People v. Rogers

• Decision Date: 21 March 1972
• Docket Number: No. 1,Docket No. 10181,1
• Citation: 197 N.W.2d 292,39 Mich.App. 157
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Douglas Maurice ROGERS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 292

197 N.W.2d 292

39 Mich.App. 157

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

Docket No. 10181.

Court of Appeals of Michigan, Division No. 1.

March 21, 1972.

Released for Publication May 16, 1972.

Lawrence R. Greene, Curtis & Greene, Detroit, for defendant-appellant.

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

Before LESINSKI, C.J., and J. H. GILLIS and QUINN, JJ.

QUINN, Judge.

A jury convicted defendant of robbery armed M.C.L.A. § 750.529; M.S.A. § 28.797. He was sentenced and he appeals.

About 6:00 P.M. on December 24, 1968, defendant and Mitchell Dunn, armed with pistols, entered a barber shop in Detroit and robbed 20 to 30 people. Defendant stood near the door, shots were fired, principally by Dunn, and several people were wounded. After the robbery, defendant and Dunn left the scene in a car driven by Willie Pride.

On the second day of trial, during cross-examination of the barber working at the chair nearest the door, it developed that this barber had a customer in his chair at the time of the robbery. The record does not indicate that the prosecution had any information as to the identity of the customer prior to this cross-examination. The record does indicate that defendant knew the identity of this customer.

At the opening of the third day of trial, defendant moved for the endorsement of the customer, Samuel Jackson, as a res gestae witness and that he be produced as a witness by the prosecution. Defendant even gave two addresses where Jackson might be located. The motion was granted, but Jackson was never produced, and the record does not indicate due diligence on the part of the prosecuting attorney to produce him, People v. Kern, 6 Mich.App. 406, 149 N.W.2d 216 (1967). On motion of the prosecution, the trial judge struck the name of Jackson as a res gestae witness and relieved the prosecution from producing Jackson.

The foregoing recitation concerning Samuel Jackson is the basis for defendant's first three allegations of error, none of which speak to the true issue in this regard. The true issue is whether or not the trial judge abused his discretion in striking the witness and relieving the prosecution from producing him. As indicated above, the record fails to disclose due diligence to effect production and the record also fails to show that Jackson's testimony would have been cumulative. Under People v. Kayne, 268 Mich. 186, 255 N.W. 758 (1934), the trial court abused its discretion and error was committed.

The record fails to disclose that the error was reversible, however. At least four witnesses unequivocally identified defendant as the man near the door. Defendant's identification was the controlling question as to his participation in the crime. There is no indication in the record that Jackson's testimony would have been any different than that of the witnesses produced and called. We cannot find reversible error on this record.

We find no merit in the remaining issues raised by defendant for the following reasons:

1. His claim of denial of right to speedy trial lacks merit because defendant did not demand one nor does he demonstrate any prejudice by not having a speedy trial, People v. Rogers, 35 Mich.App. 547, 192 N.W.2d 640 (1971).

2. We find no authority to support defendant's claim that the trial court erred by failing to grant defendant a separate trial sua sponte. The grant of separate trial is a matter of discretion, People v. De Lano, 318 Mich. 557, 568, 28 N.W.2d 909 (1947). No abuse of discretion is shown.

3. Defendant's claim that the verdict was against the great weight of the evidence is refuted by the record.

Affirmed.

LESINSKI, Chief Judge (dissenting).

The majority of the panel properly concluded that the trial court committed error in relieving the prosecution of the duty to produce Samuel Jackson who was indorsed as a Res gestae witness on motion during trial. The record made at trial does not excuse his nonproduction. Further, it was error for the trial court, upon the people's motion, to strike him as a Res gestae witness under the facts of this case. In addition, the trial court erroneously denied the prosecution and the defense the right to present evidence on the question of whether Samuel Jackson was in fact a Res gestae witness and what efforts were made by the prosecution to...