People v. Johnson

• Decision Date: 25 May 1972
• Docket Number: No. 3,Docket No. 11271,3
• Citation: People v. Johnson, 199 N.W.2d 561, 41 Mich.App. 34 (Mich. App. 1972)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene JOHNSON, a/k/a Blue Johnson, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 561

199 N.W.2d 561

41 Mich.App. 34

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene JOHNSON, a/k/a Blue Johnson, Defendant-Appellant.

Docket No. 11271.

Court of Appeals of Michigan, Division No. 3.

May 25, 1972.

Released for Publication Aug. 11, 1972.

Jerome E. Burns, Saginaw, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George E. Thick, Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and HOLBROOK and BORRADAILE, ^* JJ.

HOLBROOK, Judge.

On December 4, 1970, defendant was convicted of assault with intent to do great bodily harm less than murder. M.C.L.A. 750.84; M.S.A. § 28.279. He was sentenced on January 13, 1971, and has appealed.

At approximately 2:30 a.m. on the morning of April 12, 1970, one William Dix was shot four times outside a dance hall in Saginaw. A warrant was issued for defendant on April 28, 1970, and he was arrested on July 8, 1970.

Before trial the defendant moved that the case be dismissed because of the delay of 87 days from date of offense to date of arrest. The motion was denied.

At trial, William Dix was the first prosecution witness. Dix testified that on April 11, 1970, he attended a dance with friends including Mattie Strickland and James Carpenter. At approximately midnight be inadvertently 'bumped' a lady on his way to the lavatory, occasioning some words from defendant, who happened to be standing nearby. Defendant, according to Dix, was wearing a light suit and black hat, and Dix again passed him on two subsequent trips to the bathroom. Dix and his party left the dance at approximately 2:30 a.m., April 12th. When outside the dance hall, he heard a shot, turned, and was struck by four bullets. Two other persons were also struck by bullets. Dix identified defendant as the person who, from six feet away, did the shooting, and further described defendant as wearing a light coat, black hat, and gray outfit. On cross-examination, Dix stated that he did not actually see the gun that shot him, although he saw defendant put something into his (defendant's) pocket and run.

Dix was the only witness who was able to identify defendant as the person who fired the gun. Bernice Collins testified that the gunman was wearing a three-quarter length light jacket and black hat and that he fled to a brown and black Buick Skylark with the license number CKC--966. James Carpenter, who was with Dix when the 'bumping' incident occurred, testified that the man who spoke to Dix was wearing a wide black hat and that the gunman was wearing the same hat. Mattie Strickland agreed that the gunman wore a black hat and white trench coat, as did Nina Kellum; the latter also asserted that she had known defendant for four or five years, and that she saw him in the crowd outside the dance hall just before Dix was shot. Two brothers, Eddie and Melvin Donald, testified that while driving near the dance hall they saw, or heard, 'some shooting', then saw the persons doing it get into a Skylark and speed away.

Officers Henry Hobson, James Price and William Washington of the Saginaw Police Department were on duty at the dance during the hours in question. Each testified that defendant was present at the dance. On cross-examination, Hobson stated that he saw defendant 'regularly' on the streets during April, May and June, but did not know there was a warrant out for defendant. An objection to 'this line of questioning' was then sustained. Officer Price also admitted seeing defendant 'a whole bunch of times' subsequent to April 12th and that he knew that defendant was a suspect in the case. Price then asserted that he was not aware that there was a warrant out for defendant, but a challenge to 'When did you learn he was charged with this offense?' was sustained as hearsay.

Officer Edward Sanders was dispatched by radio to the dance hall after the shooting, and Officer DeLarum Savage was patrolling the area, heard shots, and proceeded to the scene. Both made investigations at the scene and at the hospital to which Dix was taken; Savage was given defendant's name by Officer Washington. After making their reports, neither Sanders nor Savage had anything further to do with the case. Objections were raised when they were asked when they learned that a warrant was issued for defendant; the objections were sustained, though Savage had already answered that he did not know.

Detective Vincent Rocchio was the officer who investigated the crime. On April 13, Rocchio talked to Mr. Dix at the hospital. At that time, Dix gave him the nickname 'Blue', as being the name of his assailant. Rocchio testified that a Buick Skylark, license number CKC--966, was stopped shortly after the crime; that five or six persons were in the car when stopped; that all but the driver, Willie Shrivers, fled. Shrivers identified Johnnie Hose, Jimmie Johnson and Sylvester Brown as having been in the car; that Sylvester Brown in turn identified McNeil Johnson (defendant's brother); and that Jimmie Johnson thought that six persons had been in the car, leaving one person unidentified.

On redirect examination Rocchio was asked why 'it took so long to arrest the defendant'; he answered that a warrant was taken to defendant's home and given to defendant's father and that he (Rocchio) had heard on several occasions police radio calls indicating that defendant was at a certain location, but each time defendant 'would take off running.'

At this time defendant renewed his motion to dismiss based on the delay in his arrest, which the trial court denied.

The witnesses called by the defense were defendant himself, and one Dennis McKinney. Defendant asserted that at 10:45 p.m. on April 11th he went to a poolroom on the south side. There he played pool with McKinney, after which they drove in defendant's father's 1968 El Dorado to the dance at which Dix was later shot. Defendant further testified that he had not gone to the lavatory while at the dance, that he thought he was wearing a grey suit and light grey hat, and that he did not see William Dix or any of Dix's party at the dance. While he was walking away from the dance hall, he heard a gunshot, turned around and saw nothing but a crowd, continued on to his car and left. On cross-examination, defendant testified that although he was living at home on April 11th and thereafter, and was still living at home, his father did not tell him that a warrant had been delivered to his residence.

Dennis McKinney's testimony substantially agreed with defendant's. On cross-examination he admitted that he had been friends with defendant for about eight years, that this was the first time he had told anyone that he was with defendant on the night in question, and that he had been previously convicted of certain criminal violations.

Among the witnesses called in rebuttal by the prosecution was John McAfee of the Saginaw Police. Officer McAfee testified that on May 28th, 1970, he and another officer saw defendant walking with his brother McNeil, but that defendant was able to elude them. On July 8, 1970, it was McAfee who arrested defendant.

The defendant raises two issues on appeal, which we consider in order.

I.

Did the delay of 87 days between commission of the crime and defendant's arrest deny defendant due process of law or a speedy trial?

The people assert that the only issue presented is one of due process and that defendant's claim that he was denied a speedy trial is not a proper issue. As to defendant's claim that he was denied due process, it is the people's position that defendant has failed to show any prejudice resulting from the delay in the arrest, and further that the defendant himself caused the delay. It is the people's further position that the refusal of the trial court to permit examination of some of the members of the Saginaw Police Department with regard to when they were aware that the defendant was wanted on a warrant was not prejudicial because defendant's nonavailability explains the delay and because the officers were not assigned to defendant's case.

Defendant asserts that he was denied due process and the right to a speedy trial, and that trial counsel was improperly denied an opportunity to inquire into the reason for the delay. We determine that defendant's claim that he was denied a speedy trial is properly raised. We refer to the latest case on the subject, Dickey v. Florida, 398 U.S. 30, 40, 90 S.Ct. 1564, 1570, 26 L.Ed.2d 26, 33 (1970), wherein Mr. Justice Brennan in his concurring opinion points out:

'I do not read the Court's opinion as deciding that * * * the defendant can challenge only delay occurring after his arrest. * * * the Court has as yet given scant attention to these and other questions essential to the definition of the speedy-trial guarantee.'

We find further light on the subject in the case of Mann v. United States, 113 U.S.App.D.C. 27, 29--30, 304 F.2d 394, 396--397 (1962), wherein the Court held as follows:

'We accept appellant's premise that the constitutional right to a speedy trial is properly enforced by dismissal of the charge when there has been prejudicial delay in bring(ing) the case to trial. United States v. Provoo, 350 U.S. 857, 76 S.Ct. 101, 100 L.Ed. 761 (1955), affirming Petition of Provoo, D.Md., 17 F.R.D. 183 (1955); Taylor v. United States, 99 U.S.App.D.C. 183, 238 F.2d 259 (1956); * * *

'we note that in our view * * * the constitutional guarantee (to a speedy trial) protects against undue delays in presenting the formal charge as well as delays between indictment and trial. The Supreme Court's affirmance of Judge Thomsen's ruling in Provoo, infra, seems to have settled the point. See also our opinion in Taylor, infra. In a noncapital case, it is true, mere delay in presenting the charge will rarely work a deprivation of the constitutional right, for permissible time in that instance is normally governed by the statute of limitations. Yet, if the delay is ...