People v. Oliver

• Decision Date: 25 August 1975
• Docket Number: Docket No. 18221
• Citation: 234 N.W.2d 679,63 Mich.App. 509
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth OLIVER, Defendant-Appellant. 63 Mich.App. 509, 234 N.W.2d 679
• Court: Court of Appeal of Michigan — District of US

Page 679

234 N.W.2d 679

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth OLIVER, Defendant-Appellant.

Docket No. 18221.

63 Mich.App. 509, 234 N.W.2d 679

Court of Appeals of Michigan.

Aug. 25, 1975.

Released for Publication Nov. 10, 1975.

[63 MICHAPP 511] James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Ronald J. Taylor, Pros. Atty., for plaintiff-appellee.

Before T. M. BURNS, P.J., and McGREGOR and WALSH, JJ.

WALSH, Judge.

On the morning of October 12, 1972, the West Side Branch of the First National Bank of Southwestern Michigan in Niles was held up by a man who was distinctively costumed and armed with a .38-caliber revolver. He escaped with approximately $38,000 and a hostage--a bank teller who was later released. The man was driving a 1970 green and white Monte Carlo and was headed eastbound on M--60 or US--12 very shortly after the robbery when he was stopped by a lone Michigan State Police Trooper Steven DeVries. Several motorists on M--60 observed the two men facing each other along side the road. The trooper appeared to have some writing material in his hand and the other man was seen moving his hand up and down and then rushing off in the Monte Carlo headed east.

Trooper DeVries was found shortly thereafter prostrate on the edge of the highway. He was pronounced dead on arrival at Pawating Hospital in Niles due to the infliction of four bullet wounds. In the trooper's unmarked squad car was a pad of paper bearing the defendant's name, address, license number, and vehicle description.

Having waived trial by jury Oliver was found guilty of murder in the first degree, M.C.L.A. § 750.316; M.S.A. § 28.548, by Berrien County Circuit Judge Chester J. Byrns at the conclusion of a 7-day trial. The judge rendered a thorough written opinion in which he found that the state had proved its case beyond a reasonable doubt on both of the theories offered--premeditated murder and felony murder. Oliver was sentenced to life imprisonment and it was further recommended that he never be given parole, pardon or commutation of that sentence. The defendant has appealed as a matter of right and we will consider each of the several issues raised in their proper order.

[63 MICHAPP 513]

I.

WHETHER A SEALED, ADDRESSED LETTER TAKEN FROM DEFENDANT DURING HIS PRETRIAL INCARCERATION WAS OBTAINED IN VIOLATION OF HIS RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES.

After his apprehension in Indiana the defendant was lodged in the Berrien County Jail. On January 8, 1973, several months prior to trial, he was led from his cell by Deputy Sheriff Lowell Brownell to the 'visiting slot' area of the jail where Oliver was to meet his attorney. Oliver was carrying a manila folder containing notes, pleadings, and other memoranda relating to his various pretrial hearings.

On the way to the visiting area Deputy Brownell seized the folder, inspected its contents and confiscated a sealed and stamped envelope addressed to Pamela Algar, which was marked 'mailed by J.K.J.'. Brownell returned the folder to Oliver but delivered the confiscated letter to his superiors who opened it and read it.

Inside the first envelope was another envelope bearing the name and address of defendant's father. In that envelope there was a second letter containing references to possible escape attempts and plans to 'buy the evidence necessary to beat this Niles thing'. A hand-drawn map was included wherein 'X marked the spot' of approximately $38,000, a quantity of marked 'bait money' from the First National Bank in Niles, a .38-caliber Charter Arms revolver later identified as the weapon used to kill Trooper DeVries, a pair of black gloves and some currency wrappers.

A suppression hearing was held on April 19, 1973, to determine the admissibility of the letters and the physical evidence relating to them. It was [63 MICHAPP 514] argued at the hearing, as it is urged on appeal, that the defendant had a reasonable expectation of privacy with regard to his manila folder and that the seizure was a violation of his Fourth Amendment rights. ¹

Search and seizure questions arising from within the walls of a jail or prison are subject to the same constitutional analysis as those problems which arise in free society. Cf. United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974); People v. Trudeau, 385 Mich. 276, 281, 187 N.W.2d 890 (1971), Cert. den. 405 U.S. 965, 92 S.Ct. 1169, 31 L.Ed.2d 240 (1972). The initial inquiry is whether or not the police conduct violated the defendant's reasonable expectation of privacy? Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), People v. Krontz, 50 Mich.App. 495, 498, 213 N.W.2d 593 (1973). Our Supreme Court has recognized an incustody defendant's reasonable expectation of privacy with regards to the shoes on his feet in People v. Trudeau, supra, and those lying in his closet in People v. Eddington, 387 Mich. 551, 198 N.W.2d 297 (1972). But these cases do not mandate a holding that a similar expectation exists with respect to items Carried by a jail inmate while on his way to a meeting with a visitor or his attorney. The issue is whether or not the governmental intrusion on the privacy of the inmate is justified under the circumstances of this case.

The preservation of the social order through [63 MICHAPP 515] enforcement of the criminal law is one of the primary functions of government. It follows that the maintenance of penal institutions is not only within the constitutional powers of government but even essential to the accomplishment of its fundamental responsibilities. Among the substantial and important government interests involved in the maintenance of penal institutions are the 'preservation of internal order and discipline, the maintenance of institutional security against escape or unauthorized entry'. Cf. Procunier v. Martinez, U.S. 396, 412, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). The legitimate interest of the government in 'institutional security' and 'internal order and discipline' makes it not only reasonable but also necessary that jail authorities have the right to search an inmate both immediately prior to and immediately after allowing him to meet with someone who comes into the jail from outside the jail enclosure and who will leave the jail enclosure to return once again to the outside world after the meeting is concluded. How else could the smuggling of weapons, drugs or other contraband be adequately controlled?

We find that under the circumstances of this case the defendant had no reasonable expectation of privacy with respect to the folder that he was carrying. Accordingly the defendant's Fourth Amendment rights were not violated by the deputy's inspection of that folder prior to allowing the defendant to meet with his attorney. ²

We must consider, however, whether or not the jail authorities had the right to confiscate, open, and read the letter which defendant was obviously [63 MICHAPP 516] attempting to smuggle out of the jail in contravention of jail regulations. We conclude that they did.

In Procunier v. Martinez, supra, the United States Supreme Court recognized the general right of prison authorities to open and read prisoner mail ³ although the Court there held that censorship of such mail was justified only if certain criteria were met. ⁴ Since we are not concerned here with the censorship of defendant's letter, but rather with the right of the jail authorities to open and read it, we need not discuss the criteria set down in Procunier.

Suffice it to say that having come into the possession of defendant's letter which was fully addressed, sealed and stamped and ready for deposit in the United States mail the jail authorities had the right to subject it to the normal procedures[63 MICHAPP 517] --of which defendant was well aware ⁵--in order to determine whether it contained information inimical to their legitimate interest in the preservation of internal security, order and discipline.

Finally, we must determine whether or not the information contained in the letter was admissible in evidence at the defendant's trial. The reported cases ⁶--including one recently decided by a panel of this Court ⁷--which have considered the admissibility in evidence of a letter seized from a person awaiting trial have uniformly held such letters to be admissible and we so hold in this case.

[63 MICHAPP 518] We further conclude that even if there had been error in admitting the evidence relating to the letters, reversal is not warranted because the error, if any, should be considered--in the literal meaning of the word--'harmless'. We do not reach such a result capriciously but only after thoughtfully applying the two-part test discussed in People v. Mobley, 390 Mich. 57, 210 N.W.2d 327 (1973); People v. Wichman, 15 Mich.App. 110, 166 N.W.2d 298 (1968); People v. Swan, 56 Mich.App. 22, 223 N.W.2d 346 (1974).

First, the alleged error would not have been so offensive to the maintenance of a sound judicial process that it could not, in any case, be regarded as harmless. It was not deliberately injected into the proceedings by the prosecutor, it did not deprive the defendant of a fundamental element of the adversary process such as the right to cross-examine witnesses against him, and, since the defendant waived his right to a trial by jury it could not have effectively deprived him of that right. Cf. People v. Swan, supra, p. 32, 223 N.W.2d 346, and fns. 6, 7, 8 and 9.

Second, we unequivocally find that the claimed error would have been 'harmless beyond a reasonable doubt'. ⁸ Oliver tried his case before the bench and not before a jury. The introduction of the letters, and evidence relevant thereto, did not contribute to this defendant's conviction. That much is obvious from the trial court's opinion which virtually catalogs a series of eyewitness...