Opinion
No. 330217
02-21-2017
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. SCOTT LARRY CHANDLER, Defendant-Appellee.
UNPUBLISHED Oakland Circuit Court
LC No. 2015-255155-FH Before: JANSEN, P.J., and BECKERING and GADOLA, JJ. PER CURIAM.
The prosecution appeals as of right the trial court's order granting defendant's motion to dismiss on the ground of prearrest delay. Defendant was charged with one count of third-degree criminal sexual conduct (CSC-III) (sexual penetration with a child who was at least 13 years old but under 16 years old), MCL 750.520d(1)(a), second offense, MCL 750.520f, and three counts of fourth-degree criminal sexual conduct (CSC-IV) (sexual contact with a child who was at least 13 years old but under 16 years old, and defendant was 5 or more years older than the child), MCL 750.520e(1)(a). We reverse and remand.
This case involves alleged criminal sexual conduct that occurred between defendant and two children in 2009. The Hazel Park Police Department began its investigation in 2010. The investigation was abandoned or postponed until some point in 2014. In 2015, defendant was charged with one count of CSC-III and three counts of CSC-IV. The prosecution argues that the trial court erred when it granted defendant's motion to dismiss because defendant failed to demonstrate actual and substantial prejudice resulting from the prearrest delay and because there was no evidence to support that the delay was an attempt by the prosecution to gain a tactical advantage. We agree.
A trial court's ruling regarding a motion to dismiss is reviewed for an abuse of discretion. People v Lewis, 302 Mich App 338, 341; 839 NW2d 37 (2013). " 'An abuse of discretion occurs when the trial court chooses an outcome falling outside the range of principled outcomes.' " Id. (citation omitted). Whether a prearrest delay violated a defendant's right to due process is reviewed de novo. People v Reid (On Remand), 292 Mich App 508, 511; 810 NW2d 391 (2011).
Prejudice resulting from delay between the commission of an offense and an arrest may violate a defendant's due-process rights. People v Patton, 285 Mich App 229, 236; 775 NW2d 610 (2009). However, mere delay between the incident and the defendant's arrest is insufficient to establish a denial of due process. Id. "For a defendant to be entitled to dismissal on this basis, the defendant must show that the delay caused actual and substantial prejudice to the defendant's right to a fair trial and an intent by the prosecution to gain a tactical advantage." Reid (On Remand), 292 Mich App at 511-512 (citation and quotation marks omitted). Actual prejudice must be shown, and speculative prejudice and generalized allegations are insufficient. People v Adams, 232 Mich App 128, 134-135; 591 NW2d 44 (1998). Moreover, the prejudice must be substantial, meaning that it must impair the defendant's ability to defend against the state's charges to such an extent that the outcome of the criminal proceeding was likely affected. Id. "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." People v Woolfolk, 304 Mich App 450, 454; 848 NW2d 169 (2014) (citations omitted), aff'd on other grounds 497 Mich 23 (2014). "If a defendant demonstrates prejudice, the prosecution must then persuade the court that the reason for the delay sufficiently justified whatever prejudice resulted." Patton, 285 Mich App at 237.
We conclude that defendant failed to establish actual and substantial prejudice. Defendant first contended that he was prejudiced because several witnesses could not remember what, if anything, one of the victims disclosed to them. Defendant argued that, by the time the police restarted the investigation, the two witnesses could not recall any conversations related to the CSC allegations. According to defendant, the witnesses could have testified that the victim never disclosed anything to them, which would have impaired her credibility and bolstered defendant's defense. However, we conclude that the fact that the witnesses cannot remember the disclosure is beneficial to the defense. Without these witnesses, there are fewer witnesses to corroborate the victim's story regarding the incident. Furthermore, defendant's argument regarding what the witnesses would have stated in their testimony is speculative. Accordingly, defendant failed to show actual and substantial prejudice with regard to the lost memories of the witnesses.
In addition, defendant contended that the delay prejudiced him because his wife died in 2015, and she was therefore unable to testify on behalf of the defense. According to defendant, his wife was present in the house at the time the incidents allegedly took place. Defendant argued that his wife would have refuted the testimony of one of the victims that she disclosed the incident to defendant's wife. He also contends on appeal that his wife would have testified that she did not see any of the incidents occur in spite of the fact that she spent a substantial amount of time with the victims in the home. However, we conclude that defendant failed to establish prejudice. His wife was only one witness out of several witnesses to whom the victim allegedly disclosed the assault. Even assuming that defendant is correct that his wife would have testified that the victim did not disclose the assault to her, we conclude that her unavailability would not impair defendant's ability to defend against the charges to such an extent that the outcome of the criminal proceeding would likely be affected, especially considering the fact that the two victims testified that defendant committed similar acts against them, and one of the victims told multiple people about the incident. Defendant also contends on appeal that his wife would have testified that she supervised the girls and did not see the incidents occur. However, the victims did not testify that defendant's wife was present when the incidents occurred. Instead, the victims testified at the preliminary examination that defendant waited until he was alone with the victims before committing the offenses. Therefore, we conclude that this testimony would not have been helpful to the defense. For this reason, defendant fails to show that he was prejudiced by the delay because of his wife's death.
Defendant also argued that he was prejudiced by the delay because of the inability to locate two other witnesses, including a woman to whom one of the victims allegedly disclosed the incident, as well as an unknown man who allegedly walked in on one of the incidents. However, defendant failed to outline the steps taken to locate the witnesses, and thus failed to establish that the witnesses would be unavailable to testify at trial. Furthermore, there is nothing in the record to support that, had the witnesses been found and able to testify, they would have provided any exculpatory testimony. Because defendant did not specify what exculpatory testimony the witnesses would provide, he did not establish that he was prejudiced by the witness's unavailability. For these reasons, we conclude that defendant was not actually and substantially prejudiced by the delay.
Even if defendant was actually and substantially prejudiced by the lengthy delay, there is no evidence to support that the delay was caused by the prosecution's attempt to gain a tactical advantage. It appears that the police investigation was abandoned or put aside at some point in 2010, and was not picked up again until 2014. The record is devoid of any explanation or rationale for the delay. The prosecution admitted, and the trial court found, that there was no reasonable explanation for the delay. However, defense counsel admitted at the hearing on the motion to dismiss that the delay was "not deliberate but at least reckless; at a minimum, negligence." Moreover, there is nothing in the record to support that the delay represented an attempt by the prosecution to gain a tactical advantage. In fact, the delay likely harmed the prosecution's case against defendant because several witnesses who may have testified on behalf of the prosecution could not remember relevant facts. Because there is no evidence to support that the delay was caused by the prosecution's attempt to gain a tactical advantage, the trial court abused its discretion by granting defendant's motion to dismiss.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Kathleen Jansen
/s/ Jane M. Beckering
/s/ Michael F. Gadola