No. 3 January Term 1974, Docket No. 54,651.
Decided April 16, 1974.
Appeal from Court of Appeals, Division 1, McGregor, P.J., and Bronson and Targonski, JJ., affirming Genesee, Philip C. Elliott, J. Submitted January 11, 1974. (No. 3 January Term 1974, Docket No. 54,651.) Decided April 16, 1974.
Reuben Moore was convicted of unlawful possession of a narcotic drug. Defendant appealed to the Court of Appeals. Affirmed. Defendant appeals. Conviction affirmed and remanded for resentencing.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, Donald A. Kuebler, Chief, Appellate Division, and Joel B. Saxe, Assistant Prosecuting Attorney, for the people.
State Appellate Defender Office (by Steven L. Schwartz), for defendant on appeal.
Reuben Moore was convicted by a jury's verdict for unlawful possession of a narcotic drug and sentenced to serve a prison term of eight to ten years. The Court of Appeals, in an unpublished per curiam opinion, affirmed, reducing the minimum term of Moore's sentence to six years and eight months on the authority of People v Tanner, 387 Mich. 683; 199 N.W.2d 202 (1972).
MCLA 335.153; MSA 18.1123.
The issues concern:
1) the validity of the warrantless seizure of the narcotic drug during a cursory examination incident to Moore's valid arrest for an unrelated crime;
2) the admissibility of Moore's prior convictions for the purpose of impeaching his credibility;
3) a claim that Moore was not represented by counsel at the times of the earlier convictions and, therefore, even if prior convictions are generally admissible, these prior convictions were not admissible and, similarly, they should not have been considered at the time of sentencing;
4) a claim that Moore was denied the effective assistance of counsel because his trial lawyer failed to preserve any of the foregoing objections.
In People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973), we recently held that, to the extent a claim of ineffective assistance of counsel depends on facts not of record, the defendant must make a testimonial record at the trial court level which evidentially supports his claim and which excludes reasonable hypotheses consistent with the view that his trial lawyer represented him adequately. The requisite motion was not filed, and therefore, we do not have a record or findings by a trial judge to review.
However, Moore could not have been convicted unless there had been admitted in evidence the heroin seized as an incident to his arrest. Therefore, if it appears from the trial record that had a motion to suppress been made it should have been granted, an appellate court may properly grant relief even though the issue was raised for the first time on appeal.
See People v Smith, 260 Mich. 486; 245 N.W. 502 (1932); People v Steeneck, 247 Mich. 583; 226 N.W. 231 (1932); People v Ibarra, 60 Cal.2d 460; 34 Cal.Rptr. 863; 386 P.2d 487 (1963); People v Johnson, 38 Ill.2d 399; 231 N.E.2d 447 (1967).
Two Flint police officers, dressed in civilian clothes, as part of the vice squad's operations to curtail street prostitution, were patrolling a "problem area" in an unmarked car. They observed several female and male subjects on the street and a female talking to a man in an automobile. Suspecting that she was attempting to solicit someone in that automobile, they pulled their automobile over to the curb. Almost immediately, Moore approached and inquired whether the officers would be interested in engaging the services of a prostitute. An officer stepped from the car and placed Moore under arrest "for soliciting for immoral purposes".
Moore placed his hand in his pants pocket. The officer, believing Moore might be reaching for a weapon, grabbed him and spun him against the side of an automobile. Moore then opened his right hand and a small plastic vial fell to the ground.
The vial was of clear plastic with a snap-on top of the kind commonly used by pharmacies to dispense medicine. The vial was unlabeled. Inside were 20 small capsules containing white powder. Eighteen capsules were of clear plastic and the other two were red. The capsules lacked the fresh, uniform appearance typical of capsules dispensed by a pharmacy. Immediately upon taking Moore to the police station, the officer conducted a cursory examination of the vial, concluded that the capsules contained heroin, and then arrested Moore on a narcotics charge.
The officer knew Moore "from before" — "a number of years ago". Moore testified, "if he knew me from the past he would have known" that Moore had a prior narcotics record.
In two recent cases decided by the United States Supreme Court, United States v Robinson, 414 U.S. 218; 94 S Ct 467; 38 L Ed 2d 427 (1973), and Gustafson v Florida, 414 U.S. 260; 94 S Ct 488; 38 L Ed 2d 456 (1973), the defendants were arrested for traffic offenses, taken into custody, and searched for weapons. In Robinson, during the search the arresting officer uncovered a crumpled cigarette pack. His cursory examination of the pack revealed 14 gelatin capsules of white powder which he thought to be and, upon subsequent analysis, proved to be heroin. In Gustafson, the arresting officer's search yielded a Benson and Hedges cigarette box. Upon his cursory examination "it appeared there were marijuana cigarettes in the box".
The Court summarized its holding in Robinson: "[I]n the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a `reasonable' search under that Amendment," and then concluded:
"Having in the course of his lawful search come upon the crumpled package of cigarettes, [the arresting officer] was entitled to inspect it; and when his inspection revealed the heroin capsules, he was entitled to seize them as `fruits, instrumentalities or contraband' probative of criminal conduct." (p 236.)
These opinions were written by Mr. Justice Rehnquist who, in an earlier case, said for the Court: "The ultimate standard set forth in the Fourth Amendment is reasonableness." Cady v Dombrowski, 413 U.S. 433, 439; 93 S Ct 2523, 2527; 37 L Ed 2d 706, 713 (1973).
In both Robinson and Gustafson there were motions to suppress and full hearings concerning the reasonableness of the seizure. Moore did not move to suppress and there is no reason on this record to question the reasonableness of the arresting officer's belief upon his cursory examination that the white powder contained in the aberrant transparent capsules in the curiously unmarked, transparent vial was heroin.
Moore was not, in contrast with the defendants in Robinson and Gustafson, arrested for a traffic offense.
Mr. Justice Powell, concurring in Robinson and Gustafson, recognized the common experience that it is not customary to arrest for many relatively minor traffic offenses:
"In Gustafson, post, p 260, the petitioner conceded the validity of the custodial arrest, although that conclusion was not as self-evident as in Robinson. Gustafson would have presented a different question if the petitioner could have proved that he was taken into custody only to afford a pretext for a search actually undertaken for collateral objectives. But no such question is before us." United States v Robinson, supra, p 238, fn. 2.
In a footnote to the opinion of the Court in Robinson, the Court discussed Robinson's claim that the arresting officer may have been aware of Robinson's record of two prior narcotics convictions and may have used the traffic violation arrest "as a mere pretext for a narcotics search which would not have been allowed by a neutral magistrate" had the officer sought a warrant. Police department regulations required an officer summarily to arrest and take to the station house for booking a person, such as Robinson, who is arrested for operating a motor vehicle after revocation of his operator's permit. The Supreme Court responded to Robinson's argument:
"We think it is sufficient for purposes of our decision that respondent was lawfully arrested for an offense, and that Jenks' [the arresting officer's] placing him in custody following that arrest was not a departure from established police department practice. * * * We leave for another day questions which would arise on facts different from these." United States v Robinson, supra, p 221, fn. 1.
In People v Gonzales, 356 Mich. 247, 255; 97 N.W.2d 16 (1959), this Court answered in the negative the following question: "May police who stop an automobile on a Michigan highway to issue a traffic ticket also routinely search the automobile under Michigan law?" The Court observed that, "the officers had no intention of incarcerating Leal [the driver] or detaining him further. There were no fruits of the traffic offense to search for, nor any need to search for the means by which it had been committed. And since no further detention was contemplated, there was no need to search for weapons or other means of possible escape from custody."
Robinson and Gustafson do not conflict with Gonzales; as the United States Supreme Court carefully noted the validity of the custodial arrests was not challenged in either case.
We express no opinion about the propriety of a warrantless seizure and examination by someone other than the arresting officer or about an examination not conducted incidental to the custodial arrest or immediately following at the station house, or about the constitutional validity of an examination by the arresting officer of the seized material any more intensive or time-consuming than a cursory examination like those conducted by the arresting officers in Robinson, Gustafson and this case. Cf. People v Trudeau, 385 Mich. 276, 279-281; 187 N.W.2d 890 (1971); People v Roderick Walker, 27 Mich. App. 609; 183 N.W.2d 871 (1970).
While Const 1963, art 1, § 11 protects against "unreasonable searches and seizures", its proviso prohibiting the exclusion from evidence of "any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house", precludes a construction of the Michigan search and seizure clause imposing a higher standard of reasonableness for searches and seizures of items named in the proviso than the United States Supreme Court has held applicable under the Fourth Amendment. In People v Pennington, 383 Mich. 611; 178 N.W.2d 471 (1970), this Court held the narcotic and firearms proviso invalid under the Federal constitution only to the extent it would permit receipt of evidence barred under the Fourth and Fourteenth Amendments as construed by the United States Supreme Court.
Cf. People v Turner, 390 Mich. 7; 210 N.W.2d 336 (1973) (entrapment); People v White, 390 Mich. 245; 212 N.W.2d 222 (1973) (double jeopardy), where this Court established standards higher than the Federal standards.
In contrast with People v Jackson, 391 Mich. 323; 217 N.W.2d 22 (1974), Moore's attorney did not ask the judge to exclude, in the record. Since he did not invoke the judge's discretion, Moore cannot fault the judge for failing to exercise it when he allowed impeachment on the basis of prior convictions.
Similarly see People v Pollard, 39 Mich. App. 291; 197 N.W.2d 546 (1972); People v Downs, 45 Mich. App. 130; 206 N.W.2d 241 (1973); People v Calvin Jones, 44 Mich. App. 633, 638; 205 N.W.2d 611 (1973).
Refusing to consider this unpreserved issue on its merits is not inconsistent with resolution of the similarly unpreserved search and seizure issue on its merits. Moore could not have been convicted without introduction of the heroin; the impeachment of Moore by reference to his past convictions was not necessarily decisive. Additionally, Jackson does not require a trial judge to exclude reference to a defendant's conviction record; it only requires that he exercise his discretion before deciding whether to permit reference to a conviction record. In contrast, a judge presented with a meritorious search and seizure claim is obliged to exclude the impermissibly obtained evidence.
In United States v Tucker, 404 U.S. 443, 445-446, 448; 92 S Ct 589, 591-592; 30 L Ed 2d 592, 595, 597 (1972), the United States Supreme Court, in a post-conviction proceeding instituted a number of years after Tucker's conviction, affirmed the judgment of the Ninth Circuit remanding the case to the district court for resentencing "without consideration of any prior convictions which are invalid under Gideon v Wainwright, 372 U.S. 335 [ 83 S Ct 792; 9 L Ed 2d 799; 93 ALR2d 733 (1963)]."
Tucker's three previous state felony convictions preceded Gideon. It was established that two of them were constitutionally infirm because Tucker "had been unrepresented by counsel, and that he had been `neither advised of his right to legal assistance nor [had] he intelligently and understandingly waive[d] [his] right to the assistance of counsel'". 404 U.S. 445. The Court, while reasserting the "wide discretion" granted a judge in sentencing, remanded for resentencing because the sentence "might have been different if the sentencing judge had known that at least two of the respondent's previous convictions had been unconstitutionally obtained". The Court observed that if the sentencing judge "had been aware of the constitutional infirmity of two of the previous convictions, the factual circumstances of the respondent's background would have appeared in a dramatically different light at the sentencing proceeding". 404 US p 448.
Although Tucker arose in a Federal post-conviction proceeding challenging a Federal conviction and sentence, its retroactive application to state convictions has been accepted by a number of state courts, including our Court of Appeals. We conclude, in light of the consistent retroactive application in state criminal proceedings of Gideon and its progeny's expansion of the right to counsel, that Tucker is applicable with full retroactivity to all sentences imposed by Michigan courts.
Towers v Director, Patuxent Institution, 16 Md. App. 678; 299 A.2d 461 (1973); Howard v State, 280 So.2d 705 (Fla App, 1973); State v Flores, 511 P.2d 414 (Or App, 1973). Similarly, see Collins v State, 129 Ga. App. 87; 198 S.E.2d 707 (1973) and Baldwin v State, 499 S.W.2d 7 (Tex Crim App, 1973), which may, however, have been tried after Tucker was decided.
The Supreme Court of Pennsylvania cited the necessity to follow Tucker as one of the reasons for adopting a policy of mandatory presentence disclosure. Commonwealth v Phelps, 450 Pa. 597; 301 A.2d 678, 683-684 (1973). Cf. People v McGaha, 10 Ill. App.3d 1051; 295 N.E.2d 476 (1973).
Loper v Beto, 405 U.S. 473; 92 S Ct 1014; 31 L Ed 2d 374 (1972); Doughty v Maxwell, 376 U.S. 202; 84 S Ct 702; 11 L Ed 2d 650 (1964); Pickelsimer v Wainwright, 375 U.S. 2; 84 S Ct 80; 11 L Ed 2d 41 (1963) (Gideon fully retroactive); Burgett v Texas, 389 U.S. 109; 88 S Ct 258; 19 L Ed 2d 319 (1967) (a defendant cannot be tried under a recidivist statute when he did not have counsel at the time of his prior convictions).
In Loper v Beto, 405 U.S. 473, 480; 92 S Ct 1014, 1018; 31 L Ed 2d 374, 380 (1972), the Court, again reiterating its guiding principle that "a conviction obtained in violation of Gideon v Wainwright [cannot] be used against a person either to support guilt or enhance punishment for another offense", further extended Gideon by affirmatively answering the question posed in the petition for certiorari: "Does the use of prior, void convictions for impeachment purposes deprive a criminal defendant of due process of law where their use might well have influenced the outcome of the case?" As Loper was a Federal habeas corpus proceeding challenging a state court conviction and itself applied its principle with full retroactivity, its holding and retroactivity is directly applicable to state court proceedings.
Several state courts on the constitutional authority of Loper's predecessors had already evolved an exclusionary rule like the rule established in Loper prior to the Supreme Court's decision in that case. See Spaulding v State, 481 P.2d 389 (Alas, 1971); In re Dabney, 71 Cal.2d 1; 76 Cal.Rptr. 636; 452 P.2d 924 (1969); Johnson v State, 9 Md. App. 166; 263 A.2d 232 (1970); State v Koch, 118 N.J. Super. 421; 288 A.2d 295 (1972); rule modified and extended in light of Loper, 119 N.J. Super. 184; 290 A.2d 738 (1972).
Following Loper, several other state courts have either applied Loper or recognized its applicability. Fee v State, ___ Tenn ___; 497 S.W.2d 748, 750 (1973); Commonwealth v Barrett, 296 N.E.2d 712 (Mass. App, 1973); Wood v State, 478 S.W.2d 513 (Tex Crim App, 1972).
Moore, anticipating neither Tucker nor Loper, did not make a factual record at the trial level regarding the invalidity of his prior convictions. The prosecutor has remedied this deficiency by furnishing, in one case, a copy of the docket entries showing that Moore apparently had counsel and, in the other case, a transcript evidencing Moore's proffer and the acceptance of his plea of guilty. The transcript shows that Moore did not have counsel and, although he pleaded poverty, he was not offered counsel.
The apparently invalid conviction was a 1949 conviction for breaking and entering in the night-time. The apparently valid conviction was in 1958 for illegal possession of narcotics. Proceeding on these assumptions, we cannot find that the impeachment of Moore on the basis of his 1949 conviction "might well have influenced the outcome of the case" and accordingly we find no violation of Loper. Moore was charged in this case with possession of narcotics. Once Moore was impeached on the basis of his apparently valid 1958 conviction for possession of narcotics, the credibility of his defense that the vial was not his was so undermined that his credibility could not have been further damaged by reference to his apparently void 1949 conviction. We, accordingly, affirm his conviction.
This ruling does not preclude Moore, in further proceedings at the trial court level, from attacking the validity of his 1958 narcotics conviction. If he can establish its constitutional infirmness, then our analysis of the Loper issue should be reconsidered by the trial court.
While a harmless error rule might also be applied to a Tucker claim, from a practical point-of-view, in contrast with a Loper claim which if meritorious requires a new trial, in most cases a judge can more readily resentence a convicted person than determine whether whatever consideration was given an invalid conviction at sentencing was harmless. Also, a determination of harmlessness would invite further appeal. And, even more importantly, the United States Supreme Court has indicated that the question is whether the sentence "might have been different" if the sentencing judge had known that the earlier convictions had been unconstitutionally obtained. (Emphasis supplied.) United States v Tucker, supra, p 448.
As in Tucker, supra, p 447, the "record in the present case makes evident that the sentencing judge gave specific consideration" to Moore's previous invalid conviction before imposing sentence. We, therefore, need not decide whether, if the record was less clear, there should be a preliminary inquiry whether the sentencing judge considered the invalid conviction.
When Moore was sentenced in this case the judge adverted to his earlier convictions saying: "[Y]ou've had prison of 1-1/2 to 15, 1-1/2 to 5, 6 to 10, and one by Judge Newblatt in 1967 of 8 to 10, which however he set aside this year."
The 1-1/2 to 15 year sentence was imposed for Moore's 1949 breaking and entering conviction.
The only reasonable inference from the foregoing is that the judge did consider Moore's uncounseled 1949 conviction when sentencing him in this case.
The rule which we glean from what the United States Supreme Court did in Tucker is that where the record shows that the sentencing judge considered a conviction invalid under Gideon an appellate court will remand for resentencing. Accordingly, we remand for resentencing.
In the future, post-sentencing Tucker claims should be initially decided by the sentencing judge or his successor. He is in the best position to explore and decide the factual issues and, if necessary, the defendant can then be resentenced. The Court of Appeals may refrain from considering a Tucker claim until the sentencing court has had an opportunity to resolve it.
To invoke a Tucker hearing, the defendant must (1) present prima facie proof that a previous conviction was violative of Gideon, such as a docket entry showing the absence of counsel or a transcript evidencing the same; or (2) present evidence that he has requested such records from the sentencing court and it has failed to reply or has refused to furnish copies of records within a reasonable period of time, say four weeks. Upon such presentation, either (1) or (2), the burden will then be upon the prosecutor to establish the constitutional validity of the prior conviction. Thus, if the prosecutor contends that the defendant waived counsel, the burden will be on him to show affirmative record evidence of waiver.
If the prosecutor obtains and furnishes the judge and the defendant or his lawyer with photocopies of records establishing the constitutional validity of the prior conviction, the judge may decide the matter on the papers presented unless the defendant, on notice, shows cause to hold a hearing at which he is present. Unless the prosecutor furnishes such evidence within one month of the defendant's motion, the judge shall set the matter for an early hearing and order the production of the defendant at the hearing.
We have considered the collateral attack doctrine set forth in People v Gavin, 50 Mich. App. 743; 213 N.W.2d 758 (1973), urged upon us by the prosecutor, but are unpersuaded. A defendant will not be required "first [to] establish in separate post-conviction actions that the underlying convictions are invalid". Clearly, a Michigan trial court is competent to resolve the factual issues regarding the constitutional validity of a defendant's previous Michigan convictions. A Michigan court may also properly determine the validity of convictions in other state courts and the Federal courts for the limited purpose of reassessing the validity of a Michigan sentence.
Gavin is based on Brown v United States, 483 F.2d 116, 119 (CA 4, 1973), where the Court declared that it would require "a prisoner who bases his [Tucker] attack against one sentence on a collateral attack on another state sentence, particularly, when imposed in a foreign jurisdiction, to attack first the underlying sentence in the court imposing that sentence."
There is, however, no problem of Federal-state relations where the prior convictions were in Michigan.
Moore's previous convictions were both Michigan convictions.
Requiring a defendant seeking Tucker relief from a Michigan sentence to first attack the previous underlying convictions in the trial courts where he was convicted would unnecessarily add legal steps and compound the misery, not only for the defendant and any lawyer who may be representing him, but also for the taxpayers who ultimately foot the bill for all these procedures. Most all these claimants will still be indigent, by definition with prior records, probably lengthy sentences and quite willing to besiege the courts until the matter is resolved on the merits.
Conviction affirmed. Remanded for resentencing.
T.M. KAVANAGH, C.J., and T.G. KAVANAGH, SWAINSON, WILLIAMS, M.S. COLEMAN, and J.W. FITZGERALD, JJ., concurred with LEVIN, J.