PEOPLE
v.
WYNGAARD
Docket No. 83519.
Michigan Court of Appeals.
Decided April 21, 1986.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Robert E. Weiss, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.
George R. Hamo, P.C. (by George R. Hamo), for defendant.
Before: BRONSON, P.J., and R.B. BURNS and R.C. KAUFMAN,[*] JJ.
R.C. KAUFMAN, J.
The defendant, Raymond L. Wyngaard, was convicted on two counts of armed robbery, MCL 750.529; MSA 28.797, by a jury in Genesee County Circuit Court on December 11, 1984. The defendant was sentenced to from twenty to forty years in prison on January 2, 1985. From his conviction and sentence, the defendant appeals as of right.
The defendant was accused of robbing the Holy Cross Shop, located in Mt. Morris, Michigan, at approximately 2:30 P.M. on December 1, 1983. Colleen Ann Clark, the shop's salesclerk, testified that a man entered the store and questioned her about the working condition of her car which was parked nearby. After conversing with her for a few minutes, the man displayed a gun and ordered her and another employee, Marilyn Grubbs, to lie on the floor. He took Grubbs's keys and gave them to another man who entered the store. The second man locked the front door. Shortly thereafter, Sharon Ballance, an Avon lady, had the misfortune of using the back entrance of the store to deliver Avon products. The first robber ordered her to sit on the floor and took her car keys. He then escorted the three women to a back room where he tied their hands and ordered them to *110 remain there until 3:30 P.M. After they freed themselves, they discovered that approximately $100 was taken from the cash drawer and Ballance's car was gone.
Detective Frederick Throsby of the Mt. Morris City Police Department and Jerome Nolon of the FBI investigated the robbery. Nolon suspected a link between the Holy Cross Shop robbery and a subsequent bank robbery which occurred in Mt. Morris. On December 5 and 9, 1983, Throsby displayed photo lineups to the victims, who failed to recognized the perpetrators.
The defendant was arrested on February 6, 1984, by police from another agency on charges of aiding and abetting prison escape, conspiracy to commit prison escape, and parole violation. He was lodged in Washtenaw County Jail. Meanwhile, Throsby and Nolon continued their investigation of the Holy Cross Shop robbery. In March, 1984, the defendant and a man named Carl Pritchard became suspects. The witnesses identified the two men in a photo lineup on March 21, 1984. The defendant was arraigned on charges of armed robbery on June 19, 1984. The defendant raises three issues in support of his appeal.
The defendant first contends that the delay in bringing him to trial violated his rights to due process and a speedy trial under the constitution and the 180-day rule. The robbery of the Holy Cross Shop occurred on December 1, 1983. On March 26, 1984, approximately 117 days later, an arrest warrant was issued. The defendant was arraigned 86 days after the warrant's issuance on June 19, 1984. About 202 days elapsed between the robbery and arraignment. The preliminary examination was held on August 22, 1984, and trial began on December 4, 1984.
Turning first to the due process claim, the defendant *111 complains that the delay in obtaining the arrest warrant and its execution infringed on his right to a fair trial. Generally, a defendant possesses a right to a speedy trial. People v Noble, 18 Mich App 300, 302; 170 NW2d 916 (1969). Principles of due process require dismissal of charges if unjustifiable, preaccusation delay deprived the defendant of the opportunity to prepare a defense. People v Nuss, 405 Mich 437, 452-453; 276 NW2d 448 (1979).
The preaccusation delay in this case was justifiable and the defendant failed to prove prejudice. The Flint office of the FBI did not suspect the defendant until March 2, 1984, when an FBI agent in Phoenix, Arizona, relayed a tip implicating the defendant to Agent Nolon in Flint. The Phoenix FBI mailed Nolon photographs of the defendant, which he and Detective Throsby presented to the witnesses on March 21, 1984. The investigating officers learned of the defendant's whereabouts on March 26, 1984. The delay in arresting the defendant after the warrant was issued occurred because the police wanted to extradite the defendant's accomplice from another state and try them together. When this proved impractical, Detective Throsby arranged for transportation of the defendant from Washtenaw County Jail to Genesee County. He encountered various problems, including the unavailability of air transportation, the absence of the defendant from the county jail in order for him to face charges elsewhere, and a request from the defendant's attorney to keep him in Washtenaw County. No evidence was presented below showing prejudice to the defense. The defendant merely asserts that his loss of memory during the delay prevented him from preparing a defense.
With regard to the speedy trial claim, the Court must consider the length of the delay, the reasons *112 for delay, and whether the defendant demanded a trial. People v Grimmett, 388 Mich 590, 606; 202 NW2d 278 (1972). The defendant must prove prejudice when the delay is under 18 months. People v Collins, 388 Mich 680, 695; 202 NW2d 769 (1972). The length of delay in the instant case was well under 18 months, so the defendant carries the burden of establishing prejudice. As discussed above, he has not met this burden. Additionally, the defendant did not assert his right to a speedy trial.
The defendant's contention that the 180-day rule was violated is void of merit. First, the defendant raises this argument for the first time on appeal and, therefore, it has not been preserved for appellate review. Second, the 180-day rule applies to persons incarcerated in a state penal institution. MCL 780.131 et seq.; MSA 28.969(1) et seq. At the time the warrant was issued, the defendant was lodged in the Washtenaw County Jail and, hence, the 180-day rule is inapplicable. See People v Hastings, 136 Mich App 380, 382; 356 NW2d 645 (1984).
Defendant's second argument on appeal is that his right to counsel was violated when a photo lineup occurred while defendant was jailed in another county. The right to counsel at pretrial photo lineups attaches when the accused is in custody, readily available, or the focus of investigation. People v Anderson, 389 Mich 155, 186-187; 205 NW2d 461 (1973); People v Harrison, 138 Mich App 74, 76-77; 359 NW2d 256 (1984). This issue requires this Court to determine whether the defendant's right to counsel had attached when the photo lineup was held on March 21, 1984. Prior to March 21, 1984, the defendant was merely a suspect and the police acquired probable cause to arrest him only after the witnesses made a positive *113 identification. Although the defendant was incarcerated in Washtenaw County Jail, the investigating officers learned of his whereabouts on March 26, 1984. Apparently, the defendant argues that the investigating officers should have communicated with officials in Washtenaw County to locate the defendant. According to Detective Throsby, he could not have discovered the defendant's location unless he called each of the eighty-three county jails in Michigan. The rule that a defendant is entitled to counsel at a corporeal lineup, as opposed to a photo lineup, when he is in custody usually requires that custody be pursuant to the offense in relation to which the lineup is held. In this case the defendant, although in custody, was not in custody on the charge to which the photo lineup was related. To impose the duty on law enforcement officials which the defendant seeks to have this Court impose would be wholly unrealistic.
Defendant's last argument on appeal is that the trial judge failed to articulate sufficient reasons for departing from the sentencing guidelines when he merely reiterated the factors already calculated into the guidelines. At the sentencing hearing the trial judge noted that the defendant was forty-seven years old and had spent most of his life in prison after being convicted of eleven felonies over a period of time. The judge concluded that the defendant was unresponsive to rehabilitation and that concern for community safety dictated a harsher sentence than recommended by the Sentencing Information Report (SIR).
The defendant argues that the judge's reasons for departing from the SIR were invalid because the guidelines already considered prior convictions. This Court rejected the same argument in People v Diamond, 144 Mich App 787; 376 NW2d *114 192 (1985). The Diamond Court reasoned that the guidelines encouraged judges to depart from the guidelines and articulate their reasons for such departure to facilitate improvement of the system. A trial judge's reasons for departing from the SIR can be factors already considered by the guidelines.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.