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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v NOLAN HALL, Defendant-Appellant.

UNPUBLISHED November 29, 2005

No. 253627 Calhoun Circuit Court LC No. 2003-002425-FC

Before: Donofrio, P.J., and Zahra and Kelly, JJ. PER CURIAM. In December, 2003, defendant was convicted by a jury of second-degree murder, MCL 750.317, for the March 6, 1982, shooting death of Philbert Galliard. Defendant was sentenced as a fourth habitual offender to 40 to 60 years' imprisonment. He appeals as of right. We affirm defendant's murder conviction but remand for resentencing consistent with this opinion. I. Basic Facts and Procedure At trial, no forensic evidence was presented to tie defendant to Galliard's murder. Evidence established, though, that defendant was the last person with Galliard before his murder. The prosecution also presented defendant's admissions to his brother, niece and former girlfriend that he killed Galliard. Defendant denied making any such statements. Defendant testified that he was giving Galliard a ride home on the morning of the murder when Galliard asked defendant to flag down a car that Galliard recognized. Defendant further testified that there were two male occupants whom defendant did not know in the car. Defendant testified that Galliard decided to travel with the two unidentified men. On appeal, defendant makes the argument that he was denied a fair trial because of several alleged due-process violations: that the trial court erred in denying his pretrial motion to dismiss the murder charge because of the pre-arrest delay; that the lower court wrongfully denied his motion for a mistrial, based on the prosecution's closing argument implicating defendant's prior arrest for a gun charge; that he was not allowed to admit statements by a dead witness; and that he was denied effective assistance of counsel. We find no merit in any of these claims. II. Analysis A. Defendant's Due Process Claims -1-


A challenge to the length of prearrest delay implicates constitutional due process rights that this Court reviews de novo. People v Cain, 238 Mich App 95, 108; 605 NW2d 28 (1999). To warrant reversal of defendant's conviction, the prearrest delay must have resulted in actual and substantial prejudice to his right to a fair trial and the prosecution must have intended to gain a tactical advantage as a result of the delay. People v Crear, 242 Mich App 158, 166; 618 NW2d 91 (2000). To constitute actual and substantial prejudice, the prearrest delay must have meaningfully impaired defendant's ability to defend himself from the charges against him such that the outcome of his trial likely was affected. Id. An unsupported statement of prejudice by defense counsel is not enough to establish actual and substantial prejudice. People v Williams, 114 Mich App 186, 202; 318 NW2d 671 (1982), nor are vague claims of a loss of physical evidence or witness memory, or of the death of witnesses. Crear, supra at 166; People v Adams, 232 Mich App 128, 137-138; 591 NW2d 44 (1998); People v Loyer, 169 Mich App 105, 119; 425 NW2d 714 (1988). If a defendant establishes actual and substantial prejudice, the prosecution then bears the burden of establishing that the reason for the delay was sufficient to justify that prejudice. People v Herndon, 246 Mich App 371, 390; 633 NW2d 376 (2001). "In evaluating the reason for the delay, the court may consider the explanation for the delay, whether the delay was deliberate or done with intent to gain a tactical advantage, and whether undue prejudice attached to the defendant." Id. The need for further investigation is a proper reason for delay, and the prosecution is not required to proceed with a case before it has sufficient evidence to convict. United States v Lovasco, 431 US 783, 790; 97 S Ct 2044; 52 L Ed 2d 752 (1977); Adams, supra at 134, 140. Defendant argues that he was denied his right to a fair trial by the prosecution's approximate 20-year delay in arresting and charging him with Galliard's murder. Defendant asserts that his defense was prejudiced by a loss of physical evidence, as well as by the lost or false memories of witnesses. More specifically, defendant claims that his defense was hindered by the inability to determine to whom a license plate, an imprint of which was present in a snow bank near Galliard's body, was registered in 1982, and by the loss of two cigarette butts

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