People v. Bisard

• Decision Date: 28 May 1982
• Docket Number: Docket No. 55203
• Citation: 319 N.W.2d 670,114 Mich.App. 784
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Robert Lee BISARD, Defendant-Appellee. 114 Mich.App. 784, 319 N.W.2d 670
• Court: Court of Appeal of Michigan — District of US

Page 670

319 N.W.2d 670

The PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Robert Lee BISARD, Defendant-Appellee.

Docket No. 55203.

114 Mich.App. 784, 319 N.W.2d 670

Court of Appeals of Michigan.

Submitted Feb. 3, 1982.

Decided April 6, 1982.

Rehearing Denied May 12, 1982.

Released for Publication May 28, 1982.

[114 MICHAPP 785] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Gerald D. Warner, Pros. Atty., and Stephen C. Corwin, Chief Asst. Pros. Atty., for the People.

Paul M. Ladas, North Muskegon, for defendant-appellee.

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

ALLEN, Presiding Judge.

Defendant was charged with delivery of less than 50 grams of cocaine, subsections (1) and (2)(a)(iv) of M.C.L. Sec. 333.7401; M.S.A. Sec. 14.15 (7401). After two days of trial, the circuit court dismissed the case on October 23, 1980, finding that defendant was unduly prejudiced by the 196-day delay between the alleged criminal transaction and the date of arrest, and that the delay was intentional. The people now appeal.

The defendant allegedly delivered one gram of cocaine to Marie Waalkes on August 21, 1979. This sale was one that occurred during an ongoing undercover narcotics investigation in the Muskegon area. The investigation ceased on March 5, 1980, when 55 warrants were issued against 35 persons, including the defendant.

Waalkes, a state trooper, testified that she worked as an undercover agent with Thomas Morse, an informant from the area. She said that Morse identified the defendant to her when they met at the house of another suspected drug dealer. Waalkes again encountered the defendant on August 21 at the Rock Saloon, where the alleged sale occurred. The trooper believed she encountered the defendant at least two more times before the investigation ceased, although she had not mentioned one of these meetings in her preliminary examination testimony. Waalkes said that her [114 MICHAPP 786] identification of the defendant was positive, that she was not confusing him with other long-haired and bearded men at the Rock Saloon.

Morse indicated he had known the defendant for about four years and could positively identify him as the individual who sold a gram of cocaine to Waalkes on August 21. Morse admitted that he had a prior criminal record which included two felony convictions.

A surveillance officer who saw Waalkes and Morse with another individual in the Rock Saloon said that defendant looked like that person, but he was unable to positively identify the defendant at trial.

Defendant denied knowing Marie Waalkes, said Morse was "an enemy" and not someone he would have trusted to arrange a drug transaction, and stated he was unable to recall what transpired on August 21, 1979.

After hearing arguments on the defendant's motion to dismiss, the trial court found that the 196-day delay between the offense and the arrest was explainable, as the troopers did not want to "blow" their cover, was deliberate, as it was intentional, and was unduly prejudicial. After hearing the prosecution's arguments for reconsideration, he ordered the case dismissed.

In ruling on the motion, the court applied the test enunciated in People v. Hernandez, 15 Mich.App. 141, 170 N.W.2d 851 (1968), for determining whether a defendant's due process rights have been violated by a prearrest delay. Hernandez states that once a defendant has shown that some prejudice has occurred as a result of a delay, it is incumbent upon the prosecution to show (1) an explanation for the delay, (2) that the delay was not deliberate, and (3) that no undue prejudice [114 MICHAPP 787] attached to the defendant. Hernandez, supra, 147, 170 N.W.2d 851. Although Hernandez's three-part test apparently has been questioned by one panel of this Court, People v. McCracken, 88 Mich.App. 286, 294, 276 N.W.2d 609 (1979), vacated on other grounds, 408 Mich. 926, 291 N.W.2d 672 (1980), the case has been consistently treated as stating Michigan's test for determining a claim that an accused's due process rights have been violated by a delay in arrest. People v. Parshay, 104 Mich.App. 411, 414, 304 N.W.2d 593 (1981); People v. Oliver, 90 Mich.App. 144, 146, 282 N.W.2d 262 (1979), reversed on other grounds, 407 Mich. 857, 283 N.W.2d 502 (1979).

The three prongs of the Hernandez test have been analyzed repeatedly in this Court. The first, whether the delay is explainable, is straightforward. In this case, the trial court ruled that the delay had been adequately explained by the fear of blowing the cover of the undercover officers. This explanation also was considered adequate in People v. Anderson, 88 Mich.App. 513, 516, 276 N.W.2d 924 (1979).

The second prong of the test whether the delay was deliberate, is somewhat ambiguous, but has been interpreted to mean "deliberate delay to prejudice the defendant". People v. White, 59 Mich.App. 164, 165, 229 N.W.2d 357 (1975). In the case at bar, the court applied a different definition of "deliberate", finding that the delay was intentional, although recognizing that the prosecution "may have had a good reason" for the delay. As we believe that White correctly requires a finding of some bad faith on the part of the prosecution, we find that the court in this case incorrectly applied this prong of the Hernandez test.

The third prong of the test examines whether there was "undue prejudice". The court's finding of [114 MICHAPP 788] such prejudice was based on defendant's inability to recall the events of the night of August 21, the lack of corroborating testimony to support the identification testimony, and the incredibility of Morse. The two latter factors raise a question about the accuracy of the identification. This finding is supported by the testimony.

Were our inquiry to end at this point, we would hold that although the court misapplied the Hernandez test when it found an intentional delay to be deliberate, the conclusion that defendant's due process rights had been violated would not be clearly erroneous. We feel constrained, however, to reconsider the applicability of Hernandez, which was decided in 1968, in light of subsequent interpretations of due process law by the United States Supreme Court.

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, 2048, 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.

No Michigan case has analyzed the impact of [114 MICHAPP 789] these two cases on the test set out in Hernandez, although at least two cases cited both Hernandez and Lovasco in determining whether prearrest delay required reversal. Parshay, supra, Anderson, supra.

We believe, however, that at least three questions are raised in applying Lovasco. First, who should bear the burden of proof in determining whether a defendant's due process rights have been violated? Under Hernandez, the prosecution...