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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

April 21, 2015 

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 selfincrimination [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

 

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 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