PEOPLE
v.
PARKER
Docket No. 66028, (Calendar No. 21).
Supreme Court of Michigan.
Argued March 10, 1983. Decided October 24, 1983. Certiorari denied April 30, 1984.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and A. George Best, II, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Mardi Crawford) for the defendant.
Certiorari denied by the Supreme Court of the United States on April 30, 1984.
KAVANAGH, J. (for reversal).
This is an appeal from an affirmance of defendant's conviction of armed robbery and first-degree criminal sexual conduct.
We reverse and remand for a new trial.
Complainant testified that someone sprayed a substance into her face as she was getting out of her car in a Detroit parking lot. Her assailant told her that he would stab her with a knife if she did not keep quiet. A struggle ensued in the car, and the assailant took $12 from her wallet. He then directed her to drive from the scene, and they stopped at a deserted location. After a further struggle, during which she was able to scratch her assailant's face, the assailant engaged in forcible sexual intercourse with complainant and fled. Shortly thereafter complainant was able to summon police and describe her assailant to them. The police located a wallet in her car which contained *560 several pieces of identification belonging to the defendant.
The crime occurred during the late evening of February 22, 1978. On the basis of information in the wallet, police located defendant about 2:45 a.m. on February 23. He matched the description of the assailant given by complainant, and he had a laceration under his right eye. He was placed under arrest, and $12 found in the right breast pocket of his jacket and a nailfile in his right rear pants pocket were seized.
The defendant testified that he had met complainant when her car had become stuck in the snow. He assisted in extricating the car, and a lengthy conversation ensued in which complainant told him that she was having marital difficulties and was "tired of old men". She agreed to drive him to a bar, but on the way they stopped at a deserted location and engaged in consensual sexual intercourse. When he told her that she "stunk", a fight ensued, and he left her.
On appeal, the defendant asserts four errors:
I. ARREST WITHOUT A WARRANT AND ATTENDANT SEARCH AND SEIZURE
A pretrial hearing was held on the legality of the defendant's arrest (with the resulting seizure of articles to be suppressed, if the defendant were successful). The police had no arrest or search warrants. After checking one address for the defendant that was incorrect, the police located him at 271 Watson at about 2:45 a.m. The owner of the building opened the defendant's apartment. The police saw someone sleeping in the bed in the one-room apartment, and the owner identified the person as the defendant. The police awakened the *561 defendant at gunpoint and determined that he had no weapon. Since he generally fit the description of complainant's assailant, the police arrested him. A fingernail file, $12 in cash, and a black coat were taken and later admitted at trial. Statements made by the defendant to the police after his arrest were used to impeach him at trial.
The parties agree that the arrest of defendant without a warrant in his abode was illegal unless the circumstances surrounding it were exigent. Payton v New York, 445 U.S. 573, 589; 100 S. Ct. 1371; 63 L. Ed. 2d 639 (1980), citing United States v Reed, 572 F2d 412, 423 (CA 2, 1978). The essence of the exigency which would excuse the failure to obtain a warrant is the existence of circumstances known to the police which prevent them from taking the time to obtain a warrant because to do so would thwart the arrest. Commonwealth v Huffman, 385 Mass 122, ___ 430 NE2d 1190, 1192 (1982); Latzer, Police Entries to Arrest Payton v New York, 17 Crim L B 156, 163 (1981).
The prosecutor contends that there were exigent circumstances present at the time the officers effectuated the arrest of defendant after having entered his room without a warrant. In support of this contention, the prosecutor recites the following facts: defendant was believed to be armed with a dangerous weapon, defendant was likely to escape, and a violent crime had been committed. However, we conclude that the facts do not support a finding of such exigent circumstances as would obviate the need for an arrest warrant.
In Niro v United States, 388 F2d 535, 540 (CA 1, 1968), the first circuit held that although failure to obtain a readily available warrant is not necessarily fatal to a search or seizure made concurrent with a fully anticipated arrest, it is fatal where *562 there are no countervailing factors. The Niro Court stated:
"Proceeding without a warrant is not to be justified, as the government suggests here, by the fact that by the time the officers act, dispatch is necessary to avoid flight or injury to person or property. Haste does not become necessary in the present sense if the need for it has been brought about by deliberate and unreasonable delay. This would allow the exception to swallow the principle."
In United States v Houle, 603 F2d 1297 (CA 8, 1979), the police received a complaint that the defendant had made threats after he had been drinking to shoot people. Upon their arrival at the scene, at 1:50 a.m., the officers heard two shots from the defendant's house. The police dispatcher received a phone call from the defendant threatening to shoot any officer who came into his yard and demanding that the officers leave the area or return in the morning. The police delayed acting until 6:40 a.m., and then went to the defendant's house to arrest him. When they arrived they saw through a broken window that the defendant was sleeping on a bed. One of the officers saw a rifle and reached in through the window and seized it, whereupon the other officers kicked down the door and arrested the defendant. The police had made no attempt during the intervening four hours to obtain an arrest warrant.
The Houle Court, in an opinion antecedent to Payton, held that the Fourth Amendment did not sanction entries into a home without a warrant for the purpose of an arrest absent exigent circumstances. In rejecting the prosecution's claim that exigent circumstances existed, the Court stated:
*563 "This is not a case involving hot pursuit. The officers' deliberate four hour delay from 1:50 a.m. to 6:30 a.m., indicates that the officers had no reason to believe, and did not believe, that the defendant would attempt to escape or destroy the evidence in his possession. It is undisputed that the officers made no attempt to obtain a search or arrest warrant during that period of delay. Any exigency that arose by virtue of the presence of the rifle near the bed could have been anticipated by the officers and does not excuse their earlier failure to obtain a warrant." 603 F2d 1300.
In the case at bar, there was over a five-hour delay between the time the police were given a physical description of the complainant's assailant and when they arrested defendant without a warrant. The prosecution has offered no explanation whatsoever as to why a warrant was not sought during this interval. Inasmuch as the prosecutor has not proffered any countervailing circumstances which justify the failure to secure a warrant, we hold that the police did not act reasonably in entering defendant's room without a warrant, arresting him, and seizing evidence. Therefore, defendant's motion to suppress the evidence seized as a result of the entry without a warrant should have been granted.
II. SUFFICIENCY OF THE EVIDENCE THAT DEFENDANT WAS ARMED WITH A DANGEROUS WEAPON
Before its codification in 1931, the armed robbery statute provided:
"Sec. 15. If any person shall assault another, and shall feloniously rob, steal and take from his person any money or other property, or shall feloniously assault another with intent to rob or steal any money or other property, which may be the subject of larceny, *564 such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, with intent, if resisted, to kill or maim the person robbed or assaulted, or if, being so armed, he shall wound or strike the person robbed or assaulted, he shall be punished by imprisonment in the state prison for life or any number of years." 1927 PA 374; 1929 CL 16722.
Act 328 of the Public Acts of 1931 codified Michigan's criminal law. Robbery armed was treated in § 529 of the act and provided:
"Sec. 529. Robbery armed Any person who shall assault another, and shall feloniously rob, steal and take from his person, or in his presence, any money or other property, which may be the subject of larceny, such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the persons so assaulted to reasonably believe it to be a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years."
The 1931 amendment thus eliminated the clause beginning with the words "with intent". We think it clear from that history that when enacted the words "dangerous weapon", etc., contemplated that the defendant would actually have a dangerous weapon; this is implicit in the phrase "with intent, if resisted, to kill or maim". The elimination of the "with intent" requirement reduced the prosecutor's burden of proof, but does not provide a basis for construing the section as no longer requiring that the defendant actually have a dangerous weapon or an article used or fashioned in a manner to lead the persons so assaulted to reasonably believe it to be a dangerous weapon.
*565 It is not enough that the person assaulted is put in fear; a person who is subjected to an unarmed robbery may be put in fear.
To constitute armed robbery the robber must be armed with an article which is in fact a dangerous weapon a gun, knife, bludgeon, etc., or some article harmless in itself, but used or fashioned in a manner to induce the reasonable belief that the article is a dangerous weapon.
Words or threats alone can never be dangerous weapons because the statute is concerned with weapons, not words.
To convict, the factfinder must make the determination that at the time of the robbery the assailant was in fact armed with something and not just that the victim thought he was armed. The determination must be based on the evidence.
Words or threats may be evidence of the fact of being armed and under some circumstances they alone might support a verdict of guilty. When no other evidence of the presence of the weapon is adduced, however, it is imperative that the instructions stress the focus of the jury on the presence of the weapon or article and not the fear or belief of the victim.
Unarmed robbery is a heinous felony, and the statute's 15-year maximum penalty shows how seriously the Legislature regards it. Michigan's ultimate punishment life imprisonment for armed robbery should not be cheapened by escalating a questionable charge to allow it.
In the case at bar, the only proper evidence that the assailant was armed with a dangerous weapon at the time of the assault was the complainant's testimony that the assailant "told me to shut up, *566 otherwise he would use his knife and stab me".[1]
Because this case must be remanded for a new trial we point out that although under proper instructions a jury verdict of guilty on this evidence would not be overturned, the instructions given here would not pass muster.
The instruction given, "Ladies and gentlemen, in order to fulfill the dangerous weapon element of the charge of robbery armed, it is not necessary that a weapon be introduced at trial, nor is it necessary for the complainant to see the weapon. All that is required is that the complainant have a reasonable belief that the defendant was armed with a dangerous weapon at the time of the incident, and for you to be convinced beyond a reasonable doubt of this belief", is patently in error.
Had this question been before us, we would have reversed on this issue, but because it was not we mention it only to obviate the problem on retrial.
What we have said about the armed element in the robbery statute has equal application to the first-degree criminal sexual conduct charge as brought herein. We note, however, that under a proper charge, inasmuch as unarmed robbery is also a felony, if that crime be proved, first-degree criminal sexual conduct under MCL 750.520b(1)(c); MSA 28.788(2)(1)(c) can be made out. People v Willie Johnson, 406 Mich. 320; 279 NW2d 534 (1979).
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Before the defendant testified, outside the presence of the jury, the prosecutor informed the court *567 that he understood that defense counsel intended to introduce evidence of defendant's prior conviction of the felony of assault with intent to rob, not being armed. MCL 750.88; MSA 28.283. He reminded the court that only if the court determined that the offense was one involving theft, dishonesty, or false statement, or was punishable by death or imprisonment for more than one year, and that its probative effect on the issue of credibility outweighed its prejudicial effect, could the court admit it. The judge acknowledged awareness of the rule and indicated that he would admit the evidence.
Defense counsel acknowledged that he intended to introduce the evidence on direct examination of the defendant and that he was agreeable to its admission.
The defendant testified about his conviction, and the prosecutor did not cross-examine him about it.
Defendant now argues that the failure of defense counsel to try to keep out any reference to his criminal record, let alone the volunteering of it, amounted to ineffective assistance of counsel. Because of the similarity of the offense to the present charge, defendant maintains, the probative value of the evidence was clearly outweighed by its prejudicial effect and its admission constituted error.
We are not persuaded. While we are not inclined to recommend this strategy on retrial, we are not prepared to hold it amounted to ineffective assistance of counsel.
IV. COMPELLING ATTENDANCE OF AN ILL JUROR
As the jury was to begin its second day of deliberations, one juror was not present, having *568 called in sick. Defense counsel objected to proceeding with 11 jurors. On the judge's instruction, the court clerk called the juror in the presence of the judge and the prosecutor but without the presence of defense counsel. The clerk reported that the juror responded that she had a sore neck and a cold brought on by the air conditioning. The judge decided that the juror was not too ill to come in, the juror was brought to the court in a police car, and deliberations resumed. When he learned of this, defense counsel objected to the failure to involve him in the process, but neither attempted to prove nor indeed did he claim any prejudice to the defendant on account of it.
While the unilateral procedure followed here leaves much to be desired, until we are persuaded that it resulted in denying defendant a fair trial, we will not reverse.
The question we must answer is whether there is any reasonable possibility that the defendant was prejudiced. A reasonable possibility of prejudice may not rest upon the bare assumption that the prosecutor or the judge engaged in some misconduct or that the police who transported the juror attempted to influence her. Without some basis on the record for such an assumption, it is unwarranted. To make that assumption, defense counsel, either during trial or at some other point, should have buttressed this issue by questioning the police officer who transported the juror or by inquiring of the juror herself once the verdict was returned. We have no idea whether the juror was so sick that her only thought was to end the deliberations as quickly as possible. On this record we do not find error on the claim which requires reversal.
Reversed and remanded.
*569 WILLIAMS, C.J., and LEVIN and BRICKLEY, JJ., concurred with KAVANAGH, J.
RYAN, J.
I concur in the Court's decision to reverse and remand for a new trial because I agree that the circumstances of the defendant's arrest did not excuse the warrant requirement of US Const, Am IV, and Const 1963, art 1, § 11.
Since the jury learned that the warrantless entry into the defendant's room resulted in the seizure of $12, the exact amount of money the victim claimed was stolen from her, I cannot conclude that the constitutional violation was harmless beyond a reasonable doubt. See Chambers v Maroney, 399 U.S. 42; 90 S. Ct. 1975; 26 L. Ed. 2d 419 (1970), and People v Robinson, 386 Mich. 551; 194 NW2d 709 (1972).
CAVANAGH and BOYLE, JJ., took no part in the decision of this case.
NOTES
[1] Neither her testimony that "he said he should have pulled out his knife and stopped me" nor the finding of the fingernail file in his pocket several hours after the assault is any evidence that he was armed at the time of the attack.