People v. Barbat

49 Mich. App. 519 (1973) 212 N.W.2d 318 PEOPLE v. BARBAT PEOPLE v. UNSWORTH Docket Nos. 12656, 12657. Michigan Court of Appeals. Decided September 25, 1973. Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Patricia J. Boyle, Assistant Prosecuting Attorney, for the people. Michael C. Moran, Assistant State Appellate Defender, for defendants. Before: V.J. BRENNAN, P.J., and T.M. BURNS and ADAMS,[*] JJ. Leave to appeal applied for. V.J. BRENNAN, P.J. We concur, and adopt Justice ADAMS' opinion in its entirety except as to the disposition of issue number 2. That issue being whether the trial court erred in admitting defendant *522 Unsworth's boots and whether the officers had probable cause to seize the boots. The defendant in her brief relies on People v Trudeau, 385 Mich 276; 187 NW2d 890 (1971), contending that here the viewing and seizing of the boots constituted an illegal search and seizure because it was warrantless. We feel, however, that the viewing of the boots was not a search; and, after examining the record, find that the viewing was reasonable. We point out that at the time the defendant Unsworth was being interviewed by the detectives at the Dearborn police station, she had voluntarily appeared. The officers also had in their possession a description given by witnesses who were in the bar on the morning of the murders, which description fit the defendant Unsworth. During this interview, one of the officers observed the sole of her boot and recognized that design as being similar to the design of the boot imprint that was found by the garage in the snow. Upon this observation, he placed the defendant under arrest and asked her for the boots. Armed with the above information as well as other specific facts, the officers had reasonable cause to take immediate steps to retrieve and examine the boots. In People v Eddington, 387 Mich 551; 198 NW2d 297 (1972), the Court points out that where a detective had seized and examined the shoes of the defendant at the defendant's apartment they consider the reasonableness of this seizure in the light of all of the circumstances and in that case found that he had to act with dispatch because the occasion warranted it. We point out that had the officers, at the time of their examination of defendant's boots, not done so, the evidence could very *523 well have been lost; the officers here "acted reasonably and with the dispatch the occasion warranted". Moreover, unlike People v Trudeau, supra, where the officer was acting only on the similarity in the modus operandi of the crime for which Trudeau was under arrest, the officers in this case had more than a mere suspicion of defendant's involvement. We have examined the facts and the record in this matter and find that it was not error to admit defendant Unsworth's boots in evidence. Conviction affirmed. T.M. BURNS, J., concurred. ADAMS, J. (concurring in part and dissenting in part). Statement of Facts At approximately 9:35 a.m. on January 29, 1971, police officers arrived at Solomie's Bar in Dearborn, Michigan, to investigate the slayings of bar patron Lawrence Suprenant and the bar's co-owner, Maria Solomie. Autopsies performed upon the victims indicated that Suprenant died of a stab wound in his neck and a gunshot wound in his head, while Mrs. Solomie was killed by a stab wound in her neck. During their investigation, police officers discovered several footprints of recent origin in snow on the floor of a garage owned by Mrs. Solomie. The officers measured and photographed these footprints. Two of them clearly displayed a wavy ripple pattern similar to that made by the sole of a woman's shoe-boot. Subsequent comparison of these prints with footwear owned by Mrs. Solomie and with boots owned by Mrs. Pat Baker (at whose *524 home defendant Barbat resided) eliminated the possibility that either of them had made the footprints. Dearborn police officers learned that defendant Unsworth had been seen with defendant Barbat in Solomie's Bar on the night of January 28, 1971, and at that time she had been wearing a pair of knee-high shoe-boots. They telephoned Mrs. Unsworth on the afternoon of January 29, explained that they wished to talk with her about the slayings and, when she agreed, drove her from her home to the police station. Interrogation of Mrs. Unsworth was conducted by Detective Sergeants James Hughes and Robert Wancha. Both had observed the footprints inside the Solomie garage on the previous day. At one point during the questioning, Hughes asked Mrs. Unsworth if he could observe the bottom of her boot. She raised her boot to permit his inspection. Immediately after viewing the sole of the boot, the interrogating officers arrested Mrs. Unsworth and confiscated her boots. They released her later that same afternoon, but retained her boots. Based upon their preliminary investigation, the police became suspicious of Michael Barbat, who resided in a room at the home of Mr. and Mrs. Robert Baker. Scientific analysis of some papers found strewn about the floor of the bar disclosed the presence of a distinct diamond-shaped impression apparently caused by the imprint of a shoe. Since this peculiar pattern was determined not to have been made by the shoes of victim Suprenant, police suspicion focused on Barbat. On February 6, 1971 Detective Hughes — without a search warrant but with the permission of Mr. Baker — removed a pair of Barbat's shoes from a closet area shared by Barbat and the Bakers. *525 Police had earlier removed some of Mrs. Baker's clothing from this closet for investigation. Mrs. Baker described this area as follows: "Q. Where did Nello stay? "A. In the spare bedroom. "Q. Where is the spare bedroom relative to the stairs that go up to the attic? "A. It's right off the bedroom, the stairway to the attic. "Q. Now, are those stairs situated in a kind of closet? "A. Yes. "Q. Is that closet a part of the bedroom or is that off of the bedroom. "A. It's off the bedroom. "Q. All right. There is also a closet in the bedroom? "A. No. "Q. Keep any clothes in that closet in which the stairs are in? "A. Yes. "Q. Keep a lot of clothes there? "A. Enough, it's full practically. "Q. All right. You own a black coat? "A. Yes. "Q. Black skirt? "A. Yes. "Q. Where do you keep that black coat ordinarily? "A. In the spare bedroom. "Q. In the one where Nello was staying? "A. Yes. "Q. Police ever get that coat? "A. Yes. "Q. And that's the same coat that was in the bedroom where Nello was staying? "A. Yes. "Q. And the skirt? "A. I think it was with it." Detective Hughes described the arrangement of the Baker house in the following language: *526 "Q. Tell us about the layout of the downstairs of the Baker house. "A. The layout? "Q. Yes. "A. The house at 12929 Heyden, it faces east, the front of the house faces east. There is an enclosed porch on the front. You enter the front door into a living room on your right. To the left is a bedroom. This is occupied by Pat and Bob Baker. West of the living room is a dining room. To the south of that dining room is another sleeping room, or bedroom. You enter that through some folding doors. There is another folding door on the south side of that room. It is about a 9 X 9 foot room. "Q. That is a so-called spare bedroom? "A. Yes. "Q. What is through the second folding door? "A. There is a stairway that goes up to the attic and at the bottom of the stairway, outside the bedroom, is an area that is used as a closet where Pat Baker, Bob Baker and Nello Barbat would keep their clothing. To the west of the dining room is a kitchen. On the outside of that part of the building is a bathroom. At the rear of the building is an enclosed porch that seems to serve as a utility room." The defendants were arrested and charged with two counts of first-degree murder in the perpetration of a robbery (MCLA 750.316; MSA 28.548). Both defendants underwent a joint preliminary examination on April 2, 1971. They were bound over to circuit court by the examining magistrate. Their cases were ordered consolidated for trial. Prior to trial defendant Unsworth's attorney filed a motion to suppress all evidence concerning the boots and additionally moved to suppress certain photographs of the victims' bodies. The motion was denied by the trial judge. Defendant Unsworth's boots were received into evidence and were the subject of much trial testimony, *527 including that of a Michigan State Police expert who stated that the photographed footprints could have been made by Mrs. Unsworth's boots. Defendant Barbat's trial counsel objected to the admission of Barbat's shoes but was overruled. Plaintiff's expert witness testified that the shoes could have made the imprint found on papers scattered about the floor of Solomie's Bar. The jury convicted the defendants of first-degree murder on each of the two counts. Both defendants appeal as of right. Issue I Did the trial court err by admitting into evidence a one-inch portion of a victim's skull and photographs of the victims' bodies over objections that the exhibits were gruesome and inflammatory in nature? The prosecutor offered in evidence a number of black-and-white photographs to orient the jury to the location of the bodies in the bar. The defense objected to these photographs as being gruesome and inflammatory and offered to enter into a stipulation for their stated purpose. The prosecution refused to stipulate. The photographs which were admitted into evidence show the bodies as they were found at the scene of the crime. As was noted recently by the Michigan Supreme Court in People v Eddington, 387 Mich 551; 198 NW2d 297 (1972), the people are not required to present their case on any theory of alternative proofs. We have viewed the photographs. They depict the corpus delicti and the areas around the bodies from different angles. The eight photographs are somewhat repetitive. Half of this number *528 might well have sufficed. While we would caution trial judges to restrict such evidence to that which is essential, we are unable to find that the trial judge exceeded the bounds of his discretion by admitting the photographs into evidence. The trial judge also admitted into evidence a one-inch section of a victim's skull in which was embedded the tip of a knife. The use of a knife was material to the prosecution's theory of armed robbery. A knife found at the scene matched the tip of the embedded blade. The defense offered to stipulate to these facts, but the prosecutor refused. The prosecution might well have agreed to stipulate. What is gruesome and inflammatory to one individual is not necessarily so to another since this is largely a subjective matter. The exhibit was prepared in such a way as to be no different from hundreds of exhibits from antiquity or from science to be found in museums. Viewed by itself, it barely connotes the violent death of the victim. Although this issue might perhaps better have been handled by stipulation, we do not find the exhibit to be gruesome and inflammatory and therefore find no error. Issue II Were defendant Unsworth's boots improperly admitted into evidence? We find it unnecessary to determine whether defendant Unsworth went to the police station voluntarily, was warned as to her rights, or voluntarily permitted the police to see the sole of her boot. The seizure of the boots can only be justified as having occurred in connection with a valid arrest as the police had no search warrant for them. People v Bendoni, 263 Mich 295; 248 NW 627 (1933); People v Stein, 265 Mich 610; 251 NW *529 788 (1933). The salient fact is that she was released within a few hours the same afternoon the police arrested her and confiscated her boots. The police officers' speedy release of defendant Unsworth constituted an admission that, at that time, they had no probable cause to arrest her and seize her boots. The trial court erred by admitting them into evidence. People v Trudeau, 385 Mich 276; 187 NW2d 890 (1971). All of the evidence leading to defendant Unsworth's conviction is circumstantial. The boots were a vital link in the chain of evidence. The error must be held to be reversible. Issue III Did the trial court err by admitting into evidence defendant Barbat's shoes found in a closet shared by the residents of the house, where police had the homeowner's consent to search but not the consent of Barbat? We have been at pains in the statement of facts in this case to depict in detail the situation with regard to the Baker residence and defendant Barbat's room. As has been shown, the Bakers and Barbat all kept their clothes in the closet from which the shoes were seized. Although consent to a search must ordinarily be given by the party affected, there is an exception to the general rule where a third party consents and the consenting party's equal right of possession or control of the premises is shown. People v Bunker, 22 Mich App 396; 177 NW2d 644 (1970); Frazier v Cupp, 394 US 731; 89 S Ct 1420; 22 L Ed 2d 684 (1969); United States v Mazurkiewicz, 431 F2d 839 (CA 3, 1970); White v United States, 444 F2d 724 (CA 10, 1971); United States v Mix, 446 F2d 615 (CA 5, 1971); United States v Novick, 450 F2d 1111 (CA 9, 1971); United States v Gargiso, 456 F2d 584 (CA 2, 1972). *530 While it is argued that the contemporaneous arrest of the consenting third party is a necessary prerequisite to the validity of the search, we do not believe the rule to be that narrow. The Constitution of the United States and that of this state forbid unreasonable searches. US Const, Am IV; Const 1963, art 1, § 11. We believe it would be unreasonable to require the police to obtain consent from all of the persons having joint access to a given area before a search could be carried out, particularly in a case such as this one where police suspicion had focused on more than one person. The concept of common use must, of course, be examined in the light of the facts of the particular case. However, here there is no question but that either of the Bakers had full access to the closet and could have gone to it and obtained the shoes for the police. The consent to search was not violative of defendant Barbat's rights. The shoes were properly admitted into evidence. Issue IV Did the trial court err by permitting the introduction into evidence of Mrs. Unsworth's prior felony conviction to impeach her credibility? During her direct examination, defendant Unsworth admitted a recent conviction of assault with intent to commit great bodily harm less than murder. MCLA 750.84; MSA 28.279. She now alleges that evidence of this conviction was improperly introduced for impeachment purposes. The issue of admissibility of prior convictions for the purpose of testing the credibility of a defendant who testifies in his own behalf has been repeatedly considered by the courts of this state. Such convictions may be shown. MCLA 600.2158; *531 MSA 27A.2158; People v Roney, 7 Mich App 678; 153 NW2d 175 (1967). The trial judge instructed the jury to consider the prior conviction only in assessing Mrs. Unsworth's credibility. There was no error. The conviction of Michael Barbat is affirmed. The conviction of Eula Unsworth should be vacated and her case remanded to the trial court for a new trial. NOTES [*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.