People v. Fiorini

• Decision Date: 29 May 1974
• Docket Number: Docket No. 15546,No. 1,1
• Citation: People v. Fiorini, 220 N.W.2d 70, 53 Mich.App. 389 (Mich. App. 1974)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Americo Joseph FIORINI, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 70

220 N.W.2d 70

53 Mich.App. 389

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Americo Joseph FIORINI, Defendant-Appellant.

Docket No. 15546.

Court of Appeals of Michigan, Division No. 1.

May 29, 1974.

Released for Publication July 23, 1974.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., William L. Cahalan, Pros.Atty., Dominick R. Carnovale, Chief, Appellate Div., Stuart M. Israel, Asst. Pros.Atty., for plaintiff-appellee.

Before J. H. GILLIS, P.J., and HOLBROOK and VanVALKENBURG,* JJ.

HOLBROOK, Judge.

Defendant Fiorini was tried before a jury on the charge of armed robbery, M.C.L.A. § 750.529;M.S.A. § 28.797, in Wayne County Circuit Court and was found guilty.On August 9, 1972, he was sentenced to 18 to 40 years imprisonment.

On August 30, 1968, the Lakepointe Drugstore in Northville Township, Michigan, was robbed, at closing time.Soon after police arrived and took descriptions of the assailant from Gerald Dobrusin, the owner of the store and pharmacist, and Dale Randall and Diane Penland(nee Oliver), employees of the store.Within one week the complaining witness Dobrusin had made a positive photographic identification of defendant.Employee Randall was shown a photograph of the defendant but was unable to identify him as the assailant.The third eyewitness, Penland, was not shown the photograph.

As a result of the description, a composite description was sent by teletype.Testimony was unclear as to whether this teletype or another specifically named the defendant.¹

By coincidence, complainant Dobrusin attended a lineup in March 1972.Appearing in this lineup was the defendant.²Dobrusin identified the defendant as the assailant in the robbery at his Lakepointe Drugstore.Thereafter, a complaint was filed and a warrant issued in April 1972.

From early October 1968 until August 1971defendant was continuously available to answer any charges that might have been brought on this robbery.For a number of months, at the outset, he was in the Wayne County Jail, and thereafter, having been convicted on a felonious assault charge, was in the State Prison at Jackson.The investigation was conducted by the Wayne County Sheriff's office.

On April 6, 10, and 14, 1972, preliminary examination was had.Defendant moved to have the charges against him dismissed, alleging violations of Michigan and Federal constitutional rights as to fair trial, due process of law, and speedy trial.He contended that a delay of three years and seven months between identification of his photograph and initiation of proceedings against him had irreparably prejudiced him due to the loss of witness by death, impairment of other witnesses due to faded memory, and impaired ability to cross-examine prosecution witnesses.The district court judge bound defendant over to Wayne County Circuit Court on the charge.He denied the appellant's motion to dismiss on the basis that, as examining magistrate, he lacked jurisdiction to entertain the motion.

Thereafter, defendant brought a motion, on the same grounds, before the Wayne County Circuit Court presiding judge and after a hearing it was denied without prejudice.The motion was then considered by the trial judge, who denied the motion on July 7, 1972.

At the hearing before the presiding judge the prosecution admitted that the people, unfortunately, did let this case get away from them.Further, Detective Thomas Sheedy testified at the preliminary examination that to his knowledge the case sat in the file for three years and eight months.

Defendant here appeals as of right and sets out a number of issues.It is only necessary to discuss appellant's first issue, Viz., that he was denied due process of law, fair trial, and speedy trial.We point out that we were not assisted by the fact that the prosecutor's brief was filed within one day of oral argument.

In Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210(1965), there was a seven-month delay between the alleged offense and the swearing out of a complaint.The conviction was reversed on the grounds of denial of due process.The next year, in discussing Ross, the District of Columbia Court of Appeals held that Ross had looked towards two factors: (1)'the prejudice to the defendant stemming from the method of investigation'; and, (2)'the reasonableness of the police conduct'.Woody v. United States, 125 U.S.App.D.C. 192, 194, 370 F.2d 214, 216(1966).The Court said of Ross:

'Ross fashioned a prophylactic rule of fairness designed to protect innocent people from conviction made possible by the delay attendant on undercover police investigation.The ultimate prejudice to the accused, the risk that he will be convicted although innocent, is not reflected in the evidence presented at trial.But it nevertheles (sic) exists if the accused has been unable to prepare a defense because of the delay before arrest.'p. 195, n 7, 370 F.2d 217.

This Court in its holding in People v. Hernandez, 15 Mich.App. 141, 147, 170 N.W.2d 851(1968), relied upon Ross and held:

'(W)here Some prejudice is shown, as it is shown in this case, it can be permitted and not be the basis for a finding of lack of due process only where the following elements are present and shown clearly and convincingly to the trier of fact: (1) when the delay is explainable, (2) when it is not deliberate, (3) where no Undue prejudice attaches to the defendant.'(Emphasis in original.)

Hernandez, p. 146, 170 N.W.2d 854, said the focus was not the delay per se but rather the evidence of prejudice.See, also, People v. Noble, 18 Mich.App. 300, 170 N.W.2d 916(1969);People v. Rios, 27 Mich.App. 54, 183 N.W.2d 321(1970);People v. Iaconis, 31 Mich.App. 703, 188 N.W.2d 175(1971);People v. Johnson, 41 Mich.App. 34, 199 N.W.2d 561(1972);People v. Robinson, 41 Mich.App. 259, 199 N.W.2d 878(1972);People v. Davis, 53 Mich.App. 94, 218 N.W.2d 787(1974).The defendant has here asserted a number of grounds of prejudice, E.g., inability to cross-examine and impeach the people's witnesses, loss of police notes and witnesses' failure to recall.At the outset, he has made a showing of some prejudice.

While the length of delay per se is not conclusive, a delay of three years, seven months certainly raises a question of the propriety of the prosecution's actions.Thus, the burden must be upon the prosecution to show that the delay was explainable, not deliberate and that the defendant has not been prejudiced thereby.

In Rios, suprareversed on other grounds386 Mich. 172, 191 N.W.2d 297(1971), the similar assertion of denial of due process and fair trial on the basis of delay was denied on the basis, Inter alia, that the delay was a function of a desire by police to not jeopardize infiltration into other narcotic activities in the area.In Johnson, supra, 41 Mich.App. p. 43, 199 N.W.2d 565, the delay was a direct consequence of the defendant's activities.Speaking for this Court, this writer wrote:

'It cannot be said that the prearrest delay was either deliberate or unexplained.An attempt was made to arrest defendant at his home.The warrant was left with his father, and it is highly unlikely the defendant was unaware of it.On several occasions he eluded officers trying to apprehended him; as indicated in People v. Iaconis, Supra, one cannot complain of a delay which he helped create.'(Emphasis supplied.)

In the case at bar, there is no assertion that the defendant played any part in the delay, I.e., that he was other than available to answer any charges.In Iaconis, supra, 31 Mich.App. p. 713, 188 N.W.2d 180, the defendant spent all but approximately two weeks of the 165 days in question outside of the state.Further, in this case the contingencies of undercover police work and infiltration, as in narcotic cases, are not present.No explanation other than negligence has been proffered by the prosecution.While we cannot say that the delay was deliberate, the prosecution has not carried its burden of showing that it wasn't deliberate.

M.C.L.A. § 780.131;M.S.A. § 28.969(1) provides:

'Whenever the department of corrections shall receive notice that there is pending in this state any untried warrant, indictment, information or complaint setting forth against any inmate of a penal institution of this state a criminal offense for which a prison sentence might be imposed upon conviction, such immate shall be brought to trial within 180 days after the department of corrections shall cause to be delivered to the prosecuting attorney of the county in which such warrant, indictment, information or complaint is pending written notice of the place of imprisonment of such inmate and a request for final disposition of such warrant, indictment, information or complaint.The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the parole board relating to the prisoner.The written notice and statement provided herein shall be delivered by certified mail.'

And M.C.L.A. § 780.133;M.S.A. § 28.969(3) provides:

'In the event that, within the time limitation set forth in section 1 of this act, action is not commenced on the matter for which request for disposition was made, no court of this state shall any longer have jurisdiction thereof, nor shall the untried warrant, indictment, information or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.'

Arguendo, in the instant case the law enforcement officials and the prosecutor's office had the necessary knowledge to charge the defendant and knowledge of his whereabouts (jail and prison), but failed to seek a warrant....