People v. Rogers

197 N.W.2d 292, 39 Mich. App. 157, 1972 Mich. App. LEXIS 1417

• Court: Michigan Court of Appeals
• Decided: March 21, 1972
• Docket: Docket 10181
• Status: Published

Opinions

Quinn, J.

A jury convicted defendant of robbery armed, MCLA 750.529; MSA 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 barbershop 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 (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 (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 (1971).

2. We find no authority to support defendant’s claim that the trial court erred hy failing to grant defendant a separate trial sua sponte. The grant of separate trial is a matter of discretion, People v DeLano, 318 Mich 557, 568 (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.

J. H. Gillis, J., concurred.