Defendants were charged with armed robbery, a violation of MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, a violation of MCL 750.227b; MSA 28.424(2). From convictions of
As we stated previously in
Meyers, supra,
p 721, the purpose of the Interstate Agreement on Detainers, MCL 780.601; MSA 4.147(1), is to facilitate the disposition of charges in one jurisdiction when an accused is incarcerated in another jurisdiction. Thus, Art IV(c) of the act requires the trial court to dismisss any charges brought against a defendant under the act if the defendant has not been brought to trial within the specified 120-day period. However, the 120-day time period may be tolled: (1) for any period which is the result of any necessary and reasonable continuance for good cause shown in open court with the defendant or his counsel present, (2) for any period during which the defendant is unable to stand trial, and (3) for any period of delay caused by the defendant’s request or in order to accommodate the defendant.
Meyers, supra,
p 722;
People v Cook,
Defendants were returned to Michigan on a detainer agreement on March 14, 1979. On March 15, 1979, they were arraigned in district court. The preliminary examination was held on March 26, 1979, and the defendants were bound over for trial to the circuit court. The first problem causing a delay occurred at this time. The proofs offered at the preliminary examination indicated that defendant Charles Meyers was the principal involved in the armed robbery and the felony-firearm. However, the preliminary transcript shows that the magistrate bound over defendant Daniel Meyers on charges of armed robbery and felony-firearm but bound over defendant Charles Meyers only on the charge of armed robbery. To complicate matters, the magistrate’s signed return stated that both the defendants were bound over on both charges.
On April 10, 1979, both the defendants were arraigned in circuit court. Defendant Charles Meyers objected to the filed information, arguing that he had only been bound over on a single count of armed robbery. After the prosecutor informed the court that the return indicated that defendant Charles Meyers had been bound over on both charges, counsel for defendant Charles Meyers stated: "Well, we’ll probably have to wait for the filing of the transcript.” The following day the prosecutor contacted the court reporter in attendance at the preliminary examination and requested preparation of the preliminary examination transcript.
Our further review of the circuit court’s decision on remand leads us to conclude that the court properly tolled the statute for other delays that were necessary and reasonable, and thus we reinstate the charges against the defendants. In light of our disposition of this issue, we will now address the remaining issues the defendants raised on appeal.
Defendants argue that reversal is mandated because the trial court erred in denial of their motions for separate trials. We find no merit in this assertion. There is a strong public policy in favor of joint trials, and the general rule is that a defendant does not have a right to a separate trial.
Defendants next argue that the trial court erred in allowing the prosecutor to introduce admissions allegedly made by each defendant which tended to inculpate the other. Defendants argue that the admission of these statements was prejudicial and violated the rule set forth in
Bruton v United States,
However, in
Harrington v California,
"[E]ach defendant admitted in his own confession the prejudicial information contained in the confessions of his codefendants. Where the various confessions are interlocking or substantially similar, the 'powerfully incriminating extrajudicial statements of a codefendant’ (391 US 135 ) are not present as in Bruton, and hence it is harmless error at most to admit such statements.”
We agree that the admission of the defendants’ statements was error under Bruton, since they tended to implicate a codefendant, even though neither codefendant was mentioned by name in the statements. However, we find that under the circumstances of this case, the admission of such testimony was harmless beyond a reasonable doubt.
Defendant Charles Meyers made statements, which were admitted, to the effect that he and another person had just robbed a business. Although these admissions may have implicated defendant Daniel Meyers, similar incriminating statements were made by Daniel Meyers himself. He allegedly told a witness that he drove the "getaway car” during the robbery and mentioned that a person inside the store had seen him and might be able to identify him. Since none of the statements by defendant Charles Meyers specifically referred to defendant Daniel Meyers by name, since defendant Daniel Meyers’s own admissions were substantially similar to those attributed to defendant Charles Meyers, and since the court repeatedly instructed the jury that a statement or admission of a codefendant could not be used or considered in any way against the other defen
We reach a similar conclusion with respect to the admissions of defendant Daniel Meyers which allegedly implicated defendant Charles Meyers in the robbery. Although defendant Daniel Meyers allegedly asked defendant Charles Meyers whether he would use the orange ski mask again, it was defendant Charles Meyers who allegedly stated that they should dispose of the mask because it had been used in the armed robbery. Given the inculpatory admissions attributed to defendant Charles Meyers, we are not persuaded that the admission of his codefendant’s statements prejudiced his case in any way and conclude that their admission was harmless beyond a reasonable doubt.
Defendants next argue that the trial court committed error mandating reversal by refusing the defendants’ request to instruct the jury on certain lesser included offenses. At trial, both the prosecutor and the defendants requested the court to instruct the jury on the lesser included offenses of attempted armed robbery, unarmed robbery, larceny from a person, assault with intent to commit armed robbery, and assault with intent to commit unarmed robbery. The trial court agreed to instruct the jury only on the lesser included offenses of attempted armed robbery and unarmed robbery.
In
People v Kamin,
"[I]t is clear that a defendant has a right upon request to have the jury instructed on necessarily included offenses. Further, a defendant has a right uponrequest to jury instructions on those cognate lesser included offenses which are supported by record evidence.” (Footnote omitted.)
The
Kamin
Court also held that assault with intent to commit armed robbery and attempt to commit unarmed robbery were necessarily included offenses of armed robbery, whereas larceny from the person is a cognate included offense of armed robbery.
It is clear that reversal is not automatically required for failure to instruct on a cognate lesser included offense; the harmless error rule is applicable and the test is whether the failure to give the requested instruction was prejudicial.
People v Marshall,
"A defendant’s request to instruct the jury that it may find the defendant guilty of the cognate offense of attempt to commit the charged offense or of one of the necessarily included offenses of the charged offense must therefore be granted only where there is evidence, or on jury view a lack of evidence, tending to establish the elements of the cognate offense of attempt.” (Emphasis added.)
In Adams, the defendant was originally charged with armed robbery, and the Supreme Court held that the trial court’s failure to give the defendant’s requested instructions on attempted armed robbery and attempted unarmed robbery was not error mandating reversal because the evidence at trial did not indicate that only an attempt had been committed.
In the instant case the undisputed evidence at trial indicated that the completed offense of armed robbery had occurred. The theory of the defense was that the defendants had not participated in the commission of the crime; thus, their requests for instructions on lesser included offenses were not based on their testimony, evidence, or theory of the case. In addition, the jury was instructed on two lesser included offenses and was thus given an opportunity to find the defendants guilty of a lesser offense, yet the jury returned verdicts of guilty of armed robbery for both the defendants. We conclude that the defendants here were not
Defendants next argue that the trial court erred in waiting to rule on their motions to prevent the prosecutor from using evidence of their prior convictions for impeachment purposes. The trial judge took the motions under advisement and indicated that he would rule on the matter at the completion of the prosecution’s case. Defendants argue that by refusing to rule on these motions, the trial judge impaired the defendants’ ability to adequately cross-examine the prosecution’s witnesses and hindered their ability to appear as witnesses in their own behalf.
Although it is better practice for a trial court to rule on such a motion at the time it is made, we do not conclude that a delay in such a ruling necessarily constitutes reversible error. In
People v Lytal,
Defendant Daniel Meyers next argues that the testimony of two prosecution witnesses was so prejudicial as to mandate reversal because it indicated that the defendants had been involved in criminal activities in addition to the charged armed robbery and, accordingly, the trial court should have granted his motion for a mistrial. We disagree.
In
People v
Robertson,
"The grant or denial of a mistrial motion rests in the sound discretion of the trial judge and relief is merited only after a finding of abuse of that discretion. To find reversible error, the trial court’s denial of defendant’s mistrial motion must have been so gross as to have deprived him of a fair trial and to have resulted in a miscarriage of justice.” [Citations omitted.]
Our review of the testimony in question indicates that any references by the prosecution’s witnesses to the fact that the defendants were facing other criminal charges was brief and isolated. We do not find that the testimony deprived the defendants of a fair trial, and thus the trial judge did not abuse his discretion in denying the motion for a mistrial.
Defendant Daniel Meyers also argues that the trial court erred in delaying the imposition of his sentence pending the outcome of his first-degree murder trial. Defendant contends that the resulting two-month delay in imposing sentence constituted an abuse of the trial court’s discretion. Defendant failed to cite any authority in support of this contention, and we are aware of none. It is
Defendant Daniel Meyers next argues that the trial court erred in failing to grant his motion for a mistrial based on the fact that members of the jury may have seen him in handcuffs. The prosecutor argues that the handcuffing of the defendant was done outside the courtroom during recesses and while the defendant was being transported to jail and that it was necessary for security reasons not only because the case involved a crime of violence but also because the defendant’s background necessitated these security procedures.
In
People v Herndon,
"Except in unusual situations, a defendant has a right to appear in court without handcuffs. People v Shaw,381 Mich 467 ;164 NW2d 7 (1969). However, as a matter of practical necessity, the conduct of orderly court process often unavoidably requires a defendant to appear in court in handcuffs or prison uniform. People v Carroll,49 Mich App 44 , 49;211 NW2d 233 (1973), aff’d396 Mich 408 ;240 NW2d 722 (1976). Therefore, absent a showing that such necessity was lacking or that prejudice has resulted, this Court will not reverse a defendant’s criminal conviction merely because the jury may have seen the defendant in handcuffs.”
Lastly, defendant Daniel Meyers argues that the trial court erred in denying his motion for a substitute counsel. Defendant claims that he was entitled to a substitute counsel after his defense counsel indicated that he and the defendant were having problems communicating about the case.
Although an indigent defendant is constitutionally guaranteed the right to counsel, he is not entitled to have the attorney of his choice appointed simply by requesting that the attorney originally appointed be replaced.
People v Krist,
During the pretrial proceédings in this case, defendant Daniel Meyers and his defense counsel addressed the trial court regarding the defendant’s request for substitution of counsel. Defense counsel informed the court that he wanted to discuss with defendant Daniel Meyers the witnesses which he wanted brought in and the questions which needed to be asked of the jury. Defense counsel indicated that the defendant Daniel Meyers did not want to talk to him and was not willing to cooperate with him but that the defense counsel was ready to proceed to trial if given the needed cooperation.
We find that neither the statements of defense counsel nor defendant Daniel Meyers evidence of a breakdown in the attorney-client relationship such that defendant Daniel Meyers was entitled to a substitution of counsel. Defendant Daniel Meyers did not assert that his attorney was inadequate, lacking in diligence, or disinterested in his case.
People v Ginther,
Affirmed.