People v. Woodard
People v. Woodard
Opinion of the Court
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
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 NW2d 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 NW2d 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.
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
We agree with defendant that under the standards set forth in People v Kachar, 400 Mich 78, 95-96; 252 NW2d 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 identifica
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 NW2d 35 (1978).
Reversed and remanded.
Dissenting Opinion
(dissenting). Rather than reversing I would remand this case for a Wade
United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.