People v. Woodard

• Decision Date: 26 January 1982
• Docket Number: 50939,Docket Nos. 50898
• Citation: 314 N.W.2d 680,111 Mich.App. 528
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffery WOODARD, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Craig WOODARD, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 680

314 N.W.2d 680

111 Mich.App. 528

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffery WOODARD, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Craig WOODARD, Defendant-Appellant.

Docket Nos. 50898, 50939.

Court of Appeals of Michigan.

Submitted Feb. 3, 1981.

Decided Nov. 30, 1981.

Released for Publication Jan. 26, 1982.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Atty., Appeals, and Anne B. Wetherholt (in Jeffery Woodard), and Timothy A. Baughman (in Craig Woodard), Asst. Pros. Attys., for the People.

Raymond L. Miller, Detroit, for defendant-appellant Jeffery Woodard.

Roman S. Karwowski, Warren, for defendant-appellant Craig Woodard.

Before DANHOF, C. J., and MAHER and BEASLEY, JJ.

MAHER, Judge.

Defendants Jeffery and Craig Woodard were convicted of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, and possession of a firearm in the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2), in a joint jury trial. Defendant Craig Woodard was also convicted of first-degree criminal sexual conduct, M.C.L. § 750.520b; M.S.A. § 28.788(2). They appeal as of right.

Around 4 p. m. on November 9, 1979, four men held up Logan's Hideaway Lounge in Detroit, Michigan. In the course of the robbery one of the men, later identified as Craig Woodard, raped a barmaid. One of the participants in the robbery, James Cottrell, was apprehended shortly thereafter by the police. Cottrell, who later testified against the defendants in exchange for a light sentence, then led the police to the Woodard residence. After announcing themselves as police, the team of officers heard people running around inside the house, prompting the officers to force open the side door. Jeffery and Craig Woodard were then taken into custody by the police, who were acting without an arrest or search warrant. The police took the Woodards downtown and secured a search warrant for the Woodard residence. After searching the Woodard home, the police obtained and executed another search warrant. Each search produced various items of incriminating evidence.

I

Defendant Craig Woodard raises only one claim of error on appeal, contending that the trial court erred in admitting evidence produced by the two searches. Defendant Jeffery Woodard also contends that this evidence was erroneously admitted.

A

The prosecution's initial response is that defendants' failure to object to the admission of this evidence at trial precludes appellate review of the propriety of its admission. We believe that the Court of Appeals in People v. Bukoski, 41 Mich.App. 498, 200 N.W.2d 373 (1972), enunciated the correct standard for determining the effect of failure to challenge admission of evidence at trial:

"Where a defendant raises a constitutional question for the first time on appeal, we must ask two questions: (1) was the evidence decisive, and (2) was the evidence erroneously admitted into evidence." Id., 501, 200 N.W.2d 373.

The evidence seized pursuant to the search warrants included numerous items taken from the robbery victims. These items supplied important corroboration of the testimony by the robbery victims and accomplice Cottrell linking defendants to the crime. Under these circumstances we must conclude that the exclusion of this evidence "could make a difference in a new trial". Bukoski, supra, 501, 200 N.W.2d 373. Consequently, we must consider the validity of the two searches.

B

Defendants argue that their arrest was illegal, and that therefore the evidence obtained in the subsequent searches must be excluded as "fruit of the poisonous tree". We address first the legality of the arrest.

In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the Supreme Court held that, absent exigent circumstances, a warrantless, nonconsensual entry into a suspect's home to make a routine felony arrest is prohibited by the Fourth Amendment. Since no exigent circumstances existed in the present case, the warrantless arrest of defendants Jeffery and Craig Woodard was clearly unconstitutional under Payton. The prosecution, however, contends that the Payton holding "is not retroactive", and that the warrantless arrest of both defendants was therefore "proper". We cannot agree. The Payton Court did not announce a new rule of law but merely clarified a controversial area of Fourth Amendment doctrine. Payton did not overrule any longstanding precedents, nor did the Court set forth a new prophylactic rule, as in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), or Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Consequently, retroactivity analysis is inappropriate.

Moreover, even if we lacked the mandate of the Payton decision, we would be constrained to hold that the instant arrests violated the Fourth Amendment. Prior to Payton, five of the seven United States Courts of Appeals that had considered the question had expressed the opinion that such arrests are unconstitutional. ¹ As early as 1974, the Sixth Circuit had held that such arrests are "per se unreasonable unless 'exigent circumstances' justify the failure to obtain a warrant". ² It would defeat the deterrent purposes of the exclusionary rule to permit the police to ignore the clear command of the local Federal Circuit Court of Appeals. Therefore, even if Payton had never been decided, we would nonetheless hold, as a matter of first impression, that these arrests were illegal.

C

Defendants argue that their arrest was illegal and that therefore the evidence obtained in the two searches must be suppressed as "fruit of the poisonous tree". Although we have concluded that the warrantless arrest was illegal, evidence obtained in the subsequent searches need not be suppressed unless this evidence "was procured by an exploitation of the illegality of the arrest (and not) by means sufficiently distinguishable to be purged of the primary taint". People v. Brooks, 70 Mich.App. 7, 11, 245 N.W.2d 384 (1976), rev'd on other grounds 405 Mich. 225, 274 N.W.2d 430 (1979). ³ It is therefore necessary to examine each warrant in order to determine whether either was obtained through the use of information acquired in the course of an illegal arrest.

Generally, "when a search warrant is based partially on tainted evidence and partially on evidence arising from independent sources, '(i)f the lawfully obtained information amounts to probable cause and would have justified issuance of the warrant apart from the tainted information, the evidence seized pursuant to the warrant is admitted' ". United States v. Williams, 633 F.2d 742, 745 (CA 8, 1980) (citation omitted). The Sixth Circuit has taken a contrary position, insisting on suppression where tainted information comprises more than a very minor portion of the information justifying issuance of a warrant, ⁴ or requiring exclusion where there is doubt in regard to whether sufficient probable cause would have existed if the tainted information had not been included in the affidavit. ⁵

We need not choose between these approaches at this time, since the affidavits relied upon in the instant case contained no information obtained in the course of the unlawful arrests. Under these circumstances we believe that the evidence obtained in the two searches was not procured "by an exploitation of (the) illegality (of the arrests)", ⁶ and that therefore it need not be suppressed as fruit of a poisonous tree. ⁷

II

Defendant Jeffery Woodard raises five additional allegations of error, which we shall address in order. First, defendant contends that the trial court erred in failing to dismiss the case against him after a prosecution witness, James Cottrell, testified that defendant was not present at the robbery. Defendant essentially claims that there was insufficient evidence linking him to the crime. Cottrell, defendant's accomplice, had testified earlier that defendant had participated in the robbery. Robbery victim David Hartfield also identified defendant as one of the robbers. Moreover, substantial corroborative evidence was presented by the prosecution. We find that there was sufficient evidence for the jury to reasonably infer defendant's guilt beyond a reasonable doubt.

Defendant next contends that the trial court erred in admitting a weapon into evidence inasmuch as there was insufficient testimony to establish that the weapon was involved in the robbery.

Accomplice James Cottrell testified that one of the robbers had a "carbine". An officer testified that the challenged exhibit was one of the weapons found in the Woodards' basement, and referred to the exhibit as a "survival rifle". The trial court, upon viewing the exhibit, admitted it into evidence on the ground that Cottrell had testified that one of the robbers had a "carbine".

Although there was perhaps an inadequate foundation for the admission of this evidence, we believe that its admission could not have affected the verdict of a rational jury. Consequently, we find that any error in admitting this exhibit was harmless beyond a reasonable doubt.

Defendant next contends that the trial court erred in denying his request to instruct the jury that "it is not against the law for people to have guns in their house". A prosecution witness had testified that a quantity of weapons had been discovered in the Woodard residence, and defendant sought this instruction to remove any prejudice caused by this testimony.

We feel that such an instruction would have served only to confuse the jury. Defendants were charged with using several of the weapons found in the house to commit the armed robbery. They were not charged with any crimes arising out of possession of any of the other weapons. We also observe that the requested instruction is inaccurate and misleading, since it is unlawful to possess a sawed-off shotgun or an unregistered...