People v. Mayes , 78 Mich. App. 618 ( 1977 )

78 Mich. App. 618 (1977) 261 N.W.2d 22

PEOPLE
v.
MAYES

Docket No. 26073.

Michigan Court of Appeals.

Decided September 21, 1977.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Anne B. Wetherholt, Assistant Prosecuting Attorney, for the people.

Cornelius Pitts, for defendant.

Before: J.H. GILLIS, P.J., and BRONSON and R.E. ROBINSON,^[*] JJ.

PER CURIAM.

Defendant was convicted of possession of heroin with intent to deliver. MCLA 335.341(1)(a); MSA 18.1070(41)(1)(a). He appeals as of right, raising several issues.

The most difficult issue raised by defendant involves his sentence of 12 to 20 years, which was made consecutive to a Federal sentence. Defendant was convicted in Federal court on September 10, 1974. He was sentenced in that case on November 21, 1974. The crime for which he was convicted in the instant case occurred on October 16, 1974.

The statute on which the trial court relied in imposing the consecutive sentence, MCLA 768.7b; MSA 28.1030(2), provides:

"When a person, who has been charged with a felony and pending the disposition of the charge, commits a subsequent offense which is a felony, upon conviction or acceptance of a guilty plea of the subsequent offense, the sentences imposed for conviction of the prior charged offense and any subsequent offense, may run consecutively." (Emphasis added.)

The problem we face is what is meant by "pending the disposition of the charge" in this statute.

In People v Sanders, 58 Mich. App. 512; 228 NW2d 439 (1975), the Court held that an action is still "pending" for purposes of MCLA 768.7b; MSA 28.1030(2), during the polling of the jury. However, in so holding, the Court did not try to define the outer parameter of a "pending" action, it simply held that an action was pending when the jury was being polled.

People v Leal, 71 Mich. App. 319; 248 NW2d 252 (1976), held that a charge was no longer pending once the defendant had been sentenced.^[1]

The rationale of the statute authorizing consecutive sentencing was explained in People v Bonner, 49 Mich. App. 153, 158; 211 NW2d 542 (1973):

"The purpose of the statute is to deter persons accused of one crime from committing others by removing the security of concurrent sentences should conviction result on any or all of the crimes so committed. Such a purpose is laudable, rational and the statute reasonably tends to achieve that purpose." (Citation omitted.)

If consecutive sentences were not allowed, a defendant in a pending action would have the security of knowing that the sentence for a second felony committed will run concurrently with the sentence imposed for the first felony. The sentence for the second felony would be minimized. Thus, the Legislature passed MCLA 768.7b; MSA 28.1030(2) to deter charged persons from committing a second felony by removing the security that the sentence must run concurrently with the first. In order to achieve the deterrent effect obviously intended by the Legislature, we will construe this statute liberally under existing case law.

People v Leal, supra, held that a charge is no longer "pending" for purposes of this statute after sentencing. Conversely, a charge should be deemed pending until sentencing in order to effectuate the intent of the Legislature.^[2]

We need not decide the farthest reach of MCLA 768.7b; MSA 28.1030(2) here. In the instant case, the second felony was committed before sentencing on the first charge. It was therefore committed "pending disposition of that charge". The consecutive sentence imposed by the trial judge was proper.

The evidence against defendant in this case was obtained in a search of premises located in the City of Detroit at which defendant and several others were present pursuant to a search warrant signed by a judge of the Detroit Common Pleas Court. Defendant contends that Recorder's Court has exclusive jurisdiction to issue such warrants under MCLA 726.11; MSA 27.3561, and that the search was therefore illegal. This precise issue was decided by this Court in People v Moss, 68 Mich. App. 614; 244 NW2d 1 (1976). Detroit Common Pleas judges may issue search warrants for premises within the City of Detroit.

Defendant raises several other alleged defects with the search warrant. First, he contends that the reliability and credibility of an undisclosed informant, upon whose information the warrant was issued, was not adequately established. This contention is meritless. The affidavit states that the informant had given reliable information in the past and that he personally observed the heroin at the subject premises. Credibility and reliability were adequately established. Spinelli v United States, 393 U.S. 410; 89 S. Ct. 584; 21 L. Ed. 2d 637 (1969), People v Davis, 72 Mich. App. 21; 248 NW2d 690 (1976). Second, the police complied with MCLA 780.656; MSA 28.1259(6) in executing the warrant. The corroborated testimony of one officer established that he yelled, "Police officers. I have a search warrant. Open the door". As the police were refused admittance after announcing their authority and purpose, they could properly break into the house to execute the search warrant. Third, there is no evidence that the information in the warrant was stale. The affidavit recites that it had been "just received" on the day the warrant was issued. Finally, there was no need for the warrant to be approved by a prosecutor. MCLA 764.1; MSA 28.860 applies only to arrest warrants.

Defendant contends that the trial court erred by allowing evidence of possession of weapons by the occupants of the premises searched. This evidence was properly admitted as part of the res gestae of the execution of the search warrant. See People v Kayne, 268 Mich. 186; 255 N.W. 758 (1934), People v Jones, 64 Mich. App. 659; 236 NW2d 531 (1975), People v Andrews #1, 52 Mich. App. 719; 218 NW2d 379 (1974), modified, 392 Mich. 775 (1974).

Defendant argues that the trial judge's comments during trial "pierced the veil of judicial impartiality". We have examined the record in this case closely and find no evidence of partiality. See People v McIntosh, 62 Mich. App. 422; 234 NW2d 157 (1975), People v Rogers, 60 Mich. App. 652; 233 NW2d 8 (1975).

Defendant claims error in three instances where witnesses volunteered information that was not responsive to the prosecutor's questioning. Generally, unresponsive answers cannot be the basis of reversible error. People v Swann, 44 Mich. App. 329; 205 NW2d 281 (1973). The three instances complained of do not amount to reversible error.

Finally, contrary to defendant's contention, it was not error for the trial judge to refuse to give a requested instruction on circumstantial evidence. The prosecution's case was premised solely on direct, not circumstantial, evidence. Cf. People v Davenport, 39 Mich. App. 252; 197 NW2d 521 (1972).

Defendant's other assignments of error are without merit.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] The defendant in Leal had been sentenced to probation. He pleaded guilty to attempted possession of heroin during the probationary period. This Court held that the sentence for violating probation could not be made consecutive to the sentence for attempted possession, as the original charge was no longer "pending" when the attempted possession crime was committed.

[2] By analogy, a Sixth Amendment "criminal prosecution" continues at least until sentencing. See Mempa v Rhay, 389 U.S. 128; 88 S. Ct. 254; 19 L. Ed. 2d 336 (1967). If "pending disposition of a charge" is equivalent to "during a criminal prosecution", the statute would certainly apply to felonies committed before sentencing.