PEOPLE OF MI V STERLING BROADEN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 13, 2005
Plaintiff-Appellee,
v
No. 256561
Muskegon Circuit Court
LC No. 02-048280-FH
STERLING BROADEN,
Defendant-Appellant.
Before: Whitbeck, C.J., and Bandstra and Markey, JJ.
PER CURIAM.
Defendant Sterling Broaden appeals as of right from his bench trial conviction of being a
prisoner in possession of contraband.1 We affirm.
I. Basic Facts And Procedural History
Broaden was observed fidgeting with his hands down his pants in the correctional
facility’s visiting room. Corrections Officer John Wilbur strip-searched Broaden in the “shake
down” room and observed a gray foreign object in Broaden’s rectal area. A second corrections
officer, Lieutenant Ricky Wilson, was called into the shake down room. Lieutenant Wilson did
not observe the object in Broaden’s rectal area. As Lieutenant Wilson and Broaden were leaving
the shake down room, Officer Wilbur discovered a gray object in the trashcan located in the
room. The object was later determined to be a bag of marijuana wrapped in duct tape. Broaden
was charged with and convicted of one count of being a prisoner in possession of contraband.
II. Request To Withdraw Waiver Of Jury Trial
A. Standard of Review
Broaden argues that the trial court erred in denying his request to withdraw his waiver of
a jury trial. We review a trial court’s denial of a motion to withdraw a jury waiver for an abuse
of discretion.2 A trial court has the discretion to withdraw a defendant’s waiver of a jury trial.3
1
MCL 800.281(4).
2
People v Wagner, 114 Mich App 541, 559; 320 NW2d 251 (1982).
3
Id.
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However, a defendant’s request to withdraw his waiver must be timely made and not made with
the purpose of delay.4
B. Applying The Law
When Broaden requested to withdraw his waiver, Broaden’s trial had already been
adjourned four times and almost 11 months had passed since the first scheduled trial date.
Following such a delay, it was certainly reasonable for the trial court to decline delaying
Broaden’s trial any longer.
Furthermore, Broaden argued that the trial court should have withdrawn his waiver
because, following his waiver, the trial judge became aware of threatening remarks that Broaden
had made toward him. Broaden was found guilty of making the threatening remarks on
October 10, 2003. If Broaden was concerned about the effect of these remarks on the trial judge,
then he could have requested the trial court to withdraw his jury waiver anytime thereafter.
Instead, Broaden chose not to request a withdrawal of his waiver until a week before his trial.
Additionally, we find no indication that the trial judge harbored any bias toward Broaden.
We conclude that the trial court did not abuse its discretion in denying Broaden’s request
to withdraw his waiver of a jury trial.
III. Right To A Speedy Trial
A. Standard of Review
Broaden argues that his right to a speedy trial was violated. We review a claim of a
speedy trial violation de novo.5
B. Legal Standards
A criminal defendant has a constitutional and statutory right to a speedy trial.6 We use a
four factor balancing test to determine whether a defendant’s right to a speedy trial has been
violated.7 The test requires that we consider: 1) the length of the delay; 2) the reasons for the
delay; 3) defendant’s assertion of this right; and 4) prejudice to the defendant.8
4
Id. at 558-559; People v Haddad, 306 Mich 556, 559; 11 NW2d 240 (1943).
5
People v Cain, 238 Mich App 95, 111; 605 NW2d 28 (1999).
6
US Const, Ams VI and XIV; Const 1963, art I, § 20; MCL 768.1.
7
Barker v Wingo, 407 US 514, 530; 92 S Ct 2182; 33 L Ed 2d 101 (1972); Cain, supra at 112.
8
Cain, supra at 112.
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C. Applying The Standards
The length of the delay is not determinative in a speedy trial claim.9 Rather, the length of
delay merely determines which party has the burden to prove prejudice. Any delay is measured
from the date Broaden was charged, November 14, 2002.10 Defendant’s trial commenced on
January 27, 2004. The length of delay was, therefore, approximately 14½ months.11 Thus,
Broaden bears the burden to show actual prejudice.12
This Court examines the reasons for delay and then assigns each individual delay to
either the prosecutor or the defendant.13 The trial court originally scheduled Broaden’s trial to
begin on March 4, 2003. The trial court adjourned the trial date to June 10, 2003, after
Broaden’s request for DNA testing. This 14-week delay for DNA testing is attributable to
Broaden.14 The trial court then adjourned Broaden’s trial from June 10, 2003, to July 24, 2003,
for appointment of a new public defender. Delays due to the substitution of counsel are
attributable to the defendant.15 This six-week delay for substitution of counsel is also
attributable to Broaden. The trial court then adjourned Broaden’s trial from July 24, 2003, to
September 30, 2003, because of docket congestion. This 9½-week delay for docket congestion is
minimally attributable to the prosecution.16 The trial court then adjourned Broaden’s trial from
September 30, 2003, to January 27, 2004, so that Broaden could seek an interlocutory appeal of
the trial court’s decision not to dismiss his public defender. This four-month delay is attributable
to Broaden.17 Of the 14½ month delay from when Broaden was charged to the start of his trial,
only 9½ weeks are minimally attributable to the prosecution. This factor weighs heavily against
Broaden.
Broaden asserted his right to a speedy trial in February 2004, one month after his trial
began but three months before his trial recommenced in May 2004. This factor weighs in
Broaden’s favor.
9
Id.
10
United States v Marion, 404 US 307; 92 S Ct 455; 30 L Ed 2d 468 (1971); People v
Rosengren, 159 Mich App 492, 506 n 16; 407 NW2d 391 (1987) (stating that the right to a
speedy trial arises when there has been a formal charge brought against the defendant).
11
The right to a speedy trial requires that the trial commence within a reasonable time under the
given circumstances. People v Hess, 39 Mich App 28, 31; 197 NW2d 118 (1972); People v
Spalding, 17 Mich App 73, 75; 169 NW2d 163 (1969).
12
People v Holtzer, 255 Mich App 478, 492; 660 NW2d 405 (2003).
13
People v Ross, 145 Mich App 483, 491; 378 NW2d 517 (1985).
14
People v Gilmore, 222 Mich App 442, 461; 564 NW2d 158 (1997).
15
People v Taylor, 110 Mich App 823, 829; 314 NW2d 498 (1981).
16
Gilmore, supra at 460.
17
People v Hammond, 84 Mich App 60, 67; 269 NW2d 488 (1978).
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Broaden asserts that his defense was prejudiced because the two corrections officers who
searched him were unable to recall potentially exculpatory facts—namely, that he was ever in a
position to drop the marijuana plug into the trashcan. General allegations of unspecified memory
loss are insufficient to establish that defendant suffered any prejudice.18 Broaden has not pointed
to any evidence that was lost or forgotten that would have rebutted the reasonable inference that
he possessed the marijuana plug. This factor weighs against Broaden.
Based on application of the four factor balancing test, we conclude that the trial court did
not err in denying Broaden’s motion to dismiss for a speedy trial violation.
IV. Request To Discover Work Records
A. Standard of Review
Broaden argues that the trial court erred in denying his request to discover Officer
Wilbur’s work records. We review a trial court’s decision regarding a discovery request for
abuse of discretion.19
B. Freedom Of Information Act (FOIA)
We disagree with both parties’ assertion Officer Wilbur’s work records are protected
from discovery by FOIA. Law enforcement personnel records are exempted from disclosure
under FOIA.20 However, the FOIA only exempts law enforcement personnel records when the
public is requesting information about the affairs of government. FOIA does not govern what is
discoverable in a criminal action.
C. Discovery Of Work Records
A trial court should grant discovery when the information sought “is necessary to a fair
trial and a proper preparation of a defense.”21 But a criminal defendant does not have a general
right to discovery.22 Broaden argues that Officer Wilbur’s work records would show that he had
previously been laid off for carrying “green money,” which is money that is used to furnish
drugs in the prison. Broaden stated that his defense would be that Officer Wilbur planted the
marijuana plug in the trashcan in the shake down room because Officer Wilbur needed to
demonstrate that he was in fact an effective officer. Because Broaden’s argument is based on
mere speculation that Officer Wilbur had a motive to prove he was a good officer after he was
allegedly caught with green money, he has not shown that the information he sought “is
18
Gilmore, supra at 462.
19
People v Phillips, 468 Mich 583, 587; 663 NW2d 463 (2003).
20
MCL 15.243(1)(s)(ix).
21
People v Laws, 218 Mich App 447, 455; 554 NW2d 586 (1996).
22
People v Stanaway, 446 Mich 643, 680; 521 NW2d 557 (1994).
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necessary to a fair trial and a proper preparation of a defense.” Therefore, the trial court did not
abuse its discretion in denying defendant’s request to discover Officer Wilbur’s work records.
Broaden also argues that the trial court’s denial of his request to discover Officer
Wilbur’s work records violated his right of confrontation. But because Broaden failed to
properly address the merits of this assertion, he has abandoned the issue.23
Affirmed.
/s/ William C. Whitbeck
/s/ Richard A. Bandstra
/s/ Jane E. Markey
23
People v Harris, 261 Mich App 44, 50; 680 NW2d 17 (2004).
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