People v. Coward

• Citation: 315 N.W.2d 144,111 Mich.App. 55
• Decision Date: 26 January 1981
• Docket Number: Docket No. 50438
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffery COWARD, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 144

315 N.W.2d 144

111 Mich.App. 55

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffery COWARD, Defendant-Appellant.

Docket No. 50438.

Court of Appeals of Michigan.

Submitted June 17, 1981.

Decided Nov. 3, 1981.

Released for Publication Jan. 26, 1981.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Prosecuting Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Robert J. Sheiko, Asst. Prosecuting Atty., for the people.

Kim Robert Fawcett, Asst. State Appellate Defender, for defendant-appellant on appeal.

Before BRENNAN, P. J., and KAUFMAN and BORRADAILE, ^* JJ.

PER CURIAM.

Defendant appeals as of right from a jury conviction for breaking and entering an occupied dwelling with intent to commit larceny contrary to M.C.L. § 750.110; M.S.A. § 28.305.

A recapitulation of the pertinent trial testimony evinces the following facts.

A plant security guard for Huron Valley Steel Company testified that at about 6:10 p.m. on July 14, 1979, he noticed a black male walking down the road in front of the guard's shack on the company premises. The guard's attention was drawn to the man's presence because "(i)t's normally a highly used highway. There's usually not that many people out there walking". The guard continued to observe the male until he came to a residence, walked past the residence, and then returned to the residence. The house was about 300 yards away from and in clear view of the guard's shack. The guard kept watching the man and noticed that he walked back to the house, walked up to the porch and walked back and forth on the front porch about three times. His view of the male was partially blocked, but he noticed the man's feet in a horizontal position, as if the man was sliding through a window into the house. At that time, the officer was observing the man's movements through binoculars. He described the man as a black male, about 6' 1 tall, weighing 160-180 lbs, with a tight Afro haircut, and wearing a red shirt and black pants. About five minutes later the suspect, whom the guard thought was the defendant but could not positively identify from that distance, came out of the house carrying what the guard thought was a pea green lawn chair. The suspect carried the article to an outbuilding and then 20 or 25 feet beyond the building to a grassy area where he deposited the object. The object was later found to be the homeowner's guns wrapped in a blanket.

As soon as the guard saw the man on the porch of the house, he became suspicious and called the Wayne County Sheriff. He reported a possible breaking and entering in progress by a 6' 1 black male, weighing between 160 and 180 lbs, with a tight Afro haircut and wearing a red shirt and black pants. Deputy Lawrence Chopp and his partner, Bill Fenech, received a radio call alerting them to a breaking and entering in progress. At that time, the officers were about two miles from the location and arrived at the location in about four minutes. As they approached the house, they got further information over the radio "that the subject that was inside of the house was now leaving the house. He was a black male wearing a red shirt and black pants".

When the officers arrived at the address they noticed the defendant, who matched the radio description, running approximately 15 feet from the house.

The officers called to the defendant, asked him for identification, and when he could not produce any identification, arrested him and placed him in the patrol car.

Within approximately five minutes after the sheriff's deputies arrested the defendant they brought him to the guard's shack to be identified by the security guard. The security guard testified at trial as follows:

"A The Wayne County deputies brought him to the guard shack and they asked me if this was the same one.

"Q I see.

"A That's when I identified him as being the same one. I witnessed him the first time when he went up the road directly across from me which is approximately 50 or 60 yards at the most and when they brought him back I merely identified him by dress. There was no way I could identify scars or marks at that range."

On appeal, defendant raises three issues. We address them seriatim.

Defendant first contends that he was denied the effective assistance of counsel at trial because his attorney failed to move to suppress testimony identifying the defendant which was the product of an illegal arrest and confrontation. Defendant argues that his arrest was illegal because it was not based on probable cause and because the arrest resulted from police action which exceeded their authority to conduct an investigatory stop. This issue is not meritorious and seriously misrepresents the facts.

From the above statement of facts, it is clear that the police had substantially more information upon which to base probable cause for an arrest than defendant asserts.

The ground rules for a felony arrest without a warrant are well settled. They were recently summarized in People v. Summers, 407 Mich. 432, 442, 286 N.W.2d 226 (1979):

"Statutory authority for an officer to arrest without warrant is set forth in MCL 764.15; MSA 28.874, which provides in relevant part:

" 'Any peace officer may, without a warrant, arrest a person

" '(d) When he has reasonable cause to believe that a felony has been committed and reasonable cause to believe that such person has committed it.'

"Probable cause for an arrest has been defined as any facts which would induce a fair-minded person of average intelligence and judgment to believe that the suspected person has committed a felony. People v. Ward, 226 Mich. 45, 196 N.W. 971 (1924). Furthermore, the facts upon which such belief is based must be present at the moment of arrest. People v. Stewart, 232 Mich. 670, 206 N.W. 337 (1925).

"Therefore, in reviewing a claim that a police officer lacked probable cause to arrest, the reviewing court must determine whether facts available to the officer at the moment of arrest would justify a fair-minded person of average intelligence in believing that the suspected person had committed a felony. Each case must be analyzed in light of the particular facts confronting the arresting officer. People v. Harper, 365 Mich. 494, 113 N.W.2d 808 (1962)."

In addition, the arrest statute provides:

"A peace officer may, without a warrant, arrest a person in the following situations:

" '(f) When the peace officer has received positive information broadcast from a recognized police or other governmental radio station, or teletype, as may afford the peace officer reasonable cause to believe that a felony has been committed and reasonable cause to believe that the person has committed it.' " M.C.L. § 764.15; M.S.A. § 28.874.

It is clear that an authorized police bulletin advising the police that a felony has been committed, when coupled with other facts and circumstances, provides probable cause for an arrest without a warrant. See, for example, People v. Daniels, 50 Mich.App. 754, 213 N.W.2d 780 (1973), lv. den. 392 Mich. 765 (1974); People v. Bentley, 47 Mich.App. 150, 209 N.W.2d 333 (1973); People v. Knight, 41 Mich.App. 293, 199 N.W.2d 861 (1972); People v. Scott, 23 Mich.App. 568, 179 N.W.2d 255 (1970), lv. den. 383 Mich. 791 (1970); People v. Jonnie Mae Jones, 12 Mich.App. 369, 163 N.W.2d 22 (1968), see also, People v. Dixon, 392 Mich. 691, 222 N.W.2d 749 (1974). Hence, the rule has developed that:

"A police officer who has received by radio the details of the commission of a felony, including a description of the perpetrators, has probable cause to arrest persons matching that description who are traveling on a possible escape route from the scene of the crime shortly after its commission." People v. Knight, 41 Mich.App. 293, 294, 199 N.W.2d 861 (1972), Accord: People v. Scott, supra.

Each of the cases cited in this analysis bears a striking similarity to the facts in this case on several points. Most of the cases cited involved a police response to a radio bulletin advising of a felony in progress, the sighting of the alleged felon, the felon's similarity to the description transmitted over the radio and some other overt action, such as flight by the felon or other furtive gestures.

It is therefore concluded that the police had probable cause to arrest the defendant in this case. In fact, the only better probable cause situation which could have existed under any circumstances would have been if the officers had actually seen the defendant commit the felony. There is no merit to defendant's probable cause argument and, therefore, it is unnecessary to consider his subargument that the police exceeded their authority to conduct an investigatory stop. The overall conclusion is that the defendant was not denied effective assistance of counsel by the attorney's failure to move to suppress the guard's identification.

Defendant next contends that the trial court erred in its denial of the motion to strike the testimony of the security guard identifying the defendant. Defendant argues that the confrontation between defendant and the security guard, when the police returned with him to seek verification from the guard that defendant was the person that the guard had described, was violative of defendant's Sixth Amendment rights since defendant was not represented by counsel. Defendant, accordingly, further argues that because of this infirmity, the in-court identification by the security guard could not be received into evidence since there existed no independent basis as set forth in People v. Kachar, 400 Mich. 78, 95, 252 N.W.2d 807 (1977), by which the guard could make an in-court identification. We disagree.

There can be no good faith argument that Michigan courts have not zealously guarded a defendant's right to be represented by counsel at pre- indictment lineups. People v. Kachar, 400 Mich. 78, 252 N.W.2d 807 (1977); People v. James Anderson, 391...