People v. Patterson

• Decision Date: 29 August 1988
• Docket Number: No. 93231,93231
• Citation: 427 N.W.2d 601,170 Mich.App. 162
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James R. PATTERSON, a/k/a Tyrone Patterson, Defendant-Appellant. Doc. 170 Mich.App. 162, 427 N.W.2d 601
• Court: Court of Appeal of Michigan — District of US

Page 601

427 N.W.2d 601

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James R. PATTERSON, a/k/a Tyrone Patterson Defendant-Appellant.

Doc. No. 93231.

170 Mich.App. 162, 427 N.W.2d 601

Court of Appeals of Michigan.

Submitted Dec. 14, 1987.

Decided July 19, 1988.

Released for Publication Aug. 29, 1988.

[170 MICHAPP 164] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert L. Williams, Chief, Appellate Div., and Graham K. Crabtree, Asst. Pros. Atty., for the People.

Faintuck, Schwedel & Wolfram by William G. Wolfram, Franklin, for defendant-appellant on appeal.

Before HOOD, P.J., and SAWYER and JACKSON, ^* JJ.

JACKSON, Judge.

Defendant was convicted by a jury of felonious assault, M.C.L. Sec. 750.82; M.S.A. Sec. 28.277, on March 11, 1986. He was sentenced to three years' probation with a requirement that the first ten months be served in the county jail. Defendant appeals as of right. We reverse and remand.

The issues for review are (1) whether defendant's right to a speedy trial was violated and (2) whether the prosecutor prejudiced defendant's right to a fair trial by questioning and arguing about defendant's silence to the police. Some chronology of events is necessary for an understanding of this case.

Defendant was arrested on June 7, 1983, for events occurring on April 27, 1983. At trial, the complainant, Excell Thompson, testified that defendant shot him in the face with a pellet gun. This arose from a controversy involving a washer and dryer that belonged to Thompson but was in the possession of defendant, who testified that Thompson gave him the washer and dryer as compensation for work he did for Thompson. In an [170 MICHAPP 165] effort to retrieve the washer and dryer, Thompson asked the Pontiac police to go with him to defendant's house. The police did so, but left after defendant failed to respond. Thompson then went home.

Shortly thereafter, defendant and another person appeared on foot in front of Thompson's house. Defendant carried a large stick and expressed his displeasure for having the police brought to his house. Some words were exchanged between Thompson and defendant. Defendant then left.

A short time later, defendant reappeared in his car. Thompson and his daughter, Cecelia, testified that defendant was alone in the car. Defendant testified that an individual named Robert Turner was with him each time he went to Thompson's house. Defendant testified that he returned to Thompson's house to make peace, that he had a pellet gun in the car, and that he picked it up and fired once in self-defense when Thompson came out firing a gun.

Thompson testified that he became concerned when he saw defendant reappear in his car so he placed his .32 caliber pistol in his back pocket before going onto his front porch. Defendant was parked across the street. They exchanged some unpleasant words at which time defendant fired, hitting Thompson twice. The emergency room doctor testified that x-rays of Thompson revealed two pellets in the face and temple area. Thompson testified that he fired his gun after defendant shot him. Cecelia's testimony corroborated that defendant aimed a gun and that she heard her father say that he had been shot before she saw her father fire his gun.

There was a 33-month delay between defendant's arrest on June 7, 1983, and the trial on March 10, 1986. The record is not clear (and in [170 MICHAPP 166] some instances there is no record) on the chronology of events, dates and reasons for delay after defendant's arrest on June 7, 1983. Defendant apparently spent thirty-five days in the county jail and was otherwise free on bond prior to trial.

With regard to the issues raised on appeal, defendant's arguments concerning Michigan's 180-day rule are meritless since defendant was not a state penal institution inmate while awaiting trial. M.C.L. Sec. 780.131 et seq.; M.S.A. Sec. 28.969(1) et seq.; People v. Woodruff, 414 Mich. 130, 323 N.W.2d 923 (1982); People v. Gambrell, 157 Mich.App. 253, 257-258, 403 N.W.2d 535 (1987); People v. Wyngaard, 151 Mich.App. 107, 112, 390 N.W.2d 694 (1986); People v. Shue, 145 Mich.App. 64, 71, 377 N.W.2d 839 (1985), lv. den. 424 Mich. 908 (1986). The 180-day rule does not apply to inmates incarcerated in county jails. People v. Merkerson, 147 Mich.App. 207, 213, 382 N.W.2d 750 (1985). The six-month standard of M.C.L. Sec. 767.38; M.S.A. Sec. 28.978 also is inapplicable since defendant was not in prison.

Defendant had a right to a speedy trial under U.S. Const., Am. VI and Const. 1963, art. 1, Sec. 20. M.C.L. Sec. 768.1; M.S.A. Sec. 28.1024 provides:

"The people of this state and persons charged with crime are entitled to and shall have a speedy trial and determination of all prosecutions and it is hereby made the duty of all public officers having duties to perform in any criminal case, to bring such case to a final determination without delay except as may be necessary to secure the accused a fair and impartial trial."

In People v. Hill, 402 Mich. 272, 283, 262 N.W.2d 641 (1978), our Supreme Court stated:

"The factors to be balanced in determining whether or not a defendant has been denied the [170 MICHAPP 167] right to a speedy trial are: (1) length of delay, (2) reason for delay, (3) defendant's assertion of the right, and (4) prejudice to the defendant."

See also Gambrell, supra, p. 259, 403 N.W.2d 535. Furthermore:

"The reasons for delay are examined by this Court and each period of delay is assigned to either the prosecutor or the defendant. See People v Chism, 390 Mich 104, 112-113, 211 NW2d 193 (1973). Where a delay is unexplained, it is charged to the prosecution. People v Carner, 117 Mich App 560, 577, 324 NW2d 78 (1982)." People v. Ross, 145 Mich.App. 483, 491, 378 N.W.2d 517 (1985).

See also People v. Davis (After Remand), 129 Mich.App. 622, 625, 341 N.W.2d 776 (1983).

There was a 33-month delay between defendant's June 7, 1983, arrest and March 10, 1986, trial. The only delays that defendant is clearly responsible for occurred on June 16, 1983, April 23, 1985, June 24, 1985, and February 20, 1986. Most of the delays are unexplained and must be attributed to the prosecutor. Ross, supra, p. 491, 378 N.W.2d 517. The reasons for the delays may have been revealed at the March 6, 1985, and October 30, 1985, hearings on defendant's motions for dismissal for alleged violation of his right to a speedy trial. However, these motion hearings were not transcribed. Although defendant is responsible for much of the delay in this case, we conclude that the prosecutor must be held responsible for most of the 33-month delay.

With regard to the third factor, defendant asserted his right to a speedy trial by filing a demand for a speedy trial on November 29, 1983, and motions to dismiss for alleged violation of his right to a speedy trial on February 25, 1985, and October 21, 1985, and at his March 10, 1986, trial.

[170 MICHAPP 168] With regard to the fourth factor, "[w]here the delay is 18 months or greater, the burden shifts to the prosecutor to prove that defendant has not been prejudiced." Ross, supra, p. 491, 378 N.W.2d 517. Prejudice is presumed after an 18-month delay. People v. Collins, 388 Mich. 680, 690, 202 NW2d 769 (1972); People v. Grimmett, 388 Mich. 590, 606, 202 NW2d 278 (1972). As indicated above, the prosecutor should be held responsible for at least eighteen months of the delay in this case. On the issue of prejudice, it has been stated:

"There are two types of prejudice which a defendant may experience, that is, prejudice to his person and prejudice to his defense. Prejudice to his person would take the form of oppressive pretrial incarceration leading to anxiety and concern. Prejudice to his defense might include key witnesses being unavailable. Impairment of defense is the most serious, 'because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.' Barker [v Wingo ], 407 US 514, 532 [92 S.Ct. 2182; 33 L.Ed.2d 101 (1972) ]." Collins, supra, p. 694, 202 N.W.2d 769.

Defendant claims that he was prejudiced by the delay because an essential witness for his defense became unavailable. Defendant testified that Robert Turner was in defendant's car at the time of the shooting and somewhere in Alabama at the time of the trial. Thompson and his daughter, Cecelia, testified that defendant was alone in his car. The record does not reveal whether Turner was unavailable for defendant's trial since there was no indication of what efforts were made to secure his presence. Defendant's story seems so unbelievable that it is unlikely that Turner would have corroborated it. However, the Thompsons' version of the shooting also seems questionable [170 MICHAPP 169] and the jury may have been persuaded by the testimony of an arguably neutral third party. Therefore, defendant's defense was apparently prejudiced by the delay.

We are reluctant to reverse since defendant may have been responsible for far more of the delay than can be attributed to him based on the record. Further, defendant may not have been prejudiced by the delay since Turner may not have been in defendant's car at the time of the shooting, may have been available for trial and may have testified against defendant.

This case is remanded for an evidentiary hearing to determine whether defendant's right to a speedy trial was violated. Gambrell, supra, pp. 259-260, 403 N.W.2d 535. If defendant was denied that right, then his conviction should be set aside. If defendant was not denied his right to a speedy trial, then he must be retried because the prosecutor violated his Fifth Amendment right to remain silent.

The issue that requires a new trial in this case is the prosecutor's questioning and subsequent comments in rebuttal argument concerning defendant's silence in the face of accusation. In its brief on appeal, the prosecution states: "It may be acknowledged that ...