People v. Boyd

• Decision Date: 24 September 1973
• Docket Number: Docket No. 13612,No. 3,3
• Citation: 49 Mich.App. 388,212 N.W.2d 333
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Clifton BOYD, Defendant-Appellant, and George Washington Singletery, Jr., Defendant
• Court: Court of Appeal of Michigan — District of US

Page 333

212 N.W.2d 333

49 Mich.App. 388

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Clifton BOYD, Defendant-Appellant and George Washington Singletery, Jr., Defendant.

Docket No. 13612.

Court of Appeals of Michigan, Division No. 3.

Sept. 24, 1973.

Released for Publication Nov. 27, 1973.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller, Pros. Atty., Donald A. Johnston, III, Chief Appellate Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and FITZGERALD and O'HARA,* JJ.

O'HARA, Judge.

Defendants John Clifton Boyd and George Washington Singletery, Jr., were charged in a two-count information with unlawfully administering, dispensing, or disposing of heroin, contrary to M.C.L.A. § 335.152; M.S.A. § 18.1122 and unlawful possession of heroin, M.C.L.A. § 335.153; M.S.A. § 18.1123. After a joint bench trial, defendant Boyd was found guilty on both counts, while defendant Singletery was found guilty of unlawfully administering, dispensing, or disposing of heroin (count I) and not guilty of possession of heroin (count II). Defendant Boyd was sentenced to 20 to 30 years imprisonment on count I and 8 to 10 years imprisonment on Count II of the information. His appeal is of right. ¹

Defendant first argues that where defense counsel requested and was granted a 30-day continuance for the purpose of inquiring into his client's competence to stand trial that it was reversible error for the trial court not to refer defendant to a diagnostic clinic certified by the Department of Mental Health and then to not hold a hearing on defendant's competence after examination of defendant by a local psychiatrist.

The salient feature of the instant case is that the trial judge never seriously questioned defendant's competence to stand trial, and defense counsel never requested a hearing on defendant's competence. Close attention to the facts reveals that on the first day of trial the trial judge saw that defendant appeared to be drowsy, and inquired by personal interrogation of defendant whether defendant was competent to stand trial. When defendant was able to satisfactorily answer the court's inquiries, the court let the matter rest. Defense counsel, who throughout the proceedings was alert and forceful, said nothing.

On the second trial day, defense counsel asked for a continuance. His purpose was to have defendant examined by a local psychiatrist to see if there were grounds for making a motion to commit him to the forensic clinic or other approved diagnostic facility for a full competency hearing. The trial judge, in granting defendant's motion for continuance, cannot be said to have adopted a motion by defense counsel for a competency determination in accordance with the statute, but merely recognized that defense counsel was entitled to a professional opinion as to defendant's competence before formally raising the matter in the trial court.

In the case at bar, the trial judge gave defendant nearly a full month in order to lay the groundwork for a showing that defendant might be incompetent to stand trial. Had such a showing then been made, it might well have been an abuse of discretion for the trial court not to raise the issue of defendant's competence on its own motion in accordance with GCR 1963, 786.2 and Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 863, 15 L.Ed.2d 815 (1966). Since the report of the local psychiatrist showed that defendant was fully competent to stand trial, defense counsel, feeling he had no bona fide grounds for pursuing the issue further, abandoned it. The trial judge was aware of this, as shown by his opinion from the bench (in which the trial judge noted that 'The court was later provided by a local psychiatrist with a written report indicating that Mr. Boyd was in fact competent to stand trial and the question of competency was not further pursued by his counsel'). Thus there was no obligation upon the trial court to raise the issue of defendant's competence on its own motion in accordance with GCR 1963, 786.2, Supra.

With respect to the issues relating to defendant's competence to stand trial we find no error.

Defendant's next claim is based upon the delay between his arrest and trial of approximately 20 months. Although defendant was arrested on January 20, 1970, the trial was not held until September 20, 1971. There are several adjournments which defendant claims are without record explanation for the continuances. People v. Harrison, 386 Mich. 269, 274, 191 N.W.2d 371, 374 (1971), has held that such lack of record explanation showing good cause for continuances will be the subject of 'great concern' on appeal.

The factors to be weighed in a test of the constitutionality of a trial held after long delay include: (1) length of delay; (2) the reason for the delay; (3) defendant's assertion of his rights; (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

In People v. Grimmett, 388 Mich. 590, 202 N.W.2d 278 (1972), the Supreme Court adopted the rule announced in Barker v. Wingo, Supra, including the four factors to be considered and the rule that failure to demand a speedy trial does not constitute a waiver thereof. The Supreme Court also noted that after a delay of 18 months, prejudice is presumed. People v. Den Uyl, 320 Mich. 477, 31 N.W.2d 699 (1948). In Grimmett, there was a 19-month delay, yet the Supreme Court concluded that defendant's speedy trial right had not been denied because there was no evidence that defendant was prejudiced by the delay.

In Grimmett, the Supreme Court relied extensively on Barker v. Wingo, Supra, and extensively quoted the Barker opinion concerning the fourth factor, prejudice to the defendant. The speedy trial right is designed to protect three identifiable interests of the defendant: (1) prevention of oppressive pretrial incarceration; (2) minimization of anxiety and concern of the accused; (3) limitation of the possibility that the defense will be impaired.

In the instant case, despite a delay of 20 months, it may be conclusively deduced that defendant was not prejudiced by the delay. This is established by the fact, that on the first day of trial defendant Boyd indicated to the trial court that he wished to waive trial and have the case determined on the transcript of the preliminary examination and suppression hearings. The preliminary examination was held less than 30 days after arrest, while the suppression hearing was held 13 months after arrest. There is no indication whatsoever in the suppression hearing transcript, either explicit or implicit, that any witness at the hearing was unable to remember anything relevant to Boyd's defense because of the passage of time.

The only relevant additional evidence adduced at trial which was not in the hearing or preliminary examination transcripts related to a urine sample and the affidavits concerning lack of license to dispense narcotics. Since the affidavits were based on official records, and there is no indication that those records have ever been challenged as to accuracy, it is clear that the 20-month delay did not affect defendant's speedy trial right with respect to that portion of the additional evidence. Thus the evidence adduced at trial which does not appear in the record of the suppression hearing or the preliminary examination was not affected by the passage of time.

In the case at bar, defendant Boyd was, except for a few days, free on bond. ²

Also relevant is the fact that defendant at no time prior to trial interposed an objection to the allegedly prejudicial delay in the disposition of his case. See Barker, supra.

Now we consider the allegation that the trial date was adjourned several times with no reason therefore appearing of record.

As to the first adjournment, the lower court record discloses that codefendant Singletery's counsel, who was to represent Singletery at his joint trial with defendant Boyd, made a consolidated motion to quash the information and to adjourn the trial date. He claimed a schedule conflict between the trial date in the instant case and other pending litigation. While the trial court denied Singletery's motion to quash, the order of the court is silent as to the motion to adjourn. However, a new trial date was set, presumptively in response to the motion of defendant Singletery's attorney.

After the date originally set for trial, defendant Boyd retained different counsel. His original attorney of record had been notified on October 22, 1970 of the new November 30, 1970 trial date. The next pertinent document under date of December 3, 1970, informs newly retained counsel of both the altered pretrial and trial dates. This amply corroborates the position of the people that this continuance was wholly attributable to defendant's desire to substitute counsel.

On February 1, 1971, defendant's new counsel noticed a motion to quash the information. It was heard on February 8, 1971, the next date to which the trial had been adjourned. When defendant was aggrieved by the trial court's ruling he sought a stay of proceedings so that he might obtain a transcript of the suppression hearing and seek leave to appeal. Apparently an adjournment was granted, although the record is silent in this regard. Our search of proceedings below also does not reveal any action by defendant to pursue his appellate remedies beyond arranging to obtain a copy of the record of the suppression hearing.

The case was rescheduled for trial on July 6, 1971, but approximately a week prior thereto, the prosecutor made a motion for an order allowing the people to reconstruct their files. The files in question had mysteriously disappeared from the prosecutor's office at the time the pretrial conference was held. Finally, trial was scheduled for and actually held on September 20, 1971.

We conclude that de...