People v. Hill

• Decision Date: 16 January 1979
• Docket Number: Docket No. 77-58
• Citation: 276 N.W.2d 512,88 Mich.App. 50
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Allen HILL, Jr., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 512

276 N.W.2d 512

88 Mich.App. 50

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Allen HILL, Jr., Defendant-Appellant.

Docket No. 77-58.

Court of Appeals of Michigan.

Jan. 16, 1979.

Released for Publication March 29, 1979.

James R. Neuhard, State Appellate Defender, Rolf E. Berg, Asst. State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James Norlander, Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and V. J. BRENNAN and CAMPBELL, ^* JJ.

CAMPBELL, Judge.

On October 7, 1976, defendant was convicted by a jury of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797. This case arose out of an armed robbery which occurred on December 12, 1974. At approximately 6 p. m. on that date, Anna Hosh and her children, Michael and Renee, had finished cleaning their restaurant and were leaving for the day. They exited through the rear door of the restaurant and as they were preparing to enter their automobile they were confronted by an armed man who demanded money. Michael tossed a box with the day's proceeds in it to the robber who then told the victims to lie on the ground. After they complied, the robber fled. Defendant was sentence to a term of 10 to 20 years imprisonment and appeals as of right.

Defendant's first claim on appeal is that the trial court abused its discretion in denying defendant's motion for an adjournment which was based on the grounds that defendant needed additional time so that he could furnish the prosecutor with the statutorily required notice of alibi prior to ten days before trial, see M.C.L. § 768.20(1); M.S.A. § 28.1043(1), and that defendant's counsel needed additional time to prepare adequately for trial. Defendant's motion for an adjournment was made on September 30, 1976, six days before trial was scheduled. On October 4, 1976, after a hearing, the trial court denied defendant's motion for an adjournment.

The matter of a continuance is traditionally entrusted to the discretion of the trial court, People v. Wilson, 397 Mich. 76, 243 N.W.2d 257 (1976), People v. Merritt, 396 Mich. 67, 238 N.W.2d 31 (1976), People v. Williams, 386 Mich. 565, 194 N.W.2d 337 (1972). In People v. Merritt, Supra, the Supreme Court indicated that the Williams, Supra, standard for reviewing a denial of a continuance to allow substitution of defense counsel would apply to a motion for a continuance which was based on the need for additional time to file the required alibi notice. This stricter standard applies because the defendant's freedom and his constitutional right to have compulsory process for obtaining witnesses in his favor, U.S.Const. Am. VI; Const.1963, art. 1, § 20, are at stake, see, Merritt, Supra, 396 Mich. at 82-83, 238 N.W.2d 31. Since the preclusion section of M.C.L. § 768.21(1); M.S.A. § 28.1044(1), is now mandatory, see Merritt, Supra, People v. Jackson, 71 Mich.App. 395, 249 N.W.2d 132 (1976), an adjournment to allow the defendant time to file a notice of alibi is now the only way the defendant can avoid the severe sanctions mandated by the notice statute.

In Wilson, Supra, 397 Mich. at 81, 243 N.W.2d at 260, the Supreme Court stated:

"In reversing the trial court, we enumerated four factors we considered important in finding that the trial court had abused its discretion in that case in not granting defendant a continuance: 1) the defendant was asserting a constitutional right; 2) he had a legitimate reason for asserting the right; 3) he was not guilty of negligence; 4) prior adjournments of trial were not at the defendant's behest. To these four points we add the traditional requirement that defendant on appeal must demonstrate prejudice resulting from the trial court's abuse of discretion. M.C.L.A. § 769.26; M.S.A. § 28.1096."

In this case, defendant is asserting a constitutional right: the right to compulsory process for obtaining witnesses in his favor, see Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), and the trial court's denial of defendant's motion for a continuance jeopardizes that right. The second factor enumerated in Wilson, Supra, is whether the defendant had a legitimate reason for asserting his right and seeking a continuance. In this case, defendant is seeking a continuance for the purpose of allowing his alibi witnesses' testimony into evidence. The admission of this alibi testimony, if believed by the jury, would have resulted in an acquittal. Therefore, the defendant had a legitimate reason for asserting his right.

The more difficult prong of this test to apply in this case is determining whether the defendant was negligent. The crime occurred on December 12, 1974, and defendant was arrested on December 20, 1974. Defendant was represented by counsel throughout the proceedings in 1975 and until July 8, 1976, when his counsel withdrew. Two trial dates had been scheduled during that time but trial had been adjourned until a later date. A third trial date was scheduled for August 24, 1976, but trial was not held as scheduled. On September 7, 1976, new counsel was appointed for the defendant. On September 9, 1976, defendant's trial was scheduled for October 4, 1976. Defendant's appointed counsel entered an appearance on September 10, 1976, and met with the defendant on September 14, 1976. Defendant met with his appointed counsel again on September 30, 1976, and this last meeting was allegedly the first time defendant notified his counsel of his alibi defense. Defendant has not given any reasonable explanation for his delay.

Under these facts, we conclude that the defendant was negligent in asserting his alibi claim and in notifying and discussing this defense with his counsel. We are not holding defendant responsible for the delays and the rescheduling of the trial dates but rather, we think that the passage of time from the date of the offense until counsel was notified of this alibi defense is indicative of defendant's negligence. The trial court did not abuse its discretion in denying defendant's motion for a continuance in order properly to file a notice of alibi. People v. Merritt, Supra.

Defendant also argues that the trial court erred in not granting his motion for a continuance to allow his counsel adequate time to prepare for trial. However, this claim does not warrant reversal unless the defendant can demonstrate some prejudice People v. Wilson, Supra, 397 Mich. at 81, 243 N.W.2d 257. Since defendant has not demonstrated that he suffered any prejudice from the trial court's denial of his motion for a continuance which was based on the grounds that his counsel needed more time to adequately prepare, we are convinced that any possible error was harmless beyond a reasonable doubt, People v. Wilson, Supra, People v. Eddington, 77 Mich.App. 177, 258 N.W.2d 183 (1977).

Defendant further claims on appeal that the trial court erred reversibly by failing to suppress the complaining witnesses' identification of the defendant because those identifications were tainted by objectionable pre-trial identification procedures. The robbery occurred on December 12, 1974, at approximately 6 p. m. The robbery took place just outside the rear of the restaurant in an area illuminated by a mercury vapor light which was attached to the building next door. The robbery took approximately three to five minutes and the witnesses each acknowledged that they had a good opportunity to observe the robber.

Within an hour after the robbery, the witnesses viewed a set of photographs at the police station. According to the testimony introduced at trial, the witnesses were all taken into one long, narrow room and directed towards one end of the room. Then a set of photographs was displayed on a table in the middle of the room. The victims were instructed to approach the table separately, point at the picture of the robber, if they could recognize him in any of the pictures, and then to proceed to the other end of the room. Each witness, after viewing the photographs, pointed to the defendant's picture as that of the robber.

On December 13, 1977, another photographic display with six pictures took place. Again, the witnesses selected the picture of the defendant as that of the robber but this time the identifications were made simultaneously in the presence of the other witness. Anna and Michael Hosh also made an unequivocal in-court identification of the defendant which they stated was based on their observations during the robbery.

Defendant claims that the trial court erred in failing to suppress these witnesses' identifications for four reasons. First, defendant claims that he was denied due process because the prosecutor could not produce any of the officer's written notes or reports concerning the procedures used at the first identification and could not produce all the photographs used in the identification. In the middle of the trial, Renee testified that within an hour of the robbery, the victims were taken to the police station to view some photographs. This testimony came as a surprise and, pursuant to defendant's motion, an evidentiary hearing was held to establish what took place at this first identification. The prosecutor could not produce any written reports on the photographic identification procedure used or a list of the photographs used in the display. The detective who was in charge of conducting the photographic display was in the hospital and unavailable for trial. Another officer who was present at the identification testified in detail as to what took place. He produced six photographs which he claimed were in the display. He testified that he was "sure" that four of the photographs were used and was "90% Positive" that the other two photographs were used. The officer also testified that one of the reasons he knew which photographs were used in this case was because certain black and white photographs had been removed from his book of...