People v. Carter, Docket No. 16693

• Decision Date: 25 June 1974
• Docket Number: No. 2,Docket No. 16693,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eulis CARTER et al., Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 330

220 N.W.2d 330

54 Mich.App. 69

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eulis CARTER et al., Defendants-Appellants.

Docket No. 16693.

Court of Appeals of Michigan, Division No. 2.

June 25, 1974.

Released for Publication July 31, 1974.

James R. Neuhard, State Appellate Defender, Detroit, for defendants-appellants.

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

Before BRONSON, P.J., and HOLBROOK and O'HARA,* JJ.

BRONSON, Presiding Judge.

Appellants, Eulis Carter, John Ballard, Thomas Martin, and Willie Brown, Jr., were all indicted on January 19, 1971, for the homicide of Shad Green, Jr., their fellow inmate at Jackson Prison. The Jackson County citizens' armed jury indicted appellants for first-degree murder (M.C.L.A. § 750.316; M.S.A. § 28.548, and see M.C.L.A. § 767.71; M.S.A. § 28.1011) and conspiracy to commit murder (M.C.L.A. § 750.157a; M.S.A. § 28.354(1)). Beginning May 17, 1971, appellants were tried before a jury and were all found guilty as charged on June 4, 1971. Appellants were all sentenced on July 1, 1971, to serve concurrent life sentences on each conviction to begin at the end of their present terms.

Prior to trial appellants moved for a preliminary examination on the indictments. These motions were properly denied based on procedural law then existing. Appellants now contend that People v. Duncan, 388 Mich. 489, 201 N.W.2d 629 (1972), decided October 31, 1972, approximately one year and three months After their trial, requires reversal.

Duncan, supra, p. 502, 201 N.W.2d p. 635, declared:

'We hold that in each case, and in all pending cases in which the right to a preliminary examination was asserted prior to trial and is presently being asserted, such right shall be accorded to the defendant. In all future cases wherein a defendant is accused of a felony, the right to a preliminary examination shall exist.' See, also, People v. Barbara, 390 Mich. 377, 212 N.W.2d 14 (1973).

In People v. Lazaroff, 50 Mich.App. 84, 212 N.W.2d 743 (1973), a panel of this Court held, 'We do not read this language (Duncan, supra) as requiring application of Duncan to a case tried before Duncan'. Lazaroff, supra, at 88, 212 N.W.2d at 745. Leave to appeal the Lazaroff decision was denied. 390 Mich. 815 (1973). People v. Harris, 47 Mich.App. 757, 209 N.W.2d 793 (1973), in apparent conflict with the decision in Lazaroff, was decided by another panel of this Court. We think that the decision in Lazaroff more accurately reflects the policies involved in the determination of when a procedural rule should be given retroactive application. See: People v. Hampton, 384 Mich. 669, 187 N.W.2d 404 (1971).

In Hampton, supra, the Michigan Supreme Court, relying on prior decisions of the United States Supreme Court, adopted three factors to be used in determining whether a law should be applied retroactively or prospectively. The three key factors are:

'(1) The purpose of the new rule; (2) The general reliance on the old rule; and (3) The effect on the administration of justice.' (Hampton, supra, at 674, 187 N.W.2d at 405.)

In Duncan the Court submitted for adoption a new court rule (788) incorporating their new decision. This decision was made as a matter of Criminal procedure in the exercise of the Court's inherent power and not as a matter of constitutional right. Duncan, supra, 388 Mich. p. 502, 201 N.W.2d 629.

We do not believe that the purpose of the new procedure established in Duncan requires reversal. This is especially true where, as here, the defendants had the transcript of the grand jury proceeding, were able to cross-examine witnesses aided by this transcript, and where no prejudice has been shown.

Prior to Duncan three circuit judges relied upon the then existing law to determine this case. To reverse here would be equivalent to asking a circuit judge to anticipate new procedural rules, guess at their effective dates, and then rule in direct opposition to presently established precedent. The reliance of the trial bench on the old rule will not be overturned.

The last factor is the most cogent reason, in this case, for denying Duncan retroactivity. In this appeal, for reasons not clearly appearing of record, the time from jury verdict to present exceeds two years and nine months. Had the appeal run a normal and expeditious course, it is possible that it would have been completed Prior to Duncan. Footdragging, for whatever reason, should not be rewarded.

A reversal would have no beneficial effect on the administration of justice. We therefore repeat our holding in Lazaroff that Duncan is inapplicable to cases tried before Duncan.

The defendants' second contention relates to the record of the grand jury proceeding. The complete grand jury transcript was not received until four days before trial. A continuance was denied. The granting or denial of a continuance is subject to the discretion of the trial court and absent a clear abuse of such discretion the decision will not be overturned. GCR 1963, 503.2, and People v. Knox, 364 Mich. 620, 111 N.W.2d 828 (1961). The defense claimed a witness was unavailable....