People v. Olajos

• Decision Date: 23 November 1976
• Docket Number: No. 56922,56922
• Citation: 246 N.W.2d 828,397 Mich. 629
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert OLAJOS, Defendant-Appellant. 397 Mich. 629, 246 N.W.2d 828
• Court: Michigan Supreme Court

Page 828

246 N.W.2d 828

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert OLAJOS, Defendant-Appellant.

No. 56922.

397 Mich. 629, 246 N.W.2d 828

Supreme Court of Michigan.

Nov. 23, 1976.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Robert McCormick, Pros. Atty., Roscommon, Thomas C. Nelson, Asst. Atty. Gen., Lansing, for plaintiff-appellee.

Roger L. Wotila, Asst. State Appellate Defender, Janet Tooley, Research Asst., Detroit, for defendant-appellant.

FITZGERALD, Justice.

Charged with assault with intent to commit murder, M.C.L.A. § 750.83; M.S.A. § 28.278, defendant was convicted by a jury of assault with intent to do great bodily harm less than murder. M.C.L.A. § 750.84; M.S.A. § 28.279. He was sentenced to a term of 3 to 10 years in prison. The Court of Appeals affirmed, per curiam. We likewise affirm.

On May 20, 1972, at approximately 8:30 p.m., the Michigan State Police responded to calls reporting a domestic disturbance at defendant's home. Gunshots had been heard by the caller. Upon arriving, three officers observed defendant, another adult male, and several children inside the house. The children exited upon request. The other male, after a brief discussion with the officer in charge, refused to leave. Defendant could be seen moving back and forth between various rooms carrying a rifle. Defendant was called upon to leave the house, but did not oblige.

Meanwhile, officers from the Roscommon County Sheriff's Department and Township Police arrived. Deputies Roy Anderson and Floyd Fultz went to the rear of the house. Anderson and Fultz testified that they observed an adult male, not the defendant, pointing out the bedroom window at their position. The individual said something. Seconds later, two shots were fired. The officers testified that they felt air disturbance from the first shot and that it narrowly missed them. All who testified were in agreement that the shots were fired from a rifle rather than a shotgun.

John Haveman, defendant's stepson, testified that he was in the bedroom with defendant, and that he drew defendant's attention to a shadow outside the window. Defendant turned and fired his rifle through the window. Haveman then departed rapidly from the house with his girl-friend. Of the approximately ten officers who testified at trial, only Walter Bair testified that he observed anyone leave the house shortly after the shots were fired. Bair stated that he saw a young man walk away from the building into the crowd.

Defendant was then told by loudspeaker to come out of the house. He appeared in the living room window with a green case from which he removed a shotgun. Shortly thereafter, he emerged from the front door carrying the shotgun, and walked towards the police uttering threats. He was disarmed by the officers, handcuffed, and placed in a patrol car. Several officers were then ordered into the house by Sergeant Hancock. Hancock testified that it was his understanding that there was another male inside the house. There was also a weapon, the rifle from which the shots had been fired, which had not been accounted for. All but one of the officers who entered the house testified that they were looking for weapons and persons, or that they were backing up other officers.

There was no one else in the house. The officers did seize an M--1 rifle and spent cartridge from the floor of the rear bedroom. Another spent cartridge was found nearby when an officer dumped out a cardboard box filled with toys.

On the basis of the preliminary examination transcript, defendant moved pretrial to suppress the rifle and spent cartridges. The motion was denied, but the trial court did indicate that the motion could be renewed at trial.

The defense at trial was intoxication. To rebut the defense, the prosecution elicited testimony from two police officers that they had seen defendant in an intoxicated condition on a previous occasion, when he was under arrest for drunk driving. It was their opinion that, on the evening in question defendant was not intoxicated--although he had been drinking. A third officer volunteered, in explanation for his actions upon arriving at defendant's residence, that he had responded to similar calls to the house before, so that he was acquainted with the layout of the house and with defendant. The details of the prior occasions were pursued by defense counsel on cross-examination, and there was no objection to any of the testimony relating to defendant's prior conduct.

Defendant predicates reversible error on the trial court's refusal to suppress as evidence the rifle and spent cartridges, and on the basis of the testimony of the police officers relating to prior intoxication. A third issue regarding the jury instruction on voluntary intoxication as it relates to specific intent is controlled by our opinion in People v. Rich, 397 Mich. 399, 245 N.W.2d 24 (1976), defendant having been tried previous to the decisional date of People v. Crittle, 390 Mich. 367, 212 N.W.2d 196 (1973).

I. THE WARRANTLESS ENTRY

In ruling pretrial on the motion to suppress, the trial judge realized that the crucial question was the officers' state of mind at the time of the warrantless entry. The validity of that entry depends upon the reasonableness of their response to the situation as perceived by them. The question is whether a reasonable person would have perceived a need to immediately secure the house and missing weapon in order to insure the safety of those outside. In Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 298, 87 S.Ct. 1642, 1646, 18 L.Ed.2d 782 (1967), the United States Supreme Court ruled that under the circumstances of that case the warrantless entry and search of a private residence was a proper response to the exigencies of the situation:

'The police were informed that an armed robbery had taken place, and that the suspect had entered 2111 Cocoa Lane less than five minutes before they reached it. They acted reasonably when they entered the house and began to search for a man of the description they had been given and for weapons which he had used in the robbery or might use against them. The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which...