People v. Esters, Docket No. 64265
| Decision Date | 23 December 1982 |
| Docket Number | Docket No. 64265,J,No. 1,1 |
| Citation | 331 N.W.2d 211,417 Mich. 34 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ben ESTERS, Defendant-Appellant. une Term 1982. Calendar |
| Court | Michigan Supreme Court |
Robert E. Weiss, Prosecuting Atty., Donald A. Kuebler, Appellate Division, Chief Asst. Prosecuting Atty., Flint, for plaintiff-appellee.
Robert L. Segar, Flint, for defendant-appellant.
Defendant was convicted of armed robbery and the possession of a firearm during the commission of a felony. He presents three issues in seeking to have his convictions reversed. First, he argues that a pistol admitted into evidence was the result of an unlawful warrantless search of his automobile, which was parked in his driveway. Second, he contends that it was reversible error to admit into evidence for impeachment purposes the defendant's statement of noninvolvement made to a police officer newly assigned to the case subsequent to defendant's request for an attorney. Third, he argues that he was denied the effective assistance of counsel.
We find that none of these contentions under the circumstances of this case warrant the reversal of his conviction and therefore affirm the judgments of the Court of Appeals and the trial court.
In the afternoon of December 24, 1977, the Flint Police Department was notified that an armed robbery had just occurred at Pro-Clean, a laundry and dry cleaning establishment in Flint. The police, upon arriving at the scene, were informed that the robbery was perpetrated by a masked black male armed with a small silver pistol and that a woman may also have been a participant. The assistant manager of the store gave the police a piece of paper containing a description of a car, a white over blue Buick, and a license number. This piece of paper had been given to the assistant manager by a customer, who had told him that this was the car in which the robber had escaped.
The police then drove through the neighborhood in the general area of the cleaners. Within a few minutes, they saw a car parked in a driveway which matched the vehicle description and bore the license plate number that they had been given. There were wet tire tracks leading up to the vehicle from the street and wet footprints leading from the driveway into the adjoining house. The officers knocked on the door of the house and, receiving no response, forced the door and entered. They found the defendant, dressed and with his shoes on, lying on a bed. After arresting him, they proceeded to search the house for the woman. In an open closet next to the bedroom where defendant was found, one of the officers saw a purse with currency protruding from the top and it was seized. The police officers did not find the woman and did not find a gun on defendant's person or in the house.
One of the police officers then went outside and searched the car, which was unlocked. He testified that he was both looking for the gun, because he believed a female accomplice was still at large, and routinely inventorying the car prior to its being towed away and impounded. As he reached to open the glovebox, he observed a silver pistol hanging from under and somewhat behind the dashboard just to the right of the steering wheel. He took the gun and several other items prior to impounding the car.
The defendant was taken to the Flint police station. At approximately 3 p.m. of the same afternoon, he was advised of his Miranda rights and he indicated that he did not want to make a statement but that he wanted an attorney. No further questions were asked of him at that time. Two days later, on Monday, December 26, 1977, an officer who that day had been assigned to the case advised the defendant of his Miranda rights. The officer testified that the defendant answered affirmatively when asked if he wanted to waive his right to have an attorney present and to discuss the matter. The officer obtained a statement of noninvolvement from the defendant. The defendant testified that he made the statement as a result of the police officer telling him that he was going to be sentenced to life imprisonment and that it would be better if he talked.
Prior to trial, defendant moved to suppress both the gun obtained from the car and the statement he gave on December 26, 1977. Regarding defendant's statement, the trial judge believed the police officer and disbelieved the defendant. He ruled that the statement was admissible because the defendant knowingly and voluntarily waived his Miranda rights. He also found the gun admissible on two alternative grounds. First, he found that exigent circumstances existed which justified the search of the automobile. Second, he found that the gun was obtained pursuant to a reasonable inventory search.
At defendant's trial for armed robbery and the possession of a firearm during the commission of a felony, four employees of Pro-Clean testified. They related that a man with a ski mask came into the store about 1:30 p.m., December 24, 1977, brandished a small silver pistol, and demanded money. One of the four employees testified that a woman was with him. The man was given currency and coin rolls which the employees estimated as totalling between $100 and $200. One of the employees testified that the robber was given two rolls of coins. Because of the mask, none of the employees were able to identify the person.
A fifteen-year-old boy and his mother also took the stand at trial. The boy testified that he had entered Pro-Clean and was standing at the counter when the man with the mask and gun entered. After the man told everyone not to move, the boy ran out the door to the car in which his mother was waiting. He told his mother that a robbery was taking place inside. They sat in their car, which was near one of the doors of Pro-Clean. The man with the mask came running out of that door, pulled off his mask and ran across an open lot to Kermit Street. The boy and his mother identified the defendant as being the man they saw leaving the shop and as the man they saw driving towards them as he turned from Kermit onto Mott Street.
The boy testified that he and his mother were driving away from Pro-Clean when he saw the defendant driving a blue and white Buick. He wrote the license number on a piece of paper, with a description of the car and then returned to Pro-Clean. He gave the piece of paper with the license number and description to a man at Pro-Clean.
The police testified at trial concerning their arrest of the defendant. The gun and the money in the purse seized by the police were also admitted into evidence. The assistant manager of the store, one of the four employees at Pro-Clean at the time of the robbery, testified that the gun looked like the one used in the robbery. The money obtained from the purse amounted to $107, including two coin rolls.
The defendant testified at trial that he had been in the laundry earlier in the day with a Mr. Thompson, but that he was at Earl Farmer's at the time during which the robbery had occurred. He testified that he had just gone from Mr. Farmer's to his mother's house about 1:30 or 1:35 p.m. and had then gone to bed for a nap. He did not reside at his mother's home, but because she was away, he was taking care of it. He was awakened by the police and arrested.
In rebuttal, the police officer to whom the defendant made a statement on December 26, 1977 testified. He stated that the defendant had told him that he had gone to his mother's home after leaving Robert Thompson. According to defendant's statement to the officer, while the defendant was driving into the driveway, a man named James approached the defendant. The defendant said that James came into the house and told the defendant he wanted to borrow the car to go get two ladies. The defendant thought that that was a good idea, so he allowed James to take the car. James came back in a little while, but without any ladies. He wanted the defendant to take him for a ride but the defendant was tired and wanted to take a nap. James left and the defendant said he went to sleep.
The jury convicted the defendant of armed robbery and possession of a firearm during the commission of a felony. Defendant appealed to the Court of Appeals challenging the admission into evidence of the gun and of the statement he made to the police officer after his request for counsel. He also alleged that he was denied effective assistance of counsel. The Court of Appeals addressed only the claim of ineffective assistance of counsel, stating that it was the only issue meriting discussion.
The Court stated:
Judge Kelly dissented, concluding that a remand for an evidentiary hearing on ineffective assistance of counsel should be ordered.
Appellate counsel was appointed for the defendant, pursuant to an order of this Court, for the purpose of filing an application for leave to appeal. Defendant's appellate counsel, with the consent of the prosecutor, requested an evidentiary hearing in the trial court after filing a delayed motion for new trial. The hearing was held but the motion for new trial was denied by the trial judge. Defendant then filed his application for leave to appeal, which this Court granted on November 25, 1981.
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