Defendants, Raymond Monasterski and John Munde, were each charged with the crimes of felony murder, MCL 750.316; MSA 28.548, and armed robbery, MCL 750.529; MSA 28.797, and were tried jointly before a jury. On May 9, 1979, a Detroit Recorder’s Court jury found Monasterski guilty as charged but found Munde guilty of armed robbery and guilty of the lesser offense of involuntary manslaughter, MCL 750.321; MSA 28.553. On May 16, 1979, Monasterski was sentenced to the mandatory life sentence in solitary confinement at hard labor on the felony-murder conviction and life in prison on the armed-robbery conviction, the sentences to run concurrently. Munde was sentenced to serve from 10 to 20 years in prison for armed robbery and from 10 to 15 years for manslaughter. Both defendants perfected timely appeals, raising numerous issues, several of which merit discussion here. Since many of the legal issues raised for our consideration are *649 common to both defendants, their appeals have been consolidated.
On March 24, 1977, at approximately 11 p.m., three men, two of whom are alleged to have been the defendants, broke into a two-family flat in Detroit. One or more of the three men severely beat the owner, Mr. Thomas, who lived in the lower flat. Mr. Thomas did not survive the attack.
The upper flat was occupied by two tenants. They heard crashing and moaning noises downstairs, apparently in connection with the breaking and entering and the assault on Mr. Thomas. Shortly after hearing the strange sounds emanating from the floor below, two masked men burst into their flat and robbed both of them. Neither tenant was able to positively identify their assailants.
Due to a general lack of evidence linking anyone to the crime, this homicide remained an "open file” for more than six months. Nearly eight months elapsed before charges were brought against defendants.
In November, 1977, a Detroit Police homicide sergeant traveled to Indiana and discussed the Thomas homicide with Umberto Iafrate, who had been arrested along with defendants Monasterski and Munde after allegedly committing a burglary there. Iafrate was offered immunity in exchange for his testimony against Monasterski, Munde, and John Brown, the other codefendant allegedly involved in the Thomas homicide. 1 Agreeing to cooperate, Iafrate was not charged with any crime arising out of the activities on March 24,1977.
On November 16, 1977, Detroit authorities ob *650 tained murder warrants against Munde and Monasterski. A detainer was filed with Indiana authorities on the same date. Following their convictions and sentencings in Indiana, defendants were returned to Michigan and were arraigned on the warrant in the instant case on December 12, 1978. Trial was ultimately set for April 30, 1979.
Defendants brought motions to dismiss, based in part upon alleged noncompliance with the Interstate Agreement on Detainers Act (hereinafter, IAD), MCL 780.601 et seq.; MSA 4.147(1) et seq., which were denied. Defendants brought several other pretrial motions as well, including a motion to preclude the introduction of evidence of alleged prior similar acts. Following the denial of the latter motion, which was challenged by way of interlocutory appeal, this Court reversed the trial judge and issued an order disallowing any testimony concerning alleged similar acts, irrespective of whether such testimony would come from the informant, police officers, or by alleged prior victims.
The testimony of informant Iafrate was the heart of the prosecution’s case against the defendants. Although his testimony was subject to the order issued by this Court that he was not to testify concerning alleged prior similar acts by the defendants, during trial Iafrate in fact gave such testimony in response to the defendants’ cross-examinations. A joint motion for mistrial was subsequently made and denied.
The first four issues that merit discussion are common to both Monasterski and Munde and will, therefore, be discussed first. The last two issues are pertinent only to defendant Munde and will be considered separately at the end of our opinion.
The first question on appeal is whether the IAD *651 is applicable to the facts of this case and, if it is, whether Article IV(c) was violated because defendants were not tried within 120 days of their transfer to Michigan.
Article IV(c) of the IAD provides as follows:
"(c) In respect of any proceeding made possible by this Article, trial shall be commenced within one hundred twenty days of the arrival, of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.”
Article V(c) of the IAD provides the statutory remedy in the event that Article IV(c) is violated:
"[I]n 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 jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice * * * >>
The threshold issue which we must decide is whether, under the facts of this case, the IAD should even apply. The people claim that it should not, contending that defendants were extradited under the Uniform Criminal Extradition Act, MCL 780.1 et seq.; MSA 28.1285(1) et seq.
As the Supreme Court recognized in
United States v Mauro,
In the instant case, on November 16, 1977, the same date that the local police authorities obtained an arrest warrant against defendants, a certified copy of the warrant was sent to the sheriff in Elkhart County, Indiana, along with the following letter:
"Dear Sir: Enclosed are certified copies of our warrant, No. 77-08731, charging Raymond Monasterski and John Munde * * * with the crimes of Murder First Degree and Robbery Armed. The above subjects are presently in your custody and it is requested our warrants be allowed as detainers. Very truly yours, Kesse Koehler, Commander.” (Emphasis added.)
This letter is sufficient to constitute a detainer. In
People v Beamon,
Although the filing of a detainer with the sending state is a necessary condition for the triggering of the IAD, it is not, in itself, sufficient. The purpose of the IAD is to require states to dispose of detainers in an expeditious manner in order to prevent interference with a prisoner’s participa *653 tion in programs of treatment and rehabilitation. Consistent with this purpose, and in light of Article IV of the IAD, which references the lodging of a detainer only to prisoners who are "serving a term of imprisonment in any party state * * *”, many courts have taken the position that the IAD does not apply unless the prisoner is actually serving a term of imprisonment in the sending state. See Anno: Validity, construction, and application of interstate agreement on detainers, 98 ALR3d 160, 185.
Several panels of this Court have reached the same conclusion. In
People v McLemore,
The IAD does not apply in the instant case because defendants had not embarked upon a program of rehabilitation in Indiana. Both were being held in a county jail in Indiana pending "extradition”. The detainers were filed before defendants were tried in Indiana, and there is nothing in the record that would indicate that any rehabilitation program had begun. While it is true that the defendants were
sentenced
prior to being sent to Michigan, we do not consider that fact particularly important since the detainer was lodged
prior
to their trials, and neither had embarked upon any program of rehabilitation in Indiana.
People v Estelle,
*654 Defendants also contend that the trial court abused its discretion in refusing to suppress evidence of their prior convictions for breaking and entering. At the pretrial motion to suppress, defendants argued that their prior convictions were for the same conduct as the underlying felony of their felony-murder charges and that evidence of these convictions would, therefore, be substantially more prejudicial than probative. Near the end of trial both defendants stated on the record that their decision not to testify on their own behalf was a direct result of the judge’s decision not to suppress their prior records.
The decision to allow impeachment of a defendant by evidence of prior convictions is within the discretion of the court but requires the court to determine whether the probative value of the evidence on the issue of credibility outweighs its prejudicial effect. MRE 609.
In
People v Crawford,
In the instant case, the judge carefully weighed these factors and decided to deny the motions to suppress. His ruling was based primarily on two factors. First, defendants’ defense was alibi, which, the court reasoned, could be fully presented by defendants’ alibi witness even if defendants chose *655 not to testify. Second, the case was essentially a credibility contest between defendants and the informant Iafrate, who would be impeached at trial by his own prior criminal record.
Although it is true that a judge should exercise extreme caution in permitting prior convictions that are very similar in nature to the pending charges to be used for impeachment purposes, we have repeatedly held that evidence of such prior convictions need not be excluded merely because it involved crimes of a similar nature to the crime charged.
People v Townsend,
This Court has often approved of the principle first enunciated in
Gordon v United States,
127 US App DC 343; 383 F2d 936 (1967), that it is proper for a trial court to allow a defendant to be cross-examined as to his previous felony convictions where there is a direct conflict between the testimony of a key witness and the defendant with the jury verdict likely turning on how the conflict is resolved by the jury. See
People v Kelly,
"[W]e note that the admission of Appellant’s criminal record here, along with the criminal record of the complaining witness, was not in a vindictive or 'eye for an eye’ sense, as Appellant argues. Rather it was received because the case had narrowed to the credibility of two persons — the accused and his accuser — and in those circumstances there was greater, not less, compelling reason for exploring all avenues which would shed light on which of the two witnesses was to be believed. ” (Emphasis added.)
*656 Just as in Gordon, the instant case was essentially a credibility contest between defendants and their alleged accomplice-turned-informer, Iafrate. There was, therefore, a compelling reason to permit the jury to explore all avenues which could shed light on whom to believe.
And, as the trial judge correctly noted, the decisional process was not adversely affected in this case due to defendants’ decision not to testify out of their alleged fear of impeachment since they were able to fully present their alibi defenses through another witness. We hold that the trial judge properly applied the Crawford factors in this case and that he, therefore, did not abuse his discretion by failing to suppress evidence of defendants’ criminal records.
Next we meet the question of whether the trial court committed error requiring reversal by instructing the jury sua sponte, after closing arguments, to disregard testimony which defendants had elicited during trial that the police had interceded in a later, unrelated case on behalf of witness Iafrate.
As we have noted, since there was no identification evidence in the case other than the testimony of Umberto Iafrate, the admitted accomplice, Iafrate’s credibility was the key issue in the case. The fact that Iafrate was testifying in exchange for immunity was placed before the jury. Following a brief hearing outside the presence of the jury, the officer in charge of the case testified that after he had agreed to give Iafrate immunity in exchange for his testimony he placed a phone call to the Sterling Heights Police on Iafrate’s behalf after it came to his attention that Iafrate had been arrested in Sterling Heights for carrying a concealed weapon (CCW). The people did not object to this *657 testimony. To the contrary, it was approved by both the court and the prosecutor.
After closing arguments, the trial court announced, sua sponte, that it would instruct the jury to disregard the testimony concerning the telephone call of the officer in charge to the Sterling Heights Police on the CCW charge. Over defense counsels’ objections, the court proceeded to give the instruction. The judge ruled that the evidence was irrelevant and had no tendency to impeach Iafrate.
As a general rule, courts have granted defendants wide latitude in cross-examining prosecution witnesses with respect to their motive for testifying. This rule has been strictly enforced where such witnesses are also codefendants or accomplices of the defendant since their testimony against the defendant is often influenced by promises or expectancies of leniency or immunity. Anno:
Preventing or limiting cross-examination of prosecution's witness as to his motive for testifying,
62 ALR2d 610, 624. Defendants are entitled to have the jury consider any fact which might have influenced an informant’s testimony. As the Supreme Court ruled in
People v Atkins, 397
Mich 163, 174;
"The focus of required disclosure is not on factors which may motivate a prosecutor in dealing subsequently with a witness, but rather on facts which may motivate the witness in giving certain testimony.” (Emphasis added.)
The people’s contention that the phone call on the CCW charge is irrelevant because it came after Iafrate had agreed to testify is simply wrong. "The interest of a witness is never irrelevant * *
People v Sesson,
The importance of broad cross-examination in establishing an informant’s interest in testifying and the narrow scope of the trial judge’s discretion with respect to such cross-examination was recognized by this Court in
People v Bell,
Recognizing the importance of a defendant’s right to cross-examine a witness on the witness’s possible motive for testifying falsely, especially where such witness is the star witness or an accomplice, the
Bell
court reversed defendant’s conviction. The same result is mandated here. For the reasons outlined above, we cannot say the court’s error, was harmless. The trial court’s instruction,
sua sponte,
prejudicially undercut defendants’ closing arguments and effectively prevented the jury from considering evidence that may have had a bearing on Iafrate’s bias and motive for testifying. See
People v Mann,
Finally, we note that testimony was produced at trial that the defendants had participated in nu *659 merous other robberies. This testimony was in direct violation of our April 25, 1979, order that no testimony be produced at trial by any witness concerning alleged similar acts. On retrial, special care should be taken by all counsel and the court to insure that our order is given strict compliance.
Defendant Munde has raised two additional issues which are material only to his appeal and which merit brief discussion.
First, defendant Munde contends that his manslaughter conviction should be reversed on the ground that it is inconsistent with his codefendant’s conviction for felony murder. Defendant Munde’s alleged involvement in the crime was as the driver of the getaway car. The testimony against him was that he dropped off the other participants and drove away, picking them up later at a prearranged location. .
The Supreme Court, in accord with the modern view, has abrogated the rule formerly followed in Michigan which required rational consistency among multiple verdicts.
People v Vaughn,
"Juries are not held to any rules of logic * * *. The ability to convict or acquit another individual of a crime is a grave responsibility and an awesome power. An element of this power is the jury’s capacity for leniency.” Id., 466.
That the mercy rationale of Vaughn is applicable to the instant case seems highly likely given the fact that defendant Munde was the getaway driver and purportedly had no knowledge of the events which caused the victim’s death until after the fact.
Although Vaughn dealt only with inconsistent *660 verdicts with respect to a single defendant, its rationale extends logically to inconsistent verdicts among multiple defendants, and the weight of authority so holds. See Anno: Inconsistency of criminal verdicts as between two or more defendants tried together, 22 ALR3d 717, and cases collected therein. In People v Stone, 213 Cal App 2d 260; 28 Cal Rptr 522 (1963), for example, the court upheld that defendant’s conviction of murder and robbery despite the fact that his codefendant had been acquitted on the murder count and convicted only of robbery. The murder was committed when both defendants in that case were in the course of holding up a supermarket, but the evidence tended to show that that defendant himself, and not his codefendant, fired the fatal shot. While agreeing that the jury’s verdict was inconsistent, the court said that it could be explained adequately by the jury’s understandable reluctance to fasten a murder conviction upon the man who did not fire the fatal shot. On this rationale, although defendant Munde could have been found guilty of first-degree felony murder, he cannot be heard to complain that the jury instead acted leniently and found him guilty only of manslaughter.
Finally, defendant Munde contends that he is entitled to jail credit for time served in Indiana from November 16, 1977, the date the detainer was filed, until December 12, 1978, the date of his extradition to Michigan. This contention is without merit.
Defendant relies upon MCL 769.11b; MSA 28.1083(2) which allows credit for presentence incarceration under certain circumstances:
"Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to *661 furnish, bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing.”
This statute was recently construed by this Court in
People v Tilliard,
Reversed and remanded as to both defendants for a new trial.
Notes
Defendants were tried jointly with codefendant Brown, whose appeal was disposed of on August 19, 1980, in an unpublished opinion (Docket No. 48291).