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No. 135811
| The People of the State of Michigan, |
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Joseph B. Finnerty |
Plaintiff-Appellee, |
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(Appeal from Ct of Appeals) |
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(Ingham - Collette, W.) |
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| Charles William Mercer, Jr., |
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Linda L. Widener |
| Defendant-Appellant. |
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| __________________________________________ |
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Click to view briefs in Adobe format:
Plaintiff-Appellee's Opposition to Application for Leave to Appeal>>
Plaintiff-Appellee's Supplemental Brief>>
Defendant-Appellant's Application for Leave to Appeal>>
Defendant-Appellant's Supplemental Brief>>
Criminal Defense Attorneys of Michigan's Amicus Curiae Brief>>
Prosecuting Attorneys Association of Michigan's Amicus Curiae Brief>>
Background
On February 27, 1968, Sally Mercer, the wife of Charles Mercer, was found dead at their home. Law enforcement personnel became concerned that her death was unnatural, noting that her body had bruises that could be viewed as defensive injuries. However, medical testing did not support these suspicions of wrongdoing, and the examining doctor concluded that the cause of her death was bulbar polio. The medical evidence gathered during the investigation was eventually destroyed. In 1995, 27 years after Sally Mercer died, a cold-case team began to reinvestigate her death. In 2003, a search warrant was issued to exhume her remains and take tissue samples, which were sent to a laboratory for testing. A forensic toxicologist concluded that the tests revealed a lethal level of propoxyphene. The tissue testing suggested that, prior to her death, she had consumed propoxyphene over a period of approximately eight months. Based on these test results, the medical examiner determined that the cause of death was acute propoxyphene intoxication. In 2006, 38 years after Sally Mercer’s death, Charles Mercer was charged with open murder pursuant to MCL 750.316. Mercer filed a motion to dismiss the charges based upon the lengthy prearrest delay; he argued that he suffered substantial prejudice because physical evidence had been lost or destroyed and several critical witnesses had either died or forgotten most details about the matter. He also suggested that the delay was caused by the prosecution’s alleged bad faith and reckless conduct. The prosecution responded that the delay was due to insufficient evidence to file charges at an earlier date, and suggested that the lost evidence and witnesses would hamper the prosecution as much as the defense. The prosecution also argued that Mercer had to show not only actual and substantial prejudice, but also that the delay was a deliberate attempt on the prosecution’s part to gain a tactical advantage. The trial court granted Mercer’s motion to dismiss. Although he found no evidence to suggest that the delay in prosecution was done “to ensure conviction,” 38 years was a long time, the judge said. “The witnesses are dead [or] unable to testify or remember, or they are so old and frail they simply can’t remember anymore,” the judge stated. The judge was concerned about the destruction of the medical evidence, and the fact that those who gave medical opinions at the time of Sally Mercer’s death were essentially unavailable. Moreover, the judge observed, appropriate medical tests were readily available back in the 1970s, so that the body could have been exhumed in 1971 or 1972, said the judge. This case “should have been brought many years ago,” he concluded The prosecutor appealed, and the Court of Appeals peremptorily reversed the trial court’s ruling, finding it erroneous as a matter of law. “Before dismissal may be granted because of prearrest delay there must be actual and substantial prejudice to the defendant’s right to a fair trial and an intent by the prosecution to gain a tactical advantage. Where there was no evidence that the prosecutor intentionally delayed the proceedings in order to gain a tactical advantage, the circuit court erred in granting the motion to dismiss,” the appellate court stated. Mercer appeals.
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