People v. Chism, Docket No. 9278

• Decision Date: 22 April 1971
• Docket Number: Docket No. 9278,No. 3,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Enoch CHISM, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 435

189 N.W.2d 435

32 Mich.App. 610

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Enoch CHISM, Defendant-Appellant.

Docket No. 9278.

Court of Appeals of Michigan, Division No. 3.

April 22, 1971.

Released for Publication Aug. 25, 1971.

William R. Worth, Allen, Worth & Calderone, Battle Creek, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., John M. Jereck, Pros. Atty., for plaintiff-appellee.

Before FITZGERALD, P.J., and HOLBROOK and BRONSON, JJ.

FITZGERALD, Presiding Judge.

Defendant appeals by right from a jury conviction and life sentence on a charge of murder in the first degree. ¹

On August 16, 1967, a package was mailed to the residence of Mrs. Paul Puyear in the city of Marshall, Michigan. Due to standing instructions, the package was rerouted and delivered to the Puyears' business address, a restaurant called the Tasty Cafe.

Nola Puyear attempted to open the package and it exploded, killing her instantly and doing substantial damage to the Tasty Cafe. An investigation at the scene turned up the wrapper of the package with the address written in red on it, pieces of masking tape, and metal fragments from a 'Fiske' battery. Also found at the scene was a pill bottle and its contents and wrapper. It appears that this pill bottle, with pills containing sodium hydroxide (lye), had been mailed to the deceased some months earlier. An examination of the reassembled bomb wrapper indicated that the package had been mailed in Marshall.

Subsequent investigation led to the arrest of defendant; a search of his home resulted in the seizure of masking tape, a 'Fiske' battery, and a red pencil similar to that used to address the package. From a comparison of the handwriting of defendant and the handwriting on the package wrapper and the pill wrapper, there was expert testimony that the writing was done by one and the same person. There was also testimony to the effect that the defendant was desirous of buying the Tasty Cafe from the Puyears.

Chism testified, while denying that he sent the bomb or the pills, that he purchased dynamite in 1966.

Helpfully, the Court has been assisted by excellent briefs by both defendant and the people, setting forth the issues raised and furnishing cogent arguments for both sides. The issues will be considered Seriatim.

I. WAS APPELLANT DENIED HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL?

Mainstay of defendant's appeal is that the delay from his arrest on October 11, 1967, to his trial on January 20--30, 1970, was such a denial of his constitutional right to a speedy trial that it requires the reversal of his conviction and his discharge. He argues that the fact that the delay was caused by his appeal of the lower court's denial of his petition for counsel does not excuse the delay, mainly because the state cannot require a defendant to sacrifice one constitutional right (speedy trial) to enforce another (assistance of counsel). Defendant also argues that his lack of a formal demand for trial does not cure the error because he was without counsel for most of that time.

In opposition, the people argue that it was defendant who caused the delay because he invoked the appellate process prior to trial. It is also pointed out that defendant never made the required formal motion for trial.

Defendant was arrested on October 11, 1967, according to the record. On October 18, 1967, defendant petitioned for the appointment of counsel as an indigent. On October 18 and 27, 1967, and December 26, 1967, the court heard testimony relative to his financial status. Prior to this, the court appointed counsel for the preliminary examination which was held on November 16, 1967. On January 9, 1968, the lower court entered its finding denying appointed counsel for the trial. A formal order to such effect was filed on January 12, 1968, and counsel was appointed for the appealing of this order on January 18, 1968. On February 10, 1968, the appointed counsel filed an application for leave to appeal with this Court.

Thereafter, on March 29, 1968, an order was entered granting leave to appeal, granting leave to intervene Amicus curiae to the Prosecuting Attorneys Association of Michigan, and shortening the time for the filing of briefs to one-half the regular period.

On July 1, 1968, defendant filed a motion and stipulation to advance the hearing date which was denied by order on July 10, 1968. Oral argument before this Court was had on November 13, 1968, and an opinion was entered on April 23, 1969, reversing the lower court and granting appointed counsel. See People v. Chism (1969), 17 Mich.App. 196, 169 N.W.2d 192. On April 25, 1969, the lower court appointed counsel for defendant.

While this appeal was in progress, defendant filed Pro se a motion to dismiss for denial of a speedy trial on June 20, 1968. On July 24, 1968, the prosecutor filed an answer to this motion which was served on defendant on August 19, 1968. A hearing was not held on this motion on April 10, 1969, and the dismissal motion was denied by order entered April 21, 1969.

In April, the lower court informed defendant that trial could be held in either May or August of 1969, but defendant wished to make some pretrial motions first. On June 19, 1969, this time through counsel, defendant made a motion to quash for a denial of speedy trial which was denied by order on August 18, 1969.

On September 19, 1969, defendant made a motion for immediate trial and the case was set for trial in October, 1969. A motion for a continuance was filed by defendant after additional witnesses, opposed by defendant, were indorsed. Finally, the case was tried January 20--30, 1970.

Thus, the record shows that there was a 27-month interval between arrest and trial (October, 1967 to January, 1970), and of this time 14 months were taken up in appeals to this Court (February 1968 to April 1969).

Defendant is correct in his contention that a defendant cannot be compelled to sacrifice one constitutional right to enforce another. Simmons v. United States (1968), 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247; People v. Marsh (1968), 14 Mich.App. 518, 165 N.W.2d 853. However, neither of the above cases dealt with the instant fact situation. Indeed, it appears that this situation (loss of speedy trial due to invoking the appellate process) is one of first impression in Michigan, if not the country.

There is no doubt that the constitutional right to a speedy trial is guaranteed to citizens in state prosecutions through the Fourteenth Amendment to the United States Constitution. Klopfer v. North Carolina (1967), 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1; Duncan v. Louisiana (1968), 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. The right to a speedy trial is also guaranteed to Michigan citizens by M.C.L.A. § 768.1 (Stat.Ann.1954 Rev. § 28.1024).

However, the flaw in defendant's position, and which is dispositive of the issue, is the fact that the delay was caused by his repeated recourse to the appellate process.

It appears that the invoking of appellate machinery serves to modify the speedy trial right. In People v. Den Uyl (1948), 320 Mich. 477, 31 N.W.2d 699, the Court, in granting a writ of mandamus requiring the conclusion, within 60 days, of a preliminary examination which had been continued eight times, said:

'One of the circumstances which will constitute good cause for delay, again within reasonable limits of time, Is the taking of an appeal, whether by the State or another party. See People v. Giesea, 63 Cal. 345, and the annotation in 56 LRA 513, 519.' 320 Mich. 489, 31 N.W.2d 704. (Emphasis supplied.)

The Court in Den Uyl, supra, went on to say:

'It is sometimes said that a speedy trial means a trial regulated by fixed rules of law, And that delay created by operation of those rules is not included in the meaning of the constitutional provision.' 320 Mich. at 490, 31 N.W.2d at 705. (Emphasis supplied.)

Thus, Den Uyl, supra, points out that the right to a speedy trial may be delayed if one of the parties invokes the appellate process, or if the delay is caused by fixed rules of law. Both of those criteria fit the facts here presented.

In a recent United States Supreme Court case, uncited by both parties, it was indicated that the initiation of appellate proceedings is good cause for resultant delay. In Harrison v. United States (1968), 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047, the Court reversed a conviction upon retrial because of the use of inadmissible testimony. It appears that one of the appellant's other contentions in that case was that he was denied a speedy trial because the original indictment was eight years old (see 20 L.Ed.2d at 1698). The Court, in answering this contention in a footnote, said:

'Virtually all of the delays of which the petitioner complains occurred in the course of appellate proceedings and resulted either from the action of a petitioner or from the need to assume careful review of an unusually complex case.' fn 4, 392 U.S. at 221, 88 S.Ct. at 2009--2010, 20 L.Ed.2d at 1051.

The U.S. Supreme Court also said that the speedy trial contention had been properly rejected by the Court of Appeals, District of Columbia. In that case, Harrison v. United States (1967), 128 U.S.App.D.C. 245, 248, 249, 387 F.2d 203, the Court said:

'The contention that appellants' Sixth Amendment right to a speedy trial has not been respected is predicated broadly upon the six-year lapse between the homicide and the third trial, but for this purpose we cannot treat litigation spans in a vacuum. 'There is no touchstone of time which sets a fixed maximum period that automatically requires application of the Sixth Amendment and dismissal of the indictment.' Rather, '(t)he right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.' So in determining...