People v. Broyles
| Decision Date | 27 November 1970 |
| Docket Number | Docket Nos. 6801,No. 3,7293,6949,3 |
| Citation | 184 N.W.2d 373,28 Mich.App. 83 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harry BROYLES, Jeffrey Tim Carter and Howard McCully, Defendants-Appellants |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller, Pros. Atty., Donald A. Johnston, III, Chief Appellate Atty., for plaintiff-appellee.
Before HOLBROOK, P.J., and BRONSON and MUNRO, * JJ.
The defendants were tried in Kent county circuit court, in a consolidated trial before a jury, and convicted of murder in the course of a robbery 1 and kidnapping. Sentences of mandatory life imprisonment were subsequently imposed as to each defendant. Their appeals have also been consolidated.
On December 1, 1967, at approximately 1:15 p.m., the automobile of the 67-year-old victim, Emile Osbeck, is alleged to have been used by defendants in the perpetration of an armed robbery of a Grand Rapids, Michigan bank. Defendants were not charged with that robbery nor with murder committed in the course of the bank robbery. Osbeck had departed from home at approximately 12:30 p.m. and was next observed at a point and wallpaper store where he purchased, among other things, three gallons of paints, white, beige, and grey. Carrying the paint which he had purchased, Osbeck left the store at approximately 12:50 p.m., proceeding in the direction of the parking lot. This was the last time he was seen alive.
At approximately 1:17 p.m., the Osbeck automobile was seen parked a short distance from the scene of the bank robbery. Three men were seen to emerge from the car, open the trunk and flee on foot. Although the witness was subsequently unable to identify the defendants as occupants of the automobile, she was able to state that one of the fleeing men 'had something white on and one had something red on'.
The Grand Rapids police were summoned and led to the parked Osbeck automobile at about 1:20 p.m. by a man who had observed the automobile with its trunk open and the body of Osbeck in the trunk. The container of white paint had apparently overturned in the front seat of the car, and some paint was tracked away. Footprints led from the automobile, through a light snow in which the tracks could be discerned, to a three-unit apartment complex. One of the apartments was occupied by defendant McCally and his wife; another of the apartments was occupied by defendant Broyles. A few feet inside the doorway to the apartment building an officer observed a spot of white paint. The officer then called for assistance from other officers.
Upon entering the apartment building the officers obtained permission from Mrs. McCully to search the McCully apartment for suspects but, finding no one there, they proceeded upstairs. Directly in front of the door leading to defendant Broyles' apartment the officers saw 'a spot on the floor that looked like water as if someone had been standing there with wet shoes'. They knocked and, receiving no answer, entered the apartment, continuing their pursuit of the fleeing suspects. While in pursuit, the officers, without a warrant, seized a pair of shoes smeared with white paint still wet, a red-hooded sweatshirt, with a hole in the sleeve, and a brown paper sack containing $643 in bills, the serial numbers of which matched those stolen from the bank. After the officers had apparently decided that no one was present in the Broyles apartment, they called for a crime search team which found a .22-caliber At 2:20 p.m., defendants Broyles and McCully appeared at the Grand Rapids Hall of Justice to be sentenced on a previous conviction. After being sentenced, and while in police custody, Broyles and McCully were arrested and charged in the Osbeck murder.
German revolver in a steel cabinet, and $1,740 in stolen bank bills, wrapped in a cloth, under a cushion of an overstuffed chair. Testimony indicated, however, that only the $1,740 was found after officers had determined that the people they had gone into the apartment to look for were not there. All of the foregoing items were introduced into evidence at the trial over objections by the defendants.
Testimony revealed that defendants picked up one Gilmore Welford in McCully's 1965 green and white Buick automobile on the way to the courthouse. Upon arriving at the courthouse, McCully gave Welford the keys to the car and requested him to drive the car to the McCully residence. Welford drove the McCully automobile to a downtown bank to cash a check and then proceeded to the McCully apartment. Welford, after parking the car nearby, proceeded up to the apartment, but was apparently prevented by police officers from entering. Welford then drove the McCully automobile to a nearby poolroom, parking the automobile across the street. Shortly thereafter the police took Welford into custody as a material witness and seized and impounded the McCully automobile.
Defendant Carter was charged with the instant offense on January 11, 1968, although arrested on December 14, 1967 for an unrelated crime.
On December 2, 1967, officers returned to the apartment building with a warrant, seizing from McCully's apartment $1,500 which appears to have been stolen from the bank, a.25-caliber pistol; and .22 caliber ammunition. These items were introduced into evidence at the trial.
On December 4, 1967, three days after the McCully automobile was seized and impounded, the police, without a warrant, searched the automobile and found several .22 and .25 caliber cartridges in the glove compartment. These items were, likewise, introduced into evidence despite timely objections and a pretrial motion to suppress.
During the trial, the prosecutor's theory was that Osbeck had been accosted by the defendants shortly after departing from the paint store, that defendants forced Osbeck to get into the trunk of his car, and proceeded to utilize the Osbeck automobile in the perpetration of the bank robbery, and that Osbeck, once inside the trunk, suffered a heart attack brought on by fear and excitement. Since the heart attack was fatal and death occurred during the course of the theft of the automobile, I.e., a robbery, this constituted first-degree murder. None of the defendants testified at the trial.
The issues which are dispositive of this appeal, consolidated where possible, are restated and dealt with in order.
Was it error to admit into evidence all of the items seized by the police, without a warrant, while searching defendants' apartments in pursuit of suspected felons?
Defendant Broyles contends that no justification existed for the search of his residence without a warrant on December 1, 1967, because neither the defendant nor anyone else was present and there was, therefore, no need to search to discover hidden weapons nor to prevent destruction of evidence. Defendant Broyles' brief on appeal states in part, in reference to the search by the officers of his apartment:
'Upon determining no one was present, they proceeded to search the same, seizing money from the bank, shoes with paint on them, and clothing.'
It should be noted that the defendants Broyles and Carter adopt the statement of The people contend that the seizures on December 1, 1967, were incident to a lawful and reasonable search for felons of whom the police were in hot pursuit; that only unreasonable searches are unlawful, People v. Gonzales (1959), 356 Mich. 247, 97 N.W.2d 16; Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; and that a search of the type which occurred here was reasonable, People v. McDonald (1968), 13 Mich.App. 226, 163 N.W.2d 796.
facts contained in the brief of defendant McCully. That brief refers to the officers' seizure of numerous items, Including money, shoes, and clothing. We consider, therefore, that defendant Broyles' argument relates to all of the evidence seized during the period of time while the officers were present in the apartment without a warrant.
The search of defendant Broyles' apartment on December 1, 1967, was not incident to his arrest, since the search was neither substantially contemporaneous with, nor confined to the immediate vicinity of, the arrest of the defendant. Stoner v. California (1964), 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856. However, the search was within the scope of the 'hot pursuit' exception to the search warrant requirement, I.e., a search made in the pursuit of fleeing felons for fruits or instrumentalities of crime, or contraband, as to certain of the evidence seized. Warden, Maryland Penitentiary v. Hayden (1967), 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782. The $943 in bills, a red-hooded sweatshirt of the type and color worn by one of the bank robbers, and shoes covered with white paint, still wet when found by police officers, all of which evidence linked defendants to the crime charged and was seized within the officers' plain view, Harris v. United States (1968), 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067, during the officers' pursuit of the suspects while searching areas of Broyles' apartment, where the suspects could reasonably have been found 2 were admissible in evidence. Warden, Maryland Penitentiary v. Hayden, Supra.
The testimony revealed that the officers, while still in pursuit of the suspects, called for the identification bureau to come to the scene and that, upon their arrival, the apartment was again checked over. By this time it appears that the officers had made a complete determination that the people, in pursuit of whom the officers had gone into the building,...
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People v. Carter
...appealed. The convictions of Broyles and McCully were affirmed by a panel of the Court of Appeals, Judge Bronson dissenting. (28 Mich.App. 83, 184 N.W.2d 373). Carter's case was remanded for an evidentiary hearing to determine whether an exculpatory statement by Broyles concerning Carter wa......
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