People v. Van Auker
| Decision Date | 04 February 1982 |
| Docket Number | Docket No. 44917 |
| Citation | 314 N.W.2d 657,111 Mich.App. 478 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Reeves VAN AUKER, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter D. Houk, Pros. Atty., and Janis L. Blough, Chief Asst. Pros. Atty., for the people.
James Krogsrud, Asst. State Appellate Defender, and John Nussbaumer, Research Atty., Detroit, for defendant-appellant.
Before BEASLEY, P. J., and KELLY and BAGULEY, * JJ.
Defendant, David Reeves Van Auker, was found guilty by a jury of assault with intent to do great bodily harm less than murder, in violation of M.C.L. § 750.84; M.S.A. § 28.279. Shortly thereafter, defendant was convicted by a second jury as an habitual (fourth felony) offender, in violation of M.C.L. § 769.12; M.S.A. § 28.1084. Defendant was sentenced to a flat term of 10 years in prison, with credit for time already served. He now appeals as of right.
Defendant's first claim is that the police officers' forcible, warrantless entry into the apartment where he was staying in order to arrest him violated the Fourth Amendment 1 and that the trial court erred in admitting evidence obtained as a result of the arrest. We agree.
Defendant was arrested after the police made a forced, warrantless entry into an apartment rented by his girlfriend's cousin. Defendant and his girlfriend both testified that they had been staying at this apartment for a couple of days prior to defendant's arrest.
After the police searched the apartment for defendant without success, they searched the attic section of the multi-unit dwelling house in which the apartment was located. Defendant was found hiding behind a chimney in a second attic.
The arresting officer reached defendant's hiding place by crawling through a two-by-three-foot access hole he found in a closet in defendant's girlfriend's cousin's apartment. This access hole opened into a crawl space that extended the full length of the dwelling house. The officer then went through a second two-by-three-foot access hole which led from the crawl space up into the second attic where defendant was found.
In Payton v. New York, 2 the United States Supreme Court held that a warrantless, nonconsensual entry into a suspect's home to make a routine felony arrest was unconstitutional. The court stated:
Although it might be argued that defendant did not have a "legitimate expectation of privacy" in the second attic of the dwelling house which would give him standing to challenge the admission of evidence under the rule stated in Rakas v. Illinois, 3 he did have a legitimate expectation of privacy in the apartment where he had been staying. It was only through forcible, warrantless entry and search of the apartment that the police were able to find and gain access to defendant's hiding place.
We reject the people's contention that Payton, supra, made a drastic change in the law and should not be applied retroactively to the warrantless entry in the present case, which occurred prior to the decision in Payton. 4
We also reject the people's contention that there were exigent circumstances that would permit the warrantless, nonconsensual entry into the apartment. 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 accused. 5 The people contend that the warrantless entry was necessary to prevent defendant's escape and to prevent destruction of evidence.
There was testimony that at least five police officers were present at the time of defendant's arrest and that there was only one entrance to the apartment in which he was hiding. Under these circumstances, we believe that the officers could have kept watch over the building and prevented any attempted escape while waiting for an arrest warrant to be issued.
The people also contend that immediate entry was necessary to prevent the destruction of the bloodstained money which was later admitted as evidence at trial. However, unlike People v. Hopko, 6 where the police knew that there were marijuana plants that defendant could destroy if they did not act immediately, the police here did not know that defendant had the bloodstained money in his possession until after they had arrested him.
To reach a finding of exigent circumstances in such a situation would allow police officers to make warrantless entries to effect arrests whenever they suspected that a suspect might have evidence in his possession which might be destroyed. We decline to do so.
We note that a search warrant had been sought prior to the officers' entry of the apartment in the present case. A warrant was issued about one hour after defendant's arrest.
Although the trial court erred in admitting into evidence the bloodstained money and testimony that defendant was found hiding in the attic, we find that this error was harmless, in light of the overwhelming evidence of defendant's guilt. 7
Defendant's second claim is that due diligence to locate the victim of the alleged assault, James White, was not shown and that his preliminary examination testimony should not have been read to the jury. This claim is not supported by the record.
Prior to his disappearance, James White had appeared regularly at trial proceedings. The prosecutor had no indication that he would not appear for trial other than letters written by defendant in which he claimed White had told him that he would not appear. Soon after White's absence became known to the prosecutor, the investigating officer in the case began efforts to find him. He and other officers searched for White locally and he made numerous telephone calls to White's brother in Detroit and sisters in Alabama. After one of White's sisters informed the officer that she had received a card from her brother from Atlanta, the officer also sent a LEIN message there where a check was made of local jails. Finally, he took a trip to Alabama and Georgia to personally check files and interview White's sisters and parents.
A review of the record indicates that the prosecution used due diligence in attempting to locate White and that the defense had extensively cross-examined him at the preliminary examination. Under these circumstances, we find that the trial court did not clearly abuse its discretion in excusing White's production at trial and in ruling that his preliminary examination testimony was admissible. 8
Defendant's third claim is that the prosecutor committed reversible error by eliciting testimony regarding defendant's refusal to give a tape recorded statement. He contends that this was an impermissible comment on his exercise of his right to remain silent under the rule in People v. Bobo. 9 The complained of testimony, which was not objected to at trial, reads as follows:
Defense counsel's cross-examination of this witness began with the following exchange:
Defendant did make a statement to the police and only refused to give a taped statement. A similar situation was addressed by this Court in People v. Collier. 10 There, it was claimed that the prosecutor's comment during his opening statement that a witness would testify that defendant said he would not sign a statement he made unless he first consulted with an attorney and the witness's subsequent testimony to that effect were impermissible comments on defendant's right to remain silent under the rule in Bobo, supra. This Court found Bobo inapplicable, as silence was not involved. We find the same reasoning to be applicable in the present case and conclude that this issue is without merit.
Defendant's fourth claim is that the prosecutor deprived him of a fair trial by asking questions which insinuated that defendant had stolen a friend's car and by making a comment during closing arguments which insinuated that defense counsel was in league with defendant in trying to "run a con" on the jury.
No objections were raised at trial. Had defense counsel objected, the trial judge could have limited the prosecutor's...
To continue reading
Request your trial
-
People v. Wagner
...record before it that defendant had no constitutionally protectable expectation of privacy in the premises. In People v. Van Auker, 111 Mich.App. 478, 314 N.W.2d 478 (1981), this Court held that the defendant had a "legitimate expectation of privacy" sufficient to confer standing where the ......
-
People v. Roupe
...on the habitual offender charge, defendant would have been entitled to 20 peremptory challenges at that time. People v. Van Auker, 111 Mich.App. 478, 487, 314 N.W.2d 657 (1981), rev'd on other grounds 419 Mich. 918, 354 N.W.2d 258 (1984). As the trial judge complied with his duty to allow d......
-
People v. Marji, Docket Nos. 97778
...argue that a defendant's story is unbelievable as long as the argument is based on the evidence. Moreover, in People v. Van Auker, 111 Mich.App. 478, 485-486, 314 N.W.2d 657 (1981), lv. den., 413 Mich. 879 (1982), this Court found that the prosecutor's objected-to comments that defense coun......
-
People v. Leroy
...N.W.2d 793 (1979).14 Ungurean, supra, 51 Mich.App. at p. 266, 214 N.W.2d 873.15 414 Mich. 393, 325 N.W.2d 125 (1982).16 111 Mich.App. 478, 485-487, 314 N.W.2d 657 (1981).17 80 Mich.App. 228, 231-233, 263 N.W.2d 40 (1977), lv. den. 406 Mich. 860 (1979).18 387 Mich. 683, 199 N.W.2d 202 (1972)......