People v. Fiorini , 59 Mich. App. 243 ( 1975 )

On Rehearing

J. H. Gillis, P. J.

This case comes here on an application for rehearing filed by the people.

Defendant was tried before a jury on the charge of armed robbery, MCLA 750.529; MSA 28.797, in Wayne County Circuit Court and was found guilty. He was sentenced to 18 to 40 years imprisonment.

Defendant appealed as of right, alleging that he was denied due process of law, fair trial, and speedy trial because there was a delay of 43 months from the time of the commission of the offense to the date a complaint was filed and a warrant issued. This Court reversed on the basis that defendant had shown some prejudice, and the prosecution had failed to show that the delay was explainable and not deliberate and that the defendant was not unduly prejudiced thereby. People v Fiorini, 53 Mich App 389; 220 NW2d 70 (1974).

The appellee-prosecutor sought a rehearing and remand for a full and extensive hearing on the reasons for the delay, alleging further that there was no prejudice shown against defendant. Pursuant to that request, we ordered a remand to the trial judge.

A hearing was held, and the trial judge found that the delay "was not occasioned by malice, was not intentional, and was indeed, quite inadvertent”. He further found that no prejudice resulted to the defendant as a result of the delay.

We grant appellee’s motion for rehearing and reverse our prior decision.

I

On August 30, 1968, the Lakepointe Drugstore in Northville Township was robbed. Soon after the robbery, the police arrived and took descriptions of the assailant from Gerald Dobrusin, the owner of the store and pharmacist, and Dale Randall and Diane Penland (nee Oliver), employees of the store. Within one week, the complaining witness Dobrusin had made a positive photographic identification of defendant. Dobrusin had no further contact with the police regarding the matter until 1972.

In March of 1972, Dobrusin attended a lineup as a result of his own investigation. Dobrusin had talked with one of his pharmacist friends and discovered that a mutual friend’s drugstore had been robbed. Dobrusin was given a description of the robber by his friend and, from that description, believed the perpetrator to be the same one that had robbed him some three years earlier. On his own initiative, Dobrusin attended a lineup held in connection with the second robbery and identified defendant.

Detective Frank Van Wulfen was the officer in charge of the case in 1968. Det. Van Wulfen testified that he had planned to arrange a showup, but was reassigned to the Criminal Intelligence Service of the Wayne County Sheriffs Office shortly after the robbery.

Detective Thomas Sheedy was the officer in charge of the 1972 robbery case. He testified that he came into this case in March, 1972, when Dobrusin arrived at the jail on his own initiative, told him about the 1968 robbery, and expressed a desire to view the showup. Det. Sheedy also testified that the 1968 robbery investigation had never been reassigned after Det. Van Wulfen’s transfer.

Following Dobrusin’s identification of the defendant at the showup, a complaint was filed and a warrant was issued in April of 1972.

Defendant claims that he was prejudiced by this delay in that one alibi witness died in the interim and at least one other was unable to recall details; his ability to impeach the people’s witnesses was impeded because the event took place so long previous to arrest and trial that the witnesses were unable to remember many details; and the testifying police officers made use of a composite record of several officers’ notes, the originals of which were not available and presumably had been lost.

II

The Speedy Trial Claim

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial * * * .” US Const, Am VI. The Sixth Amendment speedy-trial provision has no application until the putative defendant in some way becomes an "accused”. United States v Marion, 404 US 307, 313; 92 S Ct 455, 459; 30 L Ed 2d 468, 474 (1971). The Sixth Amendment "would seem to afford no protection to those not yet accused, nor would [it] seem to require the Government to discover, investigate, and accuse any person within any particular period of time.” 404 US at 313; 92 S Ct at 459; 30 L Ed 2d at 474.

In this case, the right to a speedy trial attached when defendant was arrested. People v Grimmett, 388 Mich 590, 601-602; 202 NW2d 278, 283 (1972).

Since only three months elapsed between the time the defendant became an "accused” within the meaning of the Sixth Amendment and the trial, defendant was not denied a speedy trial as he contends.

The Due Process Claim

In People v Albert White, 27 Mich App 432, 435; 183 NW2d 606, 607 (1970), rev’d on other grounds, 387 Mich 775 (1972), this Court reiterated that mere delay in arrest does not of itself amount to a violation of due process. The Court stated:

" 'There is no constitutional right to be arrested.’ Hoffa v United States, 385 US 293, 310; 87 S Ct 408; 17 L Ed 2d 374 (1966). Defendant must show specific prejudicial effect of the delay.”

See also People v Noble, 18 Mich App 300, 302; 170 NW2d 916 (1969), People v Thomas Smith, 30 Mich App 34; 186 NW2d 61 (1971).

After a hearing on remand, the trial judge determined that no prejudice resulted to the defendant because of the delay. We concur.

Defendant claimed that he was prejudiced by the delay in that one alibi witness died in the interim. The death or unavailability of an alibi witness is an important factor to be considered in determining whether defendant was unduly prejudiced. Dickey v Florida, 398 US 30, 36; 90 S Ct 1564, 1568; 26 L Ed 2d 26, 31 (1970). However, it is not always prejudicial, as the Court found in United States v Lee, 413 F2d 910, 914 (CA 7, 1969). In that case, the death of two purported alibi witnesses, during a delay of approximately two years, was found not to have prejudiced the defendant.

In the case at bar, defendant’s sister testified that, on the night of the robbery, defendant was present at her home at a wedding anniversary celebration. In addition to defendant, 12 other people were present. Although it is true that one alibi witness died during the delay, only two of the remaining 11 potential alibi witnesses were called by defendant. In fact, his sister testified that defendant’s wife, one of the potential alibi witnesses, was vacationing at the time of her husband’s trial for armed robbery.

Further, after a hearing ordered by this Court to determine whether defendant was prejudiced, the trial judge stated:

"With the exception of the testimony of defendant’s sister, this court finds that the testimony of the other witnesses for the defendant was so incredible, as to be totally unworthy of belief; and that, in any event, the testimony of any additional alibi witness would have been cumulative at the very best.”

Under the circumstances in this case, defendant was not prejudiced by the death of one of his alibi witnesses.

Defendant also alleged that his ability to impeach the people’s witnesses was impeded because the event took place so long previous to arrest and trial that the witnesses were unable to recall many details. Defendant argues that the delay served only to prejudice the defense, while assisting the prosecution. This allegation is anomalous. A review of the record shows that the defendant cross-examined the people’s witnesses, and argued the credibility of the witnesses to the jury. The credibility of the witnesses, both the people’s and the defendant’s, is a matter for the jury to decide. People v Petrosky, 286 Mich 397, 400; 282 NW 191, 192 (1938). The jury, mindful of the delays and their possible effect, found the defendant to be guilty. See United States v Wilson, 342 F2d 782, 783 (CA 2, 1965).

Defendant was not prejudiced in cross-examining the people’s witnesses.

Finally, defendant contended that he was prejudiced because the testifying police officers made use of a composite record of several officers’ notes, the originals of which were not available.

In assessing possible prejudice, the loss or destruction of police records is a matter to be taken into consideration. Dickey v Florida, supra. The Michigan Supreme Court has also stressed the importance of retention by the police of their original notes and records. People v Poe, 388 Mich 611, 620; 202 NW2d 320, 324 (1972). But every failure to keep notes does not require reversal, and so it is here. After hearing upon remand, the trial court stated:

"This court is also of the opinion that the fragmentary notes of Officer Van Wulfen which were apparently lost, were in view of the extensive cross-examination of this witness, nonprejudicial to the defendant.”

We agree with the hearing judge. Defendant was not prejudiced by the loss of these notes.

Since defendant has failed to show any prejudice, we conclude that he was not denied due process of law by the delay between the occurrence of the offense and his arrest. Therefore we reverse our prior decision and affirm the conviction.

Van Valkenburg, J., concurred.