People v. Jackson

                                                                       Michigan Supreme Court
                                                                       Lansing, Michigan 48909
____________________________________________________________________________________________
                                                                C hief Justice                   Justices
                                                                Maura D. Cor rigan	              Michael F. Cavanagh




O pinion
                                                                                                 Elizabeth A. Weaver
                                                                                                 Marilyn Kelly
                                                                                                 Clifford W. Taylor
                                                                                                 Robert P. Young, Jr.
                                                                                                 Stephen J. Markman

____________________________________________________________________________________________________________________________

                                                                                 FILED SEPTEMBER 25, 2001





                PEOPLE OF THE STATE OF MICHIGAN,


                        Plaintiff-Appellee,


                v	                                                                               No. 117594


                MICHAEL T. JACKSON,


                     Defendant-Appellant.

                ________________________________

                PER CURIAM


                        In 1985 the defendant was found guilty following a bench


                trial of first-degree murder, and his conviction was affirmed


                on appeal.            In 1998, he filed a motion for relief from


                judgment under MCR subchapter 6.500. Relief was denied by the


                circuit court, and the Court of Appeals denied leave to


                appeal.         Defendant has filed an application for leave to


                appeal to this Court.               In addition to arguing the substantive


                issues, he maintains that the limitations on relief provided


                by MCR 6.508(D) should not apply to him because his conviction

predated the effective date of the rule.                  He claims that it


would constitute a due process violation to apply the rule


retroactively to his case.


        We conclude that the subchapter 6.500 procedures do apply


to convictions before the effective date of the rule and that


there is no constitutional impediment to doing so.                     On the


facts    of    this    case,   the    defendant     has    not   established


entitlement to relief as required by MCR 6.508(D), and the


order of the circuit court denying relief is affirmed. 


                                       I


        On December 13, 1983, a fourteen-year-old girl was beaten


to death in her Saginaw County home. Attention focused on the


defendant when it was learned that he had been there that day.


Defendant was then sixteen years old, and thus proceedings


began in the probate court.                 After several days of waiver


hearings, the juvenile division of the probate court waived


jurisdiction on August 20, 1984, and the defendant was bound


over on a charge of first-degree (premeditated) murder. 


        Defendant     waived   a     jury    and   presented     an   insanity


defense, making no effort to dispute that he killed the


victim.       The circuit judge found him guilty as charged on


April 18, 1985, and imposed the mandatory life sentence on


May 31, 1985.         Defendant’s motion for a new trial was denied


in an opinion issued November 21, 1986. 


        Defendant appealed, but the Court of Appeals affirmed on





                                       2

September 7, 1988.1           We denied leave to appeal on April 25,


1989.2        In   his     direct    appeal,    among     other    issues,   the


defendant raised claims regarding the waiver of jurisdiction


by   the     juvenile      division     of    the   probate   court    and   the


admissibility of his confession. 


       In July 1998, the defendant filed a motion for relief


from       judgment   in    the     Saginaw    Circuit    Court,    once    again


challenging the waiver of juvenile court jurisdiction and the


admissibility         of   his    confession.        He   also     argued    that


MCR 6.508(D) should not be applied retroactively to his case.


       The circuit court’s consideration of the motion took


place in several stages.                First, on August 12, 1998, the


court3 issued an opinion and order dealing with the issues


regarding admissibility of the defendant’s statement. 


       The court noted that the voluntariness of the defendant’s


statement had been tested in both the juvenile court and the


circuit court with evidentiary hearings under People v Walker,


374 Mich 331; 132 NW2d 87 (1965), and resolved against the


defendant.         Further, on his initial appeal, the defendant


raised for the first time the question of police compliance


with former Juvenile Court Rule 3.3.                  The Court of Appeals


held that no miscarriage of justice would result from failure




       1
            171 Mich App 191; 429 NW2d 849 (1988).

       2
            432 Mich 896 (1989). 

       3

       The circuit judge who presided at trial had retired,

and the motion was assigned to his successor.


                                         3

to review the objections, but went on to say that despite the


police failure to carry out their duties under JCR 3.3,


defendant’s statement was properly admitted under the totality


of the circumstances. 


     Finally, the circuit court addressed the defendant’s new


claim that the confession was inadmissible as the product of


an illegal arrest.   The court discussed the issue at length,


finding no error.    It said:


          While it is true that only a short time

     elapsed between defendant’s seizure and statement,

     he was, during that period, twice advised of his

     Miranda[4] rights.    Nor does the Court find the

     police conduct in this case particularly flagrant

     or of such character as to justify the remedy

     sought.     It is undeniable the police lacked

     probable   cause   to   arrest   defendant   at  his

     residence. They did, however, clearly have a right

     and need to question him about his presence at the

     victim’s home and any knowledge he may have had of

     the killing. In this regard, the entire purpose of

     taking him into custody was not to place him under

     arrest, but to hold him until he could properly be

     questioned in the presence of his father. Although

     there apparently was a failure to comply with all

     appropriate procedures governing questioning of a

     minor, the officers were at least aware that

     different procedures and rules applied and did

     their best to comply with them. There is nothing

     in this case to suggest that their actions were

     part of some illegal plan or scheme or product of

     improper motivation.     As noted above, no attempt

     was made to question defendant until his father was

     present.    Mr. Jackson was contacted as soon as

     possible, arriving at the post a short time after

     his son. Both of them were given Miranda warnings

     and the defendant made his statement. As noted by

     the Court of Appeals, there is nothing in the

     record to suggest that the father was not fully

     able to exercise his free will and protect the

     rights and interests of his son.           Under the



     4
      Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d

694 (1966).


                                 4

      circumstances, the Court finds that any taint of

      initial police misconduct was sufficiently purged

      and the statement admissible under the Fourth

      Amendment. It follows that any neglect of trial or

      appellate counsel in failing to raise this issue

      was of no consequence. For the same reasons, it

      also follows that any consent obtained from the

      defendant and his father to search the premises in

      question was voluntary and otherwise proper, and

      that any evidence seized as the result of that

      consensual search was properly admitted at trial.


      The court then turned to the other issue raised in the


motion regarding the juvenile court’s waiver of jurisdiction.


The circuit court said that from the motion and supporting


brief it could not say that the issue raised was without merit


and   that   defendant   was     plainly   not   entitled   to    relief.


Accordingly, the court ordered the prosecutor to respond to


the motion. 


             Following the response, the court issued a second


opinion and order on May 28, 1999, rejecting the defendant’s


claim.       After   reviewing    the    testimony,   as   well   as   the


applicable legal principles, the court concluded:


           Having reviewed the testimony presented, this

      Court is not left with any firm and definite

      conviction defendant was improperly waived to the

      adult system.     Although there was sufficient

      indication that Michael was amenable to treatment

      and that the juvenile system could provide the type

      of treatment required, the evidence and testimony

      clearly supports the conclusion that there simply

      was not enough time to sufficiently resolve the

      underlying psychological problems that helped

      trigger this tragic event before Michael reached

      nineteen and juvenile jurisdiction ended, and that

      he would likely remain a danger to the public if

      released at that time. Nor does the Court find, as

      suggested by defendant, that the Probate Judge

      ignored key testimony or otherwise misinterpreted

      the evidence. In this regard, the Court notes that

      while Michael could have been placed in Yorkwood


                                    5

     and then transferred to the adult unit at Ypsilanti

     State Hospital at age eighteen, there would be no

     way to ensure continued treatment after age

     nineteen except through a petition for involuntary

     commitment and hospitalization.     Although Judge

     Barber made no mention of Yorkwood in his opinion,

     he apparently found, and this Court agrees, that

     the scenario envisioned by defendant was neither

     likely [n]or viable. In summary, the Court finds

     the decision to waive jurisdiction to be supported

     by substantial and credible evidence on the record.

     It follows that any claim of ineffective assistance

     of counsel must also fall.


     Defendant     filed   a   delayed   application   for   leave   to


appeal.     The Court of Appeals denied the application, “for


failure to meet the burden of establishing entitlement to


relief under MCR 6.508.”5


                                  II


     Subchapter 6.500 of the Michigan Court Rules, containing


the procedure for motions for relief from judgment, was added


by order of March 30, 1989, and was effective October 1, 1989.


It was part of an overall revision of the rules governing


criminal procedure.        The amendments adopted at that time


included several related provisions applicable to criminal


appeals, including the addition of MCR 7.205(F)(2), limiting


a criminal defendant to a single appeal by right or leave from


a conviction, and the amendment of MCR 7.205(F)(3) to make the


eighteen-month limit6 on granting delayed application for


leave to appeal applicable to criminal cases. 




     5

        Unpublished order, entered July 18, 2000 (Docket No.

225416).

     6
          Since shortened to twelve months.


                                   6

     The rules themselves, and the order adopting them, did


not say anything about the applicability of the rules to cases


that had already been commenced or cases involving crimes


committed before the effective date of the amendments.      The


general provision of the Michigan Court Rules regarding the


application of the rules to pending actions is MCR 1.102,


which provides:


          These rules take effect on March 1, 1985.

     They govern all proceedings in actions brought on

     or after that date, and all further proceedings in

     actions then pending. A court may permit a pending

     action to proceed under the former rules if it

     finds that the application of these rules to that

     action would not be feasible or would work

     injustice.


     Those principles have been applied not only to the


initial adoption of the rules, but also to later adopted or


amended rules.   See Reitmeyer v Schultz Equipment & Parts Co,


237 Mich App 332, 337; 602 NW2d 596 (1999).    Subchapter 6.500


has been consistently applied in cases involving convictions


and appeals concluded before October 1, 1989, by both this


Court and the Court of Appeals.    See, e.g., People v Reed, 449


Mich 375; 535 NW2d 496 (1995); People v Carpentier, 446 Mich


19; 521 NW2d 195 (1994); People v Ross, 242 Mich App 241; 618


NW2d 774 (2000); People v Watroba, 193 Mich App 124; 483 NW2d


441 (1992).7


     7
      In addition, we have cited MCR 6.508 in numerous orders

denying leave to appeal from denial of motions for relief from

judgment. E.g., People v Davis, 440 Mich 866; 486 NW2d 722

(1992); People v Dunham-Bey, 441 Mich 855; 489 NW2d 766

(1992); People v Yousif, 444 Mich 878; 511 NW2d 683 (1993);

People v Selby, 452 Mich 874; 552 NW2d 176 (1996).


                              7

                                 III


     MCR   6.508(D)   provides   the    standards   for   determining


whether a defendant is entitled to relief:


          (D) Entitlement to Relief. The defendant has

     the burden of establishing entitlement to the

     relief requested. The court may not grant relief

     to the defendant if the motion


          (1) seeks relief from a judgment of conviction

     and sentence that still is subject to challenge on

     appeal pursuant to subchapter 7.200 or subchapter

     7.300;


          (2) alleges grounds for relief which were

     decided against the defendant in a prior appeal or

     proceeding under this subchapter, unless the

     defendant establishes that a retroactive change in

     the law has undermined the prior decision;


          (3) alleges grounds for relief, other than

     jurisdictional defects, which could have been

     raised on appeal from the conviction and sentence

     or in a prior motion under this subchapter, unless

     the defendant demonstrates


          (a) good cause for failure to raise such

     grounds on appeal or in the prior motion, and


          (b)   actual  prejudice  from   the  alleged

     irregularities that support the claim for relief.

     As used in this subrule, "actual prejudice" means

     that,


          (i) in a conviction following a trial, but for

     the alleged error, the defendant would have had a

     reasonably likely chance of acquittal;


          (ii) in a conviction entered on a plea of

     guilty,   guilty   but  mentally   ill,   or  nolo

     contendere, the defect in the proceedings was such

     that it renders the plea an involuntary one to a

     degree that it would be manifestly unjust to allow

     the conviction to stand;


          (iii) in any case, the irregularity was so

     offensive to the maintenance of a sound judicial

     process that the conviction should not be allowed

     to stand regardless of its effect on the outcome of

     the case;



                                 8

             (iv) in the case of a challenge      to   the

         sentence, the sentence is invalid.


          The   court  may  waive   the   "good cause"

     requirement of subrule (D)(3)(a) if it concludes

     that there is a significant possibility that the

     defendant is innocent of the crime.


     The requirements of showing good cause for failure to


raise the issue on direct appeal and prejudice from the


alleged error to entitle a defendant to relief are derived


from United State Supreme Court decisions involving federal


habeas corpus challenges to state convictions and collateral


review of federal ones.   See Wainwright v Sykes, 433 US 72; 97


S Ct 2497; 53 L Ed 2d 594 (1977); United States v Frady, 456


US 152; 102 S Ct 1584; 71 L Ed 2d 816 (1982); Davis v


United States, 411 US 233; 93 S Ct 1577; 36 L Ed 2d 216


(1973). The provision of subrule (D)(2) regarding issues that


were decided against the defendant in a prior appeal state


familiar principles drawn from the doctrines of res judicata


and law of the case.


     Before the adoption of subchapter 6.500 and the related


appellate procedure provisions, our rules were silent on the


matter of delayed motions for new trial.   We had said that the


courts do not look with favor on such long delayed motions,


People v Barrows, 358 Mich 267, 272; 99 NW2d 347 (1959), but


there was no bar to repeated filings of such motions without


any limitation period.    Id., p 273; Reed, supra at 388.8



     8
      We reiterate the principle stated in Barrows that long­
delayed   motions  seeking   relief  from   convictions   are

disfavored. See People v Ward, 459 Mich 602, 611-614; 594

NW2d 47 (1999).


                               9

                                     IV


      The defendant makes no claim that on their face the


provisions of subrule (D)(3) are unconstitutional.                   Such a


claim would be futile in light of the United States Supreme


Court’s recognition of those standards. Rather, the defendant


argues that it constitutes a denial of due process to apply


MCR 6.508 to him, because his crime, conviction, and direct


appeal occurred before the effective date of the rule.                    He


relies principally on Rogers v Howes, 144 F3d 990 (CA 6,


1998). 


      Rogers was a habeas corpus proceeding under 28 USC 2254.


The defendant had been convicted of first-degree murder in


1965.    In 1992, he filed a motion for relief from judgment,


which the trial court denied on the ground that the defendant


failed to raise the claims on direct appeal and did not


establish good cause for the failure to do so.                 The defendant


filed a habeas corpus petition in United States District


Court,    which    held   that     because      the   issues    raised   were


procedurally defaulted under Michigan law, it could not review


the claims.       However, the United States Court of Appeals for


the     Sixth   Circuit     reversed,      concluding      that    the    MCR


6.508(D)(3)     procedure    was    not    “a    firmly   established     and


regularly followed rule of the Michigan courts at the time of


petitioner’s conviction . . . .”             Id. at 995.       Thus, it did


not constitute “an adequate and independent state ground”


barring review of petitioner’s habeas petition in federal



                                     10

court.    Id.


      Defendant’s reliance on Rogers is misplaced.            Rogers did


not   hold    that   the   defendant     is   denied   due    process   by


application of MCR 6.508(D)(3) to his motion.           Rather, Rogers


must be understood in the context of federal habeas corpus


review of state court convictions.            The federal courts will


not review a habeas corpus petition where the state prisoner


has not first presented his federal claims to the state courts


and exhausted all state court remedies available.              See, e.g.,


Rust v Zent, 17 F3d 155, 160 (CA 6, 1994).             Further, when a


habeas corpus petitioner is denied the opportunity to present


a federal claim in state court because of failure to comply


with state procedural rules, that decision may preclude habeas


corpus review where the state procedural rule constitutes an


“independent and adequate state procedural ground” for the


decision.      Wainwright, supra at 87.         Under federal law, a


procedural bar does not operate to preclude federal habeas


corpus review unless it is (1) independent of the federal


claim at issue, (2) serves as an adequate basis for barring


review,      and   (3)   was   “firmly   established    and    regularly


followed” at the time to which the rule is to be applied.               See


Ford v Georgia, 498 US 411, 424; 111 S Ct 850; 112 L Ed 2d 935


(1991). In Rogers, the Sixth Circuit concluded that MCR 6.508


was not such a firmly established and regularly followed rule


at the time of the petitioner’s conviction and appeal, and





                                   11

thus the federal court was not barred from considering the


habeas corpus petition.


       Thus, viewed in context, Rogers does not constitute


authority that Michigan courts may not apply MCR 6.508(D)


retroactively, but only that our decision to do so will not


restrict the federal courts in exercise of their authority


under 28 USC 2254.


                                     V


       That    leaves     the   question   whether      application   of


MCR subchapter 6.500 to the defendant’s conviction denies due


process.       The principles are similar to those regarding


retroactive application of statutes that are alleged to impair


vested rights.          In general, an act relating to remedies or


modes of procedure may be given retroactive effect.               As we


said   in     In   re   Certified   Questions   (Karl    v   Bryant   Air


Conditioning Co), 416 Mich 558, 572; 331 NW2d 456 (1982):


            [R]etrospective application of a law is

       improper where the law “takes away or impairs

       vested rights acquired under existing laws, or

       creates a new obligation and imposes a new duty, or

       attaches   a  new   disability   with  respect   to

       transactions or considerations already past”.

       Hughes [v Judges’ Retirement Bd, 407 Mich 75, 85;

       282 NW2d 160 (1979)]. 


            “Statutes related to remedies or modes of

       procedure which do not create new or take away

       vested rights, but only operate in furtherance of a

       remedy or confirmation of rights already existing

       will, in the absence of language clearly showing a

       contrary    intention,   be    held   to    operate

       retrospectively and apply to all actions accrued,

       pending or future, there being no vested right to

       keep a statutory procedural law unchanged and free




                                    12

     from amendment.”    [Quoting Hansen-Snyder Co v

     General Motors Corp, 371 Mich 480; 124 NW2d 286

     (1963) (headnote no. 1).]


     See also Romein v General Motors Corp, 436 Mich 515, 531;


462 NW2d 555 (1990), aff’d 503 US 181; 112 S Ct 1105; 117 L Ed


2d 328 (1992). 


     On the related question whether retroactive procedural


statutes violate the constitutional prohibition on ex post


facto laws, we have explained that not every enactment that


works    to   the   detriment   of    a    party   constitutes   such   a


violation.     See People v Russo, 439 Mich 584, 592-593; 487


NW2d 698 (1992):


             The   United   States    Supreme   Court   has

        consistently held that the Ex Post Facto Clause, US

        Const, art I, § 10, cl 1, was intended to secure

        substantial personal rights against arbitrary and

        oppressive   legislation,    and   not   to   limit

        legislative control of remedies and procedure that

        do not affect matters of substance. In Dobbert v

        Florida, 432 US 282, 292-293; 97 S Ct 2290; 53

        L Ed 2d 344 (1977), the Court stated:


             “It is settled, by decisions of this Court so

        well known that their citation may be dispensed

        with, that any statute which punishes as a crime an

        act previously committed, which was innocent when

        done; which makes more burdensome the punishment

        for a crime, after its commission, or which

        deprives one charged with crime of any defense

        available according to law at the time when the act

        was committed, is prohibited as ex post facto.


                                * * *


             “Even though it may work to the disadvantage

        of a defendant, a procedural change is not ex post

        facto. For example, in Hopt v Utah, 110 US 574 [4

        S Ct 202; 28 L Ed 262] (1884), as of the date of

        the alleged homicide a convicted felon could not

        have been called as a witness. Subsequent to that

        date, but prior to the trial of the case, this law

        was changed; a convicted felon was called to the


                                     13

       stand and testified, implicating Hopt in the crime

       charged against him.    Even though this change in

       the law obviously had a detrimental impact upon the

       defendant, the Court found that the law was not ex

       post facto because it neither made criminal a

       theretofore innocent act, nor aggravated a crime

       previously   committed,    nor   provided   greater

       punishment, nor changed the proof necessary to

       convict. Id. at 589.”


            An enactment will not escape a court’s

       scrutiny under the Ex Post Facto Clause merely

       because a legislature has given it a procedural

       label.   However, legislation will not be found

       violative of the clause simply because it works to

       the disadvantage of the defendant.[9]


       We can discern no theory upon which the defendant can be


said       to   have    a   vested   right      in    the    procedures—or     lack


thereof—for        bringing      long     delayed     challenges    to   criminal


convictions             extant          before         the      adoption         of


MCR    subchapter       6.500.       In    1989,      the   defendant    had   been


convicted, that judgment had been affirmed by the Court of


Appeals, and we denied leave to appeal.                      At that point, the


judgment was final. The defendant had no due process or other


constitutional right to further review of his convictions.


See Pennsylvania v Finley, 481 US 551, 556-557; 107 S Ct 1990;


95 L Ed 2d 539 (1987); McKane v Durston, 153 US 684, 687-688;


14 S Ct 913; 38 L Ed 867 (1894).                There being no vested right


in such procedures, there is no due process impediment to


subjecting        the       defendant     to    the    new    subchapter       6.500


procedure.




       9
      For a similar analysis of the retroactive effect of the

new federal limits on habeas corpus relief, see Libby v

Magnusson, 177 F3d 43, 46-47 (CA 1, 1999).


                                          14

     The federal courts have faced similar questions regarding


the limitations on second or successive petitions recently


adopted as part of the Antiterrorism and Effective Death


Penalty Act.    PL 104-132, 110 Stat 1214 (1996).       Those


restrictions have been applied even where the petitioner’s


first petition preceded the effective date of the statute.


See, e.g., Pratt v United States, 129 F3d 54, 58 (CA 1, 1997):


          The filing dates of Pratt’s two section 2255

     petitions straddle AEDPA’s effective date. On this

     basis, Pratt maintains that the question whether

     the statute applies to his second petition must be

     answered in the negative because doing so would

     place an impermissible retroactive burden on his

     petition. We disagree.


          We begin our analysis by remarking the

     obvious: applying a statute to a pleading that was

     filed after the statute’s effective date is not

     really a “retroactive” application in the classic

     sense.   Here, moreover, we know on the best of

     authority that Congress intended that AEDPA apply

     to all section 2255 petitions filed after its

     effective date (April 24, 1996).      See Lindh v

     Murphy, 521 US 320, 325-326; 117 S Ct 2059; 138 L

     Ed 2d 481 (1997).


           We know, too, that the Supreme Court recently

     and uncritically applied AEDPA to a prisoner’s

     second habeas petition even though the prisoner had

     filed   his   first   petition  prior   to  AEDPA’s

     enactment. See Felker [v Turpin, 518 US 651, 656­
     657; 116 S Ct 2333; 135 L Ed 2d 827 (1996)].

     Several courts of appeals have followed suit. See,

     e.g., In re Medina, 109 F3d 1556, 1561-62 (CA 11,

     1997); Roldan v United States, 96 F3d 1013, 1014

     (CA 7, 1996); Hatch v Oklahoma, 92 F3d 1012, 1014

     (CA 10, 1996).    This approach is sound not only

     from a legal perspective but also from the

     standpoint of common sense.         After all, if

     pre-AEDPA jurisprudence somehow attached to an

     entire course of post-conviction proceedings by

     virtue of a prisoner’s having filed a pre-enactment

     petition at some point along the way, then the

     Court’s opinion in Felker would be drained of all

     meaning.


                             15

                                   VI


     Defendant    also     maintains   that,    concerning   his   claim


regarding improper waiver of jurisdiction by the juvenile


division of the probate court, he is not required to show good


cause for failure to raise the matter on appeal or actual


prejudice.   MCR 6.508(D)(3) expressly excepts “jurisdictional


defects.”    He maintains that the circuit court never properly


obtained subject matter jurisdiction, entitling him to review


of the issue.


     Regardless of whether this claim is a jurisdictional one


within the meaning of MCR 6.508(D)(3), the defendant is not


entitled    to   relief.      Pursuant     to   MCR   6.508(D),    "[t]he


defendant has the burden of establishing entitlement to the


relief    requested."       The   circuit   judge’s     second    opinion


discussed the merits of the juvenile court waiver issue and


found it to be without merit.             Accordingly, the defendant


failed to establish his entitlement to relief.               Thus, the


defendant has not been deprived of review of that issue by the


operation of subrule (D)(3).10


                                   VII


     In addition to his arguments regarding the applicability


of MCR 6.508, the defendant argues that he had shown good



     10
       Nor does the Court of Appeals citation of the court

rule indicate otherwise.      The Court of Appeals cited

MCR 6.508(D), of which subrule (3) is only a part. The Court

of Appeals order cited the rule in the context of its

statement that the defendant had not met his burden, and did

not refer to this as a failure to establish good cause or

prejudice.


                                   16

cause for failing to raise the issues in his appeal of right


because of prior counsel’s ineffectiveness in dismissing the


juvenile waiver appeal and in failing to raise the police


violation of JCR 3.3.       As noted earlier, the circuit judge


carefully reviewed and discussed the merits of these claims,


finding them without merit.         This, in effect, amounts to a


determination that defendant failed to establish the prejudice


aspect   of   the   MCR   6.508(D)(3)    standard.      That   made    it


unnecessary for the court to address the good cause question.


See Reed, supra at 400-401.


     We find no error in the judge’s analysis of the prejudice


question and therefore affirm.


     CORRIGAN , C.J., and CAVANAGH , WEAVER , KELLY , TAYLOR , YOUNG , and


MARKMAN, JJ., concurred.





                                  17