People v. Grandberry , 102 Mich. App. 769 ( 1980 )

102 Mich. App. 769 (1980) 302 N.W.2d 573

PEOPLE
v.
GRANDBERRY

Docket No. 46489.

Michigan Court of Appeals.

Decided December 4, 1980.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Assistant Prosecuting Attorney, for the people.

Myron E. Sanderson, for defendant on appeal.

Before: DANHOF, C.J., and BRONSON and CYNAR, JJ.

PER CURIAM.

Defendant appeals of right his June 4, 1979, conviction for carrying a concealed weapon in contravention of MCL 750.227; MSA 28.424. On June 28, 1979, he was sentenced to a term of one to five years imprisonment.

The incident out of which defendant's conviction arose occurred on August 10, 1978. At that time, defendant was an inmate at the State Prison of Southern Michigan.

Defendant first asserts that the prosecution introduced insufficient proofs to sustain a conviction pursuant to MCL 750.227; MSA 28.424. A conviction under this statute requires the prosecution to prove that the weapon was dangerous per se, or that the instrument was used, or intended for use, as a weapon in a bodily assault or defense. People v Brown, 406 Mich. 215, 222; 277 NW2d 155 (1979).

In the instant case, defendant was carrying a homemade knife. The trial court, which sat as the fact finder, specifically found that this knife constituted a dangerous weapon per se. Defendant argues, however, that only the weapons specifically referenced in the statute, "daggers, dirks, or stilettos", can be considered dangerous per se. We disagree. In People v Vaines, 310 Mich. 500, 505; 17 NW2d 729 (1945), which was reaffirmed by Brown, supra, the Court held that daggers, dirks, stilettos, and similar articles may be classified as dangerous weapons per se. In our opinion, a homemade knife which is pointed and ground down on both edges may be construed as similar to a dagger, dirk, or stiletto, and thus may be permissibly classified as a dangerous weapon per se. Particularly in light of the fact that the knife was being possessed in prison, where there exists no legitimate reason for carrying such a weapon, the court's finding that it was dangerous per se was not erroneous.

Although the trial court found that defendant took the knife from another inmate in a peacemaking capacity, this does not invalidate the conviction. The court also held that defendant ultimately intended to return the knife to the prisoner who owned it.

Defendant next contends the prosecutor injected error into the proceedings by stating in her closing argument that some of defendant's witnesses belonged to the same religious organization. No objection was lodged against the remark. As such, absent a showing of manifest injustice, reversal would be unwarranted. People v Duncan, 402 Mich. 1, 15-16; 260 NW2d 58 (1977).

The purpose of the remark was to challenge the witnesses' credibility by showing how they may have been capable of communicating with one another, and thus, able to concoct a story for defendant's benefit. Assuming, arguendo, that the argument improperly injected religion into the proceedings, it is apparent that no manifest injustice resulted. The witnesses testified as to defendant's peacemaking efforts which resulted in his possession of the knife. The trial court in rendering its verdict accepted this testimony as true.

Defendant's next contention is that the 293-day delay between the time of his arraignment and the date of his trial violated his constitutional right to a speedy trial. The United States Supreme Court in Barker v Wingo, 407 U.S. 514, 530; 92 S. Ct. 2182; 33 L. Ed. 2d 101 (1972), formulated a four-factor test to be applied in determining if speedy trial rights have been violated. The factors to be considered are: length of delay, reason for delay, defendant's assertion of his right to a speedy trial, and prejudice to the defendant. This test has been adopted by the Michigan Supreme Court. People v Grimmett, 388 Mich. 590, 606; 202 NW2d 278 (1972).

The 293-day delay does not give rise to a presumption of prejudice. People v Hansma, 84 Mich. App. 138, 149; 269 NW2d 504 (1978). No actual prejudice to defendant's ability to rebut the charge was caused by the delay. Prejudice in the ability to defend is the most important consideration in determining if the constitutional right to a speedy trial has been violated.

Defendant moved for dismissal of the charges on May 21, 1979. He was tried within two weeks of the motion to dismiss. Taking this motion as an assertion of defendant's right to a speedy trial, we find that when demanded, the prosecution took appropriate steps to try the matter.

The reason for the delay was unexplained. For purposes of the right to a speedy trial, the delay is thus attributed to the prosecution. People v Forrest, 72 Mich. App. 266; 249 NW2d 384 (1976). On balance, we conclude that defendant was not denied his constitutional right to a speedy trial.

Defendant also asserts that the 293-day delay violated the 180-day rule of MCL 780.131; MSA 28.969(1). Relying on People v Loney, 12 Mich. App. 288; 162 NW2d 832 (1968), the prosecution contends that the statute does not apply to inmates who commit crimes while in prison since concurrent sentences cannot be imposed for such crimes. Recently, however, People v Moore, 96 Mich. App. 754; 293 NW2d 700 (1980), held that the 180-day rule specifically applies to offenses committed during incarceration, rejecting the Loney rationale.

We are convinced that Loney and People v Ewing, 101 Mich. App. 51; 301 NW2d 8 (1980), represent the better view.

Where a person incarcerated in a penal institution is convicted and sentenced for committing a crime while incarcerated or during escape, the term of sentence imposed for a crime so committed shall commence at the expiration of the sentence which the person is serving. MCL 768.7a; MSA 28.1030(1).

Loney expressed the opinion that the 180-day statute did not apply to the offenses committed while in prison, for which offenses mandatory consecutive sentences are to be served, reasoning:

"``In formulating the statutory language, the legislature sought to protect those who face multiple charges against undue delay in trial when they are jailed in State prison while untried charges are still pending. The statute seeks to secure to those serving sentences in a State prison the enjoyment of the rule of law which, in the absence of a statute otherwise providing, prohibits imposition of a sentence to commence upon completion or expiration of another sentence.' People v Williams (1968), 9 Mich. App. 676, 682, citing In re Carey (1964), 372 Mich. 378.

"The purpose of the statute is clear. It was intended to give the inmate, who had pending offenses not yet tried, an opportunity to have the sentences run concurrently consistent with the principle of law disfavoring accumulations of sentences. This purpose, however, does not apply in the instance of a new offense committed after imprisonment, nor where the statute, as in the case of an escape or attempted escape, sets up a mandatory consecutive sentence. The legislature was not concerning itself with the need for dispatch in the handling of a charge brought against an inmate for offenses committed while in prison.

* * *

"For the foregoing reasons, it is the opinion of this Court that the 180-day statute does not and was not intended to apply to offenses committed while in prison and for which offenses mandatory consecutive sentences are provided." People v Loney, supra, 292-293.

As stated above, we believe that Loney and Ewing express the correct view. Accordingly, we affirm the conviction and sentence in the case at bar.

Affirmed.