People v. Mullaney , 104 Mich. App. 787 ( 1981 )

T. M. Burns, J.

Defendant appeals of right her February 7, 1978, jury conviction of first-degree murder. MCL 750.316; MSA 28.548. On August 10, 1978, she was sentenced to a term of life imprisonment.

Defendant raises a number of issues in this appeal. However, we find that only three of them merit our discussion.

Defendant first alleges that the trial judge erred by allowing the prosecutor to use a prior manslaughter conviction to impeach her. Before trial, defendant filed a motion to bar any reference to her prior conviction at trial. Opposing the motion, the prosecutor argued that the fact that the prior conviction was for manslaughter, a crime similar to the one for which defendant was presently standing trial, should be considered by the judge as a factor dictating in favor of admitting evidence of that conviction for impeachment purposes. In denying defendant’s motion, the judge stated:

"I believe that a person charged with murder who has been previously convicted of homicide, which is the killing of a human being, would be more apt to be less truthful in testifying at the murder trial * *

This was error. The similarity between an offense for which the defendant has already been convicted and the one for which that defendant is presently standing trial is a factor that should weigh against admitting evidence of the former to impeach the defendant at the subsequent trial. The more similar the conviction is to the offense for which the defendant is being tried, the more hesitant a trial judge should be in permitting admission of evidence of the conviction. People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). It is error for a trial judge to weigh the similarity of the prior offense as a factor in favor of admissibility. People v Baldwin, 405 Mich 550, 553; 275 NW2d 253 (1979). Therefore, we hold that defendant’s conviction must be reversed and this cause remanded for a new trial.

Defendant next claims that the trial judge erred in failing to suppress certain evidence seized from her house on the night of the crime. This evidence consisted of a bag containing bloodstained clothing that was taken from defendant’s bedroom by the police.

Testimony at a pre-trial evidentiary hearing on defendant’s motion to suppress this evidence established that the police entered her house without a search warrant and without her permission after having first arrested her and an alleged codefendant on the front porch of her house. Once inside, the police knocked on a bedroom door and identified themselves. Thereupon, defendant’s sister, who was living in the house at the time, came out of the bedroom. She gave the police permission to search the house and told them that there was a bag of clothing located in the defendant’s bedroom. One of the police officers testified at the evidentiary hearing that he could see the bag through the open door of the bedroom. The sister testified that her consent for the search was given only after the police had already commenced searching the house and after she was informed by them that a search warrant was on its way. In fact, no warrant had been sought.

To sustain the validity of a warrantless search, the burden rests upon the people to demonstrate that the police acted with probable cause in a reasonable manner and in response to exigent circumstances bringing the search under one of the specifically established exceptions to the warrant requirement. People v Murphy, 87 Mich App 461; 274 NW2d 819 (1978). It is unclear from our review of this case whether the trial judge relied upon the purported consent of defendant’s sister or upon the plain view exception to the warrant requirement when he held that the search was not invalid. In either event, we find neither exception to the warrant requirement applicable in this case.

Defendant’s sister could only consent to a search of the common areas of the house and to a search of her own bedroom. She could not consent to a search of defendant’s bedroom, a place where the defendant had a reasonable expectation of privacy. People v Chism, 390 Mich 104; 211 NW2d 193 (1973), People v Taylor, 67 Mich App 76; 240 NW2d 273 (1976). Furthermore, the facts of this case indicate that defendant’s sister’s consent to the search was not voluntary, but was given under circumstances which indicated that her refusal would be futile. The police falsely stated to her that a search warrant was on its way and, further, they had begun searching the house before any consent by the sister was obtained. See, Bumper v North Carolina, 391 US 543; 88 S Ct 1788; 20 L Ed 2d 797 (1968), People v Ricky Smith, 85 Mich App 32; 270 NW2d 697 (1978).

In the present case, the police had no right to be in defendant’s house because they entered it without a warrant, without defendant’s consent, and the purported consent given by defendant’s sister came only after the police were already inside the house and was not voluntary. Therefore, the police were not legally in a position to seize the bag of clothes found in defendant’s bedroom. We hold that neither consent nor the plain view exception to the warrant requirement justified the search conducted by the police. Consequently, the evidence uncovered by the police while conducting that illegal search should have been suppressed.

Defendant also claims that the trial judge erred by refusing to grant her motion for a directed verdict on first-degree murder because the prosecutor failed to present at trial any evidence of premeditation and deliberation. In People v Morrin, 31 Mich App 301, 329-330; 187 NW2d 434 (1971), this Court defined premeditation and deliberation in the following manner:

"To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem. As a number of courts have pointed out, premeditation and deliberation characterize a thought process undisturbed by hot blood. While the minimum time necessary to exercise this process is incapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a 'second look’.”

Factors to be considered when determining whether an accused had an opportunity to give his actions a "second look” include consideration of the previous relationship between the parties, the accused’s actions prior to the killing, the circumstances of the killing itself, and the accused’s conduct after the homicide. People v Meadows, 80 Mich App 680, 691; 263 NW2d 903 (1977).

We hold that the lower court did not err in denying defendant’s motion. Although there was introduced at trial no evidence of a bad relationship between defendant and the victim prior to the killing, a reasonable pérson could conclude that defendant’s conduct after the killing suggested a planned cover-up. Even though evidence tending to establish that defendant acted with premeditation and deliberation is scant, we cannot say that it is, as a matter of law, insufficient.

No other issue raised by defendant in this appeal amounts to error. Reversed and remanded for a new trial.

Bronson, P.J., concurred.