People v. Shuey

• Decision Date: 26 August 1975
• Docket Number: Docket No. 20626
• Citation: 63 Mich.App. 666,234 N.W.2d 754
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dewey SHUEY, a/k/a Joe Drewey Louis, Defendant-Appellant. 63 Mich.App. 666, 234 N.W.2d 754
• Court: Court of Appeal of Michigan — District of US

Page 754

234 N.W.2d 754

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dewey SHUEY, a/k/a Joe Drewey Louis, Defendant-Appellant.

Docket No. 20626.

63 Mich.App. 666, 234 N.W.2d 754

Court of Appeals of Michigan.

Aug. 26, 1975.

Released for Publication Nov. 12, 1975.

[63 MICHAPP 667] James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

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

Before McGREGOR, P.J., and D. E. HOLBROOK and KAUFMAN, JJ.

D. E. HOLBROOK, Judge.

Defendant, Dewey Shuey, was convicted of robbery armed, M.C.L.A. § 750.529; M.S.A. § 28.797, before a jury and sentenced by the trial court to a term of from 15 to 30 years in prison. Defendant appeals as of right.

On June 28, 1971, at approximately 12:45 a.m. a food market in Niles, Michigan, was robbed. Daniel Becker, the night manager of the store, and his fiance e, Sandy Thompson, had just closed up the store when a young black male approached them and ordered them back into the store at gunpoint. After the robber had forced Becker to open the safe and had taken money found there, he ordered Becker to open the front door and let an older black man in. The two robbers then tied up Becker and Thompson and fled.

[63 MICHAPP 668] The following day, Becker and Thompson went to the South Bend, Indiana, Police Department. There they went through a number of mug shots in an attempt to identify the two robbers. Finding no success Becker described the older robber to a police officer. The officer 'thought he knew who it was'. He left Becker and Thompson and returned with three photographs. Becker selected one of the photographs and identified it as the older man involved in the robbery. The photograph Becker had selected was of the defendant. On the same day a warrant was obtained and the information concerning the defendant was placed on the Law Enforcement Information Network.

Some 2 1/2 years later the defendant was arrested in South Bend, Indiana, and subsequently extradited to Michigan for trial. At the preliminary examination, the defendant, who was sitting at the defense table attired in jail clothing, was identified as the older robber by Becker. Thomspon, although present at the preliminary examination, did not testify.

Before trial the defense made several motions. The defense first moved to quash the information and for a hearing on the issue of whether or not the photographic showup made to the eyewitnesses was improperly suggestive. A hearing was held on February 11, 1974, and the motion to quash was denied. At this hearing the defendant, himself, asked that another appointed attorney be substituted for his then present appointed counsel. This motion was also denied, for the reason that his appointed attorney was highly competent. The defense also moved to quash the information, alleging that the defendant's right to a speedy trial was denied. An evidentiary hearing was held on February 19, 1974, and this motion was also denied,[63 MICHAPP 669] for the reason that the delay was attributed to defendant's being out of the state and going under alias names. At this hearing the defense renewed its motion for the substitution of counsel and a continuance, which was denied.

At trial, on February 21, 1974, the defendant renewed his motion for a continuance for the substitution of counsel and to look for alibi witnesses. It was again denied. The following took place at this juncture of the proceedings:

'The Court: All right. So the record on both of these matters is completely covered on this, number one, the court--the record will indicate that when Mr. Dewey was in court on a motion here at least a week or so ago that the attorney who had been appointed asked the court to ask that Mr. Dewey cooperate with him and give him the name of these witnesses so that they could be located and the court did instruct them as such on it and the names have apparently been withheld from his own attorney for some reason unknown to this court. Number two, it is to be noted that Mr. Shuey has had--he has been under arrest since some time in November, which has been approximately three months now today, and as I say, apparently he never bothered to disclose these witnesses or anything else to his attorney and they were not disclosed to the best of my knowledge until last Tuesday when Mr. Shuey--or Mr. Dewey, I beg your pardon, was in court for another motion.

'Furthermore, the first time that this court has ever received any request for an adjournment or continuance was Monday, two days before this case was set for trial. In spite of the fact--well, I cannot tell you the exact date that the matter was scheduled, but it appears it was scheduled better than three weeks ago, because of the fact that the return of the notice of trial was received back in court on the 29th day of January, which meant that the notice went out before that.

'I would like to further have the record show that I did receive a call from Reverend DeFrance last night at exactly 8:55 p.m., in which he indicated his interest in [63 MICHAPP 670] the case. He indicated that there was an attorney who might--or would consider representing Mr. Dewey if retained. This was Attorney Logan from Grand Rapids, who is a fine attorney. As a matter of fact, has appeared in this court on at least one other occasion before me in another case. The court advised Reverend DeFrance that any adjournment was highly unlikely because of the lateness, it being then twelve hours and thirty-five minutes before this case was going to trial; the witnesses were subpoenaed, the jury was being called in; and furthermore, to be perfectly candid, the basis of the fact that the court has X-number of days, which amounts to 180 to try cases and that these days must be used if the constitutional rights of a speedy trial is to be granted, not only to Mr. Dewey, but to the men that are over in the jail as well as the other side of the coin, the public has just as much interest in that speedy trial as does the defendant.

'In any case, Mr. DeFrance--and by the way, so that there is no question here, Mr. DeFrance has been a good friend of this judge for years, as all of the members of his family, as a matter of fact, and a man that I have great respect for, without any question. In any case, he told me that--I told him that I would talk to an attorney if he'd call. Mr. Logan did call me this morning at approximately 8:45 and he said that--he told me simply this: That if retained, if paid, then he would enter an appearance if an adjournment could be granted. Again, I pointed out to him the circumstances of the case and the fact that an adjournment could not be granted at this late date, nor would this court be inclined to. Mr. Logan advised that his interest--he advised that he would be interested if retained. Apparently the attorney fees--and there's no reason to put it on the record--would come from a third source, if there were. In any case, the court advised Mr. Logan that if there had been a request timely made this court would have considered it seriously. However, it could not consider it at this time. Mr. Logan said that it would be unusual in any case, certainly, for a court to adjourn one at this late time. Further, Mr. Logan advised that he had an interest in the case if he wished to retain him on an appellate level, as well as this level.'

[63 MICHAPP 671] The defendant raises several issues on appeal, two of which are of merit and require determination.

I DID THE TRIAL COURT ERR IN DENYING THE DEFENDANT'S MOTION FOR A CONTINUANCE TO SUBSTITUTE COUNSEL AND TO LOCATE ALIBI WITNESSES?

In Michigan adjournments and requests for continuances are within the sound discretion of the trial court. People v. Rastall, 20 Mich.App. 264, 174 N.W.2d 33 (1969), People v. Williams, 26 Mich.App. 46, 181 N.W.2d 825 (1970), Reversed and remanded, 386 Mich. 565, 194 N.W.2d 337 (1972).

Whether the trial court properly ruled in denying the defense motion for the withdrawal of appointed counsel and the substitution of retained counsel under the circumstances in this case, we must determine. The guidelines of People v. Williams, supra, are controlling. The court held in that case at 386 Mich. 578, 194 N.W.2d 343:

'In view of the facts that: 1) defendant was asserting a...