People v. Butcher

• Decision Date: 28 March 1973
• Docket Number: No. 3,Docket No. 13978,3
• Citation: People v. Butcher, 46 Mich.App. 40, 207 N.W.2d 430 (Mich. App. 1973)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert BUTCHER, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 430

207 N.W.2d 430

46 Mich.App. 40

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Robert BUTCHER, Defendant-Appellant.

Docket No. 13978.

Court of Appeals of Michigan, Division No. 3.

March 28, 1973.

Released for Publication May 30, 1973.

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

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

Before HOLBROOK, P.J., and FITZGERALD and VanVALKENBURG, ^* JJ.

HOLBROOK, Presiding Judge.

Defendant was charged on or about December 7, 1970, with the crimes of breaking and entering a service station with the intent to break a safe, and breaking and entering a service station with intent to commit a larceny.M.C.L.A. § 750.531;M.S.A. § 28.799;M.C.L.A. § 750.110;M.S.A. § 28.305.An attorney was appointed for defendantDecember 11, 1970, and a preliminary examination was scheduled for December 16, 1970.On December 21, 1970, defendant was delivered to Federal authorities pursuant to a writ of Habeas corpus ad prosequendum.He was convicted in Federal court in Kalamazoo and sentenced to 10 years in prison.He was then returned to state authorities and lodged in Kalamazoo County Jail.On January 18, 1971, after waiving his preliminary examination, the defendant was arraigned in Kalamazoo County Circuit Court, whereupon he stood mute to both aforementioned charges.On February 1, 1971, defendant's court-appointed attorney was granted permission to withdraw from the case, and on February 8, 1971, a new attorney was appointed for him.On February 22, 1971, a pretrial conference was held and defendant reserved the right to file motions within 20 days.On March 1, 1971, defendant was removed to Federal custody again and he began serving his Federal sentence in the penitentiary in Leavenworth, Kansas.On January 26, 1972, a writ of Habeas corpus ad prosequendum was issued to Federal officials on behalf of this state, and defendant was returned to Michigan on February 7, 1972.On February 14, 1972, a hearing was held on defendant's motion to dismiss the charges on grounds he had been denied his constitutional right to a fair and speedy trial.The motion was denied by the trial court, and later in the day defendant pled guilty to a charge of breaking and entering a certain building with intent to commit larceny.M.C.L.A. § 750.110;M.S.A. § 28.305.He was sentenced to not less than 8 nor more than 10 years in prison on February 17, 1972.He now appeals.

Defendant first claims that his state and Federal constitutional right and statutory right to a speedy trial were denied him by the 14-month delay between arrest and trial on the state charge.U.S.Const., Ams. VI, XIV;Const.1963, art. 1, § 20;M.C.L.A. § 768.1;M.S.A. § 28.1024.He claims that his attorney demanded this right on his behalf February 22, 1971, at the pretrial conference, and submits an affidavit of his trial attorney stating 'he requested that the case be set for trial at the earliest possible date' to prove that such a request was made.The old rule in Michigan was that formal demand on the record need be made by a defendant who wished a speedy trial, or else the right was waived.People v. Rogers, 35 Mich.App. 547, 551, 192 N.W.2d 640(1971);People v. Foster, 261 Mich. 247, 246 N.W. 60(1933).That rule was expressly discarded in People v. Grimmett, 388 Mich. 590, 605, 202 N.W.2d 278, footnote 8(1972).In Grimmett the Michigan Supreme Court further recognized that a claim that a defendant's right to a speedy trial had been denied was to be analyzed by an inquiry into the presence or absence, and relative weight, of the four factors enunciated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101(1972).Those factors to be taken into account are: length of delay, reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.

We assume, arguendo, that 14 months was a sufficiently long delay to actuate our analysis, while recognizing it is still the burden of the accused to show that he was actually harmed.People v. Collins, 388 Mich. 680, 202 N.W.2d 769(1972);People v. Den Uyl, 320 Mich. 477, 31 N.W.2d 699(1948).Our examination of the remaining three factors forces us to conclude that defendant was not denied his right to a speedy trial.Even granting defendant every benefit of the doubt we can hardly characterize his defense lawyer's February 22, 1971 oral request for a trial 'at the earliest possible date' as anything more than a Request, rather than an Assertion of a right.Moreover, as for the reasons for the delay, we find that defendant himself was primarily responsible for the protraction of his case, which certainly undermines the validity of his claim.Collins, supra.After defendant's removal in March 1971 to Federal custody, negotiations took place between defense counsel and prosecution on the Michigan felony charges.Defense counsel kept in touch with defendant by mail, and on August 16, 1971, defense counsel informed defendant that the prosecutor would accept a plea to the single charge of breaking and entering a building with intent to commit larceny.M.C.L.A. § 750.110: M.S.A. § 28.305.Defendant replied by letter that he had some business to take care of, and apparently the next exchange of letters did not occur until mid-November 1971.It was only then that defendant expressed his desire to return to Michigan and take care of the case.Moreover, there is obviously no prejudice evident from these circumstances, and prejudice is a prime consideration in our analysis.Barker, Collins, Grimmett, Rogers, supra;People v. Spalding, 17 Mich.App. 73, 169 N.W.2d 163(1969).We do not hold, of course, that the occurrence of plea negotiations eliminates the need to bring defendant to a fair and speedy trial of his case.We hold only that in balancing the factors enunciated in Barker we can discover no basis on which to find a denial of defendant's constitutional right to a speedy trial.

Defendant next claims that the trial court had no jurisdiction to try the defendant because the proceedings violated the interstate agreement on detainers act, M.C.L.A. § 780.601;M.S.A. § 4.147(1), since he was not tried within 180 days of his request for trial.Assuming the act to be applicable, to hold that defense counsel's alleged request for a speedy...