People v. Kaigler

Decision Date03 December 1962
Docket NumberNo. 82,82
Citation118 N.W.2d 406,368 Mich. 281
PartiesThe PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Elzie KAIGLER, Defendant and Appellant.
CourtMichigan Supreme Court

Edward Dobreff, Morton H. Collins, Dobreff, Collins & Silverman, Seymour F. Posner, Norman L. Zemke, Detroit, for appellant.

Paul L. Adams, Atty. Gen., Joseph B. Bilitzke, Sol. Gen., Samuel H. Olsen, Pros. Atty., Wayne County, Samuel J. Torina, Chief Appellate Lawyer, Angelo A. Pentolino, Asst. Pros. Atty., Detroit, for the People.

Before the Entire Bench, Except ADAMS, J.

KAVANAGH, Justice.

Defendant was convicted by a jury in Recorder's Court of the city of Detroit of the first degree murder of his wife, Clara Kaigler. He was sentenced to life imprisonment and, on denial by the trial court of a motion for a new trial, which included the court's failure to grant defendant's motion to suppress, is here on leave granted.

The facts surrounding the shooting are as follows: During the course of the evening of January 13, 1959, defendant's daughter had played the piano for her mother; apparently the mother had used a tape recorder which she had acquired the previous Christmas to record the piano playing. After an evening spent with the children and watching television, the defendant and his wife were alone in the living room. The parties had at least one drink of rum and coca cola. An argument developed concerning a proposed trip by defendant to a convention in Hot Springs, Arkansas. The argument grew our of a letter and some tickets to an event at the convention which the defendant had received from a woman. The argument continued through the course of the evening, during which they intermittently watched television ending with the sports news at 11:20. Defendant testified in his own behalf that he went to bed after the news cast, leaving his wife sitting in the living room finishing her drink.

It appears there was no physical contact between the defendant and his wife up to the point when he went to bed, at which time he contends the argument was over. Defendant went to sleep but later was awakened by his wife's presence in his room. He did not know the time but it was at least 35 to 40 minutes before the shooting.

According to defendant, when he awoke his wife was standing in the bedroom between him and the hallway. The first thing his wife said was, 'You're not going to Hot Springs.' She dared the defendant to get up, but he just sat 'on his elbows.' Defendant testified he protested he went to Hot Springs every year and was expected there, whereupon his wife flew into a rage of abusive and obscene language. Defendant listened and finally responded. His wife carried on for 20 to 25 minutes.

Defendant got out of bed for the purpose of going to the bathroom. His wife blocked his path and a scuffle ensued. Defendant testified his wife was trying to choke him and he bit her on the arm. The wife then bit the defendant. They wrestled to the floor. Defendant got up and left the room and went into the den. His wife followed him. Defendant got his gun from the desk drawer and when his wife hit him with a stick, defendant fired the gun once to show her it was loaded, and later hit her with the barrel of the gun. Mrs. Kaigler wrestled with defendant, trying to get control of the gun. Defendant testified that eventually as he went down on his right side Mrs. Kaigler was just above him; that they had gone almost to the floor when he heard the gun go off; that she fell right across his lap, the blood gushing.

The children came downstairs after the shots, and defendant told his oldest daughter Rose to telephone the police. The time was about 1:15 a. m., January 14, 1959. The first officer reached the scene at about 1:25 a. m. The officers found the body of defendant's wife on the floor of the bedroom. Near her body on the floor was a tape recorder and a microphone. On top of the recorder the tape itself was partly pulled off the spools and jumbled up. Blood from the deceased was on the tape and the recorder. The recorder's indicator light was flashing off and on. The spools were jammed. Under instructions by telephone from the homicide bureau, the officer disconnected the electrical plug from the outlet. The body of the deceased was removed and the defendant was taken to police headquarters. The 4 children were also taken to police headquarters. When the officers departed, the front door of the home was pulled shut and locked.

Defendant was taken to the homicide bureau at police headquarters, where he was interrogated beginning at about 2:20 a. m. After questioning, defendant was taken to the prosecutor's office, where he made a formal statement in the presence of a reporter. Defendant was again questioned at 9:00 a. m. Later in the morning, Detective Backman, who had been assigned to the case, wanted to go to the scene of the killing. He examined the property of defendant to see if the keys to the home were among his effects, but did not find them. He checked with the women's division in charge of the children, and found they had no keys. Backman testified he sent his partner, Sergeant Harris, to have a conversation with the attorneys for the defendant, following which the detective and the sergeant went to defendant's home. Sergeant Harris testified he received permission from one of the attorneys to go into the home of defendant.

After Backman and Harris entered the home, photographs were taken. They also opened, read, and took from the premises the letter which defendant had received relative to his trip to Hot Springs, Arkansas. They took the sheet and mattress cover from the bed of Mrs. Kaigler, a pair of men's pajamas from the bedroom of defendant, and the tape recorder as well as 2 spools which had been left in the house.

The tape recorder and the 2 spools, which were taken by the officers on January 14, 1959, were turned over to the scientific bureau to be cleaned because they were covered with a large amount of blood. At the trial Detective Backman identified the tape recorder as the one upon which he had put his initials at the scene of the crime. The tape recorder was almost completely covered with blood which had apparently seeped down through the machine and out the bottom.

Defendant was arraingned on a first degree murder warrant and examination was held.

Subsequently, defendant filed a motion to suppress evidence as well as to produce evidence. The evidence he desired to have suppressed was the tape recorder, the tape, copies of recordings made therefrom, and other evidence seized. Defendant alleged the officers seized the evidence without a search warrant; that the seizure did not take place contemporaneously with the arrest of defendant; that it was not made with the consent or permission of defendant; that said evidence is neither an instrument of the crime charged nor a fruit of the crime and, therefore, cannot be used as evidence against the defendant.

Defendant further contends the tape recording which the prosecutor proposed to use falls within the protection of the privilege of marital communications, which the defendant did not waive; that the prosecutor is unable as a matter of fact to lay a proper foundation for said tape recording in that he cannot produce the operator thereof for cross examination; that said recording is hearsay and is not, nor is the conversation contained thereon, a part of the res gestae. Defendant asserts an intervening period and a change in circumstances of the parties took place between what was instrumentally recorded and the actual shooting. It is alleged further that the purpose of using the recording was to ridicule, condemn, embarrass and humiliate the defendant, a minister of the gospel.

The motion to suppress was denied by Judge George Murphy without recorded opinion on June 3, 1959.

At the commencement of the trial, the defense renewed its motion to suppress evidence, which was again denied by the trial judge.

The jury returned a verdict of guilty of murder in the first degree. A mandatory life sentence was imposed.

The motion for new trial was filed, including again the motion to suppress. The trial judge entered an order on February 8, 1960 denying the motion for new trial. Defendant is here on leave granted.

The controlling question in this case is: Did the lower court commit reversible error in failing to grant defendant's motion to suppress evidence, namely, the tape recording, for the reason the recording was the product of an unlawful search and seizure contrary to the Michigan Constitution of 1908, art. 2, § 10, and the Fourth Amendment to the Constitution of the United States?

Since a motion for the suppression of evidence must be determined upon the facts produced at the time of hearing, and cannot be amplified by testimony taken later at the trial (see Vol. 1, Gillespie, Michigan Criminal Law and Procedure, § 718, pp. 867-869; People v. Kerwin, 234 Mich. 686, 209 N.W. 157; People v. Willis, 243 Mich. 164, 219 N.W. 609; Prople v. Miller, 245 Mich. 115, 222 N.W. 151; People v. Kramer, 260 Mich. 94, 244 N.W. 243; People v. Zeigler, 358 Mich. 355, 100 N.W.2d 456; People v. Williams, Mich., 118 N.W.2d 391), it becomes necessary for us to determine what the actual facts and circumstances were at the time the motion to suppress was made.

It was the position of the defendant in his motion to suppress that on the morning of the alleged crime, sometime after 9:00 a. m., the police returned to defendant's residence and removed therefrom the tape recording and recording machine; that the police had no warrant; that they had no legal right to enter and search the premises in such a manner.

The prosecution, however, argued: (1) that they were actually in constructive possession of the premises since the police department had locked the door at 1:30 a. m., the morning of January 14th; (2) that they had the permission of defendant, through his...

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