People v. Kelly

• Citation: 231 Mich.App. 627,588 N.W.2d 480
• Decision Date: 25 September 1998
• Docket Number: Docket No. 199995
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert Daniel KELLY, Jr., Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 480

588 N.W.2d 480

231 Mich.App. 627

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert Daniel KELLY, Jr., Defendant-Appellant.

Docket No. 199995.

Court of Appeals of Michigan.

Submitted Aug. 11, 1998, at Detroit.

Decided Sept. 25, 1998, at 9:10 a.m.

Released for Publication Dec. 18, 1998.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Mark W. Bernardi, Assistant Prosecuting Attorney, for the people.

Robert M. Morgan, Detroit, for the defendant.

Before: CORRIGAN, C.J., and MacKENZIE and R.P. GRIFFIN ^*, JJ.

GRIFFIN, J.

Defendant appeals as of right from his jury trial convictions of first-degree premeditated murder, M.C.L. § 750.316(1)(a); MSA 28.548(1)(a), first-degree felony murder, M.C.L. § 750.316(1)(b); MSA 28.548(1)(b), and armed robbery, M.C.L. § 750.529; MSA 28.797. After the felony-murder count was vacated, defendant was sentenced to life in prison for the first-degree premeditated murder conviction and to twenty to forty years' imprisonment for the armed robbery conviction. We affirm.

On the morning of January 25, 1995, when Monica Hudson went to the home of her sister Joann, she noticed that Joann's green Tempo automobile was gone. Using a spare set of keys, Monica went inside the house. After observing a bloody dish rag in the sink and drops of blood on the floor, she went to the bedroom where she found the mutilated body of her murdered sister. Telephone lines to the house had been cut, and Monica observed that the radio, the compact disc (CD) and tape player, and some CDs were missing. Some time after 10:00 p.m. on that same day, defendant was arrested by the police. Following fingerprinting and processing, defendant was placed in an interrogation room, where he was held for more than fifteen hours.

While in custody, defendant made and signed two statements, one at 2:45 a.m. on January 26 and the second at 3:20 p.m. on the same day. In his first statement, defendant told police that he spent time with Joann Hudson, his former girlfriend, on the day she was murdered, but he denied killing her. In his second statement, defendant admitted killing Joann Hudson.

I

Defendant first argues that the trial court clearly erred in refusing to suppress evidence of his two custodial statements on the basis that they were secured in violation of the Fourth Amendment of the United States Constitution. The trial court held a suppression hearing, where defendant unsuccessfully argued that his statements were involuntary and the result of an illegal arrest. Now, on appeal, he abandons his claim that the statements were involuntary and argues only that the statements were the product of an illegal arrest. Defendant contends that his arrest without a warrant in his father's home was unconstitutional because the police did not have probable cause to arrest him.

A police officer may arrest an individual without a warrant if a felony has been committed and the officer has probable cause to believe that the individual committed the felony. MCL 764.15(c); MSA 28.874(c); People v. Champion, 452 Mich. 92, 115, 549 N.W.2d 849 (1996). In reviewing a challenged finding of probable cause, an appellate court must determine whether the facts available to the arresting officer at the moment of arrest would justify a fair-minded person of average intelligence in believing that the suspected individual had committed the felony. People v. Oliver, 417 Mich. 366, 374, 338 N.W.2d 167 (1983); People v. Russo, 439 Mich. 584, 603-604, 487 N.W.2d 698 (1992); People v. Sloan, 450 Mich. 160, 168, 538 N.W.2d 380 (1995).

Insofar as the record reveals, the officer who actually made the arrest, Robert Carroll, possessed no information that connected defendant to the crime. It is clear that Carroll acted in response to an order given by Officer Dale Collins to bring the defendant "downtown for questioning in regards to a homicide." Testifying at the suppression hearing, Collins acknowledged that his report concerning the arrest would reflect "arrest for questioning in [sic] regarding a murder."

At defendant's trial, Collins testified that he ordered defendant arrested because he wanted "to find out if he knew anything about the death of Miss Hudson." At one point, the judge intervened and inquired concerning the basis for defendant's arrest:

Court: What was that?

Witness [Collins]: That he was a boyfriend. That according to her girlfriend, they had some problems and he had, there was another, his brother or cousin by the name of Gist, I believe his name was, there was some problems there and I felt I had reason to question him, if nothing else.

Collins also admitted in his testimony that at the time of the arrest defendant "was not the main suspect. He was a person to look at, but he was not the main suspect."

During his investigation before the arrest, Collins learned that the victim had recently been involved with two men: the defendant and a person named Ellis, who may have been a brother or cousin of the defendant. In addition, Collins interviewed a neighbor who said that on the day before the killing she had observed the victim arguing with a man who drove a Mercedes Benz automobile. There was no reason to believe that defendant owned or drove a Mercedes Benz.

Before the arrest, Collins took a statement from Lisa Johnson, a friend of the victim. Johnson told Collins that she had a telephone conversation with the victim at about 9:25 p.m. on January 24, 1995. The conversation was interrupted twice by call-waiting beeps, and the victim talked to the person who beeped in. When she returned to talking to Johnson, the victim said that she was going to pick up her belated birthday present, and that "he wasn't going to leave her alone until she picked it up." Johnson indicated to Collins that she did not know to whom the victim was referring. Collins also learned before the arrest that the victim had recently broken off her relationship with the defendant and that he had made overtures to restore it.

While the facts known by Officer Collins before the arrest justified his consideration of the defendant as a suspect, we cannot find that they constituted probable cause to arrest him as the killer. Although an officer's characterization of an arrest is not determinative of its legality, People v. Cipriano, 431 Mich. 315, 342, 429 N.W.2d 781 (1988), we are persuaded in this instance that Collins, a seasoned officer, aptly described the action he ordered as an arrest for questioning, an illegal police practice long condemned by the United States Supreme Court and the appellate courts of this state.

In Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), officers testified that they arrested the defendant for the purpose of questioning him as part of their investigation of a murder. The United States Supreme Court condemned the conduct, noting that the officers " virtually conceded" the impropriety of the arrest "when they repeatedly acknowledged, in their testimony, that the purpose of their action was 'for investigation' or for 'questioning.' " Id. at 605, 95 S.Ct. 2254. Citing Brown, this Court noted its "emphatic disapproval" of similar police conduct in People v. Washington, 99 Mich.App. 330, 335, 297 N.W.2d 915 (1980). We reiterate that condemnation and find that the trial court erred in ruling that the arrest in this case was proper.

However, our conclusion regarding the legality of the arrest is not dispositive in this case. The mere fact of an illegal arrest "does not per se require the suppression of a subsequent confession." Id. at 334, 297 N.W.2d 915. It is only when an "unlawful detention has been employed as a tool to directly procure any type of evidence from a detainee" that the evidence is suppressed under the exclusionary rule. People v. Mallory, 421 Mich. 229, 240-241, 243, n. 8, 365 N.W.2d 673 (1984). Intervening circumstances can break the causal chain between the unlawful arrest and inculpatory statements, rendering the confession " 'sufficiently an act of free will to purge the primary taint' " of the unlawful arrest. Brown, supra at 602, 95 S.Ct. 2254, quoting Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

In Washington, supra, the defendant was arrested without probable cause. After his arrest, the defendant's sister told the police that the defendant had admitted complicity in the crime. When the defendant was confronted with his sister's statement, he confessed. This Court held that "the primary taint of the unlawful arrest was sufficiently attenuated by the subsequent evidence establishing probable cause so that the defendant's confession is properly admissible." Id. at 336, 297 N.W.2d 915. Similarly, in People v. Hampton, 138 Mich.App. 235, 361 N.W.2d 3 (1984), the defendant was arrested without probable cause and made an exculpatory statement. Several hours later, the police told the defendant of new evidence that had been uncovered, and they asked the defendant if he wished to change his statement. He initially declined, but eventually implicated himself in the crime approximately eight hours after his first statement. This Court determined that the later statement was "not the result of the exploitation of the earlier arrest of defendant without probable cause." Id. at 238, 361 N.W.2d 3.

Other courts have held that a custodial confession following an illegal arrest need not be suppressed if the police have uncovered evidence sufficient to establish probable cause to arrest the defendant before the challenged custodial statement was given. Under such circumstances, " 'one could question the wisdom of requiring police to go through the formality of releasing [the defendant], only to rearrest him outside the jailhouse door.' " People v. Pierson, 166 Ill.App.3d 558, 564, 117 Ill.Dec. 18, 519 N.E.2d...