April 12, 2018
Circuit Court LC No. 16-009370-01-FC
Before: Sawyer, P.J., and Hoekstra and Murray, JJ.
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
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
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.
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.
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).
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
[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
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).
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.
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 ...