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People v. Scott

Court of Appeals of Michigan

May 29, 2018

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
NELSON KELLY SCOTT, Defendant-Appellee.

          Dated April 12, 2018

          Wayne Circuit Court LC No. 16-009370-01-FC

          Before: Sawyer, P.J., and Hoekstra and Murray, JJ.

          PER CURIAM.

         In August 2016, defendant was charged with two counts of first-degree criminal sexual conduct (CSC), MCL 750.520b, for conduct that allegedly occurred approximately 19 years earlier, on September 6, 1997. Defendant filed a motion to dismiss the charges, which the trial court granted based on the conclusion that the delay violated defendant's due process rights. The prosecution now appeals as of right the trial court's order dismissing the charges with prejudice. Because defendant failed to show that he was prejudiced by the delay, the trial court abused its discretion by granting defendant's motion to dismiss. Accordingly, we reverse and remand for reinstatement of the charges.

         The procedural history in this case is uncontested. Defendant was originally charged with CSC in 1997 for allegedly assaulting the victim in this case, PM. In 1997, defendant was also charged with CSC for crimes perpetrated against two additional victims-RO and GF. At the preliminary examination for the PM case, PM failed to appear, purportedly because she was never subpoenaed. The examination was adjourned, but when PM failed to appear at the rescheduled preliminary examination, the trial court dismissed the case without prejudice.

         Meanwhile, proceedings related to the RO and GF cases were ongoing, and defendant eventually reached a plea agreement with the prosecution regarding those cases. On March 4, 1998, defendant was sentenced to concurrent terms of 15 to 25 years' imprisonment for three counts of first-degree CSC and one count of first-degree home invasion. Defendant was released from prison on November 19, 2015.

         In August 2016, after obtaining DNA evidence implicating defendant in the PM case, the prosecution refiled the CSC charges that had been dismissed in 1997. Defendant filed a motion to dismiss, arguing that the prosecution's delay in refiling the charges violated his constitutional due process rights. The trial court agreed, and granted defendant's motion. The prosecution now appeals, arguing that defendant failed to establish that he was prejudiced by the delay and that the trial court thus abused its discretion by granting defendant's motion. We agree.

         "This Court reviews a trial court's ruling regarding a motion to dismiss for an abuse of discretion." People v Adams, 232 Mich.App. 128, 132; 591 N.W.2d 44 (1998). "A trial court may be said to have abused its discretion only when its decision falls outside the range of principled outcomes." People v Nicholson, 297 Mich.App. 191, 196; 822 N.W.2d 284 (2012). The underlying legal question, "whether the delay in charging defendant violated his right to due process of law, " is a question of law that we review de novo. People v Reid (On Remand), 292 Mich.App. 508, 511; 810 N.W.2d 391 (2011).

         "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." People v Woolfolk, 304 Mich.App. 450, 454; 848 N.W.2d 169 (2014). Michigan applies a balancing test to determine whether a delay violates a defendant's constitutional right to due process of law. People v Cain, 238 Mich.App. 95, 108; 605 N.W.2d 28 (1999). Under this balancing test, a defendant bears the initial burden of demonstrating prejudice. Adams, 232 Mich.App. at 134.

[O]nce a defendant has shown some prejudice, the prosecution bears the burden of persuading the court that the reason for the delay is sufficient to justify whatever prejudice resulted. This approach places the burden of coming forward with evidence of prejudice on the defendant, who is most likely to have facts regarding prejudice at his disposal. The burden of persuasion rests with the state, which is most likely to have access to facts concerning the reasons for delay and which bears the responsibility for determining when an investigation should end. [Id. at 133-134 (citation omitted).]

         To meet the initial burden of demonstrating prejudice, the defendant must present evidence of "actual and substantial prejudice to his right to a fair trial." Id. at 134 (quotation marks and citation omitted). Actual prejudice cannot be shown by mere speculation; that is, "[a] defendant cannot merely speculate generally that any delay resulted in lost memories, witnesses, and evidence, even if the delay was an especially long one." Woolfolk, 304 Mich.App. at 454 (citations omitted). "Substantial prejudice is that which meaningfully impairs the defendant's ability to defend against the charge in such a manner that the outcome of the proceedings was likely affected." People v Patton, 285 Mich.App. 229, 237; 775 N.W.2d 610 (2009).

         In this case, the court found that defendant was prejudiced by the passage of time between the dismissal of charges in 1997 and the refiling of the charges in 2016. Specifically, the trial court concluded that defendant was prejudiced by the delay because, had the charges been pursued in 1997, (1) defendant "might have had an alibi witness" and (2) the charges relating to PM could have been included in the plea agreement relating to RO and GF, whereas defendant now essentially faces consecutive sentencing "that was never contemplated or bargained for or agreed upon in his original plea." Contrary to the trial court's conclusions, speculations regarding a possible alibi and the potential for adverse sentencing consequences do not constitute actual and substantial prejudice to defendant's right to a fair trial, and thus defendant's due process argument must fail because he has not shown prejudice. Adams, 232 Mich.App. at 134.

         In particular, the trial court first reasoned that defendant "might" have lost an alibi witness. The trial court hypothesized that, for all anyone knew, defendant "might have been on the clock at McDonald's that day . . . ." However, regardless of the passage of time, speculation as to lost witnesses or evidence is insufficient to establish prejudice. See Woolfolk, 304 Mich.App. at 454. Defendant is tasked with presenting evidence of prejudice that is actual and substantial. Id.; Adams, 232 Mich.App. at 134. Defendant has failed, however, to name any actual alibi witnesses and he has failed to provide any details of a possible ...


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