People v. Matlock

• Decision Date: 05 November 1986
• Docket Number: Docket No. 83273
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Phillip David MATLOCK, Defendant-Appellant. 153 Mich.App. 171, 395 N.W.2d 274
• Court: Court of Appeal of Michigan — District of US

Page 274

395 N.W.2d 274

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Phillip David MATLOCK, Defendant-Appellant.

Docket No. 83273.

153 Mich.App. 171, 395 N.W.2d 274

Court of Appeals of Michigan.

Submitted Oct. 2, 1985.

Decided July 8, 1986.

Released for Publication Nov. 5, 1986.

[153 MICHAPP 172] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Gary L. Walker, Pros. Atty., and Judd R. Spray, Chief Asst. Pros. Atty., for the People.

Thomas P. Casselman, Marquette, for defendant-appellant.

Before WALSH, P.J., and GRIBBS and SHEPHERD, JJ.

PER CURIAM.

Defendant was convicted by a jury of first-degree criminal sexual conduct. M.C.L. Sec. 750.520b(1)(a); M.S.A. Sec. 28.788(2)(1)(a). He appeals as of right. He raises several issues on appeal, including violation of his right to a speedy trial and the erroneous admission of a rape counselor's testimony[153 MICHAPP 173] regarding the complainant's credibility. We find that the trial court did not err in denying defendant's motion to dismiss for lack of speedy trial, but that the admission of the rape counselor's testimony was reversible error. Thus we reverse defendant's conviction and remand for a new trial.

Defendant is the father of the complainant, Melissa Matlock, born on June 13, 1974. Defendant and Melissa's mother, Jodi Matlock, are divorced and the mother has legal custody of Melissa.

On July 8, 1982, the Department of Social Services (DSS) interviewed Melissa at the request of her mother regarding possible criminal sexual conduct involving Melissa and defendant. At that time, Melissa denied any sexual conduct had taken place. On March 30, Melissa was again interviewed by DSS and the state police at the request of her mother. At that time Melissa told the interviewers that, while she was visiting the defendant in his log cabin in the summer of 1982, he put his penis into her mouth and between her legs. On April 1, 1983, Melissa was again interviewed and stated that in the spring of 1980 defendant put his penis between her legs and that in the summer of 1982 defendant put his penis in her mouth. Based upon this information, defendant was arrested on March 31, 1983, and was charged with first-degree criminal sexual conduct.

At defendant's preliminary examination on May 12, 1983, Melissa testified that defendant showed her his penis when he lived in "the red house" (a red duplex), which was sometime between December 1980 and July, 1981. She also testified that when defendant lived in the log cabin, which was from July, 1981, to sometime in 1984, he told her on two different occasions to either take off her [153 MICHAPP 174] clothes or pull down her pants. He then put his penis between her legs on both occasions. She also testified that on one of these occasions in the log cabin he put his penis in her mouth. The prosecution was allowed to amend the information so as to charge defendant with first-degree criminal sexual conduct based upon an incident of fellatio in 1981 while defendant was living in the log cabin. This was the charge upon which defendant was tried. ¹

Defendant's trial was originally scheduled for February 7, 1984. However, on that date, defense counsel moved for an adjournment of the case because of the possibility of prejudice to defendant arising out of articles on child sexual abuse appearing in a local newspaper. The motion was granted over the prosecution's objection and trial was rescheduled for May 7, 1984.

Defendant's first trial commenced on May 7, 1984. However, the trial court granted a mistrial based upon references to similar allegations of sexual abuse concerning defendant's stepdaughter. The new trial was scheduled for June, 1984. However, trial was adjourned several days prior to that time based on the prosecution's motion to endorse Fran Waters, Melissa's rape counselor, as an expert witness. Hearings to endorse Waters as an expert witness were scheduled in July and August, 1984, but the motion was heard on August 29, 1984, and was granted by the trial court.

Trial was finally commenced on December 11, 1984, and concluded on December 13, 1984. On December 11, 1984, defendant moved to dismiss the charges on the basis that his right to a speedy [153 MICHAPP 175] trial had been violated by the long delay between his arrest in March, 1983, and trial in December, 1984. A demand for a speedy trial had been filed nearly a year earlier in December, 1983. The motion was heard on December 12, 1984, and, after considering the length and reasons for the delay and the prejudice to the defendant, which was presumed because of the lengthy delay, the trial court denied the motion.

On appeal, defendant first contends that the twenty-one month delay between arrest and trial denied him his constitutional right to a speedy trial and that the trial court thus erred in denying his motion to dismiss on that basis. Inquiry into and the balancing of the following factors aids the determination of whether defendant was denied his constitutional right to a speedy trial: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his rights; and (4) the prejudice to the defendant. People v. Collins, 388 Mich. 680, 687-690, 202 N.W.2d 769 (1972); People v. Grimmett, 388 Mich. 590, 202 N.W.2d 278 (1972), adopting the test of Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972).

With respect to the first factor, the length of the delay, the over eighteen month delay, as recognized by the trial court, is presumptively prejudicial and places on the prosecution the burden to show that no prejudice to defendant resulted from the delay. Collins, supra, 388 Mich. p. 695, 202 N.W.2d 769. Whether the prosecution met its burden will be addressed in our discussion of the fourth factor, prejudice to the defendant.

With respect to the reason for the delay, the delay in the instant case from February, 1984, to May, 1984, was attributable to defendant's request for an adjournment. The delay from May, 1984, to June, 1984, was attributable to defendant's motion [153 MICHAPP 176] for and the trial court's grant of a mistrial. The delay from June, 1984, to December, 1984, was, however, attributable to the prosecution. The delay from June, 1984, to August, 1984, was associated with a need to obtain a prosecution witness and presented a "tenable reason for deferring the trial". People v. Wallace, 33 Mich.App. 182, 184, 189 N.W.2d 861 (1971), however, the delay from September to December, 1984, was not explained, was thereby attributable to the prosecution, and thus weighs in favor of defendant's claim of a denial of his right to a speedy trial. The third factor, defendant's assertion of his right, also weighs in favor of defendant. Although defendant did not move to dismiss until trial, he did originally file a demand for a speedy trial in December, 1983, one year earlier.

In examining the final factor, prejudice to the defendant, we agree with the trial court that the prosecution met its...