                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 21, 2015
                Plaintiff-Appellee,

v                                                                  No. 319348
                                                                   Kent Circuit Court
STEIN SAMUEL NOWICKI,                                              LC No. 12-009636-FH

                Defendant-Appellant.


Before: METER, P.J., and SAWYER and BOONSTRA, JJ.

PER CURIAM.

        Defendant Stein Samuel Nowicki appeals by right his conviction of one count of killing
or torturing an animal, MCL 750.50b. We affirm.

                    I. PERTINENT FACTS AND PROCEDURAL HISTORY

        On August 22, 2014, defendant’s neighbor, Dorothy Sparkman, contacted the Grand
Rapids Police Department and, according to the police report, reported “neighbor trouble.”
Shortly after 8:00 p.m., two police officers were dispatched to Sparkman’s home, who reported
that defendant had shot a cat with a BB gun and that it was in her backyard. The officers located
the cat and observed that, although alive, it was breathing laboriously and was paralyzed. The
officers proceeded to defendant’s house. In response to the officers’ knocks, defendant appeared
at the door, opened it, and refused a request to step out onto the porch. The officers then
escorted defendant onto the porch, handcuffed him, and read him his Miranda1 rights.
Defendant admitted to shooting at the cat because the cat was a nuisance; however, he stated that
he was only trying to scare the cat. The officers sought permission to enter defendant’s house to
retrieve the BB gun; defendant initially denied that request. One of the officers then stated that
they could get a search warrant for the house, if necessary. At that point, defendant allowed the
officers into the home, told them where to find the gun, and they retrieved it from the house.
Shortly thereafter, the cat was euthanized by a veterinarian, due to the injuries it had suffered
upon being shot. Police released defendant and allowed him to return to his home. On
August 24, 2012, he voluntarily went to the police department and wrote out a statement,


1
    Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).


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admitting that he had shot the cat because it was “a pestilence.” He also admitted that after he
shot the cat, he “nudged it with his foot,” picked it up by its tail, and threw it into a garbage can.

         After defendant initially appealed his conviction, this Court granted his motion to remand
to file a motion for a new trial in the trial court based on his claims of ineffective assistance of
counsel.2 The trial court held a Ginther3 hearing and subsequently denied defendant’s motion for
a new trial. This appeal followed.

                          II. FOURTH AMENDMENT CHALLENGE

       Defendant first argues that his BB gun was not admissible into evidence because the gun
was obtained after an illegal seizure of defendant and because the officers’ search for the gun
was based on coerced consent. We disagree.

        Both the United States and Michigan Constitutions prohibit unreasonable searches and
seizures. US Const, Am IV; Const 1963, art 1, § 11. Generally, a search or seizure conducted
without a warrant is unreasonable unless the search or seizure falls within a “specifically
established and well-delineated” exception to the warrant requirement. People v Champion, 452
Mich 92, 98; 549 NW2d 849 (1996). One of the recognized exceptions to the warrant
requirement is custodial detention or seizure of a suspect based on probable cause to arrest the
suspect. Id. at 115. “Probable cause to arrest exists where the facts and circumstances within an
officer’s knowledge and of which he has reasonably trustworthy information are sufficient in
themselves to warrant a man of reasonable caution in the belief that an offense has been or is
being committed.” Id. A police officer may arrest a person without a warrant if a felony has
been committed and the officer has reasonable cause to believe the person committed it.
MCL 764.15(1)(b). It is a felony to commit a reckless act knowing or having reason to know
that the act will cause an animal to be killed, tortured, mutilated, maimed, or disfigured.
MCL 750.50b.

       In this case, Sparkman contacted the police by telephone reporting trouble with her
neighbor, and told the responding officers that defendant had shot a cat with his BB gun,
describing the gun as a black rifle. Sparkman also reported that defendant had shot other animals
previously, and she described defendant and provided his address. Officers observed the injured
cat and immediately went to defendant’s address. Defendant appeared at the door, matching the
given description. These facts and circumstances known to the officers at the time they detained
defendant on his front porch were sufficient to lead a person of reasonable caution to believe that
a felony had been committed and that defendant had committed it. The record supports that at
the time the officers detained defendant they had probable cause to arrest him, and thus could
properly seize and detain him without a warrant. Champion, 452 Mich at 115. Further,
defendant’s argument that the police lacked probable cause to arrest him, because the only


2
 People v Nowicki, unpublished order of the Court of Appeals, entered April 30, 2014 (Docket
No. 319348).
3
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


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information that the police had that he had committed a crime was an anonymous tip, is not
supported by the record. In the first place, the tip was not anonymous; the responding officers
spoke with Sparkman, who provided additional information. Further, the tip was corroborated
by the presence of the injured cat. When even an anonymous tip is corroborated by additional
information, it can provide probable cause to support an arrest. See People v Walker, 401 Mich
572, 579-580; 259 NW2d 1 (1977).

         In addition, the fact that defendant was seized from the doorway of his home does not
alone make his detainment illegal. See United States v Santana, 427 US 38, 42; 96 S Ct 2406;
49 L Ed 2d 300 (1976). Defendant was standing in the doorway, with the door open, conversing
with officers. Thus, for the purposes of the Fourth Amendment, defendant “was not merely
visible to the public but was [] exposed to public view, speech, hearing, and touch” and “not in
an area where she had any expectation of privacy. Id. At the evidentiary hearing, defendant
testified that after he opened the door, he stepped back approximately three feet into his home.
However, the trial court found that this testimony was not credible and made a factual finding
that “defendant was in the doorway when he first spoke with police.” The trial court was
permitted to make this credibility determination, and this Court cannot substitute its judgment for
that of the trial court. People v Cress, 468 Mich 678, 692, 694; 664 NW2d 174 (2003). Thus,
defendant was in a public place at the time of his seizure, and defendant’s warrantless seizure
from his doorway based upon probable cause did not violate the Fourth Amendment. See
Santana, 427 US at 42.

       In addition, the fact that defendant was subsequently handcuffed did not make his
detainment illegal. People v Zuccarini, 172 Mich App 11, 14; 431 NW2d 446 (1988). At the
time the officers first approached defendant, he was hostile, and officers knew he possessed a
weapon but did not know where it was located. It was therefore important that the officers
minimize the risk of harm to both the police and any other occupants of defendant’s home.
Under these circumstances, handcuffing defendant was a reasonable, limited intrusion on
defendant’s liberty for safety reasons, and the act of handcuffing defendant did not make his
detainment illegal. Id.

        Defendant’s argument that the gun was inadmissible because the search for the gun was
based on coerced consent is also not supported by the record. An exception to the warrant
requirement exists when a person gives voluntary consent to a search. People v Roberts, 292
Mich App 492, 503; 808 NW2d 290 (2011). Whether a person has given voluntary consent to a
search is determined by considering the totality of the circumstances and is “primarily a question
of credibility.” Id. at 503. Where “resolution of a disputed factual question turns on the
credibility of witnesses or the weight of the evidence, we will defer to the trial court, which had a
superior opportunity to evaluate these matters.” Id. at 503-504 (internal citations omitted).

         In this case, an officer testified that he asked defendant where the gun was, and defendant
initially refused to allow officers to enter the home. The officer then advised defendant that he
could obtain a search warrant. Defendant subsequently changed his mind and said that he would
accompany the officers into the residence to retrieve the gun; they all went inside and defendant
told the officers where to find the gun. At the evidentiary hearing, defendant testified that he
only permitted the officers to enter the home after one of the officers threatened to obtain a
search warrant and to execute the warrant in an inconvenient manner. The trial court found that

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there was not any credible evidence of coercion. We defer to that credibility finding. Cress, 468
Mich at 692, 694; Roberts, 292 Mich App at 503-504. Moreover, there was no evidence to
support a finding that on the night in question, defendant was unable to make a free choice or
was unaware of his right to refuse consent to the search. The totality of circumstances
surrounding defendant’s consent supports a finding that defendant voluntarily consented to the
search that produced the gun, and that the gun was admissible. Roberts, 292 Mich App at 506-
507.

                            III. FIFTH AMENDMENT CHALLENGE

        Defendant also argues that his statements to the police on August 22, 2012 were
inadmissible. To the extent defendant argues that these statements were inadmissible because he
was illegally detained at the time he made these statements to the police, we find that argument
without merit as discussed above. However, defendant also argues that even if he was legally
detained on his front porch on August 22, 2012, his statements to the police are still inadmissible
because the statements were obtained before he was read his Miranda rights. We disagree.

        “The Fifth Amendment of the United States Constitution guarantees that the government
cannot compel a defendant in a criminal case to testify against himself. This protection has been
applied to the states through the Due Process Clause of the Fourteenth Amendment. In addition,
Art 1, § 17 of the Michigan Constitution affords defendants a corresponding state constitutional
right to be free from compelled self-incrimination.” People v Cheatham, 453 Mich 1, 9; 551
NW2d 355 (1996) (citations omitted). Therefore, “Miranda warnings” were developed through
the common law as “measures to insure that the [suspect’s] right against compulsory self-
incrimination [i]s protected.” Id. at 12.

        At trial, an officer testified that after defendant was escorted to the front porch and placed
in handcuffs, he advised defendant of his Miranda rights, defendant stated that he understood his
rights, and defendant agreed to speak with officers. The police report corroborated this
testimony. However, at the Ginther hearing, defendant testified that once he was on the front
porch of his house, the police officers immediately placed him in handcuffs, started questioning
him about the cat and his gun, and then read him his Miranda rights. The trial court made the
factual finding that defendant “was read his Miranda rights prior to any substantive questioning.”
It was permitted to evaluate the credibility of the witnesses, and this Court cannot substitute its
judgment for that of the trial court. Cress, 468 Mich at 692, 694.4



4
  We note that to the extent defendant argues that his written statement on August 24, 2012 was
inadmissible because it followed his illegal detainment, defendant has abandoned this argument
by failing to provide any analysis in the text of his brief on appeal. People v Payne, 285 Mich
App 181, 188; 774 NW2d 714 (2009). However, even if we were to consider this argument, it is
without merit because defendant’s detention and initial statements on August 22, 2012 were legal
and admissible. Further, there is no evidence that defendant was detained or in custody when he
provided his written statement; rather a police detective testified that defendant came to the
station voluntarily and completed a written statement in the lobby of the police department.

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                       V. INEFFECTIVE ASSISTANCE OF COUNSEL

       Finally, defendant argues that he was denied the effective assistance of counsel at trial.
We disagree. To demonstrate ineffective assistance of counsel, “the defendant must show that
(1) defense counsel’s performance was so deficient that it fell below an objective standard of
reasonableness, and (2) there is a reasonable probability that defense counsel’s deficient
performance prejudiced the defendant.” People v Heft, 299 Mich App 69, 80-81; 829 NW2d 266
(2012) (citation omitted). To establish prejudice, defendant must show that “but for defense
counsel’s errors, the result of the proceeding would have been different.” Id. at 81.

        Defendant argues that he was denied the effective assistance of defense counsel because
his counsel did not to move to suppress the BB gun and the statements made by defendant on
August 22 and 24, 2012. However, after the hearing, the trial court found that because the
statements and the BB gun were admissible, a motion to suppress with regard to any of this
evidence would not have had merit, and defendant could not prevail on his claim that his counsel
was ineffective for failing to bring such a motion. We agree, for the reasons stated above.
Defendant’s counsel was “not required to advocate a meritless position.” People v Snider, 239
Mich App 393, 425; 608 NW2d 502 (2000). The trial court properly found that defendant’s
counsel’s performance with regard to this evidence was not so deficient that it fell below an
objective standard of reasonableness. Heft, 299 Mich App at 80-81.

        Defendant also alleges that defense counsel was ineffective because he elected not to
introduce medical evidence regarding the fact that defendant’s girlfriend’s son suffered from
asthma and allergies. Decisions regarding what evidence to present are generally presumed to be
matters of trial strategy. People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008). Defense
counsel has wide discretion as to matters of trial strategy because “counsel may be required to
take calculated risks to win a case,” Heft, 299 Mich App at 83. At trial, defendant argued that he
had cause to shoot the cat because his girlfriend’s son is allergic to cats and has asthma.
However, at the evidentiary hearing, defense counsel testified that he had spoken with the child’s
physician, who stated that the child’s allergy to cats was not severe and that although exposure to
a cat may “produce some discomfort,” the child would not have a “severe or overly harsh
reaction” to a cat. After speaking with the physician, defense counsel determined that that
testimony from the physician would not be helpful and that it was more effective to have
defendant testify regarding how severe he thought the allergy was and why he was trying to keep
the cat away from his home. This strategic decision allowed defense counsel to present to the
jury evidence of the child’s allergies, while also exploring defendant’s intent and state of mind
with regard to shooting the cat.

        The trial court properly found that the decision not to introduce medical evidence was
strategic and consistent with the defense theory of the case. Id. at 84. Defense counsel’s
decision does not constitute ineffective assistance of counsel simply because it did not work, id.,
and the trial court properly found that defense counsel’s performance with regard to this
evidence was not so deficient that it fell below an objective standard of reasonableness. Id. at

Miranda concerns are only implicated when a defendant is in custody. See People v Hill, 429
Mich 382, 391; 415 NW2d 193 (1987).


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80-81. Further, defendant has not demonstrated that the lack of medical evidence concerning the
extent of his child’s allergies prejudiced his case; as stated, the jury was allowed to hear that the
child was allergic to cats. Heft, 299 Mich App at 80-81. Defendant’s case may in fact have been
weakened by presenting the jury with evidence that the child’s allergy was not severe. We
therefore conclude that defendant did not receive ineffective assistance of counsel.

       Affirmed.

                                                              /s/ Patrick M. Meter
                                                              /s/ David H. Sawyer
                                                              /s/ Mark T. Boonstra




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