People v. Asher, Docket No. 5673

• Decision Date: 20 April 1971
• Docket Number: No. 1,Docket No. 5673,1
• Citation: 189 N.W.2d 148,32 Mich.App. 380
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald ASHER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 148

189 N.W.2d 148

32 Mich.App. 380

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald ASHER, Defendant-Appellant.

Docket No. 5673.

Court of Appeals of Michigan, Division No. 1.

April 20, 1971.

Released for Publication Aug. 17, 1971.

Daniel H. French, Lipton, Papista & Garfinkle, George L. BeGole, BeGole, Lukimski & Maddock, Detroit, Norman L. Zemke, Detroit (of counsel) for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Arthur N. Bishop, Asst. Prosecuting Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and J. H. GILLIS and QUINN, JJ.

LESINSKI, Chief Judge.

Defendant was charged with the sale and possession of marijuana and was subsequently convicted by jury of illegal possession of that drug. M.C.L.A. § 335.153 (Stat.Ann.1957 Rev. § 18.1123). In an earlier opinion ¹, we dealt with defendant's allegation that the statutory '180-day' rule had been violated. M.C.L.A. §§ 780.131, 780.133 (Stat.Ann.1970 Cum.Supp. §§ 28.969(1), 28.969(3)). Mindful of the requirement that the prosecutor must begin good faith action against an accused already in the custody of the Department of Corrections on another sentence within 180 days from the time the prosecutor receives notice of the accused's incarceration. People v. Hendershot (1959), 357 Mich. 300, 98 N.W.2d 568, and concerned that the prosecutor's lack of diligence in transporting defendant from the State Prison of Southern Michigan at Jackson, Michigan, to court on several occasions (thus causing several delaying adjournments) had a direct bearing on the prosecutor's good faith in bringing defendant to trial, we remanded the cause to the trial court for the making of a testimonial record for the purpose of permitting the trial court to redetermine the prosecutor's alleged violation of the $180-day' rule. This record on remand has been completed and we are now prepared to pass upon this and other assignments of error presented by defendant.

The statute does not require actual trial within the 180-day period, but only the taking of good faith action within that period by the prosecution to begin the process and the prosecution's proceeding promptly towards readying the case for trial. People v. Hendershot, Supra, p. 304, 98 N.W.2d 568. ² Thus, the test of whether the statute has been violated is whether the prosecutor has taken good faith action within the statutory period and the continued good faith in bringing the case to trial.

In People v. Castelli (1963), 370 Mich. 147, 121 N.W.2d 438, the prosecutor's obtaining of a writ of Habeas corpus to bring the accused before a magistrate for preliminary examination within the 180-day period was held to be such good faith action as to satisfy the mandates of the statute. Similarly, in People v. Loney (1968), 12 Mich.App. 288, 162 N.W.2d 832, we held that the prosecutor's moving for Nolle prosequi and issuing a new complaint and warrant within the statutory period preserved the jurisdiction of the trial court under the statute. Holding a preliminary examination within the 180-day period constitutes the taking of good faith action by the prosecution to start the proceedings in motion. People v. Linscott (1968), 14 Mich.App. 334, 165 N.W.2d 514.

The record on remand below shows that a warrant for defendant's arrest was issued on January 23, 1967 and defendant was arraigned thereunder on January 27, 1967. Preliminary examinations were scheduled for February 1, 1968, and February 2, 1967, but were adjourned because defendant's codefendants were unable to obtain counsel. A preliminary examination set for February 15, 1967, was adjourned because defendant had not been brought to the examination and remained in Jackson Prison. The next preliminary examination was to be heard on February 27, 1967, but the prosecution requested an adjournment since one of the principal witnesses was an undercover agent engaged in secret police work and was unavailable on that date. The preliminary examination was finally held on March 6, 1967; defendant was bound over for trial. It is to be noted here that the prosecutor thus set the criminal process in motion well within the statutory 180-day period.

On May 16, 1967, the prosecution filed the information against defendant and defendant was to be arraigned on the information on May 27, 1967. However, on that date defendant's attorney failed to file an appearance, apparently because defendant was having financial difficulty. The arraignment was postponed until June 8, 1967, when the prosecution again failed to cause defendant to be transported from Jackson Prison to court. It was about this time when the court records were erroneously made to reflect defendant's arraignment on the information. ³

The prosecution set a trial date for August 2, 1967. However, the city of Detroit became embroiled in a massive civil disorder from July 23 through July 26; the effect of this civil disturbance upon the trial courts of the metropolitan Detroit area was to inundate the courts with thousands of additional cases. Because of the paralyzing effect of this onerous judicial workload, the August 2, 1967 trial date was quite reasonably adjourned until September 18, 1967. On this latter date, the prosecution again failed to have defendant escorted from Jackson Prison to court; the trial was adjourned until November 13, 1967. On that date, however, defendant's attorney pointed out that, despite court records to the contrary, defendant had never been arraigned on the information. One week later, on November 20, 1967, defendant presented motions involving questions of entrapment and indorsement of a co-defendant. Thomas Medina, as a Res gestae witness. A trial date of December 10, 1967, had been set when the trial date of November 13, 1967, was utilized as an arraignment date. On December 10, the matter was adjourned again since the trial judge to whom the case had been assigned was out of town on vacation. A February 19, 1968 trial date was scheduled. However, on that date defendant requested an adjournment until March 27, 1968, to obtain Medina as a witness; Medina was in fact reached by defendant by way of a writ of Habeas corpus. On March 27, 1968, a jury was selected; Voir dire continued until March 28, 1968. On this date, trial began.

As a result of the above testimony, the trial court concluded on remand that, as a matter of fact, the prosecution commenced action against defendant in good faith within 180 days and proceeded to trial in good faith thereafter. We are unable to disagree with this determination. The record reveals that several of the delays in the proceedings below were attributable to the prosecution's lack of diligence in securing the attendance of defendant in court. As our earlier opinion indicates, it is the duty of the prosecution to see that a prisoner serving a sentence in a corrective institution on another charge be brought before the court to answer a present charge. Nevertheless, in the case before us, the prosecution did initiate action against defendant within the statutory period. The proceedings below moved eventually and consistently towards trial even though impeded by repeated delays, some of which were attributable to the prosecution, some which were due to moves made by defendant, and some which were beyond the control of anyone. The fact that some of the delays were occasioned by adjournments requested by the prosecution does not necessarily preclude a finding that the prosecution moved in good faith towards trial. See Kelley v. Kropp (C.A. 6, 1970), 424 F.2d 518.

Second, defendant complains of the trial court's excusing a venireman for cause after the venireman had indicated that she did not feel she could fairly serve on the jury and of the trial court's refusal to allow defense counsel on Voir dire to fully examine the venireman so as to ascertain specifically what the venireman's reasons were for wishing to be excused. It is not a commendable practice for trial judges to excuse a venireman without permitting detailed inquiry into the bias a venireman indicates he possesses. Veniremen should not be relieved of their duty unless good cause is demonstrated upon an adequate investigation into the matter. A trial judge has wide discretion as to the scope of examination of veniremen on Voir dire. GCR 1963, 511.3; People v. Lockhart (1955), 342 Mich. 595, 70 N.W.2d 802. It would have been more appropriate for the court to determine specifically whether the reasons the venireman had were grave enough to warrant dismissal. However, the trial court sensed that these reasons were highly personal to the venireman, and, in its discretion, refusing to subject the venireman to searching Voir dire questioning. Under the circumstances of this case, we find no abuse of discretion in this regard.

Similarly, defendant attempts to persuade us that the trial court erroneously excluded another venireman for cause when the venireman advanced an opinion that marijuana was not a dangerous drug, and, as a result, she would have difficulty enforcing the drug laws. Defendant analogizes to Witherspoon v. United States (1968), 391 U.S. 510, 522, 88 S.Ct. 1770, 1777, 20 L.Ed.2d 776, 784, 785, which held 'that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.'

We do not find Witherspoon to be controlling in the case before us. The United States Supreme Court has declined to extend the application of Witherspoon to cases other than those which involve the death penalty. Boulden v. Holman (1969), 394 U.S. 478, 483, 484, 89 S.Ct. 1138, 1141, 22 L.Ed.2d 433, 438, 439, indicates that the Witherspoon rationale does not, as yet, affect cas...