People v. Carpenter

327 N.W.2d 523, 120 Mich. App. 574
CourtMichigan Court of Appeals
DecidedOctober 19, 1982
DocketDocket 54437
StatusPublished
Cited by19 cases

This text of 327 N.W.2d 523 (People v. Carpenter) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Carpenter, 327 N.W.2d 523, 120 Mich. App. 574 (Mich. Ct. App. 1982).

Opinions

Per Curiam.

Defendant Gerald Carpenter and codefendant Lloyd George Zimmerman were convicted by a jury of four counts of armed robbery, MCL 750.529; MSA 28.797, and one count of felony-firearm, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to a prison term of from two to ten years on each armed robbery conviction, to be served concurrently, and a mandatory two year prison term on the felony-firearm conviction.

Defendant’s conviction arose out of a robbery of four individuals in the early morning hours at an apartment where one of the victims resided. Zimmerman testified that he participated in the robbery but denied possessing a weapon. He also [577]*577stated that defendant was not with him during the commission of the crime. This supported defendant’s alibi theory that he was not at the scene of the crime but later went with Zimmerman to their apartment, where they were arrested. Zimmerman was renting the apartment where the arrest took place and defendant had been staying there for three or four weeks.

Defendant appeals as of right and presents numerous questions.

I

Did the trial court err by refusing to suppress evidence obtained by the police following an entry of defendant’s residence without a warrant for the purpose of arresting him?

Shortly after 1 a.m. on November 20, 1979, Wayne County deputies noted a black Cadillac parked incorrectly in an apartment complex parking lot. Ten minutes later, the deputies answered a radio call which brought them to the victim’s apartment to assist in the armed robbery investigation. At that time, the connection was made between the illegally parked black Cadillac and the robbers’ automobile. The deputies, along with two plain-clothes officers and two uniformed officers, then went to the apartment of the registered owner of the black Cadillac. The officers, with service revolvers drawn, knocked on the apartment door and announced their presence, stating that they wanted to talk to the owner of the Cadillac. A Detroit police officer testified that defendant 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. Zimmerman testified that he opened the door and [578]*578that defendant was standing back behind him, away from the door.

Defendant and Zimmerman were arrested and two handguns which were in Zimmerman’s bed were seized. A woman, who also occupied the apartment, was also arrested. A television set was seized along with a wrist watch and various denominations of paper money which were lying on the bed. The following day, a search warrant was issued and the police seized five pieces of jewelry, two jackets, and a wallet.

Defense counsel, at trial, sought to suppress all evidence which stemmed from the allegedly unconstitutional entry and seizure. A search and seizure without a warrant is unreasonable per se unless there exists both probable cause and circumstances establishing one of the delineated exceptions to the warrant requirement. People v Mullaney, 104 Mich App 787, 792; 306 NW2d 347 (1981).

Probable cause for an arrest has been defined as any set of facts existing at the moment of arrest which would induce a fair-minded person of average intelligence to believe that the suspect has committed a felony. People v Kyser, 106 Mich App 216, 218; 307 NW2d 447 (1981); People v Goode, 106 Mich App 129, 136; 308 NW2d 448 (1981). Defendant does not challenge the probable cause element but contends that no exception to the warrant requirement exists in this case.

The prosecutor argues that the entry into the apartment was premised on consent and, therefore, the resulting arrests and seizures were proper. There is a conflict in the testimony over whether the defendant or Zimmerman opened the [579]*579door. There is no controversy over the fact that four officers, with revolvers drawn, requested admittance and that both defendant and Zimmerman were near the door, within hearing range of the request. The door was cracked open, unchained, and opened completely, apparently without either defendant or Zimmerman saying anything. This Court, from the totality of these circumstances, must determine if the "consent” was truly voluntary. Schneckloth v Bustamonte, 412 US 218; 93 S Ct 2041; 36 L Ed 2d 854 (1973).

The act of opening the door by either codefendant, both of whom are competent adults, was a tacit consent to enter the apartment. The defendants unchained the door knowing the police were present. In fact, the defendants were aware that the police were outside the building, prior to the knock on the door, because the officers were throwing stones at windows trying to awaken someone to let them into the building since the outside doors were locked and the building lacked the customary security buzzer system. As a result of the noise they were making, defendant looked out the apartment window and told Zimmerman the police had arrived.

This case, therefore, did not involve an unconstitutional entry. The consent in this case also takes it outside the scope of Payton v New York, 445 US 573; 100 S Ct 1371; 63 L Ed 2d 639 (1980). In Payton, the Court held that the Fourth Amendment "prohibits the police from making a warrant-less and nonconsensual entry into a suspect’s home in order to make a routine felony arrest”. 445 US 576. The case at bar is also factually distinguishable from Riddick v New York, consolidated with Payton, supra. In Riddick, the suspect’s [580]*580three-year-old son opened the apartment door after police knocked, apparently without announcing their identity. Mr. Riddick, who could be seen in bed from the doorway, was arrested before he had an opportunity either to object or to consent to the police entering the apartment. Here, the suspects, with advance knowledge of the presence of the police, opened the door.

Defendant’s issue goes to the officers’ entry and not directly to the seizures. The trial court did not err in denying the motion to suppress the evidence. The police lawfully entered the apartment and inadvertently observed the obviously incriminatory evidence which was in plain view. People v Myshock, 116 Mich App 72; 321 NW2d 849 (1982).

II

Did the trial court err by denying defendant’s motion to suppress evidence of his 1976 federal conviction for illegal possession of a ñrearm by a prior felony offender?

The decision to admit evidence of prior convictions rests in the sound discretion of the trial court. People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). Review of a trial court’s determination to admit evidence of prior convictions for impeachment purposes involves two considerations: (1) whether the trial judge recognized his discretion to decline to admit evidence of the convictions, and (2) whether the trial judge’s decision was so palpably and grossly violative of fact and logic as to amount to an abuse of discretion. People v Worden, 91 Mich App 666, 674-676; 284 NW2d 159 [581]*581(1979). The factors which the court must weigh in reaching a conclusion include: (1) the nature of the prior offense, (2) whether it was for substantially the same conduct for which defendant is on trial, and (3) the effect on the decisional process if the accused does not testify. People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978).

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People v. Carpenter
327 N.W.2d 523 (Michigan Court of Appeals, 1982)

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Bluebook (online)
327 N.W.2d 523, 120 Mich. App. 574, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-carpenter-michctapp-1982.