People v. Chism, No. 5

• Court: Supreme Court of Michigan
• Writing for the Court: WILLIAMS; In deciding whether this second seizure resulted in admissible evidence, the actual scope of the written consent must be determined. The consent, freely and voluntarily made by defendant; Black; T. M. KAVANAGH; LEVIN; Lawyers
• Citation: 390 Mich. 104,211 N.W.2d 193
• Parties: PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Enoch D. CHISM, Defendant and Appellant. 390 Mich. 104, 211 N.W.2d 193
• Decision Date: 17 October 1973
• Docket Number: No. 5

Page 193

211 N.W.2d 193 PEOPLE of the State of Michigan, Plaintiff and Appellee,
v.
Enoch D. CHISM, Defendant and Appellant. No. 5. 390 Mich. 104, 211 N.W.2d 193 Supreme Court of Michigan. Oct. 17, 1973.

[390 MICH 109]

Page 195

Allen, Worth, Hatch & Calderone, Battle Creek, for defendant and appellant.

E. Stanley Everett, Calhoun County Pros. Atty., Marshall, for plaintiff and appellee.

Before the Entire Bench except T. G. KAVANAGH and COLEMAN, JJ.

WILLIAMS, Justice.

This case raises three issues:

1. unconstitutional denial of speedy trial;

2. admissibility of evidence of prior similar action under M.C.L.A. § 768.27; M.S.A. § 28.1050; and

3. validity of particular search and seizures.

I. FACTS

Mrs. Nola Puyear was killed in the presence of her husband when a package addressed to her and delivered through the mails exploded as she attempted to open it. Investigation produced pieces of the wrapper containing the hand lettered address, masking tape and metal fragments identified as being from a 'Fiske' type battery. The wrapper also disclosed a postmark 'Marshall,' [390 MICH 110] which testimony showed was a cancellation peculiar to Marshall, Michigan.

Search of the Puyear establishment also produced a bottle of pills and wrapper with handwriting on it. Mr. Puyear testified the pills had been received six to twelve months prior. Chemical analysis after Mrs. Puyear's death established the pills as lye although the label indicated tranquilizers.

To establish their case the police interviewed various Marshall area residents, collecting handwriting samples. Defendant was interviewed and gave handwriting samples. Subsequently he was arrested and charged with first degree murder on October 11, 1967. After a 'Miranda' warning he gave written consent to the search of his house as will more fully be discussed later. Defendant's wife also gave written consent to search the house. The search was made October 11, 1967. However, on October 12, 1967 officers returned to the house and requested and were given certain checks and a daily record book seen but not taken the day before.

Subsequent to arrest defendant on October 18, 1967 requested appointment of counsel as an indigent. Such property as he had he had conveyed to his wife. Counsel was denied on January 9, 1968 and appeal therefrom was taken with counsel specially appointed for the appeal. It was not until April 23, 1969 that the Court of

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Appeals ruled that defendant was entitled to assigned counsel. In the meantime with specially assigned counsel defendant was given a preliminary hearing and bound over to stand trial for murder on November 16, 1967. The trial court was ready to commence trial promptly after the Court of Appeals ruled, but defendant's new counsel needed time and moved to quash for denial of speedy trial on June [390 MICH 111] 19, 1969, as defendant had done Pro. per. June 20, 1968. Thereafter the trial court denied the motion and on January 20, 1970, 27 months after arrest, the case came to trial. On January 30, 1970 defendant was convicted of murder in the first degree. Defendant appealed. The Court of Appeals affirmed. 32 Mich.App. 610, 189 N.W.2d 435 (1971). Defendant has been in jail since arrest.

II. SPEEDY TRIAL

The facts relating to a speedy trial are set out in full in Appendix A. It took the case 27 months to come to trial. However, the case was approximately 14 1/2 months on appeal so that the trial court actually had the case about 12 1/2 months.

The United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) established a general rule applicable to Speedy trial cases, which this Court has recognized as the definitive test in this area. People v. Grimmett, 388 Mich. 590, 602, 202 N.W.2d 278 (1972); People v. Collins, 388 Mich. 680, 688, 202 N.W.2d 769 (1972). The United States Supreme Court stated the rule as follows:

'A balancing test necessarily compels courts to approach speedy trial on an ad hoc basis. . . . Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.' 407 U.S. 514, 530, 92 S.Ct. 2182, 2192.

A. Length of Delay

As we said in Collins:

'The United States Supreme Court stated that 'the length of delay is to some extent a triggering mechanism.[390 MICH 112] until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.' 407 U.S. 514, 530, 92 S.Ct. 2182, 2192 (33 L.Ed.2d 101). The Court noted that the delay which would provoke such an inquiry was necessarily dependent upon the 'peculiar circumstances of the case." 388 Mich. 680, 688--689, 202 N.W.2d 769, 773.

The total length of delay in this case is 27 months. Without appropriate explanation this is far too long. In Collins we said:

'The 15 months, including 7 months in jail is far in excess of the legislature 6-month standard and much too close to the 18-month rule of DenUyl. It is unduly long unless the other factors require a different result.' 388 Mich. 680, 690, 202 N.W.2d 769, 774.

B. Reason for the Delay

As the United States Supreme Court stated in Barker, 'The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed.' 407 U.S. 514, 530, 92 S.Ct. 2182, 2191.

In assessing responsibility for the length of the case, it must be considered that of the 27 months duration 12 1/2 months was consumed in the trial court and 14 1/2 months on appeal originated by the defendant.

Of the 12 1/2 months spent in the trial court, a little over 3 months were spent before appeal and about 9 months after appeal. Most of the 3 months prior to appeal was spent in consideration of defendant's request for counsel as an indigent. The

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trial judge held hearings and then took the matter under consideration. The problem was that defendant had created his own indigency by voluntarily transferring his assets to his wife. She was separating from him and would not pay for his [390 MICH 113] lawyer. It is difficult to say that the time the trial judge took to rule adversely here materially affected defendant's rights.

Of the 9 months in the trial court subsequent to the appellate decision allowing counsel, 7 months were to meet defendant's and his counsel's convenience.

As a consequence it must be concluded that the time spent in trial court while deliberate was probably legitimate and the responsibility for the length of the largest portion of it was defendant's not the prosecution's or the trial court's.

Defendant certainly had a right to appeal but time reasonably consumed on appeal cannot be considered as in derogation of a speedy trial. People v. DenUyl, 320 Mich. 477, 489--490, 31 N.W.2d 699 (1948). Both defendant and the prosecutor moved to accelerate the case, and the whole 14 1/2 months required by the Court of Appeals to dispose of this motion is hard to justify under the circumstances, particularly in light of that court's abbreviating the time for filing briefs and motion to advance by defendant agreed in by the prosecutor. Consequently, it must be recognized that a part of the appeal time is indeed excessive and that this must be taken into consideration.

In considering the whole 27 months, however, between arrest and commencement of trial the major portion can be justified as necessary to process the case or to fit the defendant's convenience. There was some excess time taken on appeal.

C. Defendant's Responsibility to Assert His Right

The United States Supreme Court in Barker v. Wingo, Supra, stated:

[390 MICH 114] '. . . defendant's assertion or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right.' 407 U.S. 514, 528, 92 S.Ct. 2182, 2191.

In the instant case, defendant Pro. per. moved to dismiss because of denial of a speedy trial approximately 8 months after arrest and while his assigned counsel for appeal of more than 4 months had his case on appeal. The trial court did not hear this motion until almost 10 months had elapsed, partially because the matter was on appeal, although it was still on appeal when he decided the motion a few days later.

Some 20 months after arrest and about 2 months after assignment of trial counsel, defendant moved to quash for denial of speedy trial.

Defendant moved with reasonable dispatch all things being considered and raised his right to speedy trial once Pro. per. and once promptly after receiving assigned counsel. It must be recognized that defendant fulfilled his obligation to protect his right to speedy trial.

D. Prejudice to the Defendant

There are two types of prejudice which a defendant may experience, that is, prejudice to his person and prejudice to his defense. Prejudice to his person would take the form of oppressive pretrial incarceration leading to anxiety and concern. Prejudice to his defense might include key witnesses being unavailable. Impairment of defense is the most serious, 'because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.' Barker, 407 U.S. 514, 532, 92 S.Ct. 2182, 2193.

Barker found no undue prejudice in 10 months [390 MICH 115] incarceration. Defendant's 27 months incarceration certainly is too long unless otherwise justified.

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There is no testimony relevant to prejudice to defendant's defense because of the length of the case such as loss of witnesses, etc.

In sum, defendant suffered considerable personal deprivation by long incarceration, but it cannot be said that his ability to defend himself was in any significant way prejudiced.

E. Conclusion as to Speedy Trial

In attempting to balance the four factors and give each its due, one begins with the 27 months from arrest to start of trial strongly triggering...