Opinion
Docket No. 51296.
Decided February 5, 1981.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Chief Appellate Attorney, for the people.
Janet Tooley, Assistant State Appellate Defender, for defendant on appeal.
Defendant was convicted of prison escape, contrary to MCL 750.193; MSA 28.390, and sentenced to serve from eight months to five years in prison upon termination of his present sentence. Defendant appeals as of right.
Defendant's wife testified at trial as follows. She had received threatening telephone calls from a Raymond Zoroski. Zoroski told her that he would kill her and her children. She contacted the police, but Zoroski was not arrested. She twice visited her husband in prison and told him about Zoroski's threats.
Defendant testified that Raymond Zoroski had been involved in the crime for which defendant was imprisoned, but Zoroski was never charged. Defendant admitted that he left prison on August 10, 1977, and that during the eight days that he was out of prison he looked for Zoroski but could not find him. Defendant was arrested at his home and charged with prison escape.
It is the defendant's contention that because there were some 342 days between his arrest and trial on the charge of prison escape he was denied the right to a speedy trial. The United States Supreme Court in Barker v Wingo, 407 U.S. 514; 92 S Ct 2182; 33 L.Ed.2d 101 (1972), identified four factors which courts should assess in determining whether a defendant has been deprived of his right to a speedy trial. These factors are the length of the delay, the reason for the delay, the defendant's assertion of his right, and the prejudice to the defendant.
We find that, although there was a substantial delay between the defendant's arrest and trial, only 13 of the 342 days were attributable to the state. There was no deliberate attempt on the prosecution's part to delay trial in order to hamper the defendant's defense, and we find no prejudice to the defendant's case which obtained because of the delay in trial.
We do not find it necessary to decide whether the 180-day rule of MCL 780.131 et seq.; MSA 28.969(1) et seq. applies to prison escapes. The instant case was brought within the statutory 180-day limitation period, and the Supreme Court in People v Hendershot, 357 Mich. 300, 304; 98 N.W.2d 568 (1959), said:
"The statute does not require the action to be commenced so early within the 180-day period as to insure trial or completion of trial within that period. If, as here, apparent good-faith action is taken well within the period and the people proceed promptly and with dispatch thereafter toward readying the case for trial, the condition of the statute for the court's retention of jurisdiction is met. 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."
The defendant's preliminary examination was begun within the 180-day limitation period, and there was no showing of lack of good faith on the prosecution's part in proceeding promptly toward trial. There were no 180-day gaps in the steady progress of the case toward trial, and the delay between preliminary examination and trial occurred with the defendant's consent.
The trial court committed no error when it refused to instruct the jury on the defense of duress. A defendant must first produce evidence from which the jury could find the elements of duress were present. Once a defendant produces such evidence the burden of proof is on the prosecution to prove beyond a reasonable doubt that the defendant's escape was not under duress. People v Luther, 394 Mich. 619; 232 N.W.2d 184 (1975).
In Luther the Court said:
"A defendant successfully raises the defense of duress when he presents evidence, as here, from which a jury could conclude:
"A) The threatening conduct was sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm;
"B) The conduct in fact caused such fear of death or serious bodily harm in the mind of the defendant;
"C) The fear or duress was operating upon the mind of the defendant at the time of the alleged act; and
"D) The defendant committed the act to avoid the threatened harm." Id., 623.
The defendant in the instant case did not produce evidence from which the jury could infer that the defendant committed the act of escape to avoid the threatened harm. The defendant's escape could not directly prevent the threatened harm, and the defendant presented no evidence to explain how he was going to prevent the threatened murders. Because no evidence on this element of duress was presented, there was no basis for the jury to determine that the defendant's presence at home could have prevented the threatened harm. One of the elements of duress was not shown, and so the trial court properly refused to instruct on that defense.
Lastly, defense counsel's presentation of the duress defense at trial rather than a motion in limine before trial could be seen as reasonable trial strategy that could be the choice of a competent trial counsel. We do not find that the decision of counsel warrants a new trial of this case.
Affirmed.