People v. Anderson , 88 Mich. App. 513 ( 1979 )

88 Mich. App. 513 (1979) 276 N.W.2d 924

PEOPLE
v.
ANDERSON

Docket No. 78-1383.

Michigan Court of Appeals.

Decided February 6, 1979.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James J. Gregart, Prosecuting Attorney, Stephen M. Wheeler, Chief of Appellate Division, and Judy A. Hughes, Assistant Prosecuting Attorney, Appellate Division, for the people.

Robert L. Hencken, for defendant on appeal.

Before: R.B. BURNS, P.J., and J.H. GILLIS and V.J. BRENNAN, JJ.

PER CURIAM.

Defendant was convicted by a jury of delivery of cocaine, MCL 335.341(1)(b); MSA 18.1070(41)(1)(b), and sentenced to a term of 5 to 14 years in prison. He appeals as of right, raising four issues.

The transaction forming the basis for defendant's conviction occurred on December 2, 1975. Defendant was not arrested until April 14, 1976. He argues that this 4-1/2 month delay was a denial of due process because he was unable to remember the occurrence by the time of his trial.

Mere delay between the time of the commission of an offense and arrest is not a denial of due process. People v Fiorini (On Rehearing), 59 Mich. App. 243; 229 NW2d 399 (1975). There is no constitutional right to be arrested. Hoffa v United States, 385 U.S. 293, 310; 87 S. Ct. 408; 17 L. Ed. 2d 374 (1966), People v Noble, 18 Mich. App. 300; 170 NW2d 916 (1969). Rather, the guideline is whether the record presents evidence of prejudice resulting from the delay which violates a defendant's right to procedural due process. People v White, 59 Mich. App. 164; 229 NW2d 357 (1975), People v Hernandez, 15 Mich. App. 141; 170 NW2d 851 (1968). Defendant at bar alleges prejudice because of memory loss — both his own and that of his witnesses.

Even a showing of some evidence is insufficient to mandate reversal for a pre-arrest delay. If the prosecutor is able to explain the delay, show that it was not done deliberately to prejudice the defendant, and establish that no undue prejudice resulted from the delay, then a conviction may still be upheld. Hernandez, supra, at 147, White, supra, at 165.

The prosecution justified the delay on the ground than an earlier arrest would have impaired the undercover agent's ability to conduct an ongoing narcotics investigation. This is an adequate explanation for such a delay. White, supra, People v Rios, 27 Mich. App. 54, 58; 183 NW2d 321 (1970), rev'd on other grounds, 386 Mich. 172 (1971). There was no showing that the delay was deliberate. Finally, the trial court's finding that no undue prejudice resulted is not clearly erroneous. The requirements of Hernandez have, therefore, been met. People v Rhymes, 62 Mich. App. 27; 233 NW2d 171 (1975).

Defendant next argues that the trial court erred by allowing the prosecutor to impeach him by use of a prior conviction for the sale of heroin. The court recognized and properly exercised its discretion on the matter pursuant to People v Jackson, 391 Mich. 323; 217 NW2d 22 (1974).

The third argument raised by defendant is that he was entitled to conduct an independent analysis of the alleged cocaine. Discovery in a criminal case is within the discretion of the trial court. People v Maranian, 359 Mich. 361, 368; 102 NW2d 568 (1960). At present there is no inherent right to conduct an independent scientific examination with an expert of one's own choice. People v Bell, 74 Mich. App. 270, 275; 253 NW2d 726 (1977). Generally, a trial court's denial of criminal discovery is not reversible if defendant is afforded full opportunity of cross-examination. People v Jesse Smith, 81 Mich. App. 190; 265 NW2d 77 (1978). In the instant case defense counsel's cross-examination of the analyst who identified the cocaine was not restricted by the trial court.

Finally, defendant argues that the prosecutor failed to comply with MCL 600.2167; MSA 27A.2167.

"(1) In a preliminary examination or grand jury proceeding, a report of the findings of a technician of the division of crime detection of the department of public health or a technician of the scientific laboratory section of the department of state police, signed by that technician, or a notarized copy of the report, may be received in evidence in place of the technician's appearance and testimony.

"(2) Prior to a preliminary examination at which the technician's report of findings will be introduced in evidence, 2 copies of the report shall be furnished to the prosecuting attorney. The prosecuting attorney shall immediately furnish 1 copy of the technician's report to the defense attorney or, if an appearance or appointment of defense counsel has not been filed, to the defendant.

"(3) The prosecuting attorney, upon receiving copies of the technician's report, shall notify the court before which the preliminary examination will be held that copies of the technician's report are in the prosecutor's possession. If the prosecuting attorney fails to notify the court that he has received copies of the technician's report not less than 5 days before the day set for preliminary examination, the court shall adjourn the preliminary examination.

"(4) An accused person or his attorney may request that the technician testify in person at the preliminary examination on behalf of the state by serving written notice on the prosecuting attorney not more than 5 days after receiving a copy of the technician's report of findings from the prosecuting attorney."

At the preliminary examination, the people sought to introduce the technician's report. Defendant objected to its admission on the grounds that it was not furnished to him "immediately" as required by subsection 2 of the statute. The record indicates that the prosecutor held the report for five days before defendant received a copy. The examining magistrate ruled the report was admissible.

That ruling was correct. The statute is designed to reduce the number of times a drug analyst is required to testify in criminal proceedings. Nevertheless, upon timely demand, the technician must appear in person at the preliminary examination. MCL 600.2167(4); MSA 27A.2167(4).

No prejudice resulted to defendant from the five-day delay between the time the prosecutor received the report and the time it was furnished to defendant. Defendant received the report April 19, 1976, and the preliminary examination was not held until May 11, 1976. Consequently, defendant had ample time to review the report and determine whether he wished the technician to testify in person. He failed to exercise that right. Absent a showing of prejudice, the prosecutor's failure to furnish "immediately" a copy of the report is not reversible error.

Affirmed.