People v. Anderson

• Decision Date: 06 February 1979
• Docket Number: Docket No. 78-1383
• Citation: 88 Mich.App. 513,276 N.W.2d 924
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Woodrow ANDERSON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 924

276 N.W.2d 924

88 Mich.App. 513

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Woodrow ANDERSON, Defendant-Appellant.

Docket No. 78-1383.

Court of Appeals of Michigan.

Feb. 6, 1979.

Released for Publication March 29, 1979.

Robert L. Hencken, Kalamazoo, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James J. Gregart, Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P. J., and J. H. GILLIS and V. J. BRENNAN, JJ.

PER CURIAM.

Defendant was convicted by a jury of delivery of cocaine, M.C.L. § 335.341(1) (b); M.S.A. § 18.1070(41)(1)(b), and sentenced to a term of 5 to 14 years in prison. He appeals as of right, raising four issues.

The transaction forming the basis for defendant's conviction occurred on December 2, 1975. Defendant was not arrested until April 14, 1976. He argues that this 41/2 month delay was a denial of due process because he was unable to remember the occurrence by the time of his trial.

Mere delay between the time of the commission of an offense and arrest is not a denial of due process. People v. Fiorini (On Rehearing), 59 Mich.App. 243, 229 N.W.2d 399 (1975). There is no constitutional right to be arrested. Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); People v. Noble, 18 Mich.App. 300, 170 N.W.2d 916 (1969). Rather, the guideline is whether the record presents evidence of prejudice resulting from the delay which violates a defendant's right to procedural due process. People v. White, 59 Mich.App. 164, 229 N.W.2d 357 (1975); People v. Hernandez, 15 Mich.App. 141, 170 N.W.2d 851 (1968). Defendant at bar alleges prejudice because of memory loss both his own and that of his witnesses.

Even a showing of some evidence in insufficient to mandate reversal for a pre-arrest delay. If the prosecutor is able to explain the delay, show that it was not done deliberately to prejudice the defendant, and establish that no undue prejudice resulted from the delay, then a conviction may still be upheld. Hernandez, supra, at 147, 170 N.W.2d 851, White, supra, 59 Mich.App. at 165, 229 N.W.2d 357.

The prosecution justified the delay on the ground that an earlier arrest would have impaired the undercover agent's ability to conduct an ongoing narcotics investigation. This is an adequate explanation for such a delay. White, supra, People v. Rios, 27 Mich.App. 54, 58, 183 N.W.2d 321 (1970), Rev'd on other grounds, 386 Mich. 172, 191 N.W.2d 297 (1971). There was no showing that the delay was deliberate. Finally, the trial court's finding that no undue prejudice resulted is not clearly erroneous. The requirements of Hernandez have, therefore, been met. People v. Rhymes, 62 Mich.App. 27, 233 N.W.2d 171 (1975).

Defendant next argues that the trial court erred by allowing the prosecutor to impeach him by use of a prior conviction for the sale of heroin. The court recognized and properly exercised its discretion on the matter pursuant to People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974).

The third argument raised by defendant is that he was entitled to conduct an independent analysis of the alleged cocaine. Discovery in a criminal case is within the discretion of the trial court. People v. Maranian, 359 Mich. 361, 368, 102 N.W.2d 568 (1960). At present there is no inherent right to conduct an independent scientific examination with an expert of one's own choice. People v. Bell, 74 Mich.App. 270, 275, 253 N.W.2d 726 (1977). Generally, a trial court's denial of criminal discovery is not reversible if defendant is afforded full opportunity of cross-examination. People v. Jesse Smith, 81 Mich.App. 190, 265 N.W.2d 77 (1978). In the instant case defense counsel's cross-examination of the analyst who identified the cocaine was not restricted by the trial court.

Finally, defendant argues that the prosecutor failed to comply with M.C.L. § 600.2167; M.S.A. § 27A.2167.

"(1) In a preliminary examination or grand jury proceeding, a report of the findings of a technician of the division of crime detection of the department of public health or a technician of the scientific laboratory section of the department of state police, signed by that technician, or a notarized copy of the report, may be received in evidence in place of the technician's appearance and testimony.

"(2) Prior to a preliminary examination at which the technician's report of findings will be introduced in evidence, 2 copies of the report shall be furnished to the prosecuting attorney. The prosecuting attorney shall immediately furnish 1 copy of the technician's report to the defense attorney or, if an appearance or appointment of defense counsel has not been filed, to the defendant.

"(3) The prosecuting attorney, upon receiving copies of the technician's report, shall notify the court before which the preliminary examination will be held that copies of the technician's report are in the...