People v. Freeman

• Decision Date: 06 May 1983
• Docket Number: Docket No. 60939
• Citation: 122 Mich.App. 260,332 N.W.2d 460
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James Hill FREEMAN, Defendant-Appellee. 122 Mich.App. 260, 332 N.W.2d 460
• Court: Court of Appeal of Michigan — District of US

Page 460

332 N.W.2d 460

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James Hill FREEMAN, Defendant-Appellee.

Docket No. 60939.

122 Mich.App. 260, 332 N.W.2d 460

Court of Appeals of Michigan.

Submitted Aug. 17, 1982.

Decided Dec. 21, 1982.

Released for Publication May 6, 1983.

[122 MICHAPP 261] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Robert J. Sheiko, Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender by Peter Jon Van Hoek, Asst. State Appellate Defender, for defendant-appellee on appeal.

Before BRONSON, P.J., and MacKENZIE and SANBORN ^*, JJ.

[122 MICHAPP 262] PER CURIAM.

Defendant was charged with first degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2), in September 1979, and arrested on those charges October 28, 1979. On February 13, 1981, defendant moved to quash the information because the people failed to bring him to trial within 180 days as required by statute, M.C.L. Sec. 780.131; M.S.A. Sec. 28.969(1). On June 7, 1981, the trial court granted the motion. The people appeal by leave granted.

Defendant was arraigned in this case on October 29, 1979, along with codefendant Robert Partee. The preliminary examination was held November 15, 1979. The trial court set a trial date of March 3, 1980. On December 21, 1979, defendant was sentenced in a separate case to 20 to 30 months in prison for attempted carrying a concealed weapon. After December 21, 1979, the prosecutor did not take any further action on this case for 384 days or until January 8, 1981. Instead, the prosecutor completed proceedings against defendant, codefendant Partee, and three other defendants on other pending first-degree murder charges stemming from the much-publicized Democratic Club triple beheading murders.

M.C.L. Sec. 780.131; M.S.A. Sec. 28.969(1) ¹ provides a 180-day [122 MICHAPP 263] period during which a state prison inmate must be brought to trial on an outstanding charge. The sanction for violation of this 180-day rule is the trial court's loss of jurisdiction and dismissal of the charge with prejudice, M.C.L. Sec. 780.133; M.S.A. Sec. 28.969(3) ². In People v. Hill, 402 Mich. 272, 280-281, 262 N.W.2d 641 (1978), the Court held that the 180-day period begins to run with the defendant's incarceration or detention when there is an outstanding warrant or complaint pending against the defendant and the prosecutor knows or should know that the defendant is so incarcerated. Thus, the 180 days began to run in this case on December 21, 1979.

The prosecutor does not necessarily violate the 180-day rule by failing to complete or even commence trial within that time period. Instead, the statute mandates that a prosecutor take good-faith action on the case within 180 days in an effort to proceed promptly to trial. People v. Hill, p. 281, 262 N.W.2d 641; People v. Castelli, 370 Mich. 147, 153, 121 N.W.2d 438 (1963). The prosecutor has the burden of establishing good-faith action that complies with the 180-day rule. Hill, 402 Mich. p. 282, 262 N.W.2d 641. If the prosecutor does show such good-faith action, jurisdiction is not lost unless the initial action is followed by an inexcusable delay which tends to show that the prosecutor did not intend to bring defendant promptly to trial. People v. Hendershot, 357 Mich. 300, 303-304, [122 MICHAPP 264] 98 N.W.2d 568 (1959); People v. Forrest, 72 Mich.App. 266, 249 N.W.2d 384 (1976). A delay reasonably necessary to try an intervening case against the defendant does not necessarily militate against a finding of good-faith prosecutorial action. Hill, p. 282, 262 N.W.2d 641.

In Hill, proceedings in the defendant's assault charge were adjourned until trial was completed on an intervening murder charge. The defendant moved to quash the information on the assault charge because the prosecutor failed to bring him to trial for that offense within 180 days. The trial court denied the motion. The defendant was subsequently convicted of the assault. This Court affirmed that conviction. 22 Mich.App. 91, 177 N.W.2d 220 (1970). The Supreme Court remanded for an evidentiary hearing.

"The trial judge denied the motion without the prosecutor establishing good-faith action to bring this matter to trial, apparently holding that adjournment of trial to permit another trial was reasonable per se and adequate compliance with the statute without regard to whether the intervening trial was unreasonably delayed. We do not agree that the delay here was necessarily reasonable, and accordingly remand for the purpose of establishing its reasonableness and that the prosecutor took the required good-faith action to ready this case for trial." People v. Hill, 402 Mich. p. 282, 262 N.W.2d 641. (Emphasis added.)

In People v. Wright, 89 Mich.App. 244, 280 N.W.2d 836 (1979), remanded for an evidentiary hearing in lieu of granting leave to appeal, 408 Mich. 942 (1980), lv. den. 411 Mich. 985 (1981), this Court addressed a claimed violation of the 180-day rule where the prosecutor argued that proceedings on an intervening charge justified the delay. This [122 MICHAPP 265] Court found the nine-month delay between the defendant's incarceration on a related charge and trial on his pending charge unreasonable. The intervening actions consisted of two pretrial conferences held on the same day before the same judge. Furthermore, all the charges pending against the defendant were similar and developed from the same investigation. This Court found that the proceedings in the case were "marked by periods of inaction, interrupted only by the setting and postponement of the trial date without reason given". Wright, p. 253, 280 N.W.2d 836.

When the prosecutor petitioned for leave to appeal Wright, the Supreme Court said: "[W]e remand for an evidentiary hearing at which the trial court shall make findings of fact and, considering this case and the other cases pending against defendant at the time, determine whether or not the prosecutor took 'good faith action' within 180 days to ready the case for trial * * *." 408 Mich. 942 (emphasis added).

Thus, a prosecutor may establish that a delay beyond 180 days is reasonable if the prosecutor establishes that he took good-faith action to bring an intervening charge against defendant promptly to trial and thereafter acted promptly to bring the pending case to trial.

At the hearing on defendant's motion to quash, the prosecutor in charge of both this case and the Democratic Club triple beheading case said that he could demonstrate the people's good-faith efforts to bring this case to trial without calling witnesses. The prosecutor said that he deliberately chose to proceed with the beheading case because (1) all five of those defendants were in jail, (2) the beheading case was much more complex than this case, and (3) the disposition in the beheading case [122 MICHAPP 266] might determine whether the people would proceed with this case.

The prosecutor then detailed the actions taken in the beheading case. The beheading case commenced on March 3, 1980, the date originally...