People v. Adams, Docket Nos. 202665

Citation232 Mich.App. 128,591 N.W.2d 44
Decision Date09 October 1998
Docket Number202666,Docket Nos. 202665
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Stephan Charles ADAMS, Defendant-Appellee. People of the State of Michigan, Plaintiff-Appellant, v. Jashubai Keshubai Desai, Defendant-Appellee.
CourtCourt of Appeal of Michigan (US)

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Roberta L. Wolfe-Bryant, Assistant Prosecuting Attorney, for the people.

James L. Feinberg, Detroit (Stuart G. Friedman, of Counsel), Ann Arbor, for Stephen C. Adams.

Williams, Williams, Ruby & Plunkett, P.C. (by Thomas G. Plunkett ), Birmingham and Stringari, Fritz, Kreger, Ahearn & Crandall, P.C. (by Martin E. Crandall ), Detroit, for Jashubai K. Desai.

Before: RICHARD ALLEN GRIFFIN, P.J., and GRIBBS and TALBOT, JJ.

RICHARD ALLEN GRIFFIN, P.J.

In these consolidated appeals, the people appeal as of right an order of the Recorder's Court granting defendants' motions to dismiss charges of first-degree murder, M.C.L. § 750.316; MSA 28.548, conspiracy to commit first-degree murder, M.C.L. § 750.157a; MSA 28.354(1), and solicitation of first-degree murder, M.C.L. § 750.157b; MSA 28.354(2). We reverse and remand.

I

Defendants were charged in 1995 with the November 3, 1983, strangulation murder of Anna Marie Turetzky in Woodhaven, Michigan. Turetzky, defendant Desai's business partner in the operation of a medical clinic, was found dead in her automobile parked behind a local motel. Desai had allegedly solicited defendant Adams to commit the murder. Following separate preliminary examinations, defendants were bound over and their cases consolidated for trial. Pertinent to this appeal, both defendants moved to dismiss the charges on the basis of prearrest delay, arguing that the prosecution's twelve-year delay in filing charges caused a loss of evidence prejudicial to defendants' right to a fair trial. In support of their motions, defendants relied on a stipulation of facts regarding unavailable witnesses and lost evidence.

According to the stipulation, the following witnesses are now deceased or otherwise unavailable: Philip Hatcher, an insurance agent who arranged life insurance policies making Desai and Turetzky beneficiaries upon the death of the other; Jintendra Surti, bookkeeper for Desai and Turetzky, who was the custodian of the clinic's banking records; Thomas McCrary, who negotiated a clinic check for $2,018 to Adams, characterized by the prosecution as the "payoff" for the homicide; Woodhaven Police Sgt. James Johnson, the preliminary investigator of the murder; Peter Slywka, Turetzky's father, who made reward offers for the discovery of the perpetrator; Dr. Ruth Higgins, a psychiatrist who was familiar with McCrary's psychiatric problems; Dr. Gregory Kaufman, who performed the autopsy on Turetzky; and Frank Raines, an associate of key witness Lawrence Gorski.

Certain physical evidence was also stipulated by the parties to be missing: tape recordings of conversations between various individuals, including defendants and an individual named Rick Lobdell, which were turned over to the police; 1 an "Anarchist's Cookbook" 2 once possessed by Adams; the contents of Adams' wallet, duffel bag, and automobile, taken from his possession following an alleged extortion attempt and beating in 1984; and, finally, a piece of tissue paper allegedly found by Turetzky family members in the victim's automobile after her murder and after a search of the car by the police. 3

Both defendants filed motions to dismiss in the trial court, arguing that all of the missing witnesses and physical evidence were potentially exculpatory and that the twelve-year delay in filing charges prejudiced their rights to a fair trial. Following an evidentiary hearing, the trial court ruled that defendants were irreparably prejudiced and unable to present a defense given the loss of testimonial and physical evidence. The trial court further found that the prosecution intentionally delayed the investigation in order to gain a tactical advantage over defendants by waiting for an anticipated change in the law that would permit the admission of Adams' inculpatory hearsay statement against Desai. The trial court granted defendants' motions to dismiss, concluding that the prosecution's reasons for delay did not justify the undue prejudice to defendants.

II

On appeal, the prosecution argues that the trial court erred in dismissing the charges against defendants. This Court reviews a trial court's ruling regarding a motion to dismiss for an abuse of discretion. People v. McCartney, 72 Mich.App. 580, 589, 250 N.W.2d 135 (1976). Upon review, we agree with the prosecution that, under the present circumstances, the trial court abused its discretion in granting defendants' motions to dismiss.

In People v. Bisard, 114 Mich.App. 784, 319 N.W.2d 670 (1982), this Court reevaluated the tripartite test of prejudicial delay originally set forth in People v. Hernandez, 15 Mich.App. 141, 170 N.W.2d 851 (1968), 4 in light of post-Hernandez developments in due process jurisprudence. The Bisard Court, supra at 788, 319 N.W.2d 670, noted:

Two United States Supreme Court cases decided after 1968 have addressed the problem of preindictment or prearrest delay. In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the Court recognized that the Due Process Clause afforded only "limited" protection to those persons who have not been arrested but observed that such persons' primary protection was in the applicable statutes of limitation. The Court explained this decision further in United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), when it established a two-part test to be used in the due process inquiry. First, the Court observed that "proof of prejudice is generally a necessary but not sufficient element of a due process claim." 431 U.S. 783, 790, 97 S.Ct. 2044, 52 L.Ed.2d 752. Second, the Court held that, in addition to the consideration of prejudice, a court was to explore the reason for the delay.[ 5 Adopting this two-part test, the Bisard Court rejected an interpretation of Lovasco that would place an "extremely heavy burden" on a defendant by requiring that the defendant prove both actual prejudice and unexplainable delay. Id. at 789, 97 S.Ct. 2044. Instead, the Court construed Lovasco in the following manner:

[W]e hold that, once a defendant has shown some prejudice, the prosecution bears the burden of persuading the court that the reason for the delay is sufficient to justify whatever prejudice resulted. This approach places the burden of coming forward with evidence of prejudice on the defendant, who is most likely to have facts regarding prejudice at his disposal. The burden of persuasion rests with the state, which is most likely to have access to facts concerning the reasons for delay and which bears the responsibility for determining when an investigation should end. [Id. at 791, 97 S.Ct. 2044.]

See also People v. Reddish, 181 Mich.App. 625, 627, 450 N.W.2d 16 (1989); People v. Loyer, 169 Mich.App. 105, 118-119, 425 N.W.2d 714 (1988); People v. Shelson, 150 Mich.App. 718, 726, 389 N.W.2d 159 (1986); People v. Dungey, 147 Mich.App. 83, 85, 383 N.W.2d 128 (1985); People v. Vargo, 139 Mich.App. 573, 579, 362 N.W.2d 840 (1984); People v. Evans, 128 Mich.App. 311, 314, 340 N.W.2d 291 (1983).

Pursuant to the requisite two-part inquiry, a defendant must initially demonstrate "actual and substantial" prejudice to his right to a fair trial. Bisard, supra at 790, 319 N.W.2d 670; People v. White, 208 Mich.App. 126, 134, 527 N.W.2d 34 (1994); 6 Dungey, supra at 88, 383 N.W.2d 128. Accord, Marion, supra at 325, 92 S.Ct. 455; United States v. Rogers, 118 F.3d 466, 474 (C.A.6, 1997); United States v. Brown, 959 F.2d 63, 66 (C.A.6, 1992); United States v. Lash, 937 F.2d 1077, 1088 (C.A.6, 1991). In this context, as one federal court has explained, a defendant must show not only "actual prejudice, as opposed to mere speculative prejudice ... but also that he show that any actual prejudice was substantial--that he was meaningfully impaired of his ability to defend against the state's charges to such an extent that the disposition of the criminal proceeding was likely affected." Jones v. Angelone, 94 F.3d 900, 907 (C.A.4, 1996). See also Rogers, supra at 476. This Court has reiterated that proof of "actual and substantial" prejudice requires more than generalized allegations:

A defendant shoulders the burden of coming forward with evidence of prejudice. Until he does so, the prosecution's burden--to persuade the court that the delay was justified in the face of any resulting prejudice--is not triggered. The imperfection of a witness' memory may be exposed to the trier of fact during direct or cross-examination and may be emphasized to buttress or undermine credibility. If such absence of memory by a defendant's material witness due to a lengthy prearrest delay seriously impedes or significantly hinders a defendant in presenting his case, prejudice, of course, would be shown, and the prosecution would be required to demonstrate how that prejudice was justified by the prearrest delay. In this case, however, no such impediment or hindrance was manifest. Moreover, we decline to accept defendant's assertion on appeal that "the exceptionally long delay in the present case should itself raise a strong inference of prejudice." Without specific references to instances of prejudice-generating occurrences, and without specific allegations of actual prejudice resulting therefrom, the prosecution would be at an insuperable disadvantage indeed in attempting to show how such unspecified prejudice was in fact justified. We will not put the...

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