People v. Bennett , 84 Mich. App. 408 ( 1978 )

M. J. Kelly, P. J.

Defendant was charged with first-degree (premeditated) murder, MCL 750.316; MSA 28.548, and convicted in October, 1975 by a Detroit Recorder’s Court jury of manslaughter, MCL 750.321; MSA 28.553. (An earlier prosecution in February, 1973, ended in a mistrial.) A co-defendant, Samuel Daniels, was acquitted. Defendant was sentenced to 5 to 15 years in prison, with 228 days credit for time served and now appeals of right.

Defendant argues that he was denied his right to a speedy trial, US Const, Am VI, Const 1963, art 1, § 20, because of a 32-month delay between the mistrial and retrial. We agree.

In Barker v Wingo, 407 US 514, 530; 92 S Ct 2182, 2192; 33 L Ed 2d 101, 117 (1972), the United States Supreme Court adopted a balancing test of four factors for determining whether there has been a violation of the right to a speedy trial. The four factors are: (1) Length of delay; (2) Reason for the delay; (3) Defendant’s assertion of his right; and (4) Prejudice to the defendant. The Michigan Supreme Court has adopted the same test. People v Grimmett, 388 Mich 590, 601-606; 202 NW2d 278 (1972). See also People v Debreczeny, 74 Mich App 391, 396; 253 NW2d 776 (1977).

The record establishes a delay of about 32 months between the mistrial and defendant’s retrial. This delay is much too long absent a proper explanation. People v Chism, 390 Mich 104, 112; 211 NW2d 193 (1973). Prejudice is presumed after an 18-month delay. People v Grimmett, supra, at 606. The presumption is conclusive unless the prosecutor is able to demonstrate lack of prejudice to the defendant. Even so, "an affirmative demonstration of prejudice [is not] necessary to prove a denial of the constitutional right to a speedy trial”. Moore v Arizona, 414 US 25, 26; 94 S Ct 188, 189; 38 L Ed 2d 183, 185 (1973), citing Barker v Wingo, supra.

A review of the instant record indicates that the prosecution has caused, or has not been able to adequately explain the reason for, the delay of at least 20 of the 32 months. Unexplained delays are attributable to the state. People v Giles, 48 Mich App 466, 469; 210 NW2d 515 (1973).

Defendant did not expressly assert his right to a speedy trial. This is only one factor to be considered in determining a denial of a speedy trial claim, although it is "entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right”. Barker v Wingo, supra, at 531-532.¹ The record indicates that defendant was not responsible for at least 20 of the 32-month delay, and thus, any reliance on defendant’s failure to assert his right as being a waiver of that right is greatly reduced. Barker v Wingo, supra, at 529. We note some pertinent language from the Barker court which further dilutes the impact of defendant’s failure to assert his right to a speedy trial in the instant case:

"A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process. Moreover * * * society has a particular interest in bringing swift prosecutions, and society’s representatives are the ones who should protect that interest.” (Footnotes omitted.) 407 US at 527.

Furthermore, a couple of defense witnesses, who had testified during the mistrial that defendant’s. killing of the victim was justified or mitigated, became unavailable at the retrial. While their mistrial testimony was read to the jury at the retrial it likely was less effective than listening to live testimony. On the other hand, a prosecution witness who was the only one to claim to have seen the defendant shoot the victim was also unavailable at the retrial.

These are two examples of where the parties were both benefitted and prejudiced by the delay.

It is not our function to balance the sides and see which side benefitted the most in determining whether to find a violation of defendant’s right to a speedy trial. It is enough to find that both sides are hindered in their efforts to strike a fair balance wherein all the relevant facts can be brought to light. The purpose of a trial as a truth-seeking device is thwarted for both sides. If convicted it will be difficult to vindicate the process for the defendant who suffers from any inadequacy in the fact-finding function of the trial proceeding.

Therefore, we hold that the defendant has been deprived of his right to a speedy trial. Defendant’s conviction is reversed and he is discharged.

We briefly discuss two other issues which deserve to be mentioned.

Defendant’s argument that his retrial after a mistrial because of a hung jury placed him in double jeopardy is erroneous for the reasons set forth in People v Hoffman, 81 Mich App 288; 265 NW2d 94 (1978), citing United States v Dinitz, 424 US 600; 96 S Ct 1075; 47 L Ed 2d 267 (1976).

Finally, we strongly disapprove of the trial court’s offer of probation to the defendant in the plea negotiations. The trial court should not actively participate in the plea bargaining negotiations. See People v Earegood, 12 Mich App 256, 265-267, 277; 162 NW2d 802 (1968), rev’d on other grounds, 383 Mich 82; 173 NW2d 205 (1970), ABA Guilty Plea Standard 3.3(a). It is our opinion that the appearance of impartiality requires a passive role in the plea bargaining process.

While the Michigan court rule does not expressly prohibit the trial judge from participating in the plea bargaining negotiations, GCR 1963, 785.7(2)(a),(b) and (4)(b), we think the better rule is found in Rule 11 of the Federal Rules of Criminal Procedure which expressly prohibits the court from participating in plea negotiations. FR Crim P 11(e). See generally United States v Werker, 535 F2d 198 (CA 2, 1976), Griffith v Wyrick, 527 F2d 109 (CA 8, 1975).

Reversed and the defendant is discharged.

T. M. Burns, J., concurred.

1 The Barker Court stated: "We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.”