People v. Hammond, Docket No. 77-4051

• Decision Date: 06 June 1978
• Docket Number: Docket No. 77-4051
• Citation: 84 Mich.App. 60,269 N.W.2d 488
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. William Lee HAMMOND, Defendant-Appellee. 84 Mich.App. 60, 269 N.W.2d 488
• Court: Court of Appeal of Michigan — District of US

Page 488

269 N.W.2d 488

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. William Lee HAMMOND, Defendant-Appellee.

Docket No. 77-4051.

84 Mich.App. 60, 269 N.W.2d 488

Court of Appeals of Michigan.

June 6, 1978.

Released for Publication Sept. 7, 1978.

[84 MICHAPP 62] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter D. Houk, Pros. Atty., Michael G. Woodworth, Asst. Pros. Atty., for plaintiff-appellant.

William E. Collette, Lansing, for defendant-appellee.

Before ALLEN, P. J., and V. J. BRENNAN and CAVANAGH, JJ.

V. J. BRENNAN, Judge.

Defendant William Lee Hammond was charged with armed robbery, contrary to M.C.L. § 750.529; M.S.A. § 28.797. Trial commenced in Ingham County Circuit Court before Judge Ray C. Hotchkiss on August 20, 1975. Due to delay resulting from the trial court's orders regarding admission of defendant's confession and competency of an alleged accomplice to testify in the interlocutory appeal to this Court from the trial judge's order, defendant filed a motion to dismiss for lack of a speedy trial which was argued before the trial judge on May 20, 1977, and subsequently granted. The people appeal as of right from the resulting order dismissing the charge against defendant. GCR 1963, 806.1.

[84 MICHAPP 63] This prosecution arose out of an incident occurring at a Seven-Eleven Food Store on February 28, 1975. At that time, Rodney Kroes, attending the store, was approached by two men with a pistol who robbed the store of $196. David Forquer, one of the assailants, was the person in possession of the gun, a J. C. Higgins, .22-caliber pistol. Forquer and his accomplice, Steven Gossett, were apprehended shortly afterward by Lansing Police Officers who observed the suspects running from the store. Rodney Kroes immediately identified the suspects as the men who had assaulted and robbed him.

Defendant Hammond became involved with the case when the J. C. Higgins .22-caliber pistol was traced to his possession through the registered serial number. Testimony at defendant's trial indicated that the pistol had been in defendant's possession. Further testimony of Dale Davis, a Lansing police officer, indicated that defendant had taped a confession on March 4, 1975. Though ruled voluntary and, therefore, admissible in a separate pre-trial hearing, the trial court later sustained defendant's objection to admission of the confession on grounds that the corpus delicti of aiding and abetting an armed robbery had not been established. The trial court also granted a defense motion to suppress the testimony of accomplice Steven Gossett. Plaintiff subsequently challenged these orders by interlocutory appeal to this Court and we reversed the trial court's action on April 20, 1976. After an appeal of our decision by defendant to the Michigan Supreme Court was denied, the case was set for trial again on May 24, 1977. Defendant then moved to dismiss for lack of a speedy trial, which motion was granted by the trial court, and from the order on which the prosecution now appeals.

[84 MICHAPP 64] We must decide whether the trial court erred in granting defendant's motion to dismiss charges on the ground that defendant had been denied a speedy trial where defendant's trial commenced within the statutorily mandated 180 days after arrest but had not concluded 27 months after arrest.

Before commencing review of the plaintiff's claim, we would refer to the included chronology of events in this case. ¹ We recognize at the outset [84 MICHAPP 65] that the right of an accused to have a speedy trial is guaranteed by both the United States and Michigan Constitutions. U.S.Const. Am. VI, Const.1963, art. 1, § 20. In addition, the Legislature has imposed certain time frames for the prosecution of indicted and imprisoned persons. M.C.L. § 767.38; M.S.A. § 28.978. This statute provides:

"Every person held in prison upon an indictment shall, if he require it, be tried at the next term of court after the expiration of 6 months from the time when he was imprisoned * * *."

M.C.L. § 780.131; M.S.A. § 28.969(1) also provides in pertinent part:

" * * * such inmate shall be brought to trial within 180 days after the department of corrections shall cause to be delivered to the prosecuting attorney of the county in which such warrant, indictment, information or complaint is pending written notice of the place of imprisonment of such inmate and a request for final disposition of such warrant, indictment, information or complaint."

According to the stipulated facts, defendant's trial commenced within six months after the date he was imprisoned. Therefore, the threshold question we must resolve is whether defendant's failure to receive a speedy judgment violated his right to a speedy trial.

[84 MICHAPP 66] Speedy trial cases have for the most part focused on either the length of time between the defendant's arrest and trial or the length of time between indictment and arrest. We find only one reported decision in which the defendant challenged a protracted trial as a denial of his right to a speedy trial. Campodonico v. United States, 222 F.2d 310 (CA 9, 1955).

In Campodonico, defendant was charged with income tax evasion. Judgment against defendant was entered approximately 10 months after final argument in his case and approximately one year and two months after the commencement of his trial. Although the Court of Appeals did not expressly rule that the right to a speedy trial extends to a speedy judgment or resolution of the case against the defendant, its analysis implies that the right does so extend. The Court in that case excused the delay between the end of trial and judgment on the basis that the case involved a complex legal issue and that defendant did not demand a speedy trial, thereby waiving any such right.

We find appropriate in this instance an analogy with cases involving undue delay between arrest and commencement of trial. See Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In attempting to resolve whether a speedy trial right has been violated, both the United States and Michigan Supreme Courts have employed a "balancing test". In Barker, the Court devised an approach to speedy trial claims which weigh the following four factors: length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. The Barker approach has been adopted by Michigan courts. People v. Grimmett, 388 Mich. 590, 202 [84 MICHAPP 67] N.W.2d 278 (1972), People v. Collins, 388 Mich. 680, 202 N.W.2d 769 (1972).

Although not determinative of a speedy trial claim, length of delay is a factor that triggers an investigation of the speedy trial issue. People v. Chism, 390 Mich. 104, 211 N.W.2d 193 (1973). People v. Classen, 50 Mich.App. 122, 126, 212 N.W.2d 783 (1973). Approximately 27 months elapsed between defendant's arrest and the trial court's grant of his motion to dismiss on speedy trial grounds. We find this length of time sufficient to require a balancing of the factors involved in this case. People v. Petrov, 75 Mich.App. 532, 255 N.W.2d 673 (1977).

Time reasonably consumed on appeal is not considered in derogation of defendant's speedy trial right. People v. Chism, supra, 390 Mich. at 113, 211...