People v. Dungey, Docket No. 76956

• Decision Date: 21 March 1986
• Docket Number: Docket No. 76956
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Philip Mark DUNGEY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 128

383 N.W.2d 128

147 Mich.App. 83

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Philip Mark DUNGEY, Defendant-Appellant.

Docket No. 76956.

Court of Appeals of Michigan.

Submitted Feb. 14, 1985.

Decided Sept. 10, 1985.

Released for Publication March 21, 1986.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Susan L. Dobrich, Pros. Atty., and Jann Ryan Baugh, Asst. Atty. Gen., for the People.

State Appellate Defender by Sheila N. Robertson, for defendant-appellant on appeal.

Before GRIBBS, P.J., and MacKENZIE and SULLIVAN ^*, JJ.

PER CURIAM.

On February 14, 1983, defendant pled nolo contendere to attempted fourth-degree criminal sexual conduct, M.C.L. Sec. 750.92; M.S.A. Sec. 28.287, M.C.L. Sec. 750.520e; M.S.A. Sec. 28.788(5). He was sentenced to one year in the county jail, and he appeals as of right. We reverse.

According to complainant's preliminary examination testimony, in the early morning of May 11, 1981, defendant knocked on her door and gave a false name. He eventually forced his way into the home by breaking the door panel. Defendant displayed a handgun and forced complainant to have vaginal and oral sex with him. Complainant identified defendant as her assailant and stated that she had previously been acquainted with him.

The alleged assault occurred on May 11, 1981. A warrant was issued and defendant was arrested on December 4, 1981. Defendant moved on October 26, 1982, to dismiss the complaint on the ground that prejudice resulted from the delay between the date of the offense and the date of arrest. He alleged, in part, that the delay resulted in the loss of potentially exculpatory blood typing evidence. The trial court denied the motion to dismiss, finding that the prosecution had carried its burden of persuading the court that the reason for the delay was sufficient to justify whatever prejudice resulted. See People v. Bisard, 114 Mich.App. 784, 319 N.W.2d 670 (1982).

The Court in Bisard, supra, p. 791, 319 N.W.2d 670, stated the appropriate standard for determining whether the delay in proceedings entitles a defendant to relief:

"Accordingly, we hold that, once a defendant has shown some prejudice, the prosecution bears the burden of persuading the court that the reason for the delay is sufficient to justify whatever prejudice resulted. This approach places the burden of coming forward with evidence of prejudice on the defendant, who is most likely to have facts regarding prejudice at his disposal. The burden of persuasion rests with the state, which is most likely to have access to facts concerning the reasons for delay and which bears the responsibility for determining when an investigation should end."

Complainant underwent a physical examination shortly after the alleged rape, and a sexual assault evidence kit was assembled and forwarded to the State Police Crime Laboratory for testing. Among the items of evidence received by the crime lab on May 13, 1981, were vaginal and oral swabs, vaginal and oral smears and the underpants which complainant was wearing at the time of the assault. According to the lab report dated June 10, 1981, chemical testing of the vaginal swab indicated the presence of seminal stains. In addition, microscopic examination of the vaginal smear showed the presence of many spermatozoa. Finally, chemical tests and microscopic examinations showed the presence of seminal stains and spermatozoa in the crotch area of the underpants. The crime lab declined to do any secretion typing studies until known blood and saliva samples from the complainant and the defendant were submitted for comparative analyses. The lab report dated June 10, 1981, stated:

"A known blood and saliva sample from each of the parties believed to be involved in this case must be obtained before any secretion typing studies will be conducted. The length of time that elapses before these samples are obtained is crucial to the success of such typing. The evidence will be retained for 30 days awaiting these samples. After 30 days the evidence will be returned to your department without secretion typing studies."

The evidence was in fact returned without secretion typing studies.

At the January 7, 1983, hearing on the motion to dismiss, Glen Moore, the crime lab scientist who handled this case, testified that, as a matter of department policy, secretion typing studies are not performed on specimens taken from a sexual assault victim unless known blood and saliva samples from the complainant and the suspect are submitted for comparative analyses. The witness further testified that, when known...