Opinion
Docket No. 61548.
Decided May 4, 1983. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Richard H. Browne, Assistant Prosecuting Attorney, for the people.
Barbara J. Safran, for defendant on appeal.
On July 30, 1981, defendant was convicted of armed robbery, MCL 750.529; MSA 28.797, and breaking and entering an occupied dwelling with intent to commit larceny therein, MCL 750.110; MSA 28.305, following a jury trial. Defendant appeals his conviction as of right.
Defendant was arrested on January 16, 1980. At that time there were also charges pending against him in Detroit Recorder's Court. His preliminary examination on the charges in the present action was originally scheduled for February 27, 1980. However, on that date he was on trial for the Recorder's Court charges. He was convicted of the Recorder's Court charges on that same date and sentenced on March 5, 1980, to life imprisonment. Thereafter, he was transferred to the custody of the Department of Corrections and incarcerated at the Marquette Branch Prison. That transfer resulted in a further delay in conducting defendant's preliminary examination on the charges in this case. Defendant's preliminary examination on the present charges finally commenced on May 21, 1980. Following the preliminary examination, he was bound over to Oakland County Circuit Court. The prosecutor filed the information in circuit court on June 26, 1980. Trial did not commence until July 28, 1981. Defendant contends that the trial court lost jurisdiction over him since trial was not commenced within 180 days after he was sentenced in Recorder's Court.
Defendant relies on MCL 780.131; MSA 28.969(1), which provides in part:
"Sec. 1. Whenever the department of corrections shall receive notice that there is pending in this state any untried warrant, indictment, information or complaint setting forth against any inmate of a penal institution of this state a criminal offense for which a prison sentence might be imposed upon conviction, such inmate shall be brought to trial within 180 days after the department of corrections shall cause to be delivered to the prosecuting attorney of the county in which such warrant, indictment, information or complaint is pending written notice of the place of imprisonment of such inmate and a request for final disposition of such warrant, indictment, information or complaint."
The 180-day rule does not require the trial to be commenced within 180 days. Rather, it obligates the prosecutor to take good-faith action during the 180-day time period and, thereafter, to proceed promptly to ready the case for trial. People v Till, 115 Mich. App. 788, 792; 323 N.W.2d 14 (1982). If a preliminary step is taken within the 180-day period, but is followed by an inexcusable delay beyond the 180-day period which evidences an intent not to bring the case to trial promptly, the Court may find that good-faith action was not taken. People v Hendershot, 357 Mich. 300, 303-304; 98 N.W.2d 568 (1959).
In the present case, the prosecutor commenced proceedings within 180 days after March 5, 1980, the date defendant was sentenced in Recorder's Court. Therefore, we review to determine whether the period of delay which occurred thereafter establishes an intent on the part of the prosecutor not to bring the case to trial promptly.
It appears that on July 8, 1980, defense counsel filed a motion to adjourn trial so that he could go on vacation. The motion hearing was scheduled for August 8, 1980. However, defense counsel failed to appear on that date, whereupon the trial court rescheduled it for August 15, 1980. When defense counsel again failed to appear, the trial court appointed a new attorney for defendant. Subsequently, defendant's original attorney appeared and claimed that he had not been notified of the hearing dates. The court then reappointed him to represent defendant. A pretrial was scheduled for September 8, 1980. At the pretrial, defendant filed a motion for the appointment of an expert witness to conduct a fingerprint examination. Following the pretrial, trial was rescheduled for November 21, 1980. Shortly before that date, defendant moved to set the case over to the 1981 term because a transcript of the preliminary examination had not been prepared. On February 9, 1981, defendant's codefendant requested an adjournment for the appointment of a new attorney. The case was rescheduled for April 13, 1981. Defendant did not object to the adjournment nor did he move for a separate trial. It appears that defendant's codefendant left the jurisdiction prior to the date trial was scheduled to begin. It appears that that action resulted in a further delay. Thereafter, defendant made various other pretrial motions and finally moved for the dismissal of these charges on the basis of the 180-day rule. The latter motion was heard June 24, 1981. The trial court denied the motion.
In our opinion, the record does not support a conclusion that the delay which occurred beyond the 180-day period was attributable to the prosecutor or that an intent not to bring the case promptly to trial was shown. Almost all of the delay was occasioned by pretrial motions made by defendant and by the actions of defendant's codefendant. See People v Johnson, 115 Mich. App. 630, 634; 321 N.W.2d 752 (1982).
We agree with defendant that under the standards set forth in People v Kachar, 400 Mich. 78, 95-96; 252 N.W.2d 807 (1977), the complainant's identification of defendant at trial should not have been permitted. Prior to the preliminary examination, a lineup was conducted to identify another participant in the robbery. Defendant was also a participant in that lineup. Although the complainant identified the other participant, he failed to identify defendant. Thereafter, defendant's attorney requested that a lineup be conducted for the purpose of determining whether the complainant could identify defendant. The prosecutor informed defense counsel that a lineup was unnecessary since the complainant had informed him that he could not identify defendant and that the only evidence of identification would be fingerprint evidence. It is conceded that the confrontation which occurred during the preliminary examination was unduly suggestive. Furthermore, at trial the complainant admitted that he only had fleeting glimpses of defendant at the time of the robbery. In addition, the complainant stated that, even with defendant sitting at counsel table, he was not positive of identification, but that defendant looked very, very, very much like the man in his apartment. The complainant also admitted that the fact that defendant was sitting at defense table during preliminary examination had a bearing upon his ability to identify defendant at trial. None of the Kachar factors favors a finding that an independent basis exists for the complainant's identification of defendant at trial. Furthermore, the officer who investigated the crime testified that the complainant told him that he could not identify defendant and that the complainant was unable to give a description of defendant's physical characteristics. The prosecution has failed to satisfy its burden of proving that the complainant's identification of defendant at trial had an independent basis. People v Leverette, 112 Mich. App. 142, 153-155; 315 N.W.2d 876 (1982).
The error cannot be deemed harmless. The only direct evidence of defendant's participation in the crime was the identification by the complainant. Although evidence of defendant's participation would have been sufficient in the absence of that testimony, we cannot state that there is no reasonable possibility that the erroneously admitted evidence contributed to the verdict. See Leverette, supra, p 155, fn 7.
This Court does not believe that to remand this case for an evidentiary hearing would be of value. The record adequately reflects the complainant's identification processes at both preliminary examination and trial. Further elaboration would be valueless. The admission of the complainant's identification at trial requires reversal.
We reject defendant's final claim concerning the appointment of an expert witness on the issue of fingerprint evidence. No abuse of discretion is shown in the trial court's refusal to grant defendant's request. People v Thornton, 80 Mich. App. 746, 752; 265 N.W.2d 35 (1978).
Reversed and remanded.
Rather than reversing I would remand this case for a Wade hearing on whether the victim's in-court identification of defendant had a basis independent of the prior, constitutionally infirm identification. Doing so would best protect against the grave danger of irreparable misidentification as enunciated in People v Anderson, 389 Mich. 155; 205 N.W.2d 461 (1973). I would instruct the trial court that a new trial must be held unless the trial court determines that the in-court identification of defendant had a basis independent of the victim's unduly suggestive preliminary examination identification.
United States v Wade, 388 U.S. 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967).