People v. Henry

• Decision Date: 08 May 2014
• Docket Number: Docket Nos. 306449,308963.
• Citation: 854 N.W.2d 114,305 Mich.App. 127
• Parties: PEOPLE v. HENRY (After Remand).
• Court: Court of Appeal of Michigan — District of US

305 Mich.App. 127

854 N.W.2d 114

PEOPLE

v.HENRY (After Remand).

Docket Nos. 306449

308963.

Court of Appeals of Michigan.

Submitted March 24, 2014, at Lansing.

Decided May 8, 2014, at 9:00 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Stuart J. Dunnings III, Prosecuting Attorney, Joseph B. Finnerty, Chief, Appellate Division, and Susan Hoffman Adams, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Douglas W. Baker) for defendant.

Randall K. Henry in propria persona.

Before: BORRELLO, P.J., and M.J. KELLY and BOONSTRA, JJ.

AFTER REMAND

BORRELLO, P.J.

Opinion of the Court

In these consolidated appeals, in Docket No. 308963, defendant appeals as of right his jury-trial convictions on four counts of armed robbery, MCL 750.529. In Docket No. 306449, defendant appeals as of right his conviction on one count of armed robbery, MCL 750.529. The trial court joined the cases and both were tried before the same jury. The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 216 to 420 months' imprisonment for each conviction. We previously remanded this case to the trial court for an evidentiary hearing to develop a factual record to allow us to address defendant's Fourth Amendment challenge and his claim of ineffective assistance of counsel.¹ On remand, the trial court conducted an evidentiary hearing and affirmed defendant's convictions. Having an adequate factual record to facilitate our review, for the reasons set forth in this opinion, we affirm defendant's convictions and sentences.

Defendant's convictions arise out of a series of armed robberies that occurred at the L & L Gas Express in Lansing on November 16, November 17, November 20, and December 2, 2010, and one armed robbery that occurred at a nearby Quality Dairy on December 2, 2010. A detailed overview of the relevant facts is set forth in our previous opinion and we need not repeat it here. See People v. Henry, unpublished opinion per curiam of the Court of Appeals, issued December 5, 2013 (Docket Nos. 306449 and 308963), 2013 WL 6331731. The police ultimately arrested defendant on December 5, 2010, at an apartment complex located near the L & L Gas Express after entering an apartment without a warrant. We remanded this case to the trial court to develop a factual record concerning the entry without a warrant and concerning trial counsel's decision not to raise a Fourth Amendment challenge. Id. The following is an overview of the evidence that was introduced at the evidentiary hearing:

On December 4, 2010, Lansing Police Officer Aaron Terrill responded to a call from an anonymous man in the parking lot of the L & L Gas Express. The man offered information about recent armed robberies in the area. The anonymous man told the officer that the robberies were committed by another man with whom he had smoked crack cocaine at 1100 Dorchester, Apartment 104, two nights before. He told the officer that the suspect was in the apartment at that moment.

Officer Terrill went to Apartment 104 at 1100 Dorchester. He walked around the outside of the building and looked at the windows and doors. Officer Terrill saw no signs of forced entry or anything out of the ordinary. He contacted his supervisor, Sergeant Lee Curtis, and advised him of the situation. Sergeant Curtis told Officer Terrill that he had no authority to enter the apartment, so Officer Terrill left.

The next day at around 11:45 a.m., Officer Terrill was patrolling when he heard a call over the radio about a larceny or robbery at Jackie's Diner, at 3812 Martin Luther King Boulevard. The restaurant was 0.3 miles from 1100 Dorchester. Officer Terrill radioed other police units about the information he learned the previous day and advised them “that they may want to head to 1100 Dorchester, 104.”

Lansing Police Officer Ellen Larson was one of the officers dispatched to Jackie's Diner. The time of the incident was 11:45 a.m., according to her police report. She spoke to three or four witnesses. Officer Larson learned that the suspect had been in the restaurant for a long time. At one point, the suspect went into the bathroom. When he came out, he went to the counter and paid $5 for his bill. The suspect told the cashier that there was a problem in the bathroom. The cashier left the cash register and went into the bathroom. The suspect then took a cash drawer from the register. Officer Larson radioed a description of the suspect to other officers, including that the suspect was an African–American male wearing a black puffy coat.

Four witnesses to the incident at Jackie's Diner left the restaurant and drove around the area looking for the suspect. They spotted him leaving an auto parts store on Martin Luther King at Mary Street, about a quarter of a mile from Jackie's Diner. The suspect got into a car and drove away. The witnesses followed the vehicle to 1100 Dorchester. They remained in telephone contact with the police dispatcher and provided the suspect's license plate information. The dispatcher conveyed the witnesses' information to Lansing Police Officers Rachael Bahl and Jason Pung. The officers proceeded separately to 1100 Dorchester.

Officers Bahl and Pung met the witnesses at the Dorchester apartments. Officer Pung arrived first. The witnesses said that they saw the suspect pull his car into the driveway behind the apartment building. He got out of the car and disappeared down a flight of stairs to the bottom level of the building. Officer Bahl radioed the information from the witnesses to other officers, who proceeded to the apartment building.

The Dorchester apartments are a “rundown multilevel, multiunit complex” with two or three floors. The ground-floor apartments are slightly below ground level, or “somewhat underground.” Access to the units is provided through exterior doors, similar to the design of a motel.

Officer Pung established a point of containment to prevent the suspect from escaping if he was still in the area. The officer received information from the police dispatcher that the suspect may have gone to Apartment 104. Apartment 104 was in the 1100 building, on the ground level, in the same area that the witnesses had indicated. The place from which the suspect disappeared from view is the hallway area that leads to Apartment 104.

Lansing Police Sergeant Joe Brown supervised the operations of the officers responding to the incident at Jackie's Diner. Sergeant Brown became involved in the investigation at approximately 11:55 a.m., when he received radio information directing him to Apartment 104. Sergeant Brown arrived at the apartment within a half an hour of the time of the initial call from Jackie's Diner.

Officer Pung stood on the left (hinge) side of the door to Apartment 104, with other officers behind him.

Sergeant Brown stood to the right of the door. Officer Pung knocked and announced, “Lansing Police” several times. He received no response. Sergeant Brown noticed that the window to the right of the door was slightly open, about an eighth of an inch. He saw pry marks in the lower-left part of the metal frame. The pry marks suggested that a forced entry had occurred. The window blinds were closed. Sergeant Brown pulled on the window, which slides from left to right, to see if it was locked, and the window opened completely. The location and size of the window would have allowed a person to easily step through the window into the apartment.

Sergeant Brown provided cover while Officer Pung reached through the open window and unlocked the deadbolt lock on the apartment door. The officers entered the apartment through the door. They performed a protective sweep of the apartment and found defendant and Mark Aimery in a back bedroom.

Mark Aimery was the person suspected of committing the theft at Jackie's Diner.² Lansing Police Officer Ryan Wilcox was one of the officers involved in the sweep of the apartment. He arrived at the apartment building at 11:55 a.m. Officer Wilcox spoke with defendant. Officer Wilcox observed that defendant and Aimery were in the process of or had just finished smoking crack cocaine. A black puffy coat was on the couch. Aimery was arrested.

Defendant was detained. A few hours later, a search warrant for the apartment was obtained and executed.

At the evidentiary hearing, Sergeant Brown testified that when he entered the apartment, he was concerned for the safety of persons inside the apartment. He knew that a felony suspect was in the area and he saw pry marks that could have been fresh, suggesting a forced entry. Sergeant Brown also had information from Officer Terrill about Apartment 104. When the sergeant discovered that the window was unsecure, he “felt it appropriate just to make sure that everybody was okay inside and the apartment was secure.” Because the blinds were closed, Sergeant Brown was unable to see into the apartment to discern whether someone had gained entry or whether there was damage inside the apartment.

Sergeant Brown was asked about his written report, which did not mention pry marks on the window frame, and his statement in the report: “I could not determine if the window had damage from forced entry, due to the vertical blinds getting in the way.” He explained that his reference to not seeing damage pertained to his inability to see into the apartment. The blinds in the window prevented him from assessing whether there was damage or forced entry to the interior of the apartment. Sergeant Brown testified “that it would have been better to articulate that [in the police report]. But I'm clear in my memory that the damage was there on the outside.”

Sergeant Brown identified photographs of the exterior of the apartment building that were taken on December 5, 2010, after the police entered and secured the apartment. The photographs showed the partially open window of Apartment 104. Sergeant Brown testified that except for the degree to which the window was open, the photos...