People v. Moore

• Decision Date: 16 April 1974
• Docket Number: No. 3,3
• Citation: 216 N.W.2d 770,391 Mich. 426
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Reuben MOORE a/k/a Reuben Baker, Defendant-Appellant. 391 Mich. 426, 216 N.W.2d 770
• Court: Michigan Supreme Court

Page 770

216 N.W.2d 770

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Reuben MOORE a/k/a Reuben Baker, Defendant-Appellant.

No. 3.

391 Mich. 426, 216 N.W.2d 770

Supreme Court of Michigan.

April 16, 1974.

Donald A. Kuebler, Chief, Appellate Div., Joel B. Saxe, Asst. Pros. Atty., for plaintiff-appellee.

State Appellate Defender Office by Steven L. Schwartz, Asst. Appellate Defender, Detroit, for defendant-appellant.

Before the Entire Bench.

LEVIN, Justice.

Reuben Moore was convicted by a jury's verdict for unlawful possession of a narcotic drug and sentenced to serve a prison term of 8 to 10 years. ¹ The Court of Appeals, in an unpublished per curiam opinion, affirmed, reducing the minimum term of Moore's sentence to 6 years and 8 months on the authority of People v. Tanner, 387 Mich. 683, 199 N.W.2d 202 (1972).

The issues concern:

1) the validity of the warrantless seizure of the narcotic drug during a cursory examination incident to Moore's valid arrest for an unrelated crime;

2) the admissibility of Moore's prior convictions for the purpose of impeaching his credibility;

3) a claim that Moore was not represented by counsel at the times of the earlier convictions and, therefore, even if prior convictions are generally admissible, these prior convictions were not admissible and, similarly, they should not have been considered at the time of sentencing;

4) a claim that Moore was denied the effective assistance of counsel because his trial lawyer failed to preserve any of the foregoing objections.

I

In People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973), we recently held that, to the extent a claim of ineffective assistance of counsel depends on facts not of record, the defendant must make a testimonial record at the trial court level which evidentially supports his claim and which excludes reasonable hypotheses consistent with the view that his trial lawyer represented him adequately. The requisite motion was not filed and, therefore, we do not have a record or findings by a trial judge to review.

However, Moore could not have been convicted unless there had been admitted in evidence the heroin seized as an incident to his arrest. Therefore, if it appears from the trial record that had a motion to suppress been made it should have been granted, an appellate court may properly grant relief even though the issue was raised for the first time on appeal. ²

II

Two Flint police officers, dressed in civilian clothes, as part of the vice squad's operations to curtail street prostitution, were patrolling a 'problem area' in an unmarked car. They observed several female and male subjects on the street and a female talking to a man in an automobile. Suspecting that she was attempting to solicit someone in that automobile, they pulled their automobile over to the curb. Almost immediately, Moore approached and inquired whether the officers would be interested in engaging the services of a prostitute. An officer stepped from the car and placed Moore under arrest 'for soliciting for immoral purposes.'

Moore placed his hand in his pants pocket. The officer, believing Moore might be reaching for a weapon, grabbed him and spun him against the side of an automobile. Moore then opened his right hand and a small plastic vial fell to the ground.

The vial was of clear plastic with a snap-on top of the kind commonly used by pharmacies to dispense medicine. The vial was unlabeled. Inside were twenty small capsules containing white powder. Eighteen capsules were of clear plastic and the other two were red. The capsules lacked the fresh, uniform appearance typical of capsules dispensed by a pharmacy. Immediately upon taking Moore to the police station, ³ the officer conducted a cursory examination of the vial, concluded that the capsules contained heroin, and then arrested Moore on a narcotics charge. ⁴

In two recent cases decided by the United States Supreme Court, United States v Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), and Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973), the defendants were arrested for traffic offenses, taken into custody, and searched for weapons. In Robinson, during the search the arresting officer uncovered a crumpled cigarette pack. His cursory examination of the pack revealed 14 gelatin capsules of white powder which he thought to be and, upon subsequent analysis, proved to be heroin. In Gustafson, the arresting officer's search yielded a Benson and Hedges cigarette box. Upon his cursory examination 'it appeared there were marijuana cigarettes in the box.'

The Court summarized its holding in Robinson: '(I)n the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment,' and then concluded:

'Having in the course of (his) lawful search come upon the crumpled package of cigarettes (the arresting officer) was entitled to inspect it; and when his inspection revealed the heroin capsules, he was entitled to seize them as 'fruits, instrumentalities, or contraband' probative of criminal conduct.' (p. 236, 94 S.Ct. p. 477)

These opinions were written by Mr. Justice Rehnquist who, in an earlier case, said for the Court: 'The ultimate standard set forth in the Fourth Amendment is reasonableness.' Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706, 713 (1973).

In both Robinson and Gustafson there were motions to suppress and full hearings concerning the reasonableness of the seizure. Moore did not move to suppress and there is no reason on this record to question the reasonableness of the arresting officer's belief upon his cursory examination that the white powder contained in the aberrant transparent capsules in the curiously unmarked, transparent vial was heroin. ⁵ While Const.1963, art. 1, § 11 protects against 'unreasonable searches and seizures,' its proviso prohibiting the exclusion from evidence of 'any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house,' precludes a construction of the Michigan search and seizure clause imposing a higher standard of reasonableness ⁶ for searches and seizures of items named in the proviso than the United States Supreme Court has held applicable under the Fourth Amendment. ⁷ In People v. Pennington, 383 Mich. 611, 178 N.W.2d 471 (1970), this Court held the narcotic and firearms proviso invalid under the Federal Constitution only to the extent it would permit receipt of evidence barred under the Fourth and Fourteenth Amendments as construed by the United States Supreme Court.

III

In contrast with People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974), Moore's attorney did not ask the judge to exclude, in the exercise of discretion, reference to Moore's prior conviction record. Since he did not invoke the judge's discretion, Moore cannot fault the judge for failing to exercise it when he allowed impeachment on the basis of prior convictions. ⁸

Refusing to consider this unpreserved issue on its merits is not inconsistent with resolution of the similarly unpreserved search and seizure issue on its merits. Moore could not have been convicted without introduction of the heroin; the impeachment of Moore by reference to his past convictions was not necessarily decisive. Additionally, Jackson does not require a trial judge to exclude reference to a defendant's conviction record; it only requires that he exercise his discretion before deciding whether to permit reference to a conviction record. In contrast, a judge presented with a meritorious search and seizure claim is obliged to exclude the impermissibly obtained evidence.

IV

In United States v. Tucker, 404 U.S. 443, 445--446, 448, 92 S.Ct. 589, 591--592, 30 L.Ed.2d 592, 595, 597 (1972), the United States Supreme Court, in a post-conviction proceeding instituted a number of years after Tucker's conviction, affirmed the judgment of the Ninth Circuit remanding the case to the district court for resentencing 'without consideration of any prior convictions which are invalid under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963).'

Tucker's three previous state felony convictions preceded Gideon. It was established that two of them were constitutionally infirm because Tucker 'had been unrepresented by counsel, and that he had been 'neither advised of his right to legal assistance nor (had) he intelligently and understandingly waive(d) (his) right to the assistance of counsel". 404 U.S. 445, 92 S.Ct. 590. The Court, while reasserting the 'wide discretion' granted a judge in sentencing, remanded for resentencing because the sentence 'might have been different if the sentencing judge had known that at least two of the respondent's previous convictions had been unconstitutionally obtained.' The Court observed that if the sentencing judge 'had been aware of the constitutional infirmity of two of the previous convictions, the factual circumstances of the respondent's background would have appeared in a dramatically different light at the sentencing proceeding.' 404 U.S. p. 448, 92 S.Ct. p. 592.

Although Tucker arose in a federal post-conviction proceeding challenging a federal conviction and sentence, its retroactive application to state convictions has been accepted by a number of state courts, ⁹ including our Court of Appeals. ¹⁰ We conclude, in light of the consistent retroactive application in state criminal proceedings of Gideon and its progeny's expansion of the right to counsel, ¹¹ that Tucker is applicable with full retroactivity to all sentences imposed by Michigan courts.

In Loper v. Beto, 405 U.S. 473, 480, 92 S.Ct. 1014, 1018, 31 L.Ed.2d 374, 380 (1972), the Court, again reiterating its guiding principle that 'a conviction obtained in violation of Gideon v....