People v. Missouri

• Citation: 100 Mich.App. 310,299 N.W.2d 346
• Decision Date: 25 July 1980
• Docket Number: Docket Nos. 78-4222,78-4224
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Milton MISSOURI and Charles Blount, Defendants-Appellants. 100 Mich.App. 310, 299 N.W.2d 346
• Court: Court of Appeal of Michigan — District of US

Page 346

299 N.W.2d 346

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Milton MISSOURI and Charles Blount, Defendants-Appellants.

Docket Nos. 78-4222, 78-4224.

100 Mich.App. 310, 299 N.W.2d 346

Court of Appeals of Michigan.

July 25, 1980.

Released for Publication Dec. 9, 1980.

[100 MICHAPP 318] Arthur Jay Weiss, Southfield, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William A. Cahalan, Pros. Atty., E. Reilly Wilson, App. Chief Asst. Pros. Atty., Paul G. Bruno, Asst. Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P. J., and ALLEN and BEASLEY, JJ.

PER CURIAM.

Following indictment by a Citizen's Grand Jury and an extended trial, defendants Milton Missouri and Charles Blount were convicted on July 27, 1977, of conspiracy to deliver a controlled substance, to wit: heroin, in violation of M.C.L. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a), and M.C.L. § 750.157a(a); M.S.A. § 28.354(1)(a). In addition, defendant Charles Blount was convicted under a second count with conspiracy to possess a controlled substance, to wit: heroin, with intent to deliver, in violation of the above cited statutes. Defendants appeal these convictions as of right.

[100 MICHAPP 319] The first eleven issues raised on appeal are common to both defendants and will be considered seriatim. The remaining two issues are only relevant to defendant Missouri and will be considered at the end of this opinion. Because of the factual complexity of this case and the numerous legal issues raised, a complete recitation of the facts will not be set forth here. Rather, the factual background necessary for a complete understanding of the legal questions involved will be set forth at the appropriate places in this opinion. At this point, it is sufficient to note that the charged offenses arose out of alleged criminal conspiracies between eight individuals, including two Detroit police officers, to possess and/or to deliver heroin.

I. Were defendants denied their right to a speedy trial?

Defendants contend that they were denied their constitutional ¹ right to a speedy trial by the 31-month delay between their October, 1974, indictment and arrest, and the commencement of the trial proceedings in May, 1977. In deciding whether a defendant has been accorded a speedy trial, the Michigan Supreme Court has adopted the general rule established by the United States Supreme Court in 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). The definitive test in this area requires balancing the following four factors on an ad hoc basis: length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.

Length of delay. The length of delay is not [100 MICHAPP 320] determinative of a speedy trial claim. ² People v. Hammond, 84 Mich.App. 60, 67, 269 N.W.2d 488 (1978). Length of delay is appropriate because it is the triggering mechanism for considering the speedy trial issue. People v. Collins, 388 Mich. 680, 688-689, 202 N.W.2d 769 (1972), Hammond, supra, 84 Mich.App. at 67, 269 N.W.2d 488, People v. Classen, 50 Mich.App. 122, 126, 212 N.W.2d 783 (1973). "Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Barker, supra, 407 U.S. at 530, 92 S.Ct. at 2191, Collins, supra, 388 Mich. at 688-689, 202 N.W.2d 769, People v. Chism, 390 Mich. 104, 111-112, 211 N.W.2d 193 (1973). The total length of delay in this case is 31 months. Since this period of delay is far in excess of the 18-month period of presumed prejudice set forth in Grimmett, supra, 388 Mich. at 606, 202 N.W.2d 278, and the six-month period set forth in M.C.L. § 767.38; M.S.A. § 28.978, GCR 1963, 789, examination of the other three factors is required. Collins, supra, 388 Mich. at 690, 202 N.W.2d 769, Chism, supra, 390 Mich. at 112, 211 N.W.2d 193, People v. Petrov, 75 Mich.App. 532, 534, 255 N.W.2d 673 (1977), Classen, supra, 50 Mich.App. at 126, 212 N.W.2d 783, Hammond, supra, 84 Mich.App. at 67, 269 N.W.2d 488.

Reason for delay. Because the nature of the instant charge involved a serious multiple count, "complex conspiracy", a greater period of delay can be tolerated than for "an ordinary street crime". Barker, supra, 407 U.S. at 530-531, 92 S.Ct. at 2191-92. Cf., Collins, supra, 388 Mich. at 689, 202 N.W.2d 769. This rule is especially pertinent here since the indictment was issued against eight defendants and involved six counts against some or all of the defendants. Indeed, because of the large number of defendants, numerous attorneys were involved in the litigation, each of whom filed numerous motions.[100 MICHAPP 321] Of course, the prosecution was entitled to a reasonable time to answer each of these motions and the trial judge time to consider and rule on these motions. People v. Cutler, 86 Mich.App. 118, 126, 272 N.W.2d 206 (1978). Cf., People v. Castelli, 370 Mich. 147, 152-153, 121 N.W.2d 438 (1963). On appeal, defendants do not contend that either the prosecutor or the judge was dilatory in his responses to the various defense motions. Therefore, the period of delay in bringing the defendants to trial, which is directly attributable to their counsel's vigorous and aggressive pretrial tactics, must not be considered in determining whether their right to a speedy trial was violated. Chism, supra, 390 Mich. at 113, 211 N.W.2d 193, Collins, supra, 388 Mich. at 690-692, 202 N.W.2d 769, Cutler, supra, 86 Mich.App. at 126, 272 N.W.2d 206, Hammond, supra, 84 Mich.App. at 67, 269 N.W.2d 488, Classen, supra 50 Mich.App. at 126, 212 N.W.2d 783, People v. Mumford, 60 Mich.App. 279, 284, 230 N.W.2d 395 (1975). In addition, the period of time expended by the prosecutor's successful interlocutory appeal from the trial court's order suppressing tape recordings and transcripts and defendant's application for leave to appeal to the Supreme Court are taken out of the calculation. People v. Stewart, 61 Mich.App. 167, 174, 232 N.W.2d 347 (1975), Hammond, supra, 84 Mich.App. at 67, 269 N.W.2d 488. Moreover, the record reflects that part of the delay was due to defendant Blount's departure from the state in violation of a court order. This period of time, too, is not considered in derogation of defendants' right to a speedy trial. 22A C.J.S. Criminal Law, § 471, p. 48. In short, although the length of delay was considerable, with all of the reasons for it not appearing in the record, we disdain any attempt to attribute the cause of the delay to the prosecutor or the courts. Rather, careful review of the lower court record and the various reasons for the delay reveal that most of it must be ascribed to the defendants, or is at least justifiable under the circumstances.

[100 MICHAPP 322] Defendants' demand for a speedy trial. The decisions make it clear that a defendant does not waive his right to a speedy trial by the failure to assert it. Barker, supra, 407 U.S. at 528-529, 92 S.Ct. at 2191, Grimmett, supra, 388 Mich. at 607, 202 N.W.2d 278. It is equally clear, however, that a defendant's failure to assert his right to a speedy trial is a factor to consider in determining if the right has been denied. Id. In this case, the defendants did move to quash the indictment on the basis that they were denied a speedy trial. However, this was not done until just weeks before the commencement of trial proceedings. The motion was denied less than two weeks before the trial proceedings began and after the trial date had been set. Defendants never filed a motion to set a trial date. Since the failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial, we have little difficulty in concluding that the defendants' assertion of that right mere weeks before the commencement of trial and nearly 30 months after indictment is strong evidence that they were not experiencing serious deprivation of their rights. The following passage from Cutler, supra, 86 Mich.App. 118, 126-127, 272 N.W.2d 206 is instructive:

"(D)efendant at no time moved the lower court to fix a trial date. Rather, on February 17, 1976, less than two weeks before the trial was scheduled to being, he filed a motion to dismiss for denial of his right to a speedy trial. While some may view this a shrewd trial 'gamesmanship', we are singularly unimpressed with an allegation of error based on delay, where, as here, defense counsel showed markedly less concern with bringing the matter to trial than with contriving to build error into the record for purposes of appeal."

See Collins, supra, 388 Mich. at 693, 202 N.W.2d 769, Hammond, supra, 84 Mich.App. at 68, 269 N.W.2d 488. The failure by defendants' attorneys to demand a speedy trial during the previous 30 months reinforces[100 MICHAPP 323] the conclusion that they "did not get a speedy trial because defendant(s) did not want a speedy trial". Classen, supra, 50 Mich.App. at 127, 212 N.W.2d 783.

Prejudice to the defendants. In Collins, supra, 388 Mich. at 694, 202 N.W.2d 769, the Supreme Court recognized two kinds of prejudice which could accrue to a defendant as a result of pretrial delay: (1) prejudice to his person in the form of oppressive pretrial incarceration and excessive anxiety and concern, and (2) prejudice to his defense caused by loss of evidence or unavailability of key witnesses. Barker, supra, 407 U.S. at 532, 92 S.Ct. at 2192. We cannot doubt that defendants felt anxiety and concern about the outcome of the ultimate disposition of the case against them. Hammond, supra, 84 Mich.App. at 68, 269 N.W.2d 488. Still, because they were free on bond pending the trial and, therefore, were not incarcerated during the delay, and because the absence of an objection in the trail court may be viewed as an indication that they did not feel prejudiced, we conclude that the first kind of...