People v. Smith

• Decision Date: 15 August 1985
• Docket Number: Docket No. 72168
• Citation: 143 Mich.App. 122,371 N.W.2d 496
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth SMITH, Defendant-Appellant. 143 Mich.App. 122, 371 N.W.2d 496
• Court: Court of Appeal of Michigan — District of US

Page 496

371 N.W.2d 496

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth SMITH, Defendant-Appellant.

Docket No. 72168.

143 Mich.App. 122, 371 N.W.2d 496

Court of Appeals of Michigan.

Submitted June 11, 1984.

Decided May 21, 1985.

Released for Publication Aug. 15, 1985.

[143 MICHAPP 124] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Gary L. Walker, Pros. Atty., and Peter L. Plummer, Asst. Pros. Atty., Marquette, for the People.

James R. Neuhard, State Appellate Defender by Herb Jordan, Detroit, for defendant on appeal.

[143 MICHAPP 125] Before R.B. BURNS, P.J., and HOLBROOK and DENEWETH ^*, JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279. Defendant was sentenced to imprisonment for from 3 to 10 years, and he appeals as of right.

Defendant first argues that the trial court lost jurisdiction over him because more than 390 days elapsed between the time the complaint was filed and the day defendant's trial began, a violation of the "180-day rule", MCL 780.131; MSA 28.969(1).

A review of the record shows defendant's conviction arose out of an incident which occurred in the dining hall of the Marquette Branch Prison on January 2, 1982. The complaint was filed and a warrant issued on January 12, 1982. Defendant was bound over to circuit court following a preliminary examination held on January 21, 1982. Defendant was arraigned in circuit court the following day. A pretrial conference was held January 27, 1982, and the court's pretrial summary was mailed to the parties on February 8, 1982. The pretrial summary stated in part:

"Apparently there were some other inmates seated at a table near the place where the incident occurred. Both prosecution and defense will try to establish the identity of these people, and cause them to be interviewed to determine whether they have any knowledge of the events; if so, they will be called as res gestae witnesses."

According to the pretrial summary, the matter was to be considered ready for trial "anytime after March 31, 1982".

At the pretrial converence, a question apparently[143 MICHAPP 126] came up regarding statements defendant made during the course of administrative disciplinary proceedings following the incident in question. On February 24, 1982, defendant filed a motion to suppress those statements and a speedy trial demand. The parties apparently decided defendant's motion could be resolved on briefs, and the hearing scheduled for March 12, 1982, did not take place. Defendant's four page brief in support of his motion to suppress was filed on March 30, 1982.

The prosecution did not file a response brief until June 25, 1982, and the court issued its opinion on July 28, 1982, granting, in part, defendant's motion. On September 27, 1982, the court mailed letters to both parties confirming that trial had been scheduled for October 4, 1982. On September 28, 1982, defendant filed a motion to dismiss the charge on the basis that the "180-day rule" had been violated.

At the hearing on defendant's motion, the trial court found that 266 days had passed from the date the complaint issued to the scheduled trial date of October 4, 1982, and that at least 94 of those days were chargeable to defendant because of his motion to suppress. Hence, the court found that, as of October 4, 1982, 172 days, at most, would have passed, thus meaning defendant's trial had been scheduled within 180 days of the issuance of the warrant. We affirm the trial court's finding. However, there was an additional 136-day delay following the October 4, 1982, trial date, making a total of approximately 308 days possibly attributable to the people. Defendant argues that the 136-day delay subsequent to defendant's motion to dismiss is entirely the fault of the people because the prosecutor failed to endorse res gestae [143 MICHAPP 127] witnesses, thus necessitating an adjournment of the October 4, 1982, scheduled trial.

In People v. Hendershot, 357 Mich. 300, 303-304, 98 N.W.2d 568 (1959), the Court stated:

"Clearly, if no action is taken and no trial occurs within 180 days, the statute applies. If some preliminary step or action is taken, followed by inexcusable delay beyond the 180-day period and an evident intent not to bring the case to trial promptly, the statute opens the door to a finding by the court that good-faith action was not commenced as contemplated by [MCL 780.133; MSA 28.969(3) ], thus requiring dismissal. The statute does not require the action to be commenced so early within the 180-day period as as to insure trial or completion of trial within that period. If, as here, apparent good-faith action is taken well within the period and the people proceed promptly and with dispatch thereafter toward readying the case for trial, the condition of the statute for the court's retention of jurisdiction is met. When the people have moved the case to the point of readiness for trial and stand ready for trial within the 180-day period, defendant's delaying motions, carrying the matter beyond that period before the trial can occur, may not be said to have brought the statute into operation, barring trial thereafter."

The burden is on the prosecution to justify delay in bringing a defendant to trial. People v. Forrest, 72 Mich.App. 266, 273, 249 N.W.2d 384 (1976). Except for short-term docket congestion caused by extraordinary circumstances, delay caused by docket congestion is attributable to the prosecution, Forrest, supra, pp. 272-273, 249 N.W.2d 384.

In the instant case, the transcript of the motion to dismiss shows that the prosecutor raised the problem of the large influx of cases stemming from the May 26, 1981, Marquette Branch Prison riots. However, the trial court reached its decision in favor of the prosecution without addressing that [143 MICHAPP 128] issue. While the number of "riot cases" may have been immaterial to the court's resolution of the pre-October delay, we do not feel that we can assume that the large number of cases related to the prison riot did not contribute to the post-October delay. This is especially so when, as is evident from the transcript on the hearing on defendant's motion to dismiss, the other circuit judge in the circuit died near the date of the hearing on defendant's motion.

In a criminal case, a prosecuting attorney has an affirmative duty to diligently attempt to discover the existence of any possible res gestae witnesses; a defendant's knowledge of the existence of res gestae witnesses does not excuse the prosecution's failure to endorse or produce the witnesses unless the prosecution neither knew nor should have known of their existence. People v. Rivera, 114 Mich.App. 419, 423-424, 319 N.W.2d 355 (1982).

The problem with resolving this issue is that there is nothing in the record to show that the prosecutor had success or failure in establishing the identities of "res gestae witnesses". Clearly, the prosecutor could have obtained the names of most, if not all, inmates in the dining hall during the incident. However, because of the manner in which defendant's motion to dismiss was handled, at that juncture the people had no opportunity to show that they did not know or should not have known of the existence of res gestae witnesses, nor was the prosecution afforded the opportunity to show that they had met their duty as prosecutors to use "due diligence" to ascertain who the res gestae witnesses were. Moreover, it appears that defense counsel was aware of the identities of most, if not all, of the alleged res gestae witnesses at the January pretrial conference but failed to [143 MICHAPP 129] move for their endorsement until September 28, 1982, even though the matter was to be "considered ready for trial at anytime after March 31, 1982".

Although defendant's failure to bring a motion to endorse res gestae witnesses does not excuse the prosecution's failure to endorse them, under the facts and procedural course of this case, we find it appropriate to remand this matter for an evidentiary hearing with regard to the 136-day delay following the October 4, 1982, scheduled trial date. See People v. Schinzel (On Remand ), 97 Mich.App. 508, 296 N.W.2d 85 (1980). At the hearing, the issue of short term docket congestion allegedly caused by the prison riots, as well as the effect of Judge McDonald's death on the docket, shall be addressed. In addition, the issues of whether the prosecution knew or should have known about res gestae witnesses and whether or not the prosecution used "due diligence" to find and endorse res gestae witnesses shall be addressed. If it is found that the prosecution knew, or should have known, of the witnesses or that the prosecution failed to use "due diligence" in ascertaining the existence of res gestae witnesses, then the court shall dismiss the charges against defendant because the prosecution's failure to perform its duty would have caused the specific adjournment in question and tainted what could otherwise be excusable delay.

Defendant next argues that the trial court committed error by refusing to instruct the jury on the lessor included offense of simple assault, a misdemeanor.

At trial, corrections officer Greene testified that he saw defendant leave the chow line with an empty tray, walk over to the table where Darren Johnson was seated and strike down at Johnson [143 MICHAPP 130] with a long, slim object in his hand. Greene testified that people's exhibit No. 1 (described as a long bolt with a sharpened end with the end of a toilet brush wrapped with masking tape as a handle) "could have" been what he saw in defendant's hand; he was not positive because he didn't see the whole object during the alleged attack. Greene further testified that at the time of the incident, from a distance, the object looked black, while people's exhibit No. 1 is silver.

Reginald Brown testified that he was...