*1 1979]
PEOPLE v ESTELLE at Lansing. 14, 1979, Docket No. 78-4724. Submitted June Decided November 1979. Defendant, Estelle, serving Ronald A. time in the Federal Atlanta, Georgia, brought when he first was Milan, Holding Facility Michigan. pursu- Then prosequendum ant to a writ of habeas he was County jail to Macomb and before the Macomb Circuit charged robbery. Court where he was with armed At circuit judge court defendant was told that the trial to whom the case assigned undergo that, surgery was to unless defen- judge, dant chose to stand trial before an alternate trial would delayed be at least four weeks. Defendant elected to wait for assigned judge’s expressed preference return and waiting at the Federal instead of the Macomb result, County jail. As a defendant was held at the Federal facility county charged per day plus and the $16 meals and transportation. Trial was held and defendant was convicted. requested facility pending Defendant return to the sentence but sentencing was denied. At defendant moved to that, grounds dismiss on when defendant was returned to the facility trial, jurisdiction try Milan to await the state lost Agreement him under Article of the Interstate on Detain- court, Cashen, J., Raymond ers. The R. denied the motion. appeals. Defendant Held: circumstances, Under these the Interstate on require purpose Detainers does not IV(e) dismissal. The of Article prevent disruption of the act is to of an inmate’s lodged against rehabilitation when a detainer is him. In this programs case no rehabilitative were available either at the
holding facility county jail. or the Defendant’s rehabilitation program interrupted. was not Nor was he returned to his confinement, original place Further, Atlanta. since the county paid confinement, really the cost of his he was not References for Points in Headnotes [1, 2d, 250.1, 2d, 21 Am Jur Criminal Law 250.2. §§ 31 Am Jur Extradition 28.§ 93 op Opinion the Court merely returned to the Federal authorities but was housed them trial. until Affirmed. *2 Burns, J., in T. M. concurred the result but would hold that Agreement on Detainers does not Interstate to ha- corpus prosequendum. beas ad op
Opinion the Court Agreement — — 1. Criminal Law Interstate on Detainers Stat- Custody. — Federal utes IV(e) Agreement Article of the Interstate on Detainers does not require where, following arraign- dismissal of an information trial, brought ment but before a defendant who had been Michigan penitentiary from the Federal in Atlanta was re- custody Holding Facility turned to Federal at the Federal in Milan, Michigan, being county jail rather than confined (MCL 4.147). 780.601; pending trial MSA Burns, T. M. J. Concurrence Agreement — — 2. Criminal Law Interstate on Detainers De- Corpus — — Prosequendum tainers Habeas ad Statutes. prosequendum A writ of habeas is not a detainer or a temporary custody" meaning "written for within the (MCL Agreement 780.601; the Interstate on Detainers MSA 4.147). Kelley, Attorney General, Frank J. Robert A. Derengoski, George General, Parris, Solicitor N. Prosecuting Attorney, Ap- Milbourn, Don L. Chief pellate Lawyer, Prosecuting Attorney, Berlin, and Robert John Assistant people.
for the Douglas Voss, J. M. for defendant. P.J., Before: T. and M. and D. E. Allen, Burns JJ.
Holbrook,* question impression P.J. On this of first Allen, arewe asked to decide whether Article * Appeals Judge, sitting Appeals Former Court of on the Court of by assignment 1963, 6, pursuant to Const art as amended § 1968. Detainers, 780.601; MCL on Interstate 4.147(1), prejudice dismissal with requires MSA where, arraignment but following the information charges rpbbery, on of armed before Michigan defendant, had been who Atlanta, Georgia, the Federal from to Federal at custody Milan, rather than Michigan, at jail pending in the Macomb County confined being question negative. this trial. We answer charged robbery with armed oc- Defendant was 1977, 14, in Macomb Michi- County, March curring 12, 1977, defendant was bound September gan. On re- but made bond and was charge over on arraignment. In October he went leased to await wife, but on October to see Mississippi in Mis- arrested Federal authorities incarcerated violation sissippi parole *3 he Mississippi. Following hearing a Gulfport, at penitentiary to the Federal was transferred Atlanta, In 1978 a letter and Georgia. January was delivered the Ma- corpus writ of habeas to the Federal marshall County comb authorities Michigan and to the for the Eastern District of the let- at the Atlanta Both penitentiary. warden the Federal authorities to ter and the writ directed arraign- for County deliver defendant to Macomb 25, writ ment on 1978. Pursuant to said January peniten- to the Federal defendant was transferred Haute, Indiana, to at Terre and from there tiary Milan, Michigan. On at 1, 1978, the Ma- transported he was to February County jail. comb 2, 1978, at arraigned he was February
On and county courthouse on the information defendant arraignment bond was cancelled. At the case was advised that the trial to whom the judge App 449 that, undergo surgery assigned was to was an chose to stand trial before defendant unless at least delayed trial would be judge, alternate to await the as- Defendant elected four weeks. then had return. Discussion was signed judge’s lodged would be defendant concerning where Defendant, counsel, through ex- awaiting trial. awaiting trial pressed preference a of the Macomb Federal at Milan instead facility 1978, 15, he trans- County jail. February On until ferred to Milan where he remained back 16, of During period 1978. this the State on March meal charged per day, plus Michigan was $16 transportation. expenses and costs of March 16th and concluded began Trial March 23rd, of guilty verdict jury when asked that he be Again defendant robbery. armed sentence, time to await but this returned to Milan 1978, On defendant May was denied. to ten At prison years. from six sentenced counsel moved to dismiss on sentencing defense that, defendant was transferred grounds when trial, Michigan State of to Milan to await back under Article try lost defendant jurisdiction on Detainers of the Interstate (IAD). 2, 1978, the trial court denied the May On the IAD did not grounds motion on cases where the defendant was returned writ in Six later this Court corpus. days habeas 268 NW2d prosequen- held that a writ of habeas dum (May a detainer. Fifteen later days 1978) held that a Supreme the United States Court *4 prosequendum ad not a corpus writ of habeas temporary "detainer” or a "written United IAD. meaning the of the custody” within Mauro, v 1834; 56 L Ed States 340; 436 US 98 S Ct granted. appeals by 2d 329 Defendant leave People Viewed in the totality the in- circumstances volved we do not find the confinement of defendant at the Milan a violation of the IV(e) proscription of Article of the IAD. In reach- it ing this conclusion we find unnecessary decide Mauro, supra, whether overrules this Court’s deci- IV(e) supra.1 sion Article reads: indictment, "If any trial is not had on information or complaint contemplated hereby prior prisoner’s to the being original place returned to imprisonment V(e) hereof, pursuant mation or indictment, to Article such infor- complaint shall not be of any further force or effect, and the court shall enter an distnissing order prejudice.” same with
Article I IAD states that the purpose behind prevent the statute is to disruption of an inmate’s rehabilitation when a detainer lodged is against him. As Christian v United was stated States, (DC 1978): 394 A2d App, nothing
"There
legislative
is
in the
history or in the
itself to indicate
provisions
its
were
persons
intended to
rehabilitative
avoid the
and
who were not
involved
programs.
designed
Article
shuttling
back and
jurisdictions
forth between
resulting disruptive
effect such transfers would
have on a consistent treatment program
promote
and to
speedy disposition
of outstanding charges upon
which the detainers were based.”
In the instant
case the defendant
being
was not
shuttled back and forth between the county jail
asking
Plaintiff is not
this Court to overrule Beamon and in its
light
brief concedes that “in
of this Court’s recent decision in Beamon
a writ
prosequendum”
of habeas
invokes the IAD. There
fore,
question
we do not address the
of whether
the United States
Supreme Court
question
decision in Mauro overrules Beamon. That
is
Barnes,
also raised in
(1979).
and can it trial. Neither awaiting time of period stated program uninterrupted to an right said that be at Neither infringed upon. was of rehabilitation the Macomb or at Milan the in a participate the defendant could County jail rehabilitation, neither institution since program of programs. offered such here was decided raised question
The identical ex rel Stanley in State to defendant adversely 1978). (Mo In that case Davis, App, 569 SW2d to three defendant, had sentenced who been the pa- term of three-year and a imprisonment years institution in the Federal role, confined was thereafter he Missouri. Soon Springfield, County, of Franklin the circuit court charged in and a police a officer assaulting Missouri with authorities. He was filed with detainer charges and trial on the state speedy a requested where, on June County Franklin plea a of 21, 1977, arraigned and entered he was 1977, 21, July and Trial was set guilty. not Federal institution returned to the defendant defendant and his July On Springfield. County the Franklin appeared before counsel 6, and September passed the case was Court but jail. On county defendant was incarcerated grounds on 27 counsel moved dismiss July institu- returned to a Federal when defendant was IAD did not held tion to trial. The Court await apply: that, upon history "We conclude based pur- the Act and
Agreement, the total context of 111(4), 222.160, therein, Article poses § embodied RSMo.[2] where applicable to the situation is not 222.160, same as Article RSMo. is the Article III § Michigan statute. Opinion op the Court prisoner in Missouri federal is transferred to a Missouri purposes arraignment, limited appear- court for the hearings ances or and then returned to the Federal short, In facility ble to federal-state intrastate transfers for limited applica- in Missouri. that section is not
pur- meaning poses. The intent of the statute must be by examining Agreement determined isolated the entire and not specific sections. The was meant to *6 ¿ against deprivation be shield unconstitutional of a not speedy Stanley as a sword.” State ex rel Davis, supra, 210. on point We find Davis and incorporate its reason- fact, reference. In ing by Davis is more favorable position to defendant’s than the instant case since in Davis the defendant had not requested that arraignment between and trial he be confined in the Federal institution.3
Further support our conclusion that Article IV(e) of the statute not does to the situation is in this case found the fact that while incar- at Milan paid cerated the state the costs of hous- ing and meals. Under this arrangement the defen- really dant was not returned to the Federal au- thorities but in effect was housed and merely boarded at facility pending trial. Fi- find nally, we supra, so strongly upon defendant, relied by is to inapposite instant case. There the defendant who had been to Michigan pursuant detainer from a a Haute, Indiana, Federal penitentiary Terre returned following Michigan mistrial to Terre 3 requests Numerous cases hold that where defendant he be re sending state, rights turned to the institution or defendant waives his States, supra, under the IAD. Christian v United and cases cited However, therein. some cases hold that for the waiver be effective relinquishment it must be shown that there was an intentional of a (SD right. Enright States, NY, Supp known v United 434 F 1056 1977). Since the record in the instant case does not show that IAD, rights defendant was told what his were under the we do not base our decision on waiver. App
Haute. Article uses the "original place term imprisonment”. In Beamon the defendant was the original place of imprisonment present whereas in the case defendant originally Atlanta, came from the Federal Georgia.
The remaining claims or error raised defen dant we find less substantive than the question of impression first discussed above. The trial court did not err when it refused to conduct a Walker4 hearing when a prosecution witness for the al luded to a statement made by codefendant Bel A lamy. hearing pertains Walker to the voluntari ness of a confession rather than ques the Bruton5 tion of whether the use of the con codefendant’s prejudiced fession the defendant. The witness did divulge not confession, contents of the a cau instruction tionary given trial court and the matter was not again. referred to Under these circumstances cautionary instruction was the appropriate Skidmore, remedy. People NW2d 137
After deliberating two hours jury the to the courtroom at p.m. 5 and announced they had not reached a verdict. After discussing the matter briefly foreman, with Mr. Egan, the jury following the occurred: "The Court: I keep you would rather couple more you
hours than to have if get now could a resolution of the matter you
to send
days.
home for four
Egan:
"Mr.
give
We will
college
it the old
try.
"The Court: Go
jury
back in the
room and we will
give you a reasonable time to
you
see what
can do.
4
(On
People
Rehearing),
v Walker
331;
374 Mich
"Mr. resumed deliber- p.m. jury at 5:10 the Whereupon, returned with a verdict of p.m. at 6:20 ations and the defendant that court’s disagree with guilty. We strikingly situation is was coercive. The action Mara, 290 Mich in Zeitz v to the situation similar (1939), Supreme 418 161, 164; 287 where NW The action noncoercive. judge’s held the Court demanding less instruction is even judge’s Coles, 300, 304; 184 People v App 28 Mich than (1970). found no In that case this Court NW2d find none here. error. We instructions in the trial court’s We find no error inconsistent state- regard prior jury to the examination. The preliminary at the given ments word given is taken almost instruction which 4:5:01 and is in accord with for word from CJI Mathis, Paul People 55 Mich holding disagree we that Finally, NW2d find the defendant was "instructed jury In- times of some lesser offense”. guilty eleven stead, principal court instructed on the offense included and the ten lesser of armed robbery in accord with Such an instruction is offenses. Chamblis, 408; 236 NW2d the instruction was objection and no made defendant. We find no error. by
Affirmed. J., E.
D. Holbrook, concurred. 1 concur in the (concurring). M. J. Burns, T. for the reason majority result reached United I decision here is dictated believe our *8 Mauro, 1834; L Ed 340; Ct 56 States v 436 US 98 S 458 93 449 Burns, J. T.M. Concurrence majority a member Being 2d Mich App decided closely it I have examined NW2d it from Mauro. How- distinguish attempted and ever, concede that do so and must I unable to am Mauro now controls.