People v. Carpenter
| Decision Date | 06 January 1983 |
| Docket Number | Docket No. 54437 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gerald CARPENTER, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., Appeals, and A. George Best, II, Asst. Pros. Atty., for the people.
State Appellate Defender by John Nussbaumer, for defendant on appeal.
Before BEASLEY, P.J., and HOLBROOK and RILEY, JJ.
Defendant Gerald Carpenter and codefendant Lloyd George Zimmerman were convicted by a jury of four counts of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, and one count of felony firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Defendant was sentenced to a prison term of from two to ten years on each armed-robbery conviction, to be served concurrently, and a mandatory two-year prison term on the felony-firearm conviction.
Defendant's conviction arose out of a robbery of four individuals in the early morning hours at an apartment where one of the victims resided. Zimmerman testified that he participated in the robbery but denied possessing a weapon. He also stated that defendant was not with him during the commission of the crime. This supported defendant's alibi theory that he was not at the scene of the crime but later went with Zimmerman to their apartment, where they were arrested. Zimmerman was renting the apartment where the arrest took place and defendant had been staying there for three or four weeks.
Defendant appeals as of right and presents numerous questions.
Did the trial court err by refusing to suppress evidence obtained by the police following an entry of defendant's residence without a warrant for the purpose of arresting him?
Shortly after 1 a.m. on November 20, 1979, Wayne County deputies noted a black Cadillac parked incorrectly in an apartment complex parking lot. Ten minutes later, the deputies answered a radio call which brought them to the victim's apartment to assist in the armed-robbery investigation. At that time, the connection was made between the illegally parked black Cadillac and the robbers' automobile. The deputies, along with two plainclothes officers and two uniformed officers, then went to the apartment of the registered owner of the black Cadillac. The officers, with service revolvers drawn, knocked on the apartment door and announced their presence, stating that they wanted to talk to the owner of the Cadillac. A Detroit police officer testified that defendant opened the door, looked at the police, closed the door, removed the security chain lock, and then opened the door for the police to enter. Zimmerman testified that he opened the door and that defendant was standing back behind him, away from the door.
Defendant and Zimmerman were arrested and two handguns which were in Zimmerman's bed were seized. A woman, who also occupied the apartment, was also arrested. A television set was seized along with a wrist watch and various denominations of paper money which were lying on the bed. The following day, a search warrant was issued and the police seized five pieces of jewelry, two jackets and a wallet.
Defense counsel, at trial, sought to suppress all evidence which stemmed from the allegedly unconstitutional entry and seizure. A search and seizure without a warrant is unreasonable per se unless there exists both probable cause and circumstances establishing one of the delineated exceptions to the warrant requirement. People v. Mullaney, 104 Mich.App. 787, 792, 306 N.W.2d 347 (1981).
Probable cause for an arrest has been defined as any set of facts existing at the moment of arrest which would induce a fair-minded person of average intelligence to believe that the suspect has committed a felony. People v. Kyser, 106 Mich.App. 216, 218, 307 N.W.2d 447 (1981); and People v. Goode, 106 Mich.App. 129, 136, 308 N.W.2d 448 (1981). Defendant does not challenge the probable cause element but contends that no exception to the warrant requirement exists in this case.
The prosecutor argues that the entry into the apartment was premised on consent and, therefore, the resulting arrests and seizures were proper. There is a conflict in the testimony over whether the defendant or Zimmerman opened the door. There is no controversy over the fact that four officers, with revolvers drawn, requested admittance and that both defendant and Zimmerman were near the door, within hearing range of the request. The door was cracked open, unchained and opened completely, apparently without either defendant or Zimmerman saying anything. This Court, from the totality of these circumstances, must determine if the "consent" was truly voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).
The act of opening the door by either codefendant, both of whom are competent adults, was a tacit consent to enter the apartment. The defendants unchained the door knowing the police were present. In fact, the defendants were aware that the police were outside the building, prior to the knock on the door, because the officers were throwing stones at windows trying to awaken someone to let them into the building since the outside doors were locked and the building lacked the customary security buzzer system. As a result of the noise they were making, defendant looked out the apartment window and told Zimmerman the police had arrived.
This case, therefore, did not involve an unconstitutional entry. The consent in this case also takes it outside the scope of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). In Payton, the Court held that the Fourth Amendment "prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest". 445 U.S. at 576, 100 S.Ct. at 1374. The case at bar is also factually distinguishable from Riddick v. New York, consolidated with Payton, supra. In Riddick, the suspect's three-year-old son opened the apartment door after police knocked, apparently without announcing their identity. Mr. Riddick, who could be seen in bed from the doorway, was arrested before he had an opportunity either to object or to consent to the police entering the apartment. Here, the suspects, with advance knowledge of the presence of the police, opened the door.
Defendant's issue goes to the officers' entry and not directly to the seizures. The trial court did not err in denying the motion to suppress the evidence. The police lawfully entered the apartment and inadvertently observed the obviously incriminatory evidence which was in plain view. People v. Myshock, 116 Mich.App. 72, 321 N.W.2d 849 (1982).
Did the trial court err by denying defendant's motion to suppress evidence of his 1976 federal conviction for illegal possession of a firearm by a prior felony offender?
The decision to admit evidence of prior convictions rests in the sound discretion of the trial court. People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974). Review of a trial court's determination to admit evidence of prior convictions for impeachment purposes involves two considerations: (1) whether the trial judge recognized his discretion to decline to admit evidence of the convictions and (2) whether the trial judge's decision was so palpably and grossly violative of fact and logic as to amount to an abuse of discretion. People v. Worden, 91 Mich.App. 666, 674-676, 284 N.W.2d 159 (1979). The factors which the court must weigh in reaching a conclusion include: (1) the nature of the prior offense, (2) whether it was for substantially the same conduct for which defendant is on trial and (3) the effect on the decisional process if the accused does not testify. People v. Crawford, 83 Mich.App. 35, 39, 268 N.W.2d 275 (1978).
Defendant claims that, since one of the charges before the jury was the possession of a firearm during the commission of a felony, the court should not have allowed evidence of his federal firearm conviction to be used for impeachment purposes.
The trial court recognized its discretion and realized this case...
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