People v. Kline
Opinion
J. L. Banks, J.
This case raises a number of issues surrounding the defendant’s plea of guilty to armed robbery.
First, defendant argues that the trial court erred when it did not suppress evidence seized at the time defendant and others were arrested. Defendant was arrested on the anonymous tip of a citizen shortly after the armed robbery of a clothing store in the City of Detroit. Based only on the citizen’s tip, the police went to 15876 Santa Rosa, announced their presence and broke into the residence when they heard movement inside. Evidence then seized connected the defendant and others with the armed robbery. The trial court refused to suppress evidence seized without a warrant on the basis that the officers were in "hot pursuit”. We disagree. Payton v New York, 445 US 573, 589-590; 100 S Ct 1371; 63 L Ed 2d 639 (1980), Aguilar v Texas, 378 US 108; 84 S Ct 1509; 12 L Ed 2d 723 (1964), People v Casey, 102 Mich App 595, 599; 302 NW2d 248 (1980), aff’d 411 Mich 179; 305 NW2d 247 (1981), People v Strelow, 96 Mich App 182, *735 190-192; 292 NW2d 517 (1980). However, because defendant pled guilty, we find the unlawful search and seizure issue waived. Tollett v Henderson, 411 US 258, 267; 93 S Ct 1602; 36 L Ed 2d 235 (1973).
The second issue concerns the extent to which a trial judge should participate in plea and sentence negotiations. The record herein shows that, in the plea-taking process, the trial judge cross-examined the defendant at length and actively bargained with him from the bench. 1 It is apparent that it *737 was the judge who negotiated the plea and the sentence in this case.
While it is true that the court rule, GCR 1963, 785.7(2)(a), (b) and (4)(b), does not expressly prohibit a trial judge from entering into plea negotiations, the better rule is, we feel, embodied in FR Crim P 11(e). 2 See United States v Werker, 535 F2d 198 (CA 2, 1976), and Griffith v Wyrick, 527 F2d 109 (CA 8, 1975). We also agree with thoughts expressed by Judge Kelly in People v Mathis, 92 Mich App 670, 674-675; 285 NW2d 414 (1979), and *738 People v Bennett, 84 Mich App 408, 413-414; 269 NW2d 618 (1978), that the trial judge "should be called upon in open court to approve the plea bargain reached by the adversaries, but should not be the instigator of, nor the conduit for, negotiations”. Mathis, supra, 675.
However, although the trial judge acted imprudently by participating in plea and sentence negotiations, we decline to reverse on that ground since such participation is not expressly prohibited by court rule, statute or Supreme Court ruling. We would instead urge that the Supreme Court consider the amendment of GCR 1963, 785 to expressly prohibit such plea and sentence negotiations.
Finally, we observe that trial counsel and the trial court had before them substantial evidence that, at the time of the plea, defendant’s mental capacity was in question. Because a defendant must be competent in order to plead guilty, People v Matheson, 70 Mich App 172; 245 NW2d 551 (1976), we remand to the trial court and direct that new counsel, other than the attorney who represented the defendant in the plea proceedings, be appointed. We further direct that the trial court commit the defendant to the Center for Forensic Psychiatry for an evaluation of competency.
Remanded.
Free access — add to your briefcase to read the full text and ask questions with AI
318 N.W.2d 510 (People v. Kline) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.