People v. Thomas, Docket No. 77-5025

• Decision Date: 06 November 1978
• Docket Number: Docket No. 77-5025
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bennie Lee THOMAS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 548

273 N.W.2d 548

86 Mich.App. 752

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bennie Lee THOMAS, Defendant-Appellant.

Docket No. 77-5025.

Court of Appeals of Michigan.

Nov. 6, 1978.

Released for Publication Jan. 12, 1979.

George C. Bush, Saginaw, for defendant-appellant.

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

Before D. E. HOLBROOK, Jr., P. J., and T. M. BURNS, and VanVALKENBURG, ^* JJ.

VanVALKENBURG, Judge.

Defendant was jury convicted on June 16, 1976, of two counts of first-degree murder, contrary to M.C.L. § 750.316; M.S.A. § 28.548. He was sentenced to life imprisonment on each count and appeals here as of right.

During the evening of August 22, 1975, defendant, with his girlfriend Juanita Clark (a/k/a Juanita Hunt), with whom he was living, together with the victims Arnie Davis and Leo Keenan, occupied their time at a bar in Saginaw, Michigan. Following the closing of the bar all four individuals entered Keenan's pickup truck and drove to 516 N. Fourth Street where Juanita hoped to purchase some marijuana. She exited from the vehicle, according to her testimony, and knocked at the front door of the home. She received no answer. Feeling the need of visiting a bathroom she walked around the side of the house and behind a car. While there she heard shots being fired and upon returning to the street observed defendant walking away from both Davis and Keenan, one of whom was lying on the ground, the other in the truck.

When the police arrived, apparently having been called by someone who heard the shots, they found Keenan dead, Davis mortally wounded, their pockets empty and turned out, and the pickup truck's keys missing.

Later, at approximately 4:00 a.m., a call was received at police headquarters from an anonymous caller who left his number and insisted on talking only with Captain Edward Chmielewski, chief of detectives. The latter telephoned the number left by the caller and was advised by the informant, hereinafter referred to as I-328, that he picked up Ms. Clark, who was seen hurrying in the rain, at about 2:30 a.m. the night of the killing. Further, she advised him that her "old man Bennie" had just shot two white "dudes" and that she was looking for him. She requested transportation to her home at 1435 Gage Street, where defendant was observed sitting on the front porch.

Officers were dispatched to that address at about 10:00 a.m. for the purpose of arresting both Thomas and Clark. One policeman was left there as a guard until a search warrant could be obtained. Defendant on appeal has raised three issues for consideration.

I.

Did the trial court err in denying the motion to suppress the evidence which had been seized as a result of three searches?

Defendant contends that the warrant issued on August 23, 1975, was faulty since the affidavit did not provide reasonable or probable cause.

The statute, M.C.L. § 780.651; M.S.A. § 28.1259(1), provides that a magistrate shall issue a search warrant when he finds that there is reasonable or probable cause therefor. This is based, however, on an affidavit, the requirements of which are set forth in M.C.L. § 780.653; M.S.A. § 28.1259(3):

"The magistrate's finding of reasonable or probable cause shall be based upon all the facts related within the affidavit made before him. The affidavit may be based upon reliable information supplied to the complainant from a credible person, named or unnamed, so long as the affidavit contains affirmative allegations that the person spoke with personal knowledge of the matters contained therein."

The basic requirements of the affidavit are summarized in 2 Gillespie, Michigan Criminal Law & Procedure (1978 rev. ed.), § 868, pp. 712-713:

"The affidavit must contain facts within the knowledge of the affiant, as opposed to mere information and belief or conclusions of the affiant. The facts should be set forth clearly and distinctly and must be such that in law would make out a cause of complaint. It is not for the affiant to draw his own inferences. He must state matters which justify the drawing of them, since the purpose of an affidavit or complaint in support of a search warrant request is to supply the magistrate with reliable information on which the probable cause determination may be based."

Further interpretation is promulgated in People v. Rodriguez, 65 Mich.App. 723, 727, 238 N.W.2d 385, 388 (1975):

"We read the statute as covering two types of affidavits, namely: one in which the affiant states facts, and one in which the affiant states only informant information. The latter type may be sufficient if the information is reliable, from a credible person and if the affidavit contains affirmative allegations that the informant spoke with personal knowledge of the information."

Defendant, in his brief, relies heavily on Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), which does set forth the fundamental test and has been quoted by this Court on many occasions. There the Court held that the affidavit was insufficient. However, that case was distinguished in People v. Johnson, 68 Mich.App. 697, 704-705, 243 N.W.2d 715, 718 (1976), where the facts were similar to the ones in the case at bar:

"This affidavit also differs from that in Aguilar in that the Aguilar affidavit simply stated that the information had been received from a credible person, while in the affidavit in the instant case, it was stated that the credible person was 'known to your deponent as a credible and reliable person'. Thus, in the case before us, the affiant is swearing that, by his own personal knowledge, the informant is reliable. The magistrate may choose to believe or disbelieve the affiant; similarly, he would be forced to believe or disbelieve the affiant had it been sworn that the informant had given reliable information in the past. A magistrate may require more information from certain affiants than from others before reaching a determination as to the reliability of anonymous informants in different cases, but that is a decision for the magistrates, and not for this Court. Simply because a magistrate chooses to believe an affiant who claims he has information from an informant known to him to be reliable, is no reason for this Court to conclude that the magistrate has not acted as a 'neutral and detached magistrate' in drawing 'inferences from the facts which led to the complaint'. Aguilar, supra, 378 U.S. 115, 84 S.Ct. 1514, 12 L.Ed.2d 729."

Furthermore, the affidavit in support of a search warrant, according to another line of thinking, must be viewed in a common-sense manner. People v. Iaconis, 29 Mich.App. 443, 454, 185 N.W.2d 609 (1971), affirmed by the Supreme Court in People v. Bercheny, 387 Mich. 431, 196 N.W.2d 767 (1972).

This theory was continued in People v. Coffey, 61 Mich.App. 110, 117, 232 N.W.2d 320 (1975), and People v. Battle, 71 Mich.App. 136, 144, 246 N.W.2d 389 (1976).

Quoting further from Iaconis, supra, 29 Mich.App. at 462, 185 N.W.2d at 618, it was concluded that

"This Court may not substitute its judgment for that of the magistrate unless there has been a clear abuse of discretion in his determination of probable cause." (Citations omitted.)

A warrant, issued pursuant to an affidavit, reviewed in a common-sense manner is preferable to action taken without one. United States v. Ventresca,380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

Further, the United States Supreme Court held that a finding of probable cause sufficient to justify issuance of a search warrant may rest upon evidence which is not sufficient to justify conviction and which may not be legally competent in a criminal trial because it is only the probability, and not a prima facie showing, of criminal activity that is the standard of probable cause. Draper v. United States, 358 U.S. 307, 311, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).

Application of the above rules to the affidavit in question is now in order. Information furnished by the informant on three prior occasions had been "proven to be true and correct". This conclusion is stated as a fact and not a mere inference. A penciled-in paragraph requested by the judge stated in substance that a "shooting" took place "in the 500 block, N Fourth Street" and that Juanita Clark was known to have been in the vicinity at the time. She was delivered to 1435 Gage Street, which residence is described in detail.

Therefore, we come to the same decision as this Court did in Iaconis, supra, 29 Mich.App. at 457, 185 N.W.2d at 615 where it was held:

"We conclude, upon the authority of the above cases, that the affidavit in question, viewed in a common sense manner, afforded the magistrate sufficient probable cause to issue a search warrant in this case, and that his action was proper."

The trial court was therefore correct in denying the motion to suppress the evidence.

II.

Did the trial court err in denying defendant's juror challenges for cause and his motions for change of venue?

The trial judge denied the motion for a change of venue pending an attempt to impanel a jury. That action was proper according to the rule promulgated in People v. Swift, 172 Mich. 473, 479, 138 N.W. 662 (1912).

This Court in People v. Collins, 43 Mich.App. 259, 262, 204 N.W.2d 290, 292 (1972), stated:

"Since People v. Swift, 172 Mich. 473, 138 N.W. 662 (1912), it has been the rule that it is proper for a trial court to defer determination on a request for a change of venue until an attempt has been made to select a jury in the county where the crime occurred. Defendant has not cited, nor has independent research disclosed, any authority which overrules Swift. Following an established rule is not an abuse of discretion."

Turning now to the question of juror challenges, the record shows that some 60 venirepersons were examined before the jury was sworn. At least 40 of these...