Opinion
Docket No. 45188.
Decided April 16, 1980. Leave to appeal denied, 409 Mich. 876.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Anne B. Wetherholt, Assistant Prosecuting Attorney, for plaintiff.
Bell Hudson, P.C., for defendant Atkins.
The prosecution was granted leave to appeal from the two-pronged ruling of the trial court that suppressed a tape recorded telephone conversation between an informant and defendant Wiggins and denied admission of evidence of other crimes allegedly involving the defendants.
Defendants Atkins and Wiggins were arraigned on charges of first-degree murder stemming from the July 13, 1974, murder of one Girard Tolbert. Ronald Moore, the informant in this case, testified at the preliminary examination that defendant Atkins effected the release of Tolbert on bond, and, with the assistance of Moore and defendant Wiggins, killed Tolbert by injecting him with heroin and then holding his head under water.
The prosecution contended that both defendants were involved with two separate shooting incidents which were related to the charged offense and which occurred shortly before and after Tolbert's death. Defendant Wiggins was convicted for the attempted murder of one "Pimp" Hines and has remained incarcerated in Jackson Prison therefor since 1975. Charges against defendant Atkins arising from that incident were dismissed by Justice, then Circuit Court Judge, BLAIR MOODY, JR., on the basis that there was no evidence to connect him with the crime. In the other incident, a shooting on Snow Road where two men were shot, one of whom died, directed verdicts of acquittal were entered in favor of both defendants.
In an effort to link defendant Wiggins to Tolbert's death, the Detroit Police obtained a Beavers search warrant in December of 1978 based on an affidavit of Moore who agreed to telephone defendant Wiggins in prison and have the conversation recorded.
People v Beavers, 393 Mich. 554; 227 N.W.2d 511 (1975).
At an evidentiary hearing counsel for defendant Wiggins orally moved to suppress the recordings on the basis of entrapment, also later arguing that the supporting affidavit was insufficient. Counsel for defendant Atkins was also permitted to cross-examine a police witness in this regard, over objections that he had no standing to question the admission of the recordings and that he had never brought a motion to suppress. The trial court ruled that no evidence could be admitted concerning the two allegedly related shootings due to their lack of materiality to the charged offense and because the prejudice of their admission would outweigh their probative value. The recordings were also held to be nonadmissible since the search warrant was too general and the reliability of the informant was not established.
The prosecution is correct in maintaining that defendant Atkins lacks standing to object to the admission of the recorded conversations. "Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted". Alderman v United States, 394 U.S. 165, 174; 89 S.Ct. 961; 22 L.Ed.2d 176 (1969). If there was a search and seizure that was violative of the Fourth Amendment, as we shall ascertain below, it did not involve defendant Atkins as a party to the conversations nor as one from whose premises the conversations were "taken". Alderman, supra, 176. Application of the exclusionary rule with regard to defendant Atkins in this instance would serve neither to protect his right to privacy, the same never having been invaded, nor would it deter police misconduct, given that the police obtained a warrant before recording the conversations. People v Warner, 401 Mich. 186, 209; 258 N.W.2d 385 (1977). As a consequence, the recordings may be admitted against defendant Atkins, because "[c]oconspirators and codefendants have been accorded no special standing". Alderman, supra, p 172. Defendant Wiggins may, accordingly, invoke the discretion of the trial court by moving for a separate trial. People v Slate, 73 Mich. App. 126, 131-132; 250 N.W.2d 572 (1977). MCL 768.5; MSA 28.1028. See 54 ALR2d 830.
Our consideration of the adequacy of the search warrant in this case is premised upon the accepted rule that absent a clear abuse of discretion, this Court will not substitute its judgment for that of the magistrate in determining probable cause. People v Thomas, 86 Mich. App. 752, 759; 273 N.W.2d 548 (1978), lv den 406 Mich. 971 (1979), Justice LEVIN dissenting.
The language in the warrant describing what was to be seized read as follows: "All conversations dealing primarily with the subject of illegal drug trafficking and or murders where those conversations are between Ronald Moore AKA Ronnie Moore, a police agent, and Travis Melvin Wiggins". The accompanying affidavit, which must concededly be read in a common sense manner in conjunction with the warrant, People v Iaconis, 29 Mich. App. 443, 454; 185 N.W.2d 609 (1971), aff'd in People v Bercheny, 387 Mich. 431; 196 N.W.2d 767 (1972), recites that, "[a]ffiant is a Detroit Police Officer who is personally acquainted with Ronald Moore. Ronald Moore has been supplying information to Federal and local agencies concerning criminal activity of Aaron Atkins since the summer of 1977". It then relates Moore's version of the Tolbert killing, that Moore and Wiggins worked for Atkins at that time, and that Moore and Wiggins were both currently in prison. Finally, the stated purpose of the search warrant, "* * * is to cover a telephone call(s) initiated by SOI (Moore) wherein it is hoped that Wiggins will discuss his criminal activities".
The prosecution attacks the suppression of the recordings on two fronts, viz., that Ronald Moore was identified in the warrant and that he made admissions against his penal interest. The latter factor is of no avail since Moore was given immunity in this case, and, therefore, reliance upon United States v Harris, 403 U.S. 573; 91 S.Ct. 2075; 29 L.Ed.2d 723 (1971), is misplaced. While knowledge of the identity of an informer lends some credibility to his or her information, standing alone in this case, it is not enough. See People v Tooks, 403 Mich. 568; 271 N.W.2d 503 (1978). The affiant here never attested that Moore was reliable; he simply stated that he knew him and that Moore had previously supplied information to the police. It was never purported that such information had been helpful or even that it was accurate. Thus, we are faced with an affidavit based only on informant information with the recitation of details of the alleged murder as the only indicium of reliability. As such, the affidavit would fail the tests proposed in People v Rodriguez, 65 Mich. App. 723, 726-728; 238 N.W.2d 385 (1975), lv den 396 Mich. 852 (1976). Moreover, the affidavit and warrant do not satisfy the "particularity" requirement by describing with reasonable precision the evidence sought to be obtained. Even a common sense reading of the two cannot avoid the impermissibly broad references to "illegal drug trafficking and or murders" and Wiggins's "criminal activities". Marron v United States, 275 U.S. 192, 196; 48 S.Ct. 74; 72 L.Ed. 231 (1927). See also People v Taylor, 93 Mich. App. 292; 287 N.W.2d 210 (1979).
The prosecution also argues that since one of the parties to the conversations consented to their being recorded, no prior judicial authorization is required under United States v White, 401 U.S. 745; 91 S.Ct. 1122; 28 L.Ed.2d 453 (1971). While our Supreme Court chose to exceed the United States Supreme Court in White, supra, through its decision in People v Beavers, 393 Mich. 554, 562-566; 227 N.W.2d 511 (1975), cert den, 423 U.S. 878; 96 S.Ct. 152; 46 L.Ed.2d 111 (1975), the situation present in this case differs slightly from that in Beavers. Here, we address the recording of a conversation between two persons, one of whom is aware of the recording and one who is not, the recording being effected by a third party. See Beavers, 562, fn 2, for the definition of participant monitoring. However, this Court has already applied the Beavers requirement for a search warrant to participant recording in People v Hall, 88 Mich. App. 324; 276 N.W.2d 897 (1979), lv den 406 Mich. 941 (1979). We reiterate our belief that prior judicial authorization is required for the type of search and seizure involved in this case to the same extent that Beavers, supra, requires a valid search warrant to engage in "participant monitoring". Hall, supra, 330. Therefore, with regard to defendant Wiggins, the ruling of the trial court that the recorded conversations be suppressed is affirmed. At the same time, however, this ruling does not affect the admissibility of Moore's testimony as to statements spoken to him directly by Wiggins. Beavers, supra, 567.
The prosecution advances two arguments in support of its efforts to introduce evidence of other crimes relating to the defendants. First, it is argued that People v Delgado, 404 Mich. 76; 273 N.W.2d 395 (1978), reh den 405 Mich. 1001 (1979), allows such testimony to be admitted to show an entire criminal transaction. We are convinced that the circumstances of Delgado are not sufficiently analogous to those of the present case since any claimed relationship in this case was based on circumstantial evidence as opposed to defendant's admission of interrelation in Delgado, supra, 79-80; and further, due to the inconsistent objections by defendant in Delgado, the jury was apprised that there had been a sale prior to the one in issue, Delgado, supra, 84. We will not upset the determination of the trial court that the claimed interconnection between the events was speculative under these circumstances.
The second theory is that evidence of the other crimes was admissible under the similar acts statute, MCL 768.27; MSA 28.1050. This requires a showing of substantial evidence that defendants committed the other crimes; some special circumstances of the prior bad acts which tend to prove one of the statutory items; and the materiality of the enumerated item to the determination of defendants' guilt of the charged offense. People v Wilkins, 82 Mich. App. 260, 267-268; 266 N.W.2d 781 (1978). Due to the dismissal of charges and directed verdict of acquittal as to defendant Atkins in both of the alleged similar acts, the first requirement cannot be established against him. Defendant Wiggins, however, was convicted in the charges arising from the shooting of "Pimp" Hines, and the evidence does satisfy the first requirement to that extent. For the second factor, the prosecution urges that the acts would prove motive or intent. Both defendants assert that they did not commit the killing, and in the absence of claims of accident or self-defense, there are no special circumstances in this case that would allow the bad acts to be employed to prove intent. Wilkins, supra, 267. The acts could, nevertheless, be used in conjunction with a showing of motive to eliminate potential witnesses given the circumstances of the case. But, even though motive may be germane to the admission of the similar acts, it must first be placed in issue. See People v Major, 407 Mich. 394; 285 N.W.2d 660 (1979).
Beyond this analysis, Wilkins, supra, 270-271, further mandates a balance of probative value versus prejudicial effect. The trial court clearly ruled that the latter predominated and consequently held against admission of the evidence. We find no abuse of discretion in this ruling; it is in accord with the general rule that evidence of other crimes is inadmissible. People v Golochowicz, 89 Mich. App. 57, 64; 279 N.W.2d 576 (1979). Wilkins's directive that the trial court should consider less prejudicial sources of proof may be satisfied in the availability of Moore's testimony as to the defendants' motives. Wilkins, supra, 270.
Affirmed.