People v. Collins

• Decision Date: 21 December 1972
• Docket Number: No. 3,3
• Citation: 388 Mich. 680,202 N.W.2d 769
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harold COLLINS, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 769

202 N.W.2d 769

388 Mich. 680

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harold COLLINS, Defendant-Appellant.

No. 3.

Supreme Court of Michigan.

Dec. 21, 1972.

William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Department, Robert A. Reuther, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

Koenig, LeBost & Jobes, Dorean M. Koenig, George Matish, Detroit, for defendant-appellant.

Before the Entire Bench.

WILLIAMS, Justice.

The issue in this case ¹ is whether Defendant was deprived of his right to a speedy trial ² under the new rule set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) which reads:

'A balancing test necessarily compels courts to approach speedy-trial cases 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. ³

I. FACTS

The facts involve a time sequence from September 4, 1968, to June 15, 1970. During this time, defendant was charged with two other crimes, one before and one after the armed robbery of this case.

On September 4, 1968, a warrant was issued against Defendant for Entering without breaking (#1). On November 1, 1968, Defendant was arraigned and released on a personal bond of $1,000.00.

On January 5, 1969, Defendant was arrested on a charge of armed Robbery (#2 and the instant case) and bond was set at $3,000.00. On January 13, 1969, the preliminary examination was waived and the bond reduced to $2,000.00 which Defendant met. He was then released. On January 22, 1969, Defendant appeared for arraignment on the information.

On August 21, 1969, the Defendant failed to appear in court on the Entering without breaking charge (#1), therefore his bond was forfeited and a capias issued. On August 25, the Defendant appeared in court on the Entering count (#1). At this time the capias was set aside, bond reinstated and the trial adjourned to January 26, 1970.

On September 15, 1969, the Defendant was arrested for a third time on a different count of Breaking and entering (#3). He was unable to make bond and was incarcerated in Wayne County Jail.

On October 28, 1969, Defendant failed to appear on robbery armed charge (#2) and a capias was entered. He was in a different courtroom that day on a motion to reduce bond on the breaking and entering charge (#3).

On October 29, 1969, a hold was stamped on the Robbery file (#2) with number and reference to the Breaking and entering file (#3).

On March 4, 1970, Defendant was tried on Breaking and entering (#3) and on March 9 was found guilty. He was sentenced on March 24, 1970, to 4 to 5 years.

On April 6, 1970, trial on the armed Robbery charge (#2) commenced, 15 months and 1 day after arrest. Defendant's motion to dismiss for failure to grant a speedy trial was denied. On April 7, 1970, Defendant was found guilty of Robbery not armed and, two days later, was sentenced to 7 1/2 to 15 years.

On June 15, 1970, a motion by the prosecutor to dismiss the Entering without breaking charge (#1) was granted.

Defendant appealed the instant Robbery (#2) conviction which was affirmed by the Court of Appeals with an amendment to the sentence to reflect a credit of 217 days on his sentence. 36 Mich.App. 400, 194 N.W.2d 131 (1971). We granted leave to appeal March 3, 1972.

II. THE EMERGENCE OF A SPEEDY TRIAL STANDARD

The individual's right to a speedy trial is secured by Const.1963, art. 1, § 20:

'In every criminal prosecution, the accused shall have the right to a speedy and public trial . . ..'

and U.S.Const., Am. VI:

'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . ..'

However, the People of the state have an equal concern in a speedy trial to act as a deterrent to potential criminals. The Michigan Legislature has enacted:

'The people of this state and persons charged with crime are entitled to and shall have a speedy trial. . . .' M.C.L.A. § 768.1; M.S.A. § 28.1024.

The complementary nature of the individual right and the state concern was well said in 57 Colum.L.Rev. 846 (1957):

'The importance of prompt trial of criminal offenses in a democratic society derives from the needs of maintaining public order and preserving individual freedom. The social interest in security demands speedy trial, for this facilitates both effective prosecution of criminals and greater deterrence to potential criminals. At the same time, society, in its concern for freedom and for the individual life, seeks to prevent prolonged prosecutions which may develop into persecutions.' ⁴

The parameters of this right have until recently not been too fully spelled out by the United States Supreme Court or this Court.

Prior to Barker, the United States Supreme Court in Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 576, 49 L.Ed. 950, 954 (1905) stated that 'The 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.' These circumstances were defined and limited by a later opinion, Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 486, 1 L.Ed.2d 393, 399 (1957) to 'purposeful and oppressive' delays. The United States Supreme Court in Smith v. United States, 360 U.S. 1, 10, 79 S.Ct. 991, 997, 3 L.Ed.2d 1041, 1048 (1959) stated that '. . . the essential ingredient is orderly expedition and not mere speed.' In United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627, 631 (1966) the Court denied that a 19 month delay was unconstitutional per se and stated that the right to a speedy trial was relative. And in United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 465, 466, 30 L.Ed.2d 468, 481 (1971) the Court stated that 'To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case.'

The Court in Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970) found a violation of the right where no reason was found for delaying trial for 7 years in light of defendant's diligent and repeated efforts to secure a prompt trial. There was also evidence of actual prejudice to the defendant in the death of two potential witnesses, unavailability of another, and the loss of police records. Mr. Justice Brennan concurring in Dickey set out at length the factors to be considered in determining whether the speedy trial right had been violated. ⁵

Justice Brennan concluded his remarks by leaving the door ajar for further action by the United States Supreme Court. He stated:

'These comments provide no definitive answers. I make them only to indicate that many--if not most--of the basic questions about the scope and context of the speedy-trial guarantee remain to be resolved.' 398 U.S. 30, 56, 90 S.Ct. 1564, 1578.

The United States Supreme Court responded to Justice Brennan's remarks by giving careful consideration to the speedy trial problem in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Here, Petitioner Barker was not brought to trial for more than five years (including 10 months in jail) after he had been arrested. The prosecution obtained numerous continuances for such reasons as the brief illness of the ex-sheriff who was in charge of the investigation, trial of Barker's alleged accomplice, and illness of a key prosecution witness. Barker made no objections to the continuances until 3 1/2 years after the arrest. He was eventually convicted of murder. The United States Supreme Court, in affirming the conviction held:

'A balancing test necessarily compels courts to approach speedy-trial cases 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.

On balance the United States Supreme Court stated that though the length of delay and reason for the delay weighed in Barker's favor, these factors were outweighed by the facts that he had suffered no serious prejudice and had failed to make a prompt and strenuous demand for a speedy trial. The United States Supreme Court concluded that Barker was a man who did not want a speedy trial. ⁶

In Grimmett, this Court recognized that the rule in Barker v. Wingo, Supra, quoted in the first paragraph of this opinion is the present and definitive test in this area.

III. THE BARKER RULE APPLIED TO THIS CASE

A. Length of Delay

The delay here was 15 months, including 7 months in jail from the time of arrest to the time of trial on robbery armed. The delay in Barker was 5 years including 10 months in jail which the court found 'extraordinary.'

The United States Supreme Court stated that 'the length of delay is to some extent a triggering mechanism. 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. The Court noted that the delay which would provoke such an inquiry was necessarily dependent upon the 'peculiar circumstances of the case.' For example they stated that 'the delay that can be tolerated for an ordinary street crime is considerable less than for a serious, complex conspiracy charge.' 407 U.S. 514, 530, 531, 92 S.Ct. 2182, 2192.

The case here involved a simple street crime of armed robbery. Armed robbery is a serious crime, but its posture for litigation was simple. A cleaning store was robbed by one man who took money from the till. There was one eyewitness. There was no preliminary examination.

The Michigan Legislature has twice made 6 months a...