Opinion
Docket No. 5,673.
Decided February 5, 1970.
Appeal from Recorder's Court of Detroit, Robert E. DeMascio, J. Submitted Division 1 January 5, 1970, at Detroit. (Docket No. 5,673.) Decided February 5, 1970.
Donald Asher was convicted by a jury of possession of marihuana. Defendant appeals. Remanded with instructions.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people.
Daniel H. French and George L. BeGole ( Norman L. Zemke, of counsel), for defendant.
Before: LESINSKI, C.J., and J.H. GILLIS and QUINN, JJ.
Defendant Donald Asher was convicted following a jury trial for possession of marihuana, MCLA § 335.153 (Stat Ann 1957 Rev § 18.1123). This appeal is brought as of right.
It is defendant's position that reversal is required due to application of the "180-day" rule statute, MCLA §§ 780.131, 780.133 (Stat Ann 1969 Cum Supp §§ 28.969[1], 28.969[3]).
In the instant case there were a total of seven adjournments and postponements which delayed the commencement of trial for a full year following the preliminary examination. Arraignment on the information was not held for nearly six months after its first scheduled date. Four adjournments occurred following expiration of the statutory period.
Of the reasons presented in the record for the delays, two require attention. First, the record reveals that several of the delays were caused by the failure of defendant to be present. At all relevant times defendant was in the custody of the Department of Corrections at Jackson prison, and the prosecutor had notice of this fact. It was the position of the trial court, in denying defendant's motion, that defendant had the duty to present himself for trial and failure to do so could not be attributable to the prosecutor. We disagree.
The delays referred to hereinafter do not include the adjournment of August 2, 1967, necessitated by the civil disorder in Detroit. That delay was clearly beyond the control of the prosecutor. Brief adjournments under such circumstances are consistent with good-faith diligence.
Where, as here, defendant is being involuntarily (though legally) detained by the state, it becomes the duty of the people to have defendant present at all essential stages of trial. When the prosecutor fails to produce defendant, thus necessitating adjournment, such does not constitute a waiver by defendant of the statutory rights created by the "180-day" rule.
Absence from trial due to imprisonment is not voluntary within the meaning of People v. Gant (1961), 363 Mich. 407, which held that voluntary absence can waive defendant's right to be present at his trial.
The second reason given for the delays is that they resulted from requests of defense counsel. In People v. Hendershot (1959), 357 Mich. 300, 304, the Court stated:
The following statements by the prosecutor appear on the record below:
"Mr. Weiswasser: If your Honor please, there are certain factual matters that do not appear on the record. I have discussed this matter with the officer in charge of the case, Mr. Kapagian, and he tells me that several times during the pendency of this particular case counsel indicated that they would like to have this matter adjourned pending the outcome of the disposition of the matters against the codefendant, and that the police and the people were ready to proceed at any time. * * *
"Mr. Weiswasser: Yes, During all this time there were several adjournments of the examination, all at the request of defense counsel. And I can only go by what the officer tells me. He tells me that defense counsel indicated to them that they wanted to wait until there was a complete disposition on this matter involving the other codefendants; and that the only time that this motion came to being filed was when the parole board took the action of incarcerating the defendant for violation of parole. * * *
"Mr. Weiswasser: I know. But preliminary to this — I don't know what 180 days he is talking about. He can't be talking about 180 days preceding the August period, because you have had all kinds of dates set for examination which were adjourned at the request of counsel."
"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."
Defendant, however, denies that any of the adjournments were at his request.
Defendant denied requesting adjournments stating during argument below: "They were not adjourned at request of counsel." Later, when asked by the court whether he would have been prepared to try the case on August 2, 1967, defendant's attorney stated: "I was ready for trial. Had it not been for the riot I would have been ready for trial on that date."
We are, thus, presented with a factual dispute, fundamental to the disposition of the case. The record does not provide sufficient information to resolve the matter.
We, therefore, remand for the purpose of establishing a testimonial record detailing the reasons, if any, for each of the delays in the proceedings of the instant case, and a determination as to which party initiated each delay. Upon completion of the testimonial record, the trial court shall make a redetermination of its prior ruling of defendant's motion in the light of this opinion and the testimonial record.
See People v. Thomas (1970), 21 Mich. App. 465, an appeal following a similar remand.
In the event the "180-day" rule is found not to have been violated, the trial court shall return the record on appeal and the record established on remand to this Court for final determination of the remaining issues raised on appeal.
Remanded for actions not inconsistent with this opinion.
All concurred.