. 27A.225(l)(c) 600.225(l)(c); empowers
MCL MSA Supreme compel judge Court to "direct and * * * court judge any court to serve as a judge”. in which law he is authorized to act as court, pleas Both the common court and recorder’s thereof, power. in this and the are included judges 2 of that statute: Under subsection *19 supreme power to direct "The court shall have the compel judge any municipal court who is an and active member of the state bar Michigan judge of the recorder’s judge district court to serve as designated judge so city court of the of Detroit. Each just perform the duties of the office shall hold court and 108 op Opinion the Court as he would had he been elected to such recorder’s court for the pal designated time he is A to serve. munici- judge court shall be limited to trial and other proceedings wherein judges elected recorder’s court act magisterial in a capacity exercising jurisdiction compa- rable to formerly cognizable justice of the peace. A judge designated district court so shall exercise jurisdiction same as judge exercisable recorder’s court of Detroit.”
Thus, question pleas whether a common judge equivalent is the municipal of a judge court or a former, district court If judge. the com- mon pleas judge may only exercise jurisdiction comparable to that formerly cognizable aby jus- tice of peace. latter, If the pleas the common judge’s jurisdiction is the same as that exercised by any recorder’s judge. court seq.; MCL 728.1 et
Pursuant to 1929 PA seq., MSA 27.3651 et the courts of justices of the peace in any city having 250,000 more than inhab- itants were consolidated into one court entitled the common pleas court. 728.1; MCL MSA 27.3651. Such pleas common courts "shall have and exer- cise jurisdiction in all suits and proceedings, both criminal, civil and to the same extent as was had and exercised by the justices of the peace of such city immediately prior to the consolidation of the Thus, courts”. was the common pleas court compa- rable to a justice court. Because justices of the peace were abolished 600.9921; when MCL MSA 27A.9921 enacted, and replaced by district courts, MCL 600.9922; 27A.9922, however, MSA it seems reasonable to conclude that the common is now the equivalent pleas court of a district court.4 This conclusion is consistent with MCL 600.9921; MCL courts, MSA municipal 27A.9921 also abolished except 600.9930(8); provided 600.9928; as in MCL MSA 27A.9928 and MCL 27A.9930(8). MSA strengthens opinion This further our *20 People (On Reh) v 305 27A.8105, 600.8105; MSA which states that no judges district court shall be elected in district in which pleas such, there is a common court. As we assignment find that of a pleas common judge to recorder’s court was within the Supreme power 600.225(2); Court’s under MCL MSA 27A.225(2), and that such was judge empowered to try first-degree defendant rape murder charges.
VII 23, 1976, April On recorder’s court Bor- judge man a discovery entered order which directed that forthwith, attorney permitted, defendant’s "be inspect copies and make of those items set forth in motion, discovery] at defendant’s ex- [defendant’s issue, pense”. regards As the motion requested of "all written discovery statements made or taken from persons having witnesses other knowledge alleged of the matters in the informa- tion”. Defendant now asserts a violation of this order because the prosecution never turned over to defendant a taped interview with Cham- Michael pion, a prosecution witness key who was an accom- plice in the rape murder with which defen- dant charged. The prosecutor counters defen- that, dant’s assertion by stating because defense counsel never requested "aural” or "video” record- ings of any witness and the order did include material, such no error occurred.5_ court, pleas comparable the common court is district to the since pleas despite the common court was retained abolition of most munic- ipal courts. prosecutor also notes that defendant made two motions before statements, Champion’s this Court on issue of both of which were first, evidentiary denied. In the hearing defendant for an moved remand 1979, By May under GCR 817.6. order dated grounds presented. motion was denied for lack of merit in the This App 108 op Opinion the Court 128, 134-135; Florinchi, 84 Mich In (1979), lv den (1978), 405 Mich 269 NW2d furnish that he would represented prosecutor This Court reports. police with all prose that, representation, held on that based "police the term interpret cutor was bound *21 to sheets. Pertinent tip to include reports” broadly trial court denied fact that the holding is the prose because discovery defendant’s 135 the Court stated: promise. page cutor’s On represented to the trial court prosecutor "Once the police reports, all defendant with that he would furnish he became ness and a broad bound, fundamental fair- in the interest of done, place justice to duty in of his to see view 'police reports’, and interpretation on the term giving away too much rather than err on the side of to too here, free, did to avoid a little. He is not as he discovery, then by agreeing voluntary to discovery order discovery to argue is not entitled to that defendant by covered within his control are not that materials 'tip sheets’ agreement they are denominated because reports.” police rather than distinguishable. prose- The present
The case is discovery by promising cutor did not avoid a order statements”, deny to furnish "written to later only tape. The conducted was discovery It permitted framed defendant’s own motion. items set inspection copying "of those forth in motion”. Defendant’s motion [defendant’s] requested, among things, for other discovery "[a]ll * * * written statements taken from witnesses or * * persons other It did not having knowledge tape include the in question._ motion, order does not affect our on June review. second denied 19, 1979, regarding requested transcript testimony an additional Champion’s tape. does not statements and the loss of the This order our affect review of the issue. People (On Reh) v by Cynar, Partial J. Concurrence Michigan in and other states is to- The trend Thus, prose- discovery. ward broader criminal contest, in participant cutor is not but merely Farrar, v justice. with a to seek duty is one (1971). 294; 193 App 36 Mich NW2d Nonethe- less, our courts have stated that repeatedly to turn prosecution required simply is not over his See, e.g., People Losey, entire file to the defense. (1980). 189; 296 98 Mich NW2d do not encourage police We want prosecutors in loopholes discovery look or- token, But it ders. the same does not ask too to require much defense counsel to state with some clarity just being sought. what Defense counsel trial the driver’s seat here —the toto. Under court granted his motion these facts, defendant, effect, where the wrote the order, discovery prosecutor required was not Champion tape furnish the to defense counsel. Affirmed.
Bashara, J., concurred. in in
Cynar, (concurring part dissenting and J. part). While I in concur the decision to affirm the 77-2585, matter of docket no. I must strongly dissent from court’s the affirmance of the lower dismissal of the 78-3658 charges docket nos. and IV(e) on the basis that Article of the 78-3659 (IAD) agreement required interstate on detainers dismissal when defendant was returned to Terre Haute before trial.
Articles I II IAD1 follows: provide and of the as "ARTICLE I outstanding charges party
"The states find that 4.147(1) Appendix seq.; seq., MCL 780.601 18 USC 2.§ et MSA et 108 by Cynar, J. Partial Concurrence indict- on untried and against prisoner, detainers based ments, in in difficulties complaints, or informations incarcerated securing persons already of speedy trial which ob- jurisdictions, produce other struct uncertainties and rehabilita- programs treatment policy party tion. the tious states and Accordingly, it is the encourage expedi- purpose agreement of this deter- orderly disposition of such proper and all detainers mination of the status indictments, or com- based on untried informations plaints. reference to such ing the purpose proceedings with also find that party The states detainers, charges and when emanat- properly had in jurisdiction, from cannot be another procedures. It co-operative is the further absence provide co-operative agreement of this such procedures. II
"ARTICLE agreement: "As used "(a) States; shall mean a state of the United 'State’ America; possession territory the United States of or Columbia; States; of the United Commonwealth the District of
of Puerto Rico. "(b) 'Sending state’ shall mean a state in which a prisoner request initiates a is incarcerated at the time he disposition pursuant
for final to Article III request custody hereof or at the time that a or pursuant availability is initiated to Article IV hereof. "(c) 'Receiving state’ shall mean the state indictment, trial is to be had on an information or complaint pursuant to Article III Article hereof.” IV majority reasons that trans- defendant was ferred from Milan to Terre trial was not scheduled months. at a time when Haute begin four for another hearing
Testimony in a federal court involving the same issue indicated that defen- dant’s transfer was initiated a United States deputy marshal he authori- who believed received prosecut- zation for such a from *23 move an assistant ing attorney undisputedly Europe in at who alleged assump- the time of the authorization. An (On Reh) by Cynar, Partial Concurrence J. per- tion should not be made that some unknown prosecutor’s gave permission son office transfer defendant from Milan to Terre Haute. Michigan, receiving state, The State of should charged, case, not be under the facts with Milan, the transfer of the defendant from a federal facility, facility. Haute, to Terre another federal
Assuming purposes argument defendant was transferred from Milan to Terre granted Haute the basis of authorization to the prosecut- federal marshal an unknown assistant ing attorney, the return to Terre Haute from Milan did not constitute a violation of IAD. Under the definitions found in II IAD, of the purposes United States ais "state” for of the IAD. part In this Milan, case the transfer was from sending part state, Haute, to Terre another sending defendant, state. The while at Milan custody Haute, or at Terre never left the sending States, United which was the state herein under the IAD. To determine in this case that a transfer occurred in violation of IAD would re- quire a determination that the transfer was from receiving sending state to the state. This we cannot do on the facts before us.
While I affirm the 77-2585, matter docket no. I would reverse the lower court’s dismissal of charges in docket nos. 78-3658 and 78-3659.