People v. Rogers

• Decision Date: 24 August 1971
• Docket Number: Docket No. 10459,No. 1,1
• Citation: 35 Mich.App. 547,192 N.W.2d 640
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Douglas M. ROGERS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 640

192 N.W.2d 640

35 Mich.App. 547

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Douglas M. ROGERS, Defendant-Appellant.

Docket No. 10459.

Court of Appeals of Michigan, Division No. 1.

Aug. 24, 1971.

Released for Publication Dec. 30, 1971.

M. John Shamo, Detroit, for defendant-appellant.

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

Before T. M. BURNS, P.J., and HOLBROOK and McGREGOR, JJ.

HOLBROOK, Judge.

In a trial commencing August 4, and completed August 18, 1970, defendant Douglas Rogers, jointly tried with one Mitchell Dunn, was convicted by court verdict of murder in the first degree while in the perpetration of an armed robbery contrary to M.C.L.A. § 750.316 (Stat.Ann.1954 Rev. § 28.548).

The two defendants were tried at the same time, Dunn being tried by the jury and Rogers, at his request, by the court.

The people presented proofs indicating that on December 7, 1968, defendant, accompanied by another male claimed to be Mitchell Dunn, and an unidentified female, were present at a 'birthday party' at the home of Robert Parker at 1050 Jos Campau in the city of Detroit; and in the course of the evening defendant and his companions effectuated an armed robbery during which Wash Grayson was murdered.

Mr. Jimmie Lee White positively identified defendant Rogers as the one who shot the victim. Mr. Robert Parker, Joyce Whitfield, and Mr. Howard Grayson testified it was defendant Dunn who shot Mr. Grayson. All the witnesses testified defendant Rogers was armed and took part in the robbery.

Mr. Parker testified he had been acquainted with defendant Rogers for some time and knew him as 'Doug', and recognized him the night of December 7, 1968, as one of the three who took part in the armed robbery. Mr. Parker had failed to recognize defendant Dunn in a lineup.

Neither defendant Rogers nor defendant Dunn presented any evidence at their trial. At the end of the trial the trial judge entered his decision in a sealed envelope to be opened upon the jury's verdict as to defendant Dunn. Upon being advised that the jury had decided upon a verdict, the court ordered the clerk to read the sealed verdict, which stated 'I find the defendant Douglas Rogers guilty of murder in the first degree.' Mitchell Dunn was found not guilty by the jury.

The defendant Rogers raises 3 issues on appeal which we restate and deal with in our order.

I.

Was defendant denied a speedy trial resulting in prejudice to him?

In this case the complaint was filed January 2, 1969, and warrant issued the same date.

The preliminary examination was held January 13, 1969; information was filed January 15, 1969; arraignment on information held May 21, 1969, with defendant and his attorney present; notices of trial were issued September 5, 1969, and December 3, 1969; present counsel filed a Praecipe for appearance June 16, 1970; waiver of trial by jury was filed August 4, 1970; and a motion to quash the information was filed August 10, 1970. It appears that defendant Rogers had 2 charges pending against him, and his co-defendant Dunn had 4 charges pending against him during the interim. Dunn had two trials and had pled guilty to another charge. Defendant was convicted in one other trial and sentenced to prison in May, 1970.

At the hearing of the motion to quash the information based on the denial of a speedy trial the trial court stated:

'The motion to dismiss based upon the claim that these defendants were denied their constitutional right to a speedy trial will be denied. First, because there is no showing that there was a denial in the constitutional sense, and that on the contrary it would appear that the Court has been so busy trying to accord trials to these defendants in other cases that that accounts for the delay in reaching the trial in this case. And secondly, because had the defendants desired an earlier trial in this case, they should have requested trial in this particular case. And the Court is not aware of any such request having been presented.'

In order to properly preserve his right to a speedy trial, a defendant must make a formal demand on the record that he be brought to trial. People v. Miklovich (1965), 375 Mich. 536, 134 N.W.2d 720; People v. nawrocki (1967), 6 Mich.App. 46, 150 N.W.2d 516; and People v. Frazier (1969), 16 Mich.App. 38, 167 N.W.2d 481. The record fails to disclose such a demand. Defendant's attorney at the motion hearing represented that Rogers had sent letters demanding the early trial of the case; however, no proofs were received as to the accuracy of the allegations. Such a statement with nothing else is insufficient to show a demand on the record.

Defendant asserts that there are four factors to be considered in determining whether denial of a speedy trial assumes constitutional proportions:

(1) The length of the delay, though this Alone is not determinative;

(2) Reasons for the delay;

(3) Necessary prejudice to defendant resulting from the delay; and

(4) Defendant's demand for trial or objections to the delay.

In the instant case there were several cases pending against the defendants Rogers and Dunn. Trial of defendant Dunn in one case required two trials because of a hung jury. Defendant Rogers had 3 attorneys represent him during the period of delay and at no time was there a request on the record for an early trial in this case. The appellant has failed to show actual prejudice resulting to him except the length of the delay itself. This is insufficient. Smith v. United States (1969), 135 U.S.App.D.C. 284, 418 F.2d 1120; Carroll v. United States (CA 1, 1968), 392 F.2d 185; Fouts v. United States (CA 6, 1958), 253 F.2d 215.

Appellant also refers to the concurring opinion of Mr. Justice Brennan in Dickey v. Florida (1970), 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26. In this concurrence Mr. Justice Brennan indicated that the Court may at some time want to re-evaluate the position it has taken as to whether a defendant must demand an early trial in order to preserve his right to a speedy trial and whether actual prejudice must be shown. Mr. Justice Marshall joined with Mr. Justice Brennan. The majority opinion of the Court still requires a showing of demand and...