People v. Johnson

• Decision Date: 21 July 1982
• Docket Number: Docket No. 54842
• Citation: 115 Mich.App. 630,321 N.W.2d 752
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Lee JOHNSON, Defendant-Appellant. 115 Mich.App. 630, 321 N.W.2d 752
• Court: Court of Appeal of Michigan — District of US

Page 752

321 N.W.2d 752

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Lee JOHNSON, Defendant-Appellant.

Docket No. 54842.

115 Mich.App. 630, 321 N.W.2d 752

Court of Appeals of Michigan.

Submitted Feb. 2, 1982.

Decided April 23, 1982.

Released for Publication July 21, 1982.

[115 MICHAPP 632] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Edward J. Grant, Pros. Atty., and John L. Wildeboer, Chief Appellate Asst. Pros. Atty., for the People.

Myron E. Sanderson, Jackson, for defendant.

Before BEASLEY, P. J., and T. M. BURNS and QUINNELL, ^* JJ.

PER CURIAM.

The defendant appeals his jury conviction of assaulting an employee of a place of confinement; M.C.L. Sec. 750.197c; M.S.A. Sec. 28.394(3).

On November 7, 1979, defendant was being moved from a housing unit to the infirmary at the State Prison of Southern Michigan by Officer Coutu. Defendant wished to take his legal papers with him to the infirmary, and Coutu denied him permission to do so. After some discussion, Officer Coutu checked with his supervisor, who decided that defendant should be allowed to take the papers. At this point the testimony diverges. Officer Coutu and other Department of Corrections employees claim that defendant then spat in Coutu's face, Coutu pushed defendant away, and defendant then struck Coutu over the right eye with his fist. Defendant and a resident witness claimed that after the telephone discussion with a supervisor,[115 MICHAPP 633] Officer Coutu initiated the physical confrontation with defendant and that defendant only acted defensively. The jury obviously accepted Officer Coutu's version of the incident. Defendant raises numerous issues on appeal.

I. The defendant's challenges to the validity and applicability of the statute under which he was charged must be rejected. People v. Wingo, 95 Mich.App. 101, 290 N.W.2d 93 (1980); People v. Bellafant, 105 Mich.App. 788, 307 N.W.2d 422 (1981); People v. Boyd, 102 Mich.App. 112, 300 N.W.2d 760 (1980), lv. den. 412 Mich. 927 (1982). Justice Levin, dissenting from the order denying leave to appeal in Boyd, raises some interesting questions regarding the interpretation of the statute. Pending further Supreme Court or legislative clarification, we conclude that the legislative use of the word "violence" in the statute was intended to include only the concept of violence implicit in any assault and, therefore, that any assault committed by a prison resident on an employee of the prison, whether or not committed during an escape, falls within the purview of the statute.

II. Defendant claims that he was not tried within 180 days as is required by M.C.L. Sec. 780.131 et seq.; M.S.A. Sec. 28.969(1) et seq.

Initially, we note that the statute does apply, even though any sentence imposed as to the charge must be served consecutively to the sentence which the defendant was serving at the time of the commission of this offense. We can place no other reasonable interpretation on the Supreme Court order in People v. Pitsaroff, 411 Mich. 941, 308 N.W.2d 98 (1981). ¹

[115 MICHAPP 634] The 180-day period commenced no later than November 13, 1979, that being the date on which the Prosecuting Attorney's office authorized the issuance of a warrant. People v. Hill, 402 Mich. 272, 262 N.W.2d 641 (1978). The period therefore expired on May 12, 1980. Trial did not commence until July 16, 1980.

However, it is well established that the actual trial need not commence within the 180-day period; rather, the prosecution must establish that it took good faith action within that time to ready the case for trial. People v. Hill, supra. Under these circumstances, a remand for an evidentiary hearing is sometimes required. Pitsaroff, supra. An evidentiary hearing is not required in this case because the reasons for delay are in the present record. Following the defendant's preliminary examination he ordered a transcript of those proceedings, which resulted in a delay in his circuit court arraignment until January 8, 1980. On January 15, 1980, he filed a petition for a diagnostic commitment to determine competency to stand trial. A competency examination was ordered and a trial date set for April 23, 1980. Defendant and the examiner experienced problems during the initial competency examination; the examiner characterized the defendant as uncooperative, such that the originally scheduled competency hearing could not be held. A new competency hearing was thereafter scheduled, and the trial date adjourned to July 9, 1980. The subsequent one-week delay was occasioned by stipulation of the parties, apparently because of defense counsel's vacation plans. [115 MICHAPP 635] It is clear from this record that the prosecution did make a good faith effort to bring the matter to trial within 180 days as required by statute.

We would not be understood as requiring a defendant to waive one right (e.g. a trial within 180 days) in order to secure another (e.g. the right to a preliminary examination transcript). Rather, we merely recognize that in some instances pretrial activities of a defendant, whether justified or not, will result in a trial's not being commenced within 180 days despite the good faith efforts of the prosecution to have the case ready for trial.

III. Defendant also claims that he was denied his constitutional and statutory right to a speedy trial. Const. 1963, art. 1, Sec. 20; M.C.L. Sec. 768.1; M.S.A. Sec. 28.1024. A delay of 8 months is sufficient to trigger the constitutional inquiry. People v. Chism, 390 Mich. 104, 211 N.W.2d 193 (1973).

Resolution of the speedy trial issue involves a balancing of four factors: length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. See, e.g. People v. Grimmett, 388 Mich. 590, 202 N.W.2d 278 (1972).

The length of delay and the reason for the delay have been previously discussed. The defendant did not assert his speedy trial rights in the trial court.

Because the trial took place within 18 months of the offense, prejudice to the defendant is not presumed; Grimmett, supra, citing People v. Den Uyl, 320 Mich. 477, 31 N.W.2d 699 (1948). The only prejudice which defendant claims now is that because of his incarceration he had a limited opportunity to make a determination of whether or not there were available witnesses. That argument carries little weight inasmuch as defendant would have been incarcerated in any event. We find no [115 MICHAPP 636] prejudice to the defendant from the delay. Prejudice has been identified by the U. S. Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), as affecting three specific interests of a defendant, namely the interests in avoiding oppressive pretrial incarceration, minimizing anxiety and concern, and limiting the possibility that the defense will be impaired. None of those interests of this defendant were significantly affected by the delay in this case.

On balance, we conclude that the defendant was not denied his right to a speedy trial.

IV. Defendant claims that the trial court erred in allowing the prosecution to impeach the defendant by the use of evidence of defendant's prior criminal convictions. We disagree. The trial judge recognized his discretion and articulated his reasons for permitting impeachment as he did. While not all trial courts would have permitted that impeachment, such a result is implicit in the concept of discretion. The trial court fully complied with MRE 609(a)(2).

V. Defendant also complains that the court erred in allowing the prosecutor in his closing argument to refer to the defendant as being paranoid. A review of the context indicates that the prosecutor was not using the term in its technical sense, but in the street sense. The prosecutor related his argument to specific portions of defendant's testimony, and his remarks constituted fair comment on the evidence.

VI. We have carefully examined the remaining allegations of error and find only two that merit further discussion.

A. Defendant was convicted both of the assault and of being a habitual offender; he was sentenced to a minimum term of six years and a maximum [115 MICHAPP 637] term of eight years. The sentence did not constitute cruel and unusual punishment and was not disproportionate to the crime that was committed; nor did the trial court fail to consider appropriate sentencing considerations.

After defendant's sentence was imposed, this Court held, in People v. Langham, 101 Mich.App. 391, 300 N.W.2d 572 (1980), that a person charged as a habitual criminal must be given an indeterminate sentence. An issue remaining unaddressed is whether such an indeterminate sentence is subject to the two-thirds rule of People v. Tanner, 387 Mich. 683, 199 N.W.2d 202 (1972). Since that question has not been raised or briefed by the parties in this appeal, we decline to address it.

B. The incident took place near a desk normally occupied by one Worrell, a resident of the prison who served as a clerk for...