People v. Rhymes, Docket No. 19787
| Decision Date | 10 June 1975 |
| Docket Number | Docket No. 19787,No. 2,2 |
| Citation | 233 N.W.2d 171,62 Mich.App. 27 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Timothy RHYMES, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Taylor & Patterson by Michael P. Higgins, Lapeer, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Martin E. Clements, Pros. Atty., for plaintiff-appellee.
Before DANHOF, P.J., and BASHARA and D. E. HOLBROOK, Jr., JJ.
Defendant was tried by jury and found guilty of delivery of a controlled substance, phencyclidine, contrary to M.C.L.A. § 335.341(1)(b); M.S.A. § 18.1070(41)(1)(b). He was thereafter sentenced to a term of imprisonment for not less than 1 1/2 nor more than 7 years. Defendant appeals as of right.
By complaint dated August 24, 1973, defendant was charged with the Miarch 6, 1973, delivery of a controlled substance to one Larry Stockemer, an undercover police officer. Prior to trial defendant filed a motion to dismiss claiming that the 5 1/2 month delay between the date of commission of the alleged offense and the date of arrest constituted a denial of due process of law in that prejudice resulted because of defendant's inability to recall what he did on the date of the alleged offense. Following a hearing thereon, defendant's motion was denied.
On appeal defendant contends that the delay of 5 1/2 months between the date of the alleged delivery of the controlled substance to the undercover agent and the time of defendant's arrest precluded defendant from preparing a defense due to his inability to remember and hence denied defendant due process of law.
Review of the trial transcript fails to reveal that defendant renewed his motion to dismiss. Hence, in reviewing this issue we are confined to the transcript of defendant's pretrial motion to dismiss and the court's findings relating thereto.
Following the hearing on defendant's motion to dismiss, the trial court, in denying same, stated in pertinent part as follows:
'It appears that the delay in prosecution resulted from the prosecutor's desire not to reveal the identity of an undercover agent who was engaged in obtaining evidence in several other cases in the interim.
'There is no showing of prejudice except the statement by counsel that the defendant's memory of the events of March 6, 1973 are lost by reason of the delay.
'The motion to dismiss is denied.'
As can be noted from the above, the court found no showing of prejudice except the statement by counsel that the defendant's memory of the events of March 6, 1973, were lost by reason of delay. This finding, by the trial court, is tantamount to a finding of no prejudice at all since statements of counsel are not evidence. Having reviewed the record and findings of the trial judge we find such findings to be supported by the record and not 'clearly erroneous'. Hence, we are bound thereby. GCR 1963, 517.
Recognizing that different panels of this Court have adopted two diametrically opposed views on this issue, the first being the three-pronged test set forth in People v. Hernandez, 15 Mich.App. 141, 170 N.W.2d 851 (1968), and reiterated in People v. Iaconis, 31 Mich.App. 703, 188 N.W.2d 175 (1971), and the second being the 'no right to be arrested' test adopted in People v. Noble, 18 Mich.App. 300, 170 N.W.2d 916 (1969), and again restated in People v. Smith, 30 Mich.App. 34, 186 N.W.2d 61 (1971), it is of little consequence which view we follow in this case.
People v. Hernandez, supra, requires ...
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People v. Boyd
...was denied a speedy trial it is at least necessary for the defendant to show he was prejudiced by the delay. People v. Rhymes, 62 Mich.App. 27, 233 N.W.2d 171 (1975). In this case the defendant makes a tenative showing of prejudice in his claim that the delay before his arrest prevented him......
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...prejudice. The statement of defense counsel is not evidence and will not support a finding of prejudice. People v. Rhymes, [114 MICHAPP 203] 62 Mich.App. 27, 29, 233 N.W.2d 171 (1975). In this case, defendant failed to produce evidence showing prejudice during the hearing on the motion. The......
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