PEOPLE OF MI V ERIC LEE HOPKINSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 12, 2008
Plaintiff-Appellant,
v
No. 276115
Cheboygan Circuit Court
LC No. 06-003485-FH
ERIC LEE HOPKINSON,
Defendant-Appellee.
Before: Talbot, P.J., and Cavanagh and Zahra, JJ.
PER CURIAM.
The prosecutor appeals as of right from the order dismissing this case for undue prearrest
delay. We reverse and remand. This case is being decided without oral argument in accordance
with MCR 7.214(E).
The prosecutor’s theory of the case is that defendant was one of three individuals
responsible for a series of local motor vehicle break-ins, and had twice used a credit card stolen
during the break-ins. Defendant was charged with breaking and entering a vehicle to steal
property worth $1,000 or more but less than $20,000, MCL 750.356a(2)(c)(i), conspiracy to
commit that offense, MCL 750.157a, three counts of larceny from a motor vehicle, MCL
750.356a(1), and two counts of stealing or retaining a financial transaction device, MCL
750.157n(1).
The following comprises a general timeline of the events resulting in defendant’s arrest.
On August 21, 2005, police initiated an investigation following complaints of several break-ins
to motor vehicles occurring the previous evening. It was determined that following these breakins a credit card, stolen from one of the vehicles, had been used at two stores in Mackinaw City.
Police conducted a photographic lineup with store clerks on September 2, 2005. Two of the
store clerks identified defendant as the person using the stolen credit card. At that time, police
also identified defendant’s roommate, Christopher McGovern, as being with defendant at the
time the stolen credit card was used.
Police interviewed McGovern on September 6, 2005. McGovern indicated to police that
he, defendant and a third individual, Tim White, were involved in the motor vehicle break-ins
and use of the stolen credit card. White was contacted by police but failed to appear for a
scheduled interview. Police were initially informed that defendant was no longer residing in the
immediate area.
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Criminal proceedings were initiated against McGovern on December 19, 2005, charging
him with both breaking and entering of the motor vehicles and use of the stolen credit card.
McGovern was arrested on January 16, 2006, and on April 6, 2006, he entered into a plea
agreement, which was accepted by the court. One of the conditions of McGovern’s plea
agreement was that he would be required to testify against defendant and White. McGovern was
sentenced on May 9, 2006.
Police submitted a warrant request to the local prosecutor for defendant on June 9, 2006.
On August 3, 2006, the prosecutor authorized criminal proceedings against defendant for both
the motor vehicle break-ins and for use of the stolen credit card. The warrant was signed on
August 11, 2006, and defendant was arrested on August 15, 2006.
Defendant filed a motion for dismissal of the charges based on unreasonable delay
between the time of the alleged offenses and his arrest and the resulting prejudice. Defendant
specifically contended that the delay had resulted in his and his potential alibi witnesses,
comprised of friends and family members, inability to recall and verify defendant’s whereabouts
at the time of the alleged crimes. Initially, the trial court denied defendant’s motion without
prejudice and permitted the scheduling of an evidentiary hearing on the matter. Following the
conclusion of the evidentiary hearing, the trial court granted defendant’s motion, ruling in
relevant part:
There is nothing on this record that indicates the Defendant was made aware that
he was a suspect in this case until he was arrested. Consequently, it would be a
denial of due process to allow for a one year delay based on the reasons given.
While the prosecution must be allowed a reasonable amount of time to complete
an investigation, it appears from this record that the investigation was completed
within three weeks of the offense . . . . The People had ample information to issue
well before Mr. McGovern was sentenced; consequently when the reasons for the
delay are balanced against the prejudice under these facts, Defendant’s due
process rights were violated by this unreasonable pre-arrest delay.
The prosecutor filed a motion for reconsideration, which was denied by the trial court indicating
it did not accept the prosecutor’s explanation for the delay that it was awaiting the sentencing of
McGovern to assure his testimony before proceeding with charges against defendant. The trial
court reiterated the significance it attributed to the lack of “evidence that Defendant was ever
notified that he was a possible suspect in this matter until his arrest,” and opining that if
defendant “had been put on notice earlier, he could have invented any possible alibi defense at
that time and negated any prejudice.” Notably, the trial court indicated that defendant “did
establish some prejudice . . . due to the delay” but “that the prejudice was not overwhelming.”
On appeal, the prosecutor contends the trial court erred in dismissing the charges against
defendant based on prearrest delay. “This 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 NW2d 44
(1999). The factual determinations of the trial court are reviewed for clear error, with the
application of law to the facts reviewed de novo. People v Barrera, 451 Mich 261, 269; 547
NW2d 280 (1996).
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The right to due process affords “limited protection to those persons who have not been
arrested.” Adams, supra at 133 (citation omitted). Charges may be dismissed against a
defendant based on undue prearrest delay if there exists “actual and substantial prejudice to the
defendant’s right to a fair trial and an intent by the prosecution to gain a tactical advantage.”
People v Crear, 242 Mich App 158, 166; 618 NW2d 91 (2000); see also People v Walker, 276
Mich App 528, 545-546; 741 NW2d 843 (2007); People v Bisard, 114 Mich App 784, 791; 319
NW2d 670 (1982). Initially, a defendant must demonstrate some actual and substantial
prejudice. Id. “Substantial prejudice is prejudice of a kind or sort that the defendant's ability to
defend against the charges was so impaired that it likely affected the outcome of the trial. Actual
prejudice is not established by general allegations or speculative claims of faded memories,
missing witnesses, or other lost evidence.” People v Tanner, 255 Mich App 369, 414; 660
NW2d 746 (citations omitted), rev'd on other grounds 469 Mich 437 (2003).
In this instance, defendant merely asserts that he consulted with family members and
friends he typically associates with on a regular basis and that “they had no idea where I was at
the time, so I have no idea.” Defendant has failed to demonstrate that the loss of the testimony
of these individuals resulted in any meaningful impairment to his defense. The fact that these
potential witnesses could not recall defendant’s whereabouts at the time the crimes occurred,
standing alone, is insufficient to show defendant suffered actual and substantial prejudice from
the prearrest delay, because defendant has failed to demonstrate any of the indicated witnesses
would have testified in a manner that would be helpful to his defense. The mere assertion that
the witnesses might have provided exculpatory testimony is much too speculative to meet the
threshold requirement of actual and substantial prejudice.
In addition, we note an inconsistency between the trial court’s determination that there
was a lack of “evidence that Defendant was ever notified that he was a possible suspect in this
matter until his arrest,” and that if defendant “had been put on notice earlier, he could have
invented any possible alibi defense at that time and negated any prejudice.” Contrary to this
statement, at the evidentiary hearing, the trial court elicited testimony from defendant
acknowledging that, within weeks of the alleged crimes, he had contact with police suggesting
his involvement. Although defendant denied that the police provided any specifics regarding the
crimes other than they involved local break-ins, the trial court implied that “a reasonable person
if they were put on notice that there is allegations that you were involved in criminal activity on a
particular date and time, and it’s very close in time to that event, you would tend to figure out
where you were, so that if the events unfolded unfavorably for you, you could have a defense.”
In addition, defendant acknowledged that he communicated with White and was told, “that there
was a matter going down involving my name. I wanted to find out information. In fact, I had
spoken with Officer Frazier on the matter.” These admissions by defendant belie his assertion,
and the trial court’s finding, that he had no knowledge of his implication as a suspect in the
crimes until his arrest and precludes a determination of “actual and substantial prejudice.”
Finally, even if we were to determine that defendant presented sufficient evidence of
delay to satisfy the first prong of the test establishing prejudice; it must also be shown that the
prosecution intended to gain a tactical advantage by delaying charges. Tanner, supra at 414.
The prosecutor explained the delay in proceeding against defendant as being based solely due to
wanting to assure testimony by McGovern to support charges against defendant for both the
break-ins and the use of the stolen credit cards. The prosecutor did not deny it had sufficient
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evidence earlier to proceed solely on the stolen credit cards but was completely reliant on
McGovern’s testimony to tie defendant to the vehicle break-ins. The prosecutor denied any
intent to “gain some tactical advantage.” Later, defendant’s counsel indicated he would accept
“the prosecutor at her word” regarding the issue of “tactical advantage” and argued primarily
regarding the resultant prejudice to his client by the delay to justify dismissal of the charges.
We find that defendant has not shown actual and substantial prejudice sufficient to
warrant dismissal of the charges. Consequently, no due process violation occurred. We reverse
and remand to the trial court for further action consistent with this opinion. We do not retain
jurisdiction.
/s/ Michael J. Talbot
/s/ Mark J. Cavanagh
/s/ Brian K. Zahra
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