People v. Goode

• Decision Date: 05 May 1981
• Docket Number: Docket No. 48186
• Citation: 106 Mich.App. 129,308 N.W.2d 448
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Charlie GOODE, Robert Alfred Mercier, Robert Pritchard, Reinhold Bender, WillieWood, Ernest Thomas, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 448

308 N.W.2d 448

106 Mich.App. 129

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Charlie GOODE, Robert Alfred Mercier, Robert Pritchard Reinhold Bender, WillieWood, Ernest Thomas Defendants-Appellees.

Docket No. 48186.

Court of Appeals of Michigan.

May 5, 1981.

Rehearing Denied June 23, 1981.

Released for Publication July 13, 1981.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, III, Chief Appellate Asst. Pros. Atty., Andrea L. Solak, Asst. Pros. Atty., for plaintiff-appellant.

Bernard M. Cohen, Southfield, for Charlie Goode. George E. Michaels, East Detroit, for Robt. A. Mercier. William W. Swor, Detroit, for Robt. Pritchard. Peter B. Henderson, Mount Clemens, for Kenneth Reinhold. Roman S. Karwowski, Warren, for Willie Wood. James R. Neuhard, State Appellate Defender, Mardi Crawford, Asst. State Appellate Defender, for Ernest Thomas.

Before BRONSON, P. J., and CAVANAGH and KAUFMAN, JJ.

KAUFMAN, Judge.

Defendants were charged with conspiracy to steal property over the value of $100, M.C.L. § 750.356; M.S.A. § 28.588, M.C.L. § 750.157a; M.S.A. § 28.354(1), stealing property over the value of $100, M.C.L. § 750.356; M.S.A. § 28.588, conspiracy to receive or conceal stolen property, M.C.L. § 750.535; M.S.A. § 28.803, M.C.L. § 750.157a; M.S.A. § 28.354(1) and receiving or concealing stolen property, M.C.L. § 750.535; M.S.A. § 28.803. After a lengthy preliminary examination, defendants were bound over for trial. However, in response to a defense motion, the charges were dismissed when the trial judge determined that defendants' right to a speedy trial had been violated. The people appeal as of right.

In determining whether a defendant has been denied a speedy trial, the Michigan Supreme Court has adopted the rule of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). People v. Grimmett, 388 Mich. 590, 202 N.W.2d 278 (1972), People v. Missouri, 100 Mich.App. 310, 299 N.W.2d 346 (1980). The test requires an ad hoc balancing of four factors: length of the delay, reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.

The length of the delay is a triggering mechanism for consideration of the other factors. People v. Hammond, 84 Mich.App. 60, 67, 269 N.W.2d 488 (1978), People v. Collins, 388 Mich. 680, 688-689, 202 N.W.2d 769 (1972), People v. Classen, 50 Mich.App. 122, 126, 212 N.W.2d 783 (1973). Here, the delay was 19 months, one month in excess of the 18 month period after which prejudice is presumed. People v. Grimmett, supra, 388 Mich. 606, 202 N.W.2d 278. Therefore, the other factors are to be considered.

In complex conspiracy cases, greater delays may be tolerated than in the prosecution of ordinary street crimes. Barker v. Wingo, supra, 407 U.S. at 530-531, 92 S.Ct. at 2191-92; People v. Missouri, supra, 100 Mich.App. 320, 299 N.W.2d 346. Also, delays attributable to vigorous and aggressive pretrial tactics must not be considered in derogation of the right to a speedy trial. People v. Collins, supra, 388 Mich. 690-692, 202 N.W.2d 769, People v. Cutler, 86 Mich.App. 118, 126, 272 N.W.2d 206 (1978), People v. Hammond, supra, 84 Mich.App. 67, 269 N.W.2d 488, People v. Classen, supra, 50 Mich.App. 126, 212 N.W.2d 783. Further, while delays inherent in the court system, such as docket congestion, are attributable to the prosecution, they have a neutral tint and should be given only minimal weight in determining whether the right to a speedy trial has been violated. People v. Forrest, 72 Mich.App. 266, 249 N.W.2d 384 (1976), Barker v. Wingo, supra.

The prosecution below involved a complex conspiracy case with six defendants represented by individual retained counsel. The examination was initially delayed for approximately five weeks when one of the defense counsel was unprepared to proceed. The requested continuance was assented to by all defense counsel. Although the prosecution objected to any delay, the matter was adjourned. The subsequent date selected was chosen to accommodate all counsel. Ultimately, the examination took seven days to complete, stretching over two and one-half months time. Although the record is unclear as to why particular dates were selected, it is not unlikely that they, too, were also compromise dates chosen to accommodate all counsel, as well as to conform to the examining magistrate's schedule. Although the trial court concluded that the delay was attributable to the magistrate's practice of conducting preliminary examinations only on Fridays, the record reveals that of the seven days selected, four were other days of the week.

At the conclusion of the preliminary examination, the court and all counsel agreed that all motions and memoranda and the trial court's bindover decision should be based upon specific citation to the preliminary examination transcript. It was anticipated that the transcript would take at least one and one-half months to complete. The transcript, which turned out to encompass over 900 pages, was not, in fact, made available until five and one-half months later. It must here be noted that no objection was made by any defense counsel to this delay, nor were any motions ever made for delivery of said transcript. After the transcript became available, defense counsel, in contravention of an agreement to have all motions and briefs filed within 30 days of receipt of the transcript, waited as long as three months to accomplish those tasks. The prosecutor was two weeks late in filing his own brief in answer to the many briefs of defense counsel. Once all of the motions and briefs were submitted, the municipal court judge took approximately one and one-half months to render his decision. A trial date was set two months later by the circuit court.

It is apparent that at least three months of the delay are attributable to defense counsel. The trial transcript was delivered approximately five months later than expected. The prosecutor was approximately two weeks tardy in the filing of his brief. The remainder of the delay was apparently caused by the complexity of the case, which required the reconciling of the schedules of seven attorneys, and congestion in the magistrate's court docket. Thus, the bulk of the delay, while attributable to the prosecution, was of a neutral tint and should not be weighed heavily against the people. People v. Forrest, supra, Barker v. Wingo, supra.

Defendants Goode and Mercier were the first to assert that they were denied the right to a speedy trial, but even they did so only after 14 months had passed. The other defendants only raised the issue in the circuit court. None of the defendants ever moved to set an early trial date. While this is explained by the delay in the bindover, the record fails to reveal that any of the defense counsel moved to expedite the examination process or the preparation of the transcript. Defendants never complained of the manner in which the preliminary examination was scheduled. ¹ This would indicate that defendants were unconcerned with the delay or chose to remain silent to build error into the record. People v. Cutler, supra, 86 Mich.App. 126-127, 272 N.W.2d 206, People v. Classen, supra, 50 Mich.App. 127, 212 N.W.2d 783. This failure to assert the right serves as strong evidentiary support that a violation has not taken place. People v. Hammond, supra.

The Michigan Supreme Court has recognized two types of prejudice accruing from pretrial delay: (1) prejudice to the defendant's person in the form of incarceration or anxiety and concern over the pending charges; and (2) prejudice to the defense from loss of evidence or witnesses. People v. Collins, supra, 388 Mich. 694, 202 N.W.2d 769.

All defendants have been out on bond since shortly after their arrests, so there has been no oppressive incarceration. Although some anxiety and stress has no doubt been felt by the defendants, the fact that they were free on bond pending the trial and the long absence of objection to the delay serves as an indication that they did not feel particularly prejudiced. People v. Missouri, supra, 100 Mich.App. 323, 299 N.W.2d 346. Likewise, there was no indication that any defenses to the charges have been...