People v. Lobaito

• Citation: 133 Mich.App. 547,351 N.W.2d 233
• Decision Date: 07 June 1984
• Docket Number: Docket No. 66035
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leonard Thomas LOBAITO, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 233

351 N.W.2d 233

133 Mich.App. 547

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leonard Thomas LOBAITO, Defendant-Appellant.

Docket No. 66035.

Court of Appeals of Michigan.

Submitted Dec. 12, 1983.

Decided April 3, 1984.

Released for Publication June 7, 1984.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George N. Parris, Pros. Atty., Don L. Milbourn, Chief Appellate Lawyer, and Robert John Berlin, Asst. Pros. Atty., for the People.

William J. McGrail, Jr., P.C. by William J. McGrail, Jr., and Carole A. Murray, Utica, for defendant-appellant on appeal.

Before DANHOF, C.J., and ALLEN and DODGE ^*, JJ.

PER CURIAM.

Defendant was convicted by a jury of first-degree murder, M.C.L. § 750.316; M.S.A. § 28.548, and felony-firearm, M.C.L. § 750.227b; M.S.A. § 28.424(2). He was sentenced to consecutive prison terms of two years on the felony-firearm and life on the first-degree murder. He appeals as of right, raising 12 issues.

The charges arose out of the shooting death of defendant's wife, Delores Lobaito. The body was discovered by defendant and his brother and sister-in-law on the morning of October 9, 1980, in the bedroom of the house where Delores and defendant lived. The cause of death was a single .38-caliber bullet to the head.

I

Defendant first argues that the trial court erred in admitting the murder weapon into evidence. Defendant moved to suppress the weapon on the ground that it was the product of an illegal search and seizure. The trial court denied the motion finding that defendant had consented to the search conducted without a warrant.

The United States and Michigan Constitutions protect individuals from being subjected to unreasonable searches and seizures. U.S. Const., Am. IV; Const.1963, art. 1, § 11. Evidence obtained as a result of an illegal search and seizure may not be admitted at trial. People v. Kaigler, 368 Mich. 281, 299, 118 N.W.2d 406 (1962), citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). A search and seizure conducted without a warrant is unreasonable per se unless it falls within a recognized exception to the warrant requirement. People v. Whalen, 390 Mich. 672, 677, 213 N.W.2d 116 (1973). Consent is one such exception. Kaigler, supra. In People v. Brown, 127 Mich.App. 436, 440-441, 339 N.W.2d 38 (1983), a panel of this Court summarized the rules for determining whether the defendant has consented to a search conducted without a warrant.

"When consent is alleged, the burden is on the prosecution to prove by clear and positive evidence that the consent was unequivocal and specific, freely and intelligently given. Kaigler, supra, [36 Mich] p 294 . Whether a consent is valid is a question of fact to be decided upon the evidence and all reasonable inferences drawn from it. People v. Chism, 390 Mich. 104, 123; 211 NW2d 193 (1973). The totality of the circumstances must be examined. People v. Reed, 393 Mich 342, 363, 224 NW2d 867 [1975], cert den 422 US 1044, 95 SCt 2660, 45 LEd2d 696, 422 US 1048; 95 SCt 2665, 45 LEd2d 701 (1975). The prosecution need not demonstrate that the defendant had knowledge of the right to refuse to allow the search. People v. Klager, 107 Mich App 812, 816; 310 N.W.2d 36 (1981). Rather, such knowledge is but one factor to be considered in a suppression hearing. Reed, supra, [393 Mich] pp. 362-363 . Conduct itself can, under proper circumstances, be sufficient to constitute consent. See People v. Whisnant, 103 Mich App 772, 780-781; 303 NW2d 887 [1981], lv den 411 Mich 960 (1981)."

The trial court's conclusion on a motion to suppress evidence will not be overturned unless it is found to be clearly erroneous. People v. Brown, supra, 127 Mich.App. p. 441, 339 N.W.2d 38. A ruling is clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been made. Tuttle v. Dep't of State Highways, 397 Mich. 44, 46, 243 N.W.2d 244 (1976).

We now turn to the evidence presented at the suppression hearing to determine whether the trial court erred in finding consent. The police arrived and secured the scene shortly after they were called by defendant's brother, Thomas Lobaito. Approximately ten minutes after they arrived, defendant left the house and went to a next-door neighbor's home. Subsequently a police officer asked Thomas if any guns were kept in the house. Thomas then asked defendant, who gave him the location of a .38-caliber gun and a .32-caliber gun kept in the house. Thomas relayed this information to the police, but they were unable to find the weapons.

Defendant and Thomas were requested to go to the police station to help in the investigation. Defendant was interviewed twice and was asked if he would submit to a polygraph test and a paraffin test, and was asked if he would sign a waiver granting police the authority to search his car. Upon questioning of defendant, Thomas became very upset and stated that the police should be out trying to find the real killer. At that point defendant told the police that "I want you to go and do everything in your power to get the killer of my wife".

Lieutenant Scott was in charge of the investigation and was at the scene on the afternoon of the killing. Scott was informed of the defendant's statement quoted above. At approximately 6 p.m., Scott was looking into defendant's unattached garage when he noticed a child's chair that seemed out of place. Above the chair Scott noticed a bulge in the masonite paneling in the garage. Scott stood on the chair and reached behind the loose paneling, where he found a .38-caliber gun wrapped in a homemade silencer made of foam rubber. The gun was later determined to be the murder weapon. Defendant's other gun, a .32-caliber handgun, was also found behind the paneling.

The trial court found that defendant's statements and conduct amounted to a consent to the search without a warrant:

"Defendant obviously knew that the police would look in the upstairs dresser drawer for the revolvers following his brother's inquiry. There is no record of an objection. It affirmatively appears that defendant was aware of the ongoing police investigation. This is evidenced by his comments to his brother during the latter's argument with Inspector Peters. In point of fact, defendant urged the police at this time to 'do everything they could' to find his wife's killer. The combination of these circumstances, the absence of any objection at the time, and the affirmative exhortation to the police to press onward can do no other but compel a conclusion that defendant consented to searches as a part of the ongoing police investigation."

Upon examining the totality of the circumstances, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), we find no clear error in this decision. Defendant was aware of the police activities in his home and at no time did he register an objection or attempt to limit their access to the home and surrounding area. To the contrary, defendant expressly exhorted the police to do everything in their power to find the killer. The words and actions of defendant communicated to the police that he wanted them to do more than just remove his wife's body; he wanted them to investigate the crime and find the killer. We agree with the trial court that defendant's words and actions sufficiently establish consent to the search of the premises without a warrant.

II

The day following the murder the police obtained a search warrant and seized certain other items from defendant's home. Defendant argues that since the affidavit in support of the search warrant referred to the illegally-seized murder weapon, the warrant was invalid and evidence seized pursuant thereto was inadmissible under the fruit of the poisonous tree doctrine.

Having concluded that the murder weapon was legally obtained, we reject this argument and hold that the search warrant was valid.

III

Defendant next argues that his statement given to the police in the early evening of October 9, 1980, was made involuntarily and should have been suppressed. Defendant's motion to suppress was denied by the trial court and the statement was admitted into evidence. We note that the statement did not concern the crime and was not inculpatory.

The voluntariness of a defendant's statement is a question of fact to be determined by reviewing the totality of the circumstances. People v. Prast (On Rehearing), 114 Mich.App. 469, 483, 319 N.W.2d 627 (1982). In reviewing the trial court's decision, this Court must examine the whole record and make an independent determination on the issue of voluntariness. People v. Robinson, 386 Mich. 551, 557, 194 N.W.2d 709 (1972). Absent a definite and firm conviction that the trial court erred, this Court will affirm its decision. People v. Prast, supra, 114 Mich.App. p. 484, 319 N.W.2d 627. In the case at bar, defendant was interviewed twice in the early afternoon and a third time in the evening following the discovery of the murder weapon in defendant's garage by the police. Defendant was informed of and waived his Miranda rights [Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ]. We have reviewed the record and find no indication of involuntariness. There is no evidence that the police used force, threats or coercion. Defendant asserts that the police were required to inform him that they had found the murder weapon. However, defendant cites no authority or rationale for the proposition that police officers must inform the suspect of the evidence they have before questioning him. We conclude that the trial court did not err in ruling the statement voluntary and admissible.

IV

Defendant next argues that he was prejudiced by the late indorsement of two witnesses. The late indorsement of witnesses is a matter within the trial court's discretion. M.C.L. § 767.40; M.S.A. § 28.980. That discretion should be exercised with due regard for the...