People v. Kerschner, Docket No. 67181
| Decision Date | 04 May 1984 |
| Docket Number | Docket No. 67181 |
| Citation | 348 N.W.2d 282,132 Mich.App. 623 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Charles KERSCHNER, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Robert Cares, Prosecuting Atty., for the People.
O'Malley & Welty by William D. Welty, Three Rivers, for defendant-appellant on appeal.
Before R.B. BURNS, P.J., and V.J. BRENNAN and KALLMAN, * JJ.
On February 4, 1982, defendant was found guilty by a jury of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548. He was sentenced to life in prison and appeals as of right. In a separate trial, defendant's accomplice, Lawrence Dewayne Pontius, was also convicted of first-degree murder.
Sharon Miller lived with William McKale in Sturgis, Michigan. Because she planned to be out of town on the weekend of August 22, 1981, Miller asked her mother, Jennie Miller, to look in on McKale. Before leaving town, Miller stopped at the home of defendant's brother where she encountered defendant and Dewayne Pontius. Miller mentioned to defendant that she would be out of town. On the evening of Friday, August 21, 1981, Jennie Miller looked in on McKale. When she left his home, the doors were locked and the house was in order. Upon her return to McKale's home the following evening, Mrs. Miller found the door ajar and McKale's body on the floor of the bedroom. The bedroom had been ransacked and there were blood smears in the room. Dr. Baker, the pathologist who performed the autopsy on McKale, testified that the cause of McKale's death was a subdural hematoma caused by blunt trauma. Baker also testified that McKale had innumerable bruises on all parts of his body, six fractured ribs, and internal hemorrhaging around his right kidney and the mesentry to his small intestine, as well as severe bruises to his head. Additionally, Baker testified that McKale had cirrhosis of the liver.
Dewayne Pontius was arrested on Monday, August 24, 1981, after he attempted to cash a check allegedly written by McKale. Pontius admitted that he and defendant had broken and entered McKale's house in the early morning hours of August 22, 1981, and accused defendant of having "kicked him [McKale] in the back and in the head".
Sturgis police detective James Houck obtained a warrant for defendant's arrest during the evening of August 24, and he also informed Detective Sergeant Thomas Brown of the Peru, Indiana, police about the warrant. The following morning, the information was entered into the LIEN computer system. Houck called Brown, again giving him information on where defendant might be, and he requested defendant's arrest and preservation of defendant's shoes. Brown and four other Peru police officers went to the home of Patricia Nice, defendant's fiancee to look for defendant. The officers arrested defendant and took his shoes into custody.
Defendant was bound over to circuit court on charges of breaking and entering an occupied dwelling, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305, felony murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and unarmed robbery, M.C.L. Sec. 750.530; M.S.A. Sec. 28.798. The breaking and entering and robbery counts were later dismissed by an order nolle prosequi.
Defendant's first claim is that the trial court erred in denying his motion to suppress his shoes which were seized at the time of his arrest. A trial court's ruling on a motion to suppress will be reversed only if it is clearly erroneous. People v. Jackson, 123 Mich.App. 423, 332 N.W.2d 564 (1983). A ruling is clearly erroneous if the reviewing court is left with a firm conviction that a mistake has been made. People v. Julkowski, 124 Mich.App. 379, 335 N.W.2d 47 (1983).
Defendant argues that his arrest was illegal because the police acted in violation of an Indiana "knock and announce" statute and no exigent circumstances existed that would justify the violation. Therefore, he contends that the seizure of his shoes was improper and the shoes should not have been admitted into evidence.
Indiana has a "knock and announce" statute:
"To make an arrest in criminal actions the officer may break open any outer or inner door or window of a dwelling house or any other building or inclosure to execute the warrant, if, after notice of his authority and purpose, he be refused admittance." IC 1971, 35-1-19-6, Ind.Ann.Stat. Sec. 9-1009 (Burns Code Ed).
In Indiana, if exigent circumstances exist, the statutory "knock and announce" requirement may be omitted. Johnson v. State, 157 Ind.App. 105, 299 N.E.2d 194 (1973) (); Britt v. State, 395 N.E.2d 859, fn. 2 (Ind.App., 1979); State v. Dusch, 259 Ind. 507, 289 N.E.2d 515 (1972) (). "Exceptions to the entry requirement must be founded on particularity and not on generality." Dusch, supra, p. 518, 289 N.E.2d 515.
Michigan also has a similar "knock and announce" statute, M.C.L. Sec. 764.21; M.S.A. Sec. 28.880, which states in pertinent part:
"[A] peace officer with a warrant or in cases of felony when authorized without a warrant, may break open an inner or outer door of any building in which the person to be arrested is or is reasonably believed to be if, after he has announced his purpose, he is refused admittance."
Furthermore, Michigan also recognizes the exigent circumstances exception as justification for an unannounced entry. People v. Marsh, 108 Mich.App. 659, 672, 311 N.W.2d 130 (1981), cert. den. --- U.S. ----, 103 S.Ct. 119, 74 L.Ed.2d 104 (1983). 1 The panel in Marsh explained:
108 Mich.App. 672, 311 N.W.2d 130.
In the instant case, on the morning of August 25, 1981, five officers from the Peru, Indiana, Police Department went to the home of Patricia Nice in search of defendant. Three of the officers were in uniform. Of those three, two went around to the rear of the home. Detective Sergeant Thomas Brown testified that as he pulled up in front of the house, he saw a man and a woman exit from a car and go toward the door of Nice's house. Brown talked with the pair and learned that the woman was Loretta McIntosh, Nice's sister. He testified that he told McIntosh that they were looking for defendant. When he asked her if Nice or the defendant were at home, she responded that she did not know but that she would check. According to Brown, McIntosh knocked on the door and when there was no answer she opened the door, which was unlocked, proceeded into the house and invited the officers in with her. McIntosh proceeded up the stairs, followed by Brown and another officer. When they got upstairs, they saw defendant in bed and placed him under arrest. The officers took defendant downstairs and Brown read defendant his Miranda rights. 2 When defendant asked if he could put on his shirt, Brown went upstairs to get the shirt. Defendant was allowed to put on his shoes. When Brown came back downstairs, he told defendant to remove the shoes and he took them into custody.
It is our opinion that sufficient exigent circumstances existed to justify the officers' entry into the home.
A murder warrant had been issued for defendant, who had fled from Michigan. When McIntosh entered the house, it would not have been unreasonable for the police to surmise that she might alert defendant that the police were looking for him. Had this occurred, the grave risk of danger posed to the police and McIntosh by the defendant who may have been armed and who may have attempted to escape from the house was highly probable since defendant was a fugitive. Furthermore there was also a distinct possibility that the evidence sought (blood on defendant's shoes) might have been destroyed.
We conclude that the trial court's decision to admit the shoes was proper.
Defendant further claims that the trial court abused its discretion by allowing into evidence a photograph of the deceased taken after he was beaten to death. The court, in the absence of the jury, took testimony from the pathologist who performed the autopsy and from the county medical examiner. The court concluded that the photo adequately...
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