People v. Reed

• Decision Date: 30 August 1973
• Docket Number: No. 1,Docket No. 14166--7,1
• Citation: 49 Mich.App. 308,212 N.W.2d 41
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ike Lawrence REED, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 41

212 N.W.2d 41

49 Mich.App. 308

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ike Lawrence REED, Defendant-Appellant.

Docket No. 14166--7.

Court of Appeals of Michigan, Division No. 1.

Aug. 30, 1973.

Released for Publication Nov. 20, 1973.

Leave to Appeal Granted Jan. 28, 1974.

Carl Ziemba, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Leonard Myers, Asst. Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P.J., and McGREGOR and ADAMS,* JJ.

PER CURIAM.

Defendant appeals as of right from his conviction by jury of first-degree murder. M.C.L.A. § 750.316; M.S.A. § 28.548.

Early on the morning of June 8, 1971, police officers discovered the bodies of Barbara Reed and Glenn Williams lying in an alley near the rear of an apartment building in the City of Detroit. Later that same day police discovered bloodstains and drag marks indicating that the bodies had been dragged into the alley from the apartment building. After searching the basement and three of the four apartments in the building without success, the officers observed defendant approach the door to his apartment. They allegedly requested and received defendant's permission to search the premises. Defendant was arrested after the police noticed a pair of trousers with bloodstains soaking in a sink, and defendant equivocated as to his ownership of the trousers and the origin of the bloodstains.

Defendant was tried by a jury on two separate informations charging him with first-degree murder. Charles Long and John Zellner, testifying for the prosecution, stated that on the night of June 7, 1971 they went to the apartment in question and were admitted by defendant, who was holding a revolver in his hand and immediately told them that he wanted to 'off' somebody in the back room. The trio proceeded to the rear of the apartment and observed Mrs. Reed and Williams in bed. Defendant allegedly shot Williams and with varying degrees of assistance by Long and Zellner, strangled Mrs. Reed, after which the witnesses dragged the bodies into the alley and cleaned up the blood inside the apartment. Zellner and Long attributed their participation in the macabre events to their fear of defendant.

Defendant did not testify. He was connvicted of first-degree murder as to both victims, was sentenced to life imprisonment in each case, and now appeals.

Issue I

Did defendant validly consent to the search of his apartment?

By way of a pretrial motion to suppress certain incriminating evidence seized by police officers in his apartment, defendant contended that he did not consent to the search and argued that the evidence had therefore been improperly seized. At an evidentiary hearing on defendant's motion, Detective Sergeant Lloyd Clemons testified that he observed defendant approach the apartment door and insert his key in the lock, whereupon Clemons identified himself as a police officer, showed defendant his badge and identification card, asked if defendant lived there and, when defendant responded affirmatively, requested and received permission 'to come in and take a look around'. Officer Clemons stated that the only persons present in the hall at this time were himself, his police partner, and defendant. Defendant was not advised of his Miranda ¹ rights at the time of entry because he was not suspected of anything at that time.

Officer Clemons' testimony was corroborated by his partner, Officer Gilbert Hill. Hill stated that defendant had not only consented to the officers' entry, but 'was quite courteous and genial' and was 'quite cooperative'. Hill indicated that at the time of entry he, Clemons, defendant, and at least one other plain clothes officer were present in the hallway.

The manager of the apartment building first stated that 'they (the officers) was not belligerent, they didn't push him around or anything, they just told him to open the door and he opened it', but later stated that he neither heard any conversation at all between the officers and defendant nor observed anyone enter defendant's apartment at the time in question.

Defendant testified that two detectives and two patrolmen ordered him to open the door, that he told them they could not enter until they showed him a search warrant, but that the officers pushed their way into the apartment.

At the conclusion of the evidentiary hearing, the trial court ruled that defendant had validly consented to a search of his apartment. Defendant challenges the accuracy of this determination.

Defendant argued at the evidentiary hearing and now contends that he could not validly have consented to the search since the police did not first inform him that he had a constitutional right to refuse permission to search in the absence of a search warrant. ² In Schneckloth v. Bustamonte, 412 U.S. 218, 248--249, 93 S.Ct 2041, 2059, 36 L.Ed.2d 854, 875 (1973), the United States Supreme Court recently resolved this issue adversely to defendant's contention. The Court there concluded:

'Our decision today is a narrow one. We hold only that when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.'

The law concerning consensual searches is stated in People v. Kaigler, 368 Mich. 281, 294, 118 N.W.2d 406, 413 (1962), as follows:

'It is elementary that the obtaining of a search warrant may be waived by an individual and he may give his consent to search and seizure; but such waiver or consent must be proved by clear and positive testimony And there must be no duress or coercion, actual or implied, and the prosecutor must show a consent that is unequivocal and specific, freely and intelligently given.' (Emphasis by the Court.)

In the light of the above-quoted standards, the trial judge did not err in deciding that defendant had validly consented to a search of his apartment.

Issue II

Did the trial court err by allowing into evidence statements made by defendant before he was advised of his constitutional rights?

During trial, defense counsel demanded and obtained an evidentiary hearing in the absence of the jury to determine the admissibility of certain statements which defendant made to police officers shortly after they entered his apartment and before they advised him of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966). At this hearing, Officer Hill testified that defendant cooperated fully with their search of his apartment by walking about with the officers and pointing things out to them. The officers noticed a pair of trousers bearing apparent bloodstains soaking in the kitchen sink. Officer Hill testified regarding this incident as follows:

'Q. What happened when you noticed the pants in the kitchen?

'A. We asked Mr. Reed either if those were his trousers or whose trousers they were or whatever.

'Q. Did you receive a reply?

'A. Yes, sir. * * * He said they were his trousers and that the stains were blood that he had gotten on them at his home on Marlborough when he and his little cousin were playing around with the lawnmower.

'Q. Did you make any response to that answer?

'A. I did.

'Q. What was that, sir?

'A. I told him that if the blood on the trousers and the blood in the water matched the blood of the deceased, he would be in trouble.

'Q. What did Mr. Reed do at this time, if anything?

'A. He changed his story about the trousers.

'Q. What did he indicate to you the second time?

'A. That he found the trousers on the back steps.

'Detective Hill: Found the trousers on the back steps of 959 Emerson.

'Q. (by Mr. Bahen): Did he indicate to you why he picked them up?

'A. Yes. He said that they appeared they might fit him. So he brought them in to soak the blood out of them.

'Q. Now, at this time, was Mr. Reed under arrest when he made this second statement?

'A. No. He was not placed--he wasn't placed under arrest or restricted at that time.'

The witness stated that at the time of these statements he, his police partner, and two or three other officers were on the premises. According to Hill, defendant was advised of his Miranda rights immediately after he changed his story concerning ownership of the trousers, but he was not arrested until later when a police chemist identified the stains as blood.

On cross-examination Officer Hill related that before entering defendant's apartment he and his partner had searched the rest of the building without discovering evidence of a homicide, and that upon entering defendant's premises the physical layout caused him to conclude immediately that the apartment was a 'narcotics pad'. After walking through the living room and dining room without discerning evidence of the killings, Officer Hill entered the kitchen and noticed the trousers bearing what appeared to be bloodstains. The witness testified:

'Q. Did the thought occur to you at that time, Sergeant Hill, that the pants were soaking in order to get blood out of them?

'A. Yes.

'Q. Did you think at that point that you were getting closer and warmer to a discovery or a determination of the place of the killings of those two people?

'A. We felt a lot better--I felt a lot better.

'Q. You felt you were closer?

'A. I felt better.

'Q. Answer the question, Sergeant Hill. Did you feel closer?

'A. No. I didn't feel that close at that time.

'Q. What do you mean you 'felt better'?

'A...