PEOPLE OF MI V ARTHUR MASSENBURGAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
December 22, 1998
LC No. 92-010908
Before: Bandstra, P.J., and Griffin and Young, Jr., JJ.
Defendant appeals as of right his convictions and sentences for kidnapping, MCL 750.349;
MSA 28.581, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA
28.424(2), following a two-day jury trial in Recorder’s Court. The jury acquitted defendant of felony
murder and second-degree murder. Defendant was sentenced to life in prison on the kidnapping
conviction, consecutive to the mandatory two-year term on the felony-firearm conviction. We affirm
defendant’s convictions but remand for resentencing.
Defendant first contends that the trial court erred in denying his motion to dismiss the charges for
violation of the 180-day rule set forth in MCL 780.131; MSA 28.969(1) and MCR 6.004(D).1 We
Application of the 180-day rule is a question of law that this Court reviews de novo. People v
Connor, 209 Mich App 419, 423; 531 NW2d 734 (1995). Consideration of this issue requires that
we review the sequence of events in this case from a procedural standpoint.
Defendant was originally charged with first-degree premeditated murder, felony murder,
kidnapping, and felony-firearm arising from the drug-related shooting death of Murada Muhammad on
the night of September 4, 1992, in Detroit. In April of 1993, following a jury trial in Recorder’s Court,
defendant was convicted of felony murder, kidnapping, and felony-firearm and sentenced to mandatory
life in prison without parole. On April 10, 1995, this Court reversed
defendant’s conviction in an unpublished opinion per curiam and remanded for a new trial (People v
Massenburg, issued 4/10/95, Docket No. 166321). On October 17, 1995, after a delay of 190
days2, this Court issued a remittitur of record to return the trial court record to Recorder’s Court, which
received it on October 20, 1995.
On November 6, 1995, when an order was issued appointing counsel for defendant, the
prosecutor issued a writ to return defendant from state prison, where he was serving a sentence for a
parole violation stemming from an unrelated conviction3, for a pretrial hearing. Following two pretrial
hearings in early December 1995, a retrial date was set for April 29, 1996. Defendant, at his counsel’s
request, was returned to the state prison pending trial. On April 26, 1996, the trial court adjourned
retrial to May 20, 1996, because new counsel was appointed to represent defendant, and on May 20,
1996, the trial court again adjourned the trial until July 29, 1996.
On July 19, 1996, defendant moved to dismiss the charges for failure to comply with the 180
day rule because the prosecutor had not disposed of the untried charges against defendant, a state
prisoner, within the requisite statutory period. The trial court denied defendant’s motion, and the retrial
and resultant convictions, out of which the present appeal arises, ensued on July 29-30, 1996.
On appeal, defendant contends that the trial court erred in denying his motion to dismiss the
charges on the basis of a violation of the 180-day rule. Defendant argues that once his conviction was
reversed by this Court on April 10, 1995, the 180-day rule began to run, and because the lower court
file in this case was not returned to Recorder’s Court until after more than 180 days had elapsed, the
trial court lost jurisdiction to retry defendant. Citing People v Wolak, 153 Mich App 60, 64; 395
NW2d 240 (1986), defendant maintains that this Court’s delay in returning the file should be charged
against the prosecution, and even if the delay is not attributable to the prosecution, retrial was still barred
because more than 180 days elapsed after the trial court received the lower court file on October 20,
1995, until the first scheduled trial date on April 29, 1996. We disagree.
As the Michigan Supreme Court recognized in People v Smith, 438 Mich 715, 718; 475
NW2d 333 (1991) (opinion by Levin, J.), quoting with approval People v Loney, 12 Mich App 288,
292; 162 NW2d 832 (1968):
The purpose of the statute [MCL 780.131; MSA 28.969(1)] 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.
See also Connor, supra at 425.
This statutory purpose, however, is not served in the instant case, where defendant was
imprisoned pending the retrial because he violated his parole when he committed the instant offenses.
Under these circumstances, concurrent sentencing is neither a concern nor an option. Rather,
consecutive sentencing is mandated. MCL 768.7a(2); MSA 28.1030(1)(2).4 See also Wayne Co
Prosecutor v Dep’t of Corrections, 451 Mich 569, 572; 548 NW2d 900 (1996).
We therefore conclude that the 180-day rule does not apply to the present circumstances. See
also People v Bell, 209 Mich App 273, 279; 530 NW2d 167 (1995) (where this Court held that the
purpose of the 180-day rule did not apply in a case where the defendant, a prison inmate, had already
been convicted of six counts of felony murder in another case and was serving six mandatory life
sentences at the time of the first trial).
Defendant next alleges that he was denied a fair trial because the prosecutor, while questioning
prosecution witness Nicole Alexander about an earlier out-of-court statement that she had made to the
police, read portions of that statement to her on the record, thereby injecting prejudicial evidence into
trial for the jury’s consideration under the guise of impeachment evidence. We find no error in this
The decision to admit evidence is within the trial court’s discretion and will not be disturbed on
appeal absent an abuse of discretion. This Court will find an abuse of discretion in an evidentiary matter
where the court’s ruling has no basis in law or fact. People v Bahoda, 448 Mich 261, 289; 531
NW2d 659 (1995); People v Ullah, 216 Mich App 669, 673; 550 NW2d 568 (1996). Reversible
error may not be predicated on an evidentiary ruling unless a substantial right was affected. MRE
103(a); People v Travis, 443 Mich 668, 686; 505 NW2d 563 (1993). Reversal is required only if the
error is prejudicial under review for harmless error. People v Mateo, 453 Mich 203, 215; 551 NW2d
Nicole Alexander, originally charged as a codefendant in this case, was called as a witness by
the prosecution. She had earlier entered a plea to second-degree murder and dismissal of all other
charges against her, in exchange for a “truthful statement” regarding the death of the victim and, if called,
her testimony at trial against defendant. At defendant’s trial, Alexander testified that she remembered
nothing about the events in question. After she expressed this lack of memory, the prosecutor asked
Alexander if she remembered entering into a plea agreement with the prosecution a few months earlier.
She testified that she would not recognize the actual agreement if she saw it and did not remember
making a written statement. When shown the alleged statement, Alexander testified that the signature on
it did not look like her signature. Alexander did admit that she had been a defendant in the case and
that she had pleaded guilty to second-degree murder. However, Alexander did not recall what she had
said at her plea about the victim’s death. Over objection, the prosecutor, in an attempt to impeach or
refresh the recollection of the witness, then questioned Alexander about her prior statement and, in so
doing, read verbatim from portions of the statement, thereby eliciting inculpatory testimony concerning
defendant’s involvement in the shooting death of the victim. Alexander did not otherwise testify at trial
concerning the substance of her earlier statement reiterated on the record by the prosecutor.
We conclude that the impeachment of Alexander by the prosecutor was properly within the
bounds of MRE 607, which provides that “[t]he credibility of a witness may be attacked by any party,
including the party calling the witness.” Evidence of a prior inconsistent statement of the witness may be
admitted to impeach a witness even though t e statement tends to directly inculpate the defendant.
People v Kilbourn, 454 Mich 677, 682; 563 NW2d 669 (1997). A review of the record in the instant
case shows that the prosecutor, obviously surprised by a recalcitrant witness, questioned Alexander
about her prior statement for the sole purpose of impeaching her testimony that she did not remember
what occurred on the night in question. The prosecutor used the extrinsic evidence of the prior
inconsistent statement to impeach her, not to prove the truth of the matter asserted. The requirements
for the admission of extrinsic evidence under MRE 613(b)5 were met, and the trial court, in accordance
with MRE 1056, cautioned the jury, during its final instructions, that the evidence was admitted solely for
the purpose of judging the credibility of the witness, not to satisfy or prove any of the elements of the
charged offenses. Under these circumstances, we find defendant’s argument to be without merit.
Next, we reject defendant’s contention that he was denied a fair trial when the trial court ruled
that defense counsel could not, during closing argument, argue that the jury should consider that a
prosecution witness was granted immunity from prosecution for unrelated drug offenses. While a
witness’ motivation for testifying is always of undeniable relevance and a defendant is entitled to have
the jury consider any fact that may have influenced the witness’ testimony, People v Mumford, 183
Mich App 149, 152; 455 NW2d 51 (1990), limitation on the exploration of a witness’ bias is subject to
harmless error analysis. People v Minor, 213 Mich App 682, 688; 541 NW2d 576 (1995) (opinion
of Markman, J.); People v Morton, 213 Mich App 331, 336; 539 NW2d 771 (1995). In the instant
case, the error, if any, was harmless in light of the abundant testimony from other witnesses regarding
defendant’s role in the kidnapping of the victim. People v Gearns, 457 Mich 170; 577 NW2d 422
At trial, defendant maintained that although he did go to the victim’s apartment on the night in
question and told her “come on, let’s go,” she left voluntarily with him. On appeal, defendant therefore
contends that he was denied a fair trial when the trial court did not give his requested instruction on
consent as a defense to the charge of kidnapping. We disagree.
A review of the record indicates that in response to defense counsel’s request for the consent
instruction, the trial court responded that it would give the instruction “the way it is written in CJI.”
There was no ensuing objection and the court gave the standard kidnapping jury instruction which, as
given, made no specific reference to the defense of consent. No subsequent objection was registered
by defense counsel.
Jury instructions are to be reviewed as a whole rather than extracted piecemeal to establish
error. People v Gaydosh, 203 Mich App 235, 237; 512 NW2d 65 (1994). The instructions must
include all the elements of the charged offense and must not exclude material issues, defenses, and
theories if the evidence supports them. People v Piper, 223 Mich App 642, 648; 567 NW2d 483
(1997). However, even if somewhat imperfect, jury instructions do not create error if they fairly
presented the issues to be tried and sufficiently protected the rights of the defendant. Id. Error does not
result from the omission of an instruction if the charge as a whole covers the substance of the omitted
instruction. Id. If a defendant fails to object to the jury instruction, any error is waived unless relief is
necessary to avoid manifest injustice. MCL 768.29; MSA 28.1052; People v Van Dorsten, 441
Mich 540, 544-545; 494 NW2d 737 (1993).
We find no manifest injustice under the present circumstances. Although there was record
evidence to support the consent instruction, a review of the jury instructions as a whole does not reflect
error requiring reversal. The trial court followed the standard jury instructions and, in so doing, made it
clear to the jury that the prosecution had to show that defendant, without legal authority, forcibly
confined or imprisoned the victim and, against her will, forcibly moved her from one place to another,
and that he acted “willfully and maliciously” and without legal authority. When reviewed as a whole, the
gist of these instructions adequately conveyed that consent (or the lack thereof) was an integral element
of the kidnapping charge.
Even assuming arguendo that there was instructional error, any error was harmless because of
the absence of actual prejudice to defendant. We conclude that the jury, properly instructed, would not
have reached a different verdict had the consent instruction been given. People v Vaughn, 447 Mich
217, 235-239; 524 NW2d 217 (1994) (opinion of Brickley, J.); People v Thinel, 429 Mich 859,
859-860; 412 NW2d 923 (1987).
Defendant’s related claim of ineffective assistance of counsel on the basis of his trial counsel’s
failure to object to the kidnapping instruction as given is likewise without merit. There was no
evidentiary hearing regarding this issue b
elow. Therefore, appellate review is limited to the record.
People v Barclay, 208 Mich App 670, 672; 528 NW2d 842 (1995). After a thorough review, we
conclude that defendant has neither sustained his burden of proving that his counsel made a serious error
that affected the result of trial nor overcome the presumption that his counsel’s actions were strategic.
People v Reed, 449 Mich 375, 384; 535 NW2d 496 (1995); People v Stanaway, 446 Mich 643,
666, 687-688; 521 NW2d 557 (1994).
Defendant further argues that he was denied his due process rights to a fair trial and fair
sentencing by a neutral and impartial judge. The trial judge in the instant case also presided over the
sentencing of codefendant Alexander, whereby she pleaded guilty to a reduced charge of second
degree murder in exchange for her agreement to testify against defendant. Defendant maintains that
despite his acquittal of the murder charges, the trial judge, using information garnered at Alexander’s
plea taking, found defendant to have participated in the murder and sentenced defendant to life in prison
for kidnapping on the basis of an independent finding that defendant was guilty of murder. The trial
judge, according to defendant, should have sua sponte disqualified himself, as “he was enmeshed in
offering Nicole Alexander significant leniency in order to help convict the person whom Judge
Townsend personally believed to have committed the crime.” On this basis, defendant alleges that he is
entitled to a new trial or, at the very least, resentencing before a different judge.
The issue of disqualification has not been properly preserved for appellate review by timely
objection at trial. In any event, defendant in the instant case has not overcome the heavy presumption of
judicial impartiality in his bias challenge.
Whether a judge should disqualify himself is a question of law that is ordinarily reviewed de
novo. MCR 2.003(C)(3); Cain v Dep’t of Corrections, 451 Mich 470, 503; 548 NW2d 210
(1996). In In re Hamlet, 225 Mich App 505, 524; 571 NW2d 750 (1997), this Court summarized
the standard applicable to the issue of judicial disqualification:
Absent an actual personal bias or prejudice, a judge will not be disqualified.
MCR 2.003(B)(1); Cain v Dep’t of Corrections, 451 Mich 470, 495; 548 NW2d
210 (1996). Opinions formed by a judge on the basis of facts introduced or events that
occur during the course of the current proceedings, or of prior proceedings, do not
constitute a basis for a bias or partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment impossible. Id. at 496.
Likewise, judicial remarks during the course of a trial that are “ ‘critical or disapproving
of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a
bias or partiality challenge.’ ” Id. at 497, n 30, quoting Liteky v United States, 510
US 540, 555; 114 S Ct 1147; 127 L Ed 2d 474 (1994). Moreover, a party who
challenges a judge on the basis of bias must overcome a heavy presumption of judicial
impartiality. Cain, supra at 497.
Under this strict standard, defendant has not set forth sufficient evidence of bias during the trial
proceedings to warrant a conclusion that the trial judge should have been disqualified and a new trial
However, we do agree with defendant that resentencing is warranted under the present
circumstances. Although a defendant’s admissions or other record evidence that defendant committed a
greater offense may be considered by the court as an aggravating factor in imposing sentence, People v
Fleming, 428 Mich 408, 417-418; 410 NW2d 266 (1987); and a sentencing judge may also consider
the facts underlying uncharged offenses, pending charges, and acquittals, People v Ewing (After
Remand), 435 Mich 443, 446 (opinion by Brickley, J.), 473 (opinion by Boyle, J.); 458 NW2d 880
(1990); People v Newcomb, 190 Mich App 424, 427; 476 NW2d 749 (1991), a trial court may not
make an independent finding of a defendant’s guilt on another charge and use it as a basis for justifying a
sentence. Newcomb, supra at 427-428; People v Tyler, 188 Mich App 83, 85-86; 468 NW2d 537
The sentencing record7 in the instant case clearly reflects that the trial court improperly made an
independent finding of guilt of a crime [murder] other than that for which defendant was being sentenced
and then sentenced defendant on the basis of that finding, in contravention of established principles of
case law. See People v Dixon, 217 Mich App 400, 410; 552 NW2d 663 (1996); People v Fortson,
202 Mich App 13, 21; 507 NW2d 763 (1993); Newcomb, supra; Tyler, supra; People v Glover,
154 Mich App 22, 45; 397 NW2d 199 (1986); People v Spalla, 147 Mich App 722, 725-726; 383
NW2d 105 (1985). Therefore, we conclude that defendant is entitled to resentencing.
Prior to Cain, supra, we would have ordered resentencing before a different judge. See
People v Evans, 156 Mich App 68, 72; 401 NW2d 312 (1986). Because here the trial judge clearly
expressed an unshakable belief that defendant committed murder, even though the jury acquitted him of
the murder charges, it is reasonable to conclude that the trial judge would be unable to put out of his
mind his previously expressed findings. Under such circumstances, disqualification and reassignment
would be advisable in order “to preserve the appearance of justice.” Id. However, in Cain, supra, the
Supreme Court established rigorous standards for disqualification which have not been met in the
present case. As we noted in People v Leonard, 224 Mich App 569, 596, n 9; 569 NW2d 663
If we had ordered a remand in this case, we would conclude that this case
should not be assigned to a different judge because disqualification for bias or prejudice
is warranted only in the most extreme cases. Cain v Dep’t of Corrections, 451 Mich
470, 498; 548 NW2d 210 (1996).
Defendant’s request for reassignment to a different judge is denied for the reason that he has failed to
satisfy his burden pursuant to Cain.8
Affirmed and remanded for resentencing. We do not retain jurisdiction.
/s/ Richard A. Bandstra
/s/ Richard Allen Griffin
/s/ Robert P. Young, Jr.
MCL 780.131; MSA 28.969(1) provides in pertinent part:
Whenever the department of corrections receives notice that there is pending in this state any
untried warrant, indictment, information, or complaint setting forth against any inmate of a correctional
facility of this state a criminal offense for which a prison sentence might be imposed upon conviction, the
inmate shall be brought to trial within 180 days after the department of corrections causes to be
delivered to the prosecuting attorney of the county in which the warrant, indictment, information, or
complaint is pending written notice of the place of imprisonment of the inmate and a request for final
disposition of the warrant, indictment, information, or complaint. . . .
MCR 6.004(D) incorporates the requirements of the statutory 180-day rule set forth in MCL
780.131 et seq.; MSA 28.969(1) et seq. and provides:
(D) Untried Charges Against State Prisoner.
(1) The 180-Day Rule. Except for crimes exempted by MCL 780.131(2);
MSA 28.969(1)(2), the prosecutor must make a good faith effort to bring a criminal
charge to trial within 180 days of either of the following:
(a) the time from which the prosecutor knows that the person charged with the
offense is incarcerated in a state prison or is detained in a local facility awaiting
incarceration in a state prison, or
(b) the time from which the Department of Corrections knows or has reason to
know that a criminal charge is pending against a defendant incarcerated in a state prison
or detained in a local facility awaiting incarceration in a state prison.
For purposes of this subrule, a person is charged with a criminal offense if a
warrant, complaint, or indictment has been issued against the person.
(2) Remedy. In cases covered by subrule (1)(a), the defendant is entitled to
have the charge dismissed with prejudice if the prosecutor fails to make a good-faith
effort to bring the charge to trial within the 180-day period. When, in cases covered by
subrule (1)(b), the prosecutor’s failure to bring the charge to trial is attributable to lack
of notice from the Department of Corrections, the defendant is entitled to sentence
credit for the period of delay. Whenever the defendant’s constitutional right to a
speedy trial is violated, the defendant is entitled to dismissal of the charge with
The delay was apparently attributable to a clerical error.
On August 11, 1982, defendant was convicted of attempted possession with intent to deliver heroin
and sentenced to a term of six months to five years’ imprisonment. Immediately thereafter, defendant
was listed as an escapee and was not returned to custody until October 30, 1990. Defendant was later
paroled on March 4, 1991, for a period to expire on March 4, 1993. At the time of the instant
offenses, defendant was on parole, which was violated when he was convicted in the first trial.
MCL 768.7a(2); MSA 28.1030(1)(2) provides:
If a person is convicted and sentenced to a term of imprisonment for a felony
committed while the person was on parole from a sentence for a previous offense, the
term of imprisonment imposed for the later offense shall begin to run at the expiration of
the remaining portion of the term of imprisonment imposed for the previous offense.
MRE 613(b) provides:
Extrinsic evidence of a prior inconsistent statement by a witness is not
admissible unless the witness is afforded an opportunity to explain or deny the same and
the opposite party is afforded an opportunity to interrogate the witness thereon, or the
interests of justice otherwise require. . . .
MRE 105 states:
When evidence which is admissible as to one party or for one purpose but not
admissible as to another party or for another purpose is admitted, the court, upon
request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
The following comments were made by the trial court in sentencing defendant to life imprisonment for
the kidnapping conviction:
. . . I know that Mr. Massenburg was convicted [at the first trial] of first degree
murder, second degree murder, kidnapping and felony firearm. I already know that,
and I heard the facts in this case. And, I would be less than honest if I would say that I
wasn’t convinced because I am that he did commit murder in the first degree. He did
kill the victim in this case.
Now, just because the jury found him guilty of man – of kidnapping doesn’t
mean he did not kill because his accomplish [sic] pled guilty to second degree murder
that she helped him out.
The [first] jury found him guilty of murder in the first degree, and because of the
circumstances known only to the judge who tried the case and had it sent back here as
far as I am concerned, he did commit a murder. And, I want the record to be quite
clear that I’m aware of that. And, I can’t just ignore the fact and say oh, well, we’re
not paying any attention to that. . . .
I believed that this is the man who committed that murder. . . . And, I can’t act
blindly and say all he was convicted of was kidnapping the second time around. No,
that, that can’t, that can’t stand.
. . . [T]he Court has already ruled that a sentence of life is, no matter what the
term of years is, it is the sentence of life is greater than any term of years. So, therefore,
I won’t give any term of years.
The Court is going to sentence him to life for the kidnapping charge and we will
sentence him to each two years for the felony firearms because I believe that the crime
was committed here and the drafting of the guidelines certainly truly do not reflect the
gravity of this killing and the fact that he has no, absolutely no remorse whatsoever.
On the same day that Cain was decided, the Supreme Court also decided Ireland v Smith, 451
Mich 457; 547 NW2d 686 (1996). In Ireland, supra at 469, n 13, the Supreme Court indicated that
this Court had erred in disqualifying the trial judge because “we [the Supreme Court] have located in
this record no basis for the disqualification of the first judge.” The rationale employed by the Court of
Appeals, but rejected by the Supreme Court, was as follows:
In our view, it would be unreasonable to expect the trial judge to be able to put
previously expressed views out of his mind without substantial difficulty. United States
v Sears, Roebuck & Co, Inc, 785 F2d 777 (CA 9, 1986). We find that the
advancement of the interests of preserving the appearance of justice and fairness
outweighs other considerations here. Accordingly, we reverse the trial court’s decision
to deny plaintiff’s motion to disqualify and order this case to be heard by a different
judge on remand. [Ireland v Smith, 214 Mich 235, 251; 542 NW2d 344 (1995),
modified 451 Mich 457 (1996).]