People v. White, Docket No. 20493
| Decision Date | 25 February 1975 |
| Docket Number | No. 2,Docket No. 20493,2 |
| Citation | 229 N.W.2d 357,59 Mich.App. 164 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Harrison WHITE, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Duckwall & Nowak, by L. John Nowak, Lapeer, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Martin E. Clements, Pros. Atty., for plaintiff-appellee.
Before McGREGOR, P.J., and GILLIS and QUINN, JJ.
A jury convicted defendant of delivery or possession with intent to deliver a controlled substance, contrary to M.C.L.A. § 335.341(1)(b); M.S.A. § 18.1070(41)(1)(b). He was sentenced and he appeals on the basis of two alleged errors:
1. His motion to quash the information because 134 days elapsed between the date of the alleged offense and the filing of a complaint, issuance of a warrant and his arrest on August 24, 1973 should have been granted.
2. Denial of a requested instruction.
In support of alleged error one defendant cites People v. Hernandez, 15 Mich.App. 141, 170 N.W.2d 851 (1968). As we read Herandez, that authority requires affirmance. Delay between the date of the offense and the commencement of criminal proceedings is not the guideline, Hernandez, supra, 15 Mich.App. at 146, 170 N.W.2d 851. A defendant has no constitutional right to be arrested. People v. Noble, 18 Mich.App. 300, 170 N.W.2d 916 (1969).
The guideline is whether the record presents evidence of prejudice arising from the delay which violates a defendant's right to procedural due process, Hernandez, supra, 15 Mich.App. at 146, 170 N.W.2d 851. If the record shows some prejudice, the delay is permissible and it is not the basis for a finding of lack of due process 'only where the following elements are present and shown clearly and convincingly to the trier of fact: (1) when the delay is explainable, (2) when it is not deliberate, (3) where no Undue prejudice attaches to the defendant'. Hernandez, supra, 147, 170 N.W.2d 854.
The record discloses that the complainant was a police undercover agent who was working on twenty other cases. Precipitant action in this case of White might, as the trial judge observed, 'blow the cover'. The delay is explained.
The phrase 'when it is not deliberate' is somewhat ambiguous, but read in context it means deliberate delay to prejudice the defendant. There is no showing on this record of that type of delay.
The only showing of...
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State ex rel. Leonard v. Hey, 14712
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