People v. Frazier , 16 Mich. App. 38 ( 1969 )

16 Mich. App. 38 (1969) 167 N.W.2d 481

PEOPLE
v.
FRAZIER

Docket No. 4,656.

Michigan Court of Appeals.

Decided February 24, 1969.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Stephen H. Boak, Assistant Prosecuting Attorney, for the people.

Donald L. Hobson, for defendant on appeal.

BEFORE: McGREGOR, P.J., and FITZGERALD and CYNAR,^[*] JJ.

McGREGOR, P.J.

Defendant was arrested in July, 1966, on a charge of assault with intent to rob and steal, being armed.^[1] The examination, at which the defense counsel cross-examined the complaining witness, was held later the same month. Defendant was convicted in a non-jury trial beginning in May, 1967. The trial did not begin on the original date set, as neither a courtroom nor the defense counsel were available. Once the trial began, the mother of the complaining witness testified that he was in Vietnam, serving in the armed forces. Defense counsel stated that, although he did not object to the admission of the complaining witness's testimony from the examination, he did not believe it necessary to conduct the trial before the complaining witness was available. The court ruled that the preliminary examination transcript was admissible, and it was read into the record.

The issues are: (1) whether the court erred by ruling the complaining witness's examination testimony admissible, (2) whether the proceedings denied defendant his constitutional right to confront the complaining witness, and (3) whether defendant was denied his constitutional right to a speedy trial.

No error was committed by the admission of the preliminary examination testimony of the complaining witness. CL 1948, § 768.26 (Stat Ann 1954 Rev § 28.1049). There was both a showing by the prosecution that the witness was unavailable and an acceptance by defense counsel, on the record, of that unavailability. The present situation is analogous to the fact situations in People v. Boyles (1968), 11 Mich. App. 417, and People v. Dusterwinkle (1966), 3 Mich. App. 150, where the court ruled that there was no judicial abuse of discretion in the admission of preliminary examination testimony because the witness's unavailability was shown by the prosecution, and acknowledged by defense counsel. Defendant's failure to make a specific objection at the trial precludes an appellate attack on the showing of unavailability or a charge that defendant was denied his right to confront the witness. See Morris v. Radley (1943), 306 Mich. 689, 699. The record does not support the claim in defendant's appellate brief that he objected to the admission of the transcript containing the complaining witness's testimony. Defendant's objection was that there was no reason to have the trial that time rather than when the principal witness was available.

Counsel appearing for defendant at trial cross-examined the complaining witness at the preliminary examination. Thus, the introduction into evidence of the examination transcript did not deny defendant his right to confront the witness. Pointer v. Texas (1965), 380 U.S. 400 (85 S. Ct. 1065, 13 L. Ed. 2d 923); People v. Batten (1967), 9 Mich. App. 195; People v. Doverspike (1966), 5 Mich. App. 181.

Finally, defendant argues that the delay in beginning the trial was prejudicial, as it deprived him of his 6th Amendment right to a speedy trial. The prosecution replies that a speedy trial must be demanded. The prosecution is correct.

Under Michigan law, a defendant desirous of exercising his right to a speedy trial must make a proper demand upon the court. People v. Miklovich (1965), 375 Mich. 536; People v. Duncan (1964), 373 Mich. 650; People v. Foster (1933), 261 Mich. 247; People v. Nawrocki (1967), 6 Mich. App. 46. The record does not contain a demand or any other recorded attempt by defendant to obtain his right to a prompt disposition of the criminal accusation against him. The only indication of any sentiment on this issue was defendant's objection, raised at the admission of the preliminary examination testimony, that the trial should be held later. That objection and the present argument raised on appeal are mutually exclusive, and the record does not support defendant's contention.

The Michigan demand requirement is not inconsistent with Klopfer v. North Carolina (1967), 386 U.S. 213 (87 S. Ct. 988, 18 L. Ed. 2d 1), which held the 6th Amendment right to a speedy trial applicable to the states through the due process clause of the 14th Amendment. The right to a speedy trial is the right to have the prosecution of a criminal accusation within a reasonable time. Considering the delays and docket congestion in the courts and the absence of any recorded demand for a speedy disposition of his case, we do not believe the 10-month wait between arrest and trial violated defendant's right to a speedy trial. We find no merit in defendant's appellate arguments.

Conviction affirmed.

All concurred.

NOTES

[*] Circuit Judge, sitting on the Court of Appeals by assignment.

[1] CL 1948, § 750.89 (Stat Ann 1962 Rev § 28.284).