People v. Connors

• Decision Date: 01 October 1970
• Docket Number: No. 1,8312,Docket Nos. 8056,1
• Citation: 183 N.W.2d 348,27 Mich.App. 47
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert CONNORS, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Buford ADCOCK, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 348

183 N.W.2d 348

27 Mich.App. 47

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert CONNORS, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Buford ADCOCK, Defendant-Appellant.

Docket Nos. 8056, 8312.

Court of Appeals of Michigan, Division No. 1.

Oct. 1, 1970.

Rehearing Denied Nov. 18, 1970.

Leave to Appeal Denied Dec. 16, 1970 in No. 8056.

Leave to Appeal Denied Jan. 13, 1971 in No. 8312.

Released for Publication Feb. 12, 1971.

John F. Potvin, Potvin, Tunney & Lawrence, Detroit, for connors.

John L. Belanger, Ostrowski, Wilson & Belanger, Detroit, for Adcock.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Robert A. Reuther, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and BRENNAN and KELLEY, JJ. ^*

V. J. BRENNAN, Judge.

The defendants were convicted by a jury of assault with intent to rob and steal being unarmed. M.C.L.A. § 750.88 (Stat.Ann.1963 Rev. § 28.283). Both were sentenced to serve from 8 to 15 years in prison.

The testimony consisted of the version of the incident as given by the two arresting officers and as given by the defendants. The officers said that they first saw the defendants crossing the street on either side of the complainant, Wilfred Lynch, apparently helping the intoxicated man to walk. When the complainant was steered into an alley, the officers got suspicious. They emerged from their scout car and entered the alley. Both testified that they saw the defendants hit and kick the complainant until he fell, and then rummage through his pockets. The officers arrested the defendants, but found no weapons in their possession.

Defendants claim that they were merely lending assistance to the complainant. Upon seeing Lynch in such an intoxicated state, they resolved to borrow some money in order to get him a room for the night. They said they were concerned that he might be 'locked up' for vagrancy. Defendants' reason for taking Lynch down an alley was that they were going to borrow the money at the back door of a bar. The defendants said Lynch fell just as the police entered the alley, and they were arrested before they could help the man up.

At the trial, the complainant testified that he had never seen the defendants before. They said, however, that Lynch was a 'friend of a friend' of theirs. When asked by the prosecutor who this friend was, defendant Connors said that the friend was a man named 'Jim' with whom he shot billiards on occasion and that he did not know the man's last name or any other information about him.

The defendants raise six allegations of error, none of which require reversal.

The charge that the verdict is against the great weight of the evidence is frivolous. Each arresting officer testified that he observed the defendants striking Lynch and knocking him to the ground. Each also testified that they saw the defendants going through the pockets of the victim. Evidence was before the jury which, if believed, supported the verdict. In such cases it is our function to affirm the verdict. People v. Bratton (1969), 20 Mich.App. 523, 174 N.W.2d 297.

Next, defendants complain of the judge's inquiring of the jury, 'Is there any chance of reaching a verdict in the next few minutes?' At 5:10 p.m., the court asked the above-stated question in order to ascertain whether to allow the jury to continue deliberations or to adjourn for the day. The foreman indicated that the jury was close to a verdict, and the judge accordingly sent the jury back to deliberate. At 5:20 p.m. a verdict of guilty was returned. Contrary to defendants' theory, the judge's question was not equivalent to a direction of a guilty verdict: the jury could have been close to a verdict of innocence, as well as one of guilt. Such is a legitimate query on the part of the trial court. People v. Maxwell (1966), 3 Mich.App. 264, 142 N.W.2d 40.

Thirdly, the record clearly does not establish that defendants were denied their right to retain private counsel. No appearance was filed by any counsel other than the one appointed. Both defendants signed affidavits of indigency. To believe they had funds to retain private counsel would be to infer perjury on the part of the defendants. Also, the trial court was in communication with the attorney whom the defendants supposedly retained and was informed that he was not going to represent them. There is no evidence that defendants were deprived of their right to retain private counsel.

Fourth, the preliminary examination was scheduled for November 22, 1958, but was adjourned to November 27. While this adjournment has resulted in a technical violation of M.C.L.A. § 766.4 (Stat.Ann.1954 Rev. § 28.922) which requires the examination to be held within 10 days of the arraignment, it is not fatal. Delay, Per se, is not reversible error. People v. Linscott (1968), 14 Mich.App. 334, 165 N.W.2d 514. Since defendants did not make a demand for a speedy examination nor can they now show any prejudice arising from the delay, we find no error requiring reversal. People v. Wickham (1968), 13 Mich.App. 650, 164 N.W.2d 681.

Fifth, defendants' claim that they were denied the right to a speedy trial is without merit. The facts show that the commencement of the trial was delayed approximately 8 months primarily because one of the witnesses, an arresting officer, was on furlough in California. At no time did defendants make a demand for a speedy trial. What was said in People v. Frazier (1969), 16 Mich.App. 38, 41, 42, 167 N.W.2d 481, is dispositive of this issue:

'Under Michigan law, a defendant desirous of exercising his right to a speedy trial must make a proper demand upon the court. People v. Miklovich (1965), 375 Mich. 536, 134 N.W.2d 720; People v. Duncan (1964), 373 Mich. 650, 130 N.W.2d 385; People v. Foster (1933), 261 Mich. 247, 246 N.W. 60; People v. Nawrocki (1967), 6 Mich.App. 46, 150 N.W.2d 516. The record does not contain a demand or any other recorded attempt by defendant to obtain his right to a prompt disposition of the criminal accusation against him.

'The Michigan demand requirement is not inconsistent with Klopfer v. North Carolina (1967), 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1, which held the 6th Amendment right to a speedy trial applicable to...