People v. Barbat

• Decision Date: 25 September 1973
• Docket Number: Docket No. 12656--7,No. 1,1
• Citation: 49 Mich.App. 519,212 N.W.2d 318
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael BARBAT and Eula Unsworth, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 318

212 N.W.2d 318

49 Mich.App. 519

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael BARBAT and Eula Unsworth, Defendants-Appellants.

Docket No. 12656--7.

Court of Appeals of Michigan, Division No. 1.

Sept. 25, 1973.

Released for Publication Nov. 27, 1973.

James R. Neuhard, State Appellate Defender, Detroit, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Patricia J. Boyle, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and T. M. BURNS and ADAMS,* JJ.

V. J. BRENNAN, Presiding Judge.

We concur, and adopt Justice Adams' opinion in its entirety except as to the disposition of issue number 2. That issue being whether the trial court erred in admitting defendant Unsworth's boots and whether the officers had probable cause to seize the boots.

The defendant in her brief relies on People v. Trudeau, 385 Mich. 276, 187 N.W.2d 890 (1971), contending that here the viewing and seizing of the boots constituted an illegal search and seizure because it was warrantless. We feel, however, that the viewing of the boots was not a search; and, after examining the record, find that the viewing was resonable.

We point out that at the time the defendant Unsworth was being interviewed by the detectives at the Dearborn police station, she had Voluntarily appeared. The officers also had in their possession a description given by witnesses who were in the bar on the morning of the murders, which description fit the defendant Unsworth. During this interview, one of the officers observed the sole of her boot and recognized that design as being similar to the design of the boot imprint that was found by the garage in the snow. Upon this observation, he placed the defendant under arrest and asked her for the boots.

Armed with the above information as well as other specific facts, the officers had reasonable cause to take immediate steps to retrieve and examine the boots.

In People v. Eddington, 387 Mich. 551, 198 N.W.2d 297 (1972), the Court points out that where a detective had seized and examined the shoes of the defendant at the defendant's apartment they consider the reasonableness of this seizure in the light of all of the circumstances and in that case found that he had to act with dispatch because the occasion warranted it. We point out that had the officers, at the time of their examination of defendant's boots, not done so, the evidence could very well have been lost; the officers here 'acted reasonably and with the dispatch the occasion warranted'. Moreover, unlike People v. Trudeau, Supra, where the officer was acting only on the similarity in the Modus operandi of the crime for which Trudeau was under arrest, the officers in this case had more than a mere suspicion of defendant's involvement.

We have examined the facts and the record in this matter and find that it was not error to admit defendant Unsworth's boots in evidence.

Conviction affirmed.

ADAMS, Justice (concurring in part and dissenting in part).

Statement of Facts

At approximately 9:35 a.m. on January 29, 1971, police officers arrived at Solomie's Bar in Dearborn, Michigan, to investigate the slayings of bar patron Lawrence Suprenant and the bar's co-owner, Maria Solomie. Autopsies performed upon the victims indicated that Suprenant died of a stab wound in his neck and a gunshot wound in his head, while Mrs. Solomie was killed by a stab wound in her neck.

During their investigation, police officers discovered several footprints of recent origin in snow on the floor of a garage owned by Mrs. Solomie. The officers measured and photographed these footprints. Two of them clearly displayed a wavy ripple pattern similar to that made by the sole of a woman's shoe-boot. Subsequent comparison of these prints with footwear owned by Mrs. Solomie and with boots owned by Mrs. Pat Baker (at whose home defendant Barbat resided) eliminated the possiblity that either of them had made the footprints.

Dearborn police officers learned that defendant Unsworth had been seen with defendant Barbat in Solomie's Bar on the night of January 28, 1971, and at that time she had been wearing a pair of knee-high shoe-boots. They telephoned Mrs. Unsworth on the afternoon of January 29, explained that they wished to talk with her about the slayings and, when she agreed, drove her from her home to the police station.

Interrogation of Mrs. Unsworth was conducted by Detective Sergeans James Hughes and Robert Wancha. Both had observed the footprints inside the Solomie garage on the previous day. At one point during the questioning, Hughes asked Mrs. Unsworth if he could observe the bottom of her boot. She raised her boot to permit his inspection.

Immediately after viewing the sole of the boot, the interrogating officers arrested Mrs. Unsworth and confiscated her boots. They released her later that same afternoon, but retained her boots.

Based upon their preliminary investigation, the police became suspicious of Michael Barbat, who resided in a room at the home of Mr. and Mrs. Robert Baker. Scientific analysis of some papers found strewn about the floor of the bar disclosed the presence of a distinct diamond-shaped impression apparently caused by the imprint of a shoe. Since this peculiar pattern was determined not to have been made by the shoes of victim Suprenant, police suspicion focused on Barbat.

On February 6, 1971 Detective Hughes--without a search warrant but with the permission of Mr. Baker--removed a pair of Barbat's shoes from a closet area shared by Barbat and the Bakers. Police had earlier removed some of Mrs. Baker's clothing from this closet for investigation. Mrs. Baker described this area as follows:

'Q. Where did Nello stay?

'A. In the spare bedroom.

'Q. Where is the spare bedroom relative to the stairs that go up to the attic?

'A. It's right off the bedroom, the stairway to the attic.

'Q. Now, are those stairs situated in a kind of closet?

'A. Yes.

'Q. Is that closet a part of the bedroom or is that off of the bedroom.

'A. It's off the bedroom.

'Q. All right. There is also a closet in the bedroom?

'A. No.

'Q. Keep any clothes in that closet in which the stairs are in?

'A. Yes.

'Q. Keep a lot of clothes there?

'A. Enough, its full practically.

'Q. All right. You own a black coat?

'A. Yes.

'Q. Black skirt?

'A. Yes.

'Q. Where do you keep that black coat ordinarily?

'A. In the spare bedroom.

'Q. In the one where Nello was staying?

'A. Yes.

'Q. Police ever get that coat?

'A. Yes.

'Q. And that's the same coat that was in the bedroom where Nello was staying?

'A. Yes.

'Q. And the skirt?

'A. I think it was with it.'

Detective Hughes described the arrangement of the Baker house in the following language:

'Q. Tell us about the layout of the downstairs of the Baker house.

'A. The layout?

'Q. Yes.

'A. The house at 12929 Heyden, it faces east, the front of the house faces east. There is an enclosed porch on the front. You enter the front door into a living room on your right. To the left is a bedroom. This is occupied by Pat and Bob Baker. West of the living room is a dining room. To the south of that dining room is another sleeping room, or bedroom. You enter that through some folding doors. There is another folding door on the south side of that room. It is about a 9 9 foot room.

'Q. That is a so-called spare bedroom?

'A. Yes.

'Q. What is through the second folding door?

'A. There is a stairway that goes up to the attic and at the bottom of the stairway, outside the bedroom, is an area that is used as a closet where Pat Baker, Bob Baker and Nello Barbat would keep their clothing. To the west of the dining room is a kitchen. On the outside of that part of the building is a bathroom. At the rear of the building is an enclosed porch that seems to serve as a utility room.'

The defendants were arrested and charged with two counts of first-degree murder in the perpetration of a robbery (M.C.L.A. § 750.316; M.S.A. § 28.548). Both defendants underwent a joint preliminary examination on April 2, 1971. They were bound over to circuit court by the examining magistrate. Their cases were ordered consolidated for trial.

Prior to trial defendant Unsworth's attorney filed a motion to suppress all evidence concerning the boots and additionally moved to suppress certain photographs of the victims' bodies. The motion was denied by the trial judge.

Defendant Unsworth's boots were received into evidence and were the subject of much trial testimony, including that of a Michigan State Police expert who stated that the photographed footprints could have been made by Mrs. Unsworth's boots.

Defendant Barbat's trial counsel objected to the admission of Barbat's shoes but was overruled. Plaintiff's expert witness testified that the shoes could have made the imprint found on papers scattered about the floor of Solomie's Bar.

The jury convicted the defendants of first-degree murder on each of the two counts. Both defendants appeal as of right.

Issue I

Did the trial court err by admitting into evidence a one-inch portion of a victim's skull and photographs of the victims' bodies over objections that the exhibits were gruesome and inflammatory in nature?

The prosecutor offered in evidence a number of black-and-white photographs to orient the jury to the location of the bodies in the bar. The defense objected to these photographs as being gruesome and inflammatory and offered to enter into a stipulation for their stated purpose. The prosecution refused to stipulate. The photographs which were admitted into evidence show the bodies as they were found at the scene of the crime.

As was noted recently by the Michigan Supreme Court in People v. Eddington, 387 Mich. 551, 198 N.W.2d 297 (1972), the people are not required to present their case on any theory of alternative proofs. We have viewed the...