People v. Rowell, Docket No. 3354

• Decision Date: 25 October 1968
• Docket Number: No. 1,Docket No. 3354,1
• Citation: 14 Mich.App. 190,165 N.W.2d 423
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald Versaile ROWELL, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 423

165 N.W.2d 423

14 Mich.App. 190

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald Versaile ROWELL, Defendant-Appellant.

Docket No. 3354.

Court of Appeals of Michigan, Division No. 1.

Oct. 25, 1968.

Released for Publication March 11, 1969.

John F. Mayer, Mayer & Mayer, Detroit, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, Barbara K. Hackett, Asst. Pros. Atty., Wayne County, Detroit, for appellee.

Before LESINSKI, C.J., and LEVIN, and ANDREWS, ^* JJ.

ANDREWS, Judge.

On October 21, 1966, defendant was convicted by a Detroit recorder's court jury of robbery armed ¹ for the robbery of $125 from a bakery shop.

He appeals upon the grounds that the trial court erred in denying his motions to quash the information and for a directed verdict of not guilty, because of inadequate representation prior to trial and because due process was not accorded him in identification procedures.

The robbery occurred August 25, 1965. Defendant was arrested October 5, 1965. He appeared in a lineup on October 7 and was identified by the manager of the bakery. At a second lineup on October 8 he was identified by a customer who was an eyewitness to the holdup. On October 6 the manager was shown five pictures and picked the defendant's picture from the group. Another eyewitness customer was unable to identify the defendant at a lineup. No pictures were shown to the customers. Defendant was arraigned before the magistrate October 7, bond was fixed and examination set for October 11. On this date an attorney filed his appearance for examination only and requested an adjournment, which was granted to October 27. On this date examination was waived. Defendant claims by his appellate counsel that he was not present in court on October 27 and did not consent to or authorize his attorney to waive examination. For reasons which will hereafter be evident there is no merit to this unsupported claim. The defendant, having been bound over for trial, was arraigned November 23, at which time he stood mute. A week later assigned counsel entered his appearance. Trial was ordered for January 12, 1966, and on that date was adjourned to March 17. On oral motion of March 3, the case was remanded for examination. This was held March 9 and the complaining witness testified on direct and cross-examination in the presence of the defendant. The defendant was bound over for trial. On March 10 assigned counsel moved to withdraw because he discovered at the examination that he was related to the complaining witness. The motion was granted and substitute assigned counsel filed his appearance March 17 and on March 22 moved to remand for examination. The motion was granted and a second examination was held April 15, at which the complaining witness again testified on direct and cross-examination in defendant's presence. Defendant was bound over for trial. He was arraigned May 6 and trial was set for June 22. Due to a complaint filed by defendant with the court administrator, the court assigned new counsel, who filed an appearance July 13. The trial previously set for June 22 was adjourned to August 8 and then to August 26. On August 15 a motion was filed to quash the information on the grounds that the evidence produced at the two examinations was insufficient to support the charge, that no preliminary examination was held until seven months after defendant's arrest, that the lineup was conducted in violation of defendant's constitutional rights and that the complainant's testimony resulted in illegally obtained evidence being used against him, denying him due process. The motion was heard August 19 and a written opinion denying the same was filed September 19. Trial was ordered for October 19 and commenced October 20. Prior to the opening of trial, the assigned trial judge denied defendant's oral motion to quash the information. The complaining witness, the two customers and one police officer testified. Defendant waived the right to cross-examine the remaining witnesses endorsed on the information. Defendant's motion for a directed verdict was denied, whereupon he rested. After conviction, present appellate counsel was assigned to prosecute a timely appeal.

The foregoing statement of the proceedings had in this case is compiled after a careful examination of the record on appeal. The claims of defendant not supported by the record cannot be considered. People v. Fritch (1910), 161 Mich. 111, 125 N.W. 785.

Defendant's claims requiring consideration are substantially those presented to the trial court in the motion to quash the information and we hold that the ruling of the trial court was correct.

The delay in the proceedings cannot be charged to the people. The first scheduled examination was waived by counsel. An examination was then ordered on motion of defendant. The transcript of this examination reveals a careful cross-examination of the complaining witness. Yet before the transcript was filed substitute assigned counsel moved for and was granted a second examination 'to remove any suspicion of the defendant (not) ¹ getting a fair and impartial hearing due to the fact that his former counsel and the witnesses (sic) in the case were relatives at the time of the examination.' Again the complaining witness gave substantially the same testimony at this examination. The record does not show any request by defendant for an earlier trial or in what way he was prejudiced by the delay. This Court, in People v. Williams (1965), 2 Mich.App. 91, 138 N.W.2d 498, held that, absent such a showing, a delay of seven months did not deny defendant a speedy trial. In People v. Foster (1933), 261 Mich. 247, 246 N.W. 60, the Court held that the accused must demand trial before he can claim denial of speedy trial.

Defendant claims that he did not have adequate opportunity to consult with counsel before the examination of April 15. Furthermore, he does not show in what manner he was here prejudiced. He does not claim that he was denied the opportunity to consult with counsel during the examination. He had heard the testimony of the complaining witness at the prior examination, and was in a position to aid his counsel in conducting a searching cross-examination. Nevertheless, he does not claim that the testimony before the magistrate was insufficient to warrant holding him for trial. That the testimony was sufficient cannot be denied. The complaining witness testified that she was robbed of money at the point of a gun and identified the defendant in the courtroom as the man who robbed her.

The record does not disclose any basis for holding that the rights of the defendant were not afforded him during the preliminary proceedings or that any one of his attorneys did not fairly and adequately protect his rights.

Defendant's claim that the identification procedures denied him due process is without merit. The rule announced in United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, has no application here. People v. Wilson (1967), 8 Mich.App. 651, 155 N.W.2d 210. Moreover, in Wade the Supreme Court remanded the case to the trial court to determine whether the in-court identification had an independent source or whether its introduction into evidence was harmless error. Thus the Court did not hold, and counsel has cited no case which holds, that such lineup procedures as were here used denied to defendant his constitutional due process protections. The fact that the complaining witness selected a picture of defendant on the day before she identified him in the lineup was brought out each time she testified and each time she identified him in the courtroom. The two eyewitness customers who were not shown pictures of defendant also identified him at the trial. One of these persons did and one of them did not identify him at the lineup. All of these facts, including the alleged contradictory testimony of the complaining witness at the examinations, presented a question of credibility for jury determination. The verdict is clearly supported by the evidence. This Court will not overturn the verdict of a jury where there is sufficient credible evidence to support it. People v. Thomas (1967), 7 Mich.App. 103, 151 N.W.2d 186.

After lawful conviction a defendant is no longer presumed innocent. He then has the burden of satisfying the reviewing court that the record upon which he was convicted discloses reversible error. People v. Fritch, Supra; C.L.1948 § 769.26 (Stat.Ann.1954 Rev. § 28.1096). This the defendant has not done.

Affirmed.

LEVIN, Judge (concurring).

Initial identification by photograph has been widely and effectively used in law enforcement. When the suspect is at large the display of photographs to eyewitnesses can facilitate the investigation by putting the police on the right track. It can exonerate an innocent man. Such use of photographic identification, with appropriate safeguards, ¹ is necessary and desirable and should be encouraged. Simmons v. United States (1968), 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247.

The defendant Rowell was not, however, at large when the photographs were shown to the principal complaining witness in this case. Rowell was then already in custody. There was no need to show photographs, including a photograph of Rowell, to that witness on the day before she viewed Rowell in a line-up.

In Simmons the United States Supreme Court recognized the dangers involved in photographic identification. Even if scrupulously correct procedures are followed by the police in displaying photographs (frequently mug shots) to eyewitnesses there is some danger, said the court, that the witness may make an incorrect identification and, however the initial misidentification comes about, 'the witness thereafter is apt to retain in his memory the image of the photograph rather than of the...