People v. McCracken

• Court: Court of Appeal of Michigan
• Writing for the Court: Before DANHOF; DANHOF
• Citation: People v. McCracken, 298 N.W.2d 734, 100 Mich.App. 371 (Mich. App. 1980)
• Decision Date: 06 October 1980
• Docket Number: Docket No. 77-3976
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jimmie Lee McCRACKEN, Defendant-Appellant. 100 Mich.App. 371, 298 N.W.2d 734

Page 734

298 N.W.2d 734

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jimmie Lee McCRACKEN, Defendant-Appellant.

Docket No. 77-3976.

100 Mich.App. 371, 298 N.W.2d 734

Court of Appeals of Michigan.

Oct. 6, 1980.

Released for Publication Dec. 9, 1980.

[100 MICHAPP 373] Adrian B. Spinks, Pontiac, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., E. Reilly Wilson, III, App. Chief Asst. Pros. Atty., Robert C. Williams, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and KELLY and CORSIGLIA, ^* JJ.

DANHOF, Chief Judge.

Defendant, Jimmie Lee McCracken, was convicted by a jury of arson, contrary to M.C.L. § 750.72; M.S.A. § 28.267, on May 31, 1977. He was sentenced on July 5, 1977, to a prison term of from 7 to 20 years and now appeals as of right.

Defendant first contends that he was denied his Sixth Amendment right to a speedy trial. In People v. Grimmett, 388 Mich. 590, 202 N.W.2d 278 (1972), and People v. Collins, 388 Mich. 680, 202 N.W.2d 769 (1972), the Michigan Supreme Court adopted the balancing test set forth by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). That test requires consideration of four factors in determining whether a defendant was denied his right to a speedy trial: (1) the length of the delay, (2) the [100 MICHAPP 374] reason for the delay, (3) the defendant's assertion of his right and (4) prejudice to the defendant resulting from the delay. The first factor, length of the delay, is considered as a triggering mechanism whereby inquiry into the other factors in the balancing test is not made unless the delay is such that a presumption of prejudice arises. The Michigan Supreme Court has held that the presumption of prejudice arises where the delay exceeds 18 months. People v. Collins, supra, 695, 202 N.W.2d 769. The 31-month delay between defendant's arrest and trial in the present case thus triggers our application of the four-factor balancing test.

In the present case, defendant was arrested on October 28, 1974, and trial was scheduled for January 24, 1975. The trial was adjourned and rescheduled a total of 18 times during the period from January, 1975 to March, 1977. Three of the adjournments resulted from the defense counsel's inability to attend trial on the scheduled dates, while the remaining adjournments were for "undisclosed reasons" and are therefore attributable to the state. People v. Bennett, 84 Mich.App. 408, 269 N.W.2d 618 (1978). A two-month delay during the summer of 1976 was caused by defendant's failure to appear for a scheduled preliminary examination. He was also unavailable for nearly two months in the fall of 1978 because he was being tried in an unrelated case. We find only seven months of the delay were attributable to defendant.

During the period from October 28, 1974, to April 26, 1977, defendant never asserted his right to a speedy trial. On the latter date he filed a motion to dismiss for lack of a speedy trial. The motion was argued on May 16 and 17, 1977, and denied. The trial commenced on May 17. A defendant's[100 MICHAPP 375] failure to assert his right to a speedy trial does not constitute a waiver of that right; however, it does make it difficult to prove that he was denied a speedy trial. People v. Collins, supra, 692, 202 N.W.2d 769. The facts in the present case suggest that defendant did not want a speedy trial. He was out on bail until January of 1977 when he was incarcerated due to an unrelated offense. Defendant's assertion that he delayed his speedy trial motion because of the prosecution's tactics is incredible in view of the overall delay between arrest and trial.

The burden is on the prosecution in the instant case to demonstrate that defendant suffered no prejudice as a result of the delay. People v. Collins, supra, 695, 202 N.W.2d 769. We believe that the prosecution, in its arguments contrary to defendant's claims of prejudice, has met its burden. Defendant claims that the delay caused the loss of two important witnesses, who would have testified in his behalf, due to death and unavailability. The first such witness, defendant's half-brother Thomas McCracken, who had died, allegedly would have rebutted the testimony of prosecution witness Michael Thomas. Loss of this impeachment testimony was not prejudicial however, because Thomas's testimony was corroborated by two other prosecution witnesses. Defendant claims the other lost witness, Melvin Stinson, would have testified about a suspicious car present when the fire broke out. At the hearing on defendant's motion to dismiss, defense counsel stated that he had never interviewed Mr. Stinson, did not know whether the man was alive or dead, and had attempted to subpoena him for the first time the day before. Under these circumstances, we refuse to accept defendant's claim regarding the substance of Mr. Stinson's testimony and find no prejudice in the loss of this witness. We also find [100 MICHAPP 376] no merit in defendant's allegations that the delay caused domestic strife resulting in his divorce.

We conclude, based on an overall balancing of the Barker factors, that defendant was not deprived of his right to a speedy trial. Two of the factors, length of the delay and reason for the delay, favor defendant. We find these factors outweighed by the defendant's failure to assert his right and lack of prejudice resulting from the delay.

Defendant next argues that certain evidence gathered at the scene of the fire was the product of an unlawful warrantless search and seizure and was improperly admitted over objection at trial. Defendant was accused of setting fire to his Ferndale residence on the night of September 14, 1973. The Ferndale Fire Department put out the blaze and the disputed evidence, consisting of photographs and carpet samples, was obtained during an on-the-scene investigation into the cause of the fire conducted by a city fire inspector shortly after the fire was extinguished. Defendant relies on People v. Tyler, 399 Mich. 564, 250 N.W.2d 467 (1977), where the Court held, based on Federal cases and the Fourth Amendment, that a warrant is required for subsequent reentry and search of the premises once a fire has been extinguished and the firemen have departed. The case was appealed to the United States Supreme Court, which affirmed but expressed a different opinion as to when the need for a warrant arises:

"(People v. Tyler) * * * may be read as holding that the exigency justifying a warrantless entry to fight a fire ends, and the need to get a warrant begins, with the dousing of the last flame. 399 Mich., at 579, 250 N.W.2d, at 475. We think this view of the firefighting function is unrealistically narrow,...