People v. Jones

• Decision Date: 10 December 1975
• Docket Number: Docket Nos. 21959,21960
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Delvin JONES, Jr., Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stanley Arno WATKINS, Defendant-Appellant. 66 Mich.App. 223, 238 N.W.2d 813
• Court: Court of Appeal of Michigan — District of US

Page 813

238 N.W.2d 813

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Delvin JONES, Jr., Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stanley Arno WATKINS, Defendant-Appellant.

Docket Nos. 21959, 21960.

66 Mich.App. 223, 238 N.W.2d 813

Court of Appeals of Michigan.

Dec. 10, 1975.

Released for Publication March 2, 1976.

[66 MICHAPP 225] Carl Ziemba, Detroit, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief, Raymond P. Walsh, Asst. Pros. Atty., for plaintiff-appellee.

Before BRONSON, P.J., and V. J. BRENNAN and D. E. HOLBROOK, Jr., JJ.

V. J. BRENNAN, Judge.

Defendants, Delvin Jones, Jr. and Stanley Arno Watkins, were charged with first-degree murder contrary to M.C.L.A. § 750.316; M.S.A. § 28.548, under the felony-murder section of that statute. They were accused of attempting to rob Moore's Grocery Store in Detroit on February [66 MICHAPP 226] 7, 1972, with the help of a third accomplice, and causing the death of the store owner, Odell Moore, in the course of perpetrating that crime. Both defendants were found guilty of the charged offense, and were sentenced to a mandatory life sentence in prison. They appeal by right.

At the time of the attempted robbery, three persons were working at the store: Odell Moore, the victim; David Shepherd; and Doretha Horton. In addition, the victim's daughter, Linda Moore, observed the incident from the window of the upstairs living quarters. As part of an immediate police investigation, David Shepherd and Doretha Horton were called down to the station to observe a lineup on February 10, 1972. Neither defendant was in the lineup, and the witnesses could not identify any of the persons in the lineup as being involved in the attempted robbery. Later, on March 9, 1972, David Shepherd was shown a series of photographs, but was unable to make an identification. None of these photographs depicted either defendant.

Some time after these identification procedures, Mrs. Horton recognized defendant Watkins at a bowling alley. She hurried away as she was frightened, but she did not call the police. At trial, Mrs. Horton explained that she did not know the man's name or where he lived, so she decided that it would do no good to inform the police. The police had no contact with Jones or Watkins until November 14, 1972. On that date, Watkins' car was stopped by two Detroit police officers for defective brake lights. After Watkins and his companion, later identified as Kenneth McCrary, were ordered out of the car, the car was searched. That search produced two pistols hidden under the front seat, and Watkins and McCrary were arrested for carrying concealed weapons.

[66 MICHAPP 227] The police ran ballistics tests on the two weapons found in the car and determined that one was an automatic pistol of the same caliber as used in the killing and attempted robbery of Moore's Grocery Store. Consequently, while they were still in custody on the concealed weapons charge, McCrary and Watkins were placed in a lineup to be viewed by David Shepherd and Doretha Horton. David Shepherd was unable to identify anyone, but Mrs. Horton picked out defendant Watkins. Jones was not in this lineup.

Defendant Jones was not linked to this crime until January of 1974. At that time, a Ronnie Agar was stopped by the police for driving without an operator's license. When he was questioned by the police as to the attempted robbery and killing at the grocery store, he implicated Jones and Watkins. Agar told the police that he had been parked a couple of blocks from Moore's Grocery Store on February 7, 1972, when three men came running up to the car. He immediately recognized Jones, whom he had known for many years through school, and Watkins, whom he knew only by sight. One of the three men said that 'we just blew someone away' in the 'store'. Agar stated that there was but one 'store' in the area--Moore's Grocery Store. Agar drove the three men to a friend's house, and never informed the police of this episode until picked up for the traffic violation.

The police attempted to locate defendant Jones, and finally did so in May, 1974. He was taken into custody, and a lineup was held on June 4, 1974. David Shepherd and Doretha Horton, viewing the lineup separately, both identified Jones. Watkins was not in this lineup.

At trial, the details of the crime were established.[66 MICHAPP 228] A young man entered the grocery store in the early evening hours of February 7, 1972, asked Odell Moore if liquor was sold there, and left when Mr. Moore replied that it was not. Mrs. Horton identified defendant Watkins at trial as that individual. She also testified that she had picked out. Watkins at the November 17, 1972 lineup. David Shepherd was unable to identify the person who first came into the store.

A few minutes later, Watkins returned to the store accompanied by two other young men. These three individuals went to the beer cooler, picked up some beer, and brought it to the front counter. Since the two persons accompanying Watkins appeared to be under 18, Mrs. Horton asked for identification. At that point, all three pulled guns and announced a holdup. Mrs. Horton was told to lie down on the floor behind the counter, and she did so.

Without any apparent provocation, two of the robbers turned toward Odell Moore and proceeded to fire six or seven shots at him. Two bullets hit Mr. Moore. The third robber fired a shot at Linda Moore, the owner's daughter, as she opened the window overlooking the store upon hearing the initial shots. Linde Moore, David Shepherd, and Mrs. Horton all identified defendant Jones at trial as that third robber. Shepherd and Mrs. Horton also testified that they had picked Jones at the June 4, 1974 lineup.

Jones turned toward David Shepherd after firing a shot at Linda Moore, pointed his gun, and pulled the trigger twice. Fortunately for Mr. Shepherd, the gun did not fire either time. At the point, all three robbers fled the scene. Mr. Moore and David Shepherd gave chase, but were unable to catch the three individuals. Mr. Moore was taken to the hospital, where he died from the gunshot wounds.

[66 MICHAPP 229] During the trial, Ronnie Agar related the story that he had first told the police in January of 1974. In addition, Kenneth McCrary and the arresting officer testified as to the November 14, 1972 arrest of McCrary and defendant Watkins, and as to the subsequent search of the automobile in which they were riding. Prior to the testimony of the other Detroit police officer who participated in that arrest, defense counsel moved to suppress from evidence the pistol found in the search on grounds that it had been seized pursuant to an illegal arrest. Defense counsel also moved to have all ballistics tests linking that pistol to casings found at the scene of the crime suppressed. An evidentiary hearing was held outside the presence of the jury, at which the second officer testified as to the arrest and subsequent search.

The trial judge ruled that McCrary and Watkins were searched pursuant to what was merely a pretext arrest. Consequently, the judge suppressed the pistol from evidence and any testimony linking that pistol to the crime. Defense counsel made no motions to strike the prior testimony of Kenneth McCrary and the first arresting officer pertaining to the arrest and search. The trial judge did not Sua sponte strike that prior testimony. The attorney for Watkins did move to strike the identification testimony of Mrs. Horton on grounds that it was the 'fruit' of the illegal arrest of defendant Watkins. The trial judge denied that motion, concluding that Watkins would have been placed in a lineup pursuant to other evidence in possession of the police even if he had never been arrested on the traffic charge.

Defendant Jones called only one defense witness. Ronnie Agar had testified that he was with Sam Johnson, Jr. when he spoke to the defendants on [66 MICHAPP 230] the night of the killing. Jones called Johnson to the stand, and Johnson testified that he was in prison on that date, February 7, 1972. Defendant Watkins was called to the stand to establish his defense. Watkins denied participation in the robbery, stating that he was working at Chrysler Sterling Stamping Plant at the time of the attempted robbery. Both defendants rested their cases, and the jury returned a verdict of guilty as charged.

Defendant Watkins contends on appeal that the trial judge improperly refused to suppress the lineup identification of Mrs. Horton on grounds that it was the 'fruit' of his illegal arrest.

The fruit of the poisonous tree doctrine seeks to discourage unlawful police practices by depriving the people of advantages flowing from the illegality. People v. Walker, 27 Mich.App. 609, 183 N.W.2d 871 (1970). The United States Supreme Court has observed that a rigid and unthinking application of the exclusionary rule, of which the 'fruit of the poisonous tree' doctrine is but one facet, 'in futile protest against practices which it can never be used effectively to control, may exact a high toll in human injury and frustration of efforts to prevent crime'. Terry v. Ohio, 392 U.S. 1, 13--15, 88 S.Ct. 1868, 1876, 20 L.Ed.2d 889 (1968). In Wong Sun v. United [66 MICHAPP 231] States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the Court expressly refused to hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light 'but for the illegal actions of the police'. The question which must be asked is whether the evidence has been procured by an exploitation of the illegality of the police or instead by means sufficiently distinguishable to be purged of the primary taint. Wong Sun v. United States, 371 U.S. at 488, 83 S.Ct. at 417, 9 L.Ed.2d at 455. Clearly, a showing that the evidence would not have been...