People v. Woolfolk

• Citation: 304 Mich.App. 450,848 N.W.2d 169
• Decision Date: 27 February 2014
• Docket Number: Docket No. 312056.
• Parties: PEOPLE v. WOOLFOLK.
• Court: Court of Appeal of Michigan (US)

304 Mich.App. 450

848 N.W.2d 169

PEOPLE

v.WOOLFOLK.

Docket No. 312056.

Court of Appeals of Michigan.

Submitted Dec. 11, 2013, at Detroit.

Decided Feb. 27, 2014, at 9:00 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Kym Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training and Appeals, and Daniel E. Hebel, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Jessica L. Zimbelman and Valerie R. Newman) for defendant.

Before: BOONSTRA, P.J., and DONOFRIO and BECKERING, JJ.

BOONSTRA, P.J.

Defendant appeals by right his jury trial convictions of first-degree murder, MCL 750.316, and possession of a firearm during the commission of a felony (felony firearm), MCL 750.227b. He was sentenced to life in prison without the possibility of parole for the murder conviction, consecutive to two years in prison for the felony-firearm conviction. We affirm defendant's convictions and remand for resentencing in light of Miller v. Alabama, 567 U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This case arises out of a shooting in Detroit on January 28, 2007. Witnesses saw a black car drive past a house. Shortly after, three men approached the house and someone shot a gun at the people inside. The victim, Mone Little, was shot and killed. Defendant was eventually identified by a witness, Michael Watson, as the person who fired a gun at the house. Watson had grown up with defendant and knew him by his street name.

Watson gave a statement to the police the day after the shooting. Watson did not implicate defendant at that time and told the police that he did not know who did the shooting. Sometime after the shooting, Watson was arrested in connection with the 2006 shooting of Robert Sawyer, who was related to one of the two men who accompanied defendant the night Little was shot. After Watson was released from custody in 2007 when a key witness against him died, he moved to St. Louis, Missouri, and lived there under an assumed name. Watson was arrested in Missouri in 2009 for unrelated first-degree murder and kidnapping charges. In November 2009, after receiving an anonymous tip that Watson was incarcerated in Missouri, Sergeant Barbara Kozloff (the police officer in charge of the Little case) went to Missouri to speak to Watson. Watson testified that he told Kozloff what happened the night of the Little shooting, identified the shooter by referring to defendant's nickname, and then identified a photograph Kozloff showed him as being a photograph of defendant. Watson pleaded guilty to a charge of second-degree murder in Missouri in 2011. After Watson was sentenced, Kozloff again contacted him, and Watson stated that he was willing to testify in the Little case. Watson was granted use immunity, so that any information derived directly or indirectly from his testimony or the information he provided could not be used against him in a criminal case, except for impeachment purposes or in a perjury prosecution, and he testified at defendant's trial pursuant to that grant of use immunity.

The jury found defendant guilty of first-degree murder and felony firearm. Defendant was given a mandatory sentence of life in prison for the first-degree murder conviction and sentenced to two years' imprisonment for the felony-firearm conviction. Defendant's official date of birth is January 29, 1989. The offense therefore occurred on the evening before defendant's 18th birthday. Defendant appeals his convictions and his mandatory life sentence.

II. DELAY IN ARREST

Defendant argues that the delay of nearly five years in arresting him for the murder of Little violated his due process rights, or, alternatively, that he was denied the effective assistance of trial counsel because his counsel did not object to the prearrest delay. We disagree. This Court denied defendant's motion to remand for an evidentiary hearing.¹ Review of defendant's claim of ineffective assistance of counsel is therefore limited to any mistakes apparent on the record. See People v. Rodriguez, 251 Mich.App. 10, 38, 650 N.W.2d 96 (2002). Defendant did not raise the issue of prearrest delay in the trial court. Therefore, this Court reviews this issue for plain error affecting defendant's substantial rights. See People v. Carines, 460 Mich. 750, 761, 597 N.W.2d 130 (1999).

A prearrest delay that causes substantial prejudice to a defendant's right to a fair trial and that was used to gain tactical advantage violates the constitutional right to due process. United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); People v. Patton, 285 Mich.App. 229, 237, 775 N.W.2d 610 (2009); People v. White, 208 Mich.App. 126, 134, 527 N.W.2d 34 (1994). Defendant must present evidence of actual and substantial prejudice, not mere speculation. Patton, 285 Mich.App. at 237, 775 N.W.2d 610; People v. Adams, 232 Mich.App. 128, 134–135, 591 N.W.2d 44 (1998). A defendant cannot merely speculate generally that any delay resulted in lost memories, witnesses, and evidence, Marion, 404 U.S. at 325–326, 92 S.Ct. 455, even if the delay was an especially long one, Adams, 232 Mich.App. at 134–135, 591 N.W.2d 44.

Here, defendant has not demonstrated actual and substantial prejudice. Defendant has offered on appeal an affidavit asserting that he was at a party at his father's residence “the entire night” in question, that he was not driving and did not have access to a black car that evening, and that no one could testify with certainty regarding either of those circumstances because of the long delay. This affidavit was not introduced in the trial court and is not part of the lower court record. This Court's review is limited to the lower court record. Kent Co. Aeronautics Bd. v. Dep't of State Police, 239 Mich.App. 563, 580, 609 N.W.2d 593 (2000), aff'd sub nom Byrne v. Michigan, 463 Mich. 652, 624 N.W.2d 906 (2001). Even if we were to consider defendant's affidavit, however, it does not purport to identify any witnesses who would have testified on his behalf but for the delay. Defendant also does not allege that he asked his trial counsel to contact any specific person in an attempt to obtain alibi testimony. We conclude that defendant has not established actual and substantial prejudice. See Patton, 285 Mich.App. at 237, 775 N.W.2d 610; People v. Crear, 242 Mich.App. 158, 166, 618 N.W.2d 91 (2000); Adams, 232 Mich.App. at 134, 591 N.W.2d 44.

We further conclude that the delay was reasonable and justified under the circumstances. Defendant argues that the delay had four components: (a) the period between the 2007 incident resulting in Little's death and the anonymous tip in early 2009 regarding Watson's location, (b) the several months between the tip and the police sergeant's first visit to Missouri, (c) the period between the first and second visit to Missouri, and (d) the four months between the issuance of the felony complaint and defendant's arraignment. ² Defendant suggests that Kozloff should have spoken to Watson while Watson was incarcerated and charged with Sawyer's murder in the spring of 2007, before Watson went to Missouri and began living under a different name. Kozloff testified, however, that she interviewed Watson the day after the shooting and that Watson denied knowing the perpetrators' identities. Watson later explained that he did so because someone had threatened him and his family. But while there is no indication in the lower court record that Kozloff interviewed Watson again while he was in custody, there is also no indication that she had any reason to believe that he was not being truthful. During that time, Kozloff was also tracking down another suspect and was not aware that Watson was about to disappear. We hold that this delay was justified under the circumstances. It is appropriate for a prosecuting attorney to wait for the collection of sufficient evidence before charging a suspect, even when that wait is extended by the disappearance of a key witness. See People v. Herndon, 246 Mich.App. 371, 390–391, 633 N.W.2d 376 (2001); People v. Cain, 238 Mich.App. 95, 110–111, 605 N.W.2d 28 (1999). With regard to the other precomplaint claimed periods of delay, we similarly conclude that they were reasonable and justified under the circumstances. Kozloff indicated that she did not wish to interfere with the proceedings in Missouri. Moreover, the prosecution lacked access to and jurisdiction over Watson, its principal witness, during this time.

Finally, with regard to the delay between the issuance of a felony complaint and warrant on November 14, 2011, and defendant's arraignment on February 23, 2012, defendant has not provided this Court with any authority to support the notion that a three-month delay between the issuance of a complaint and an arraignment is unreasonable, especially when for the majority of that time the defendant was incarcerated on other charges. However, no reason for the delay appears in the record. Generally, mere delay between the issuance of a complaint and an arrest and arraignment, absent actual and substantial prejudice, is not a denial of due process. See Patton, 285 Mich.App. at 237, 775 N.W.2d 610. In the absence of a demonstration of specific prejudice to defendant's defense, or evidence that the delay was caused by deliberate misconduct on the part of the police or the prosecution, we decline to reverse defendant's convictions on the ground that he was prejudiced by this relatively minimal delay. Id. Defendant has not demonstrated plain error affecting his substantial rights. Carines, 460 Mich. at 761, 597 N.W.2d 130.

Because we conclude not only that defendant has not established actual and substantial prejudice, but that the delay was not unreasonable, we do not find defendant's trial counsel ineffective for failing to object to it. An attorney does not have a duty to make a meritless argument....