People v. Raybon

• Decision Date: 06 July 1983
• Docket Number: Docket No. 55255
• Citation: 125 Mich.App. 295,336 N.W.2d 782
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bernard RAYBON, Defendant-Appellant. 125 Mich.App. 295, 336 N.W.2d 782
• Court: Court of Appeal of Michigan — District of US

Page 782

336 N.W.2d 782

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bernard RAYBON, Defendant-Appellant.

Docket No. 55255.

125 Mich.App. 295, 336 N.W.2d 782

Court of Appeals of Michigan.

Submitted May 5, 1982.

Decided May 3, 1983.

Released for Publication July 6, 1983.

[125 MICHAPP 297] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., E. Grant, Pros. Atty., and Joan L. Wildeboer, Chief Appellate Atty., for the People.

Lester O. Pollak, Jackson, for defendant-appellant.

Before MAHER, P.J., and BRONSON and SNOW ^*, JJ.

SNOW, Judge.

On September 19, 1980, defendant was convicted in a bench trial of armed robbery, contrary to M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. After pleading guilty to being a second felony offender, he was sentenced to 12 to 20 years imprisonment. He appeals as of right.

Defendant first argues that his trial and conviction were barred by double jeopardy. See People v. Benton, 402 Mich. 47, 260 N.W.2d 77 (1977). Defendant was first tried for this offense in June, 1980; this trial ended in a mistrial. On the second day of the earlier trial, a key prosecution witness suffered a heart attack while on the witness stand. This witness had just positively identified defendant as [125 MICHAPP 298] one of the perpetrators' of the bank robbery; she had not yet been cross-examined. After a three-week adjournment, the trial judge conducted a hearing and declared the mistrial.

Defendant argues that the trial judge abused his discretion in declaring the mistrial because there was no manifest necessity and because defendant did not consent to the mistrial. We need not address defendant's second argument because we find that manifest necessity did exist.

The evidence presented at the hearing established that the witness's doctor could not determine when, if ever, the witness could again testify. Defense counsel vehemently opposed the prosecutor's motion for a further adjournment, arguing that such a postponement would deleteriously affect the trial court's perception of the testimony so far presented. The trial court was thus left with two alternatives--either to permit the trial to continue or to declare a mistrial.

Had the trial court adopted the first of these alternatives, defendant's right to confrontation would have been seriously abridged. The witness was one of the few witnesses who saw the bank robber's face and was actually one of the tellers from whom the money was taken. Identification testimony from such a witness must be considered "crucial and devastating". See Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). Defense counsel in the second trial amply demonstrated the necessity for cross-examining this witness. Immediately after the robbery, the witness did not identify defendant as one of the two robbers and was unable to give the police a detailed description of the robber's appearance or clothing. This testimony, which clearly blunted the effect of the witness's positive in-court identification, would [125 MICHAPP 299] not have been presented at the first trial had that trial continued. Furthermore, even had this witness's testimony not been crucial or devastating, allowing a witness's testimony to stand without an opportunity for cross-examination in itself raises serious confrontation problems. Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966).

Defendant next argues that evidence introduced against him at trial should have been suppressed because it was illegally seized and that his right to counsel was denied by an on-the-scene identification without counsel. On March 19, 1980, at 3:40 p.m., two men robbed the City Bank and Trust in Jackson. Witnesses at the scene saw the two men drive away from the bank in a brown car and noted the license plate number. Within five to ten minutes, the police radio broadcasted a report of the bank robbery, a description of the robbers as two armed black males, and the address to which the getaway car was registered.

Immediately after this broadcast, at least seven police officers drove to the address. Three of the officers proceeded directly to the front door with guns drawn while at least three other officers went to the back door. Officer Conant, one of the three officers at the front door, knocked and rang the doorbell. Mrs. Deborah Johnson, the owner of the house, answered the door. Officer Conant later testified that the following exchange then occurred:

"I asked her if she owned a red Fairmont. She stated that she did. I told her that her license number had just been reported as being used in a bank robbery, and she gave me a look of surprise, and I asked her if I could come in. She stepped back and I followed her into the house. Detective Smith and Choate followed me in the front door following her."

[125 MICHAPP 300] The officers followed Mrs. Johnson into her living room. Within 10 to 15 seconds, defendant and codefendant Briston entered the room. After some discussion with Mrs. Johnson, Officer Conant checked with the officers still outside and discovered that the getaway car was in the garage. Upon this discovery, the officers searched the two men for weapons, handcuffed them, placed them in the backseats of two police cars, and sent them back to the City Bank and Trust for the on-the-scene identification.

Immediately after sending defendant and codefendant away, the police searched the entire house to "see if any additional suspect or any other person" was in the house. In one of the bedrooms, the officers saw money wrappers, cash register tapes, and rubberbands lying on the bed. These items were later seized pursuant to a search warrant. Under the same search warrant, the police searched dresser drawers and closets and looked between the mattresses in the same room. They found money, including bait money from the bank robbery, a felt hat, a black coat, and a revolver.

A search without a warrant is unreasonable per se unless it can be justified under one of the exceptions to the search warrant requirement. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). The prosecution contends that the search of the bedroom was justified under the plain view exception.

A plain view search and seizure is justified only when four requirements are met. First, the police must have a lawful right to be where they are when they see the item. People v. Dugan, 102 Mich.App. 497, 302 N.W.2d 209 (1980). Second, the discovery of the item must have been inadvertent. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, [125 MICHAPP 301] 29 L.Ed.2d 564 (1971). Third, seizure of the item is justified only by exigent circumstances. People v. Myshock, 116 Mich.App. 72, 321 N.W.2d 849 (1982). Finally the police must have a reasonable basis for connecting the objects seized with the crime. People v. Secrest, 413 Mich. 521, 321 N.W.2d 368 (1982).

The crucial inquiry in this case focuses on the first requirement. The prosecution argues that the police were lawfully in the house through hot pursuit.

"Hot pursuit" is a form of "exigent circumstances". Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Exigent circumstances are present where immediate action is necessary to (1) protect the police officers or other persons, (2) prevent the loss or destruction of evidence, or (3) prevent the escape of the suspect. People v. Anthony, 120 Mich.App. 207, 327 N.W.2d 441 (1982).

In this case, it cannot be said that the police had to enter Mrs. Johnson's house to prevent the escape of the two suspects or destruction of evidence taken in the robbery, or to protect anyone from the suspects. At the time the police entered the house, they knew of nothing that even suggested the suspects were in the house. The police did not follow the suspects to the robbery scene but instead went directly to the house. In addition, the police arrived at the house in pursuit of a lead (the getaway car was registered to that address) and not in pursuit of the suspects. This was amply demonstrated by the fact that the police never checked to see whether the getaway car was anywhere near the house until sometime after they had entered the house, although, given the short time since the robbery (5 to 10 minutes) and the distance from the robbery scene (1 mile), this [125 MICHAPP 302] would have been the logical investigatory step if the police thought the suspects might be in the area.

Two recent cases support our conclusion that, because the police had no reason to believe the suspects were in Mrs. Johnson's house, they lacked exigent circumstances to enter it. In People v. Anthony, supra, the police were led by a witness to the house of the supposed armed robbers within 15 to 30 minutes of the robbery. The Court noted that the police had no information that anyone had recently entered the house and distinguished the case from the situation in Warden v. Hayden, supra, where the officers' actions "were not directed to a house where the suspect was living but rather where he had entered moments before". People v. Anthony, supra, p. 212, 327 N.W.2d 441. In People v. Woodward, 111 Mich.App. 528, 314 N.W.2d 680 (1981), this Court also declined to find exigent circumstances justifying entry of a house even though the police were led to the defendant's residence by an apprehended suspect shortly after the robbery, and even though the police heard running inside the house immediately after they announced their presence.

Neither do we find that the officers had the right to be in the house through consent. In People v. Carpenter, 120 Mich.App. 574, 327 N.W.2d 523 (1982), four police officers came to the defendant's apartment with their revolvers drawn, announced themselves, and requested admittance. The defendants opened the door, looked at the police, closed the door, removed the security chain lock, and then opened the door for the police to enter. This Court found consent, noting that ...