PEOPLE OF MI V LEANDRO MATA
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 6, 1997
Plaintiff-Appellee,
v
No. 189221
Isabella Circuit Court
95-007230-FH
LEANDRO MATA,
Defendant-Appellant.
Before: Smolenski, P.J., and Kelly and Gribbs, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of carrying a concealed weapon (CCW) on his
person, MCL 750.227; MSA 28.424, and felon in possession of a firearm, MCL 750.224f; MSA
28.421(6), supplemented by habitual offender third offense, MCL 769.11: MSA 28.1083. Defendant
was sentenced to 60 to 120 months’ imprisonment for each conviction, the time to be served
concurrently. Defendant appeals as of right. We affirm defendant’s convictions and sentences but
remand for clerical correction of errors in the presentence investigation report.
In the early morning hours of January 31, 1995, defendant and his wife were stopped at a gas
station by police officers responding to a suspected shoplifting complaint. The complaint was called in
to the police by a grocery store manager, who identified defendant and his wife as the suspected
shoplifters. A handgun was discovered during a search of the gas station men’s restroom, and
defendant was subsequently arrested for CCW.
Defendant first argues that his constitutionally protected right of confrontation was denied when
the trial court heard testimony about a statement defendant’s wife made while watching one of the
arresting officers carry the handgun out of the restroom. Because “appellate courts will consider claims
of constitutional error for the first time on appeal when the alleged error could have been decisive of the
outcome,” People v Grant, 445 Mich 535, 547; 520 NW2d 123 (1994), we will review the trial
court’s decision to admit the statement at issue. For defendant to prevail, he must show that the
admission of the statement into evidence was in error, and that this error was decisive of the outcome.
Id.; People v Maryland, 135 Mich App 297, 302; 355 NW2d 378 (1984). In White v Illinois, 502
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US 346; 112 S Ct 736; 116 L Ed 2d 848 (1992), the United States Supreme Court found that “where
proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the
hearsay rule, the Confrontation Clause is satisfied.” Id. at 356. Upon seeing the officer carrying the
gun, defendant’s wife blurted out that the gun belonged to her. This statement falls within the excited
utterance exception to the hearsay rule, MRE 801(2), because the time between her seeing the gun and
her spontaneous remark did not allow for any contrivance or misrepresentation. Thus, it was properly
admitted into evidence. MRE 802. Therefore, under the rule of White v Illinois, the admission of the
statement into evidence did not violate defendant’s constitutionally protected right of confrontation.
Second, defendant argues that the admission into evidence of testimony regarding his uttering to
his wife “nada” in response to his wife’s statement about ownership of the gun violated his Fifth
Amendment right to remain silent. The assumption underlying defendant’s argument is that because he
was in custody at the time, his utterance is the result of a custodial interrogation. Given that five officers
were present at the gas station, and that one officer was directed by his superior to either “secure” or
“apprehend” defendant after the gun was discovered, it is clear that defendant was in custody at the
time. However, not “all statements obtained by the police after a person has been taken into custody
are to be considered the product of interrogation.” Rhode Island v Innis, 446 US 291, 299; 100 S Ct
1682; 64 L Ed 2d 297 (1980). “Any statement given freely and voluntarily without any compelling
influences is, of course, admissible as evidence.” Miranda v Arizona, 384 US 436, 478; 86 S Ct
1602; 16 L Ed 2d 694 (1966). Defendant’s utterance, directed at his wife and overheard by the
police, was voluntarily made. Therefore, admission of testimony regarding the utterance did not violate
defendant’s rights under the Fifth Amendment. Id.
Third, defendant argues that his right to a fair trial was violated when he was forced to appear at
trial in his prison clothing. Contrary to defendant’s contention, the record clearly indicates that
defendant chose to appear at trial in his prison clothing. Further, because defendant did not object to
the wearing of prison clothing before the jury was impaneled, his right to wear civilian clothing was
waived. People v Turner, 144 Mich App 107, 109; 373 NW2d 255 (1985). Defendant cannot
waive an objection at trial to the wearing of the prison clothing, only to reassert the issue on appeal.
People v Schuller, 188 Mich App 548, 552; 470 NW2d 492 (1991).
Fourth, defendant argues that his sentence was disproportionate because the trial court
improperly considered defendant’s alleged shoplifting when imposing sentence. An appellate court’s
“review of sentencing is limited to determining whether the trial court abused its discretion.” People v
Odendahl, 200 Mich App 539, 540-541; 505 NW2d 16 (1993). “[A] given sentence can be said to
constitute an abuse of discretion if that sentence violates the principle of proportionality, which requires
sentences imposed by the trial court to be proportionate to the circumstances surrounding the offense
and the offender.” People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). The trial judge’s
articulated reasoning underlying the sentence imposed indicates that he focused on the uncharged
shoplifting because of how it impacted the circumstances surrounding the CCW offense. Given that the
jury convicted defendant of CCW on his person, it is not unreasonable to assume that defendant had the
gun on his person when he was in the grocery store shortly before his arrest. Further, the Michigan
Supreme Court has noted that
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the sentencing judge should not be precluded from basing a sentence on facts underlying
. . . uncharged offenses .. . where those facts have been developed through sworn
testimony before that very judge. In the case of .. . uncharged offenses, .. . the
defendant must be afforded an opportunity to test the accuracy of those facts. [People
v Ewing, 435 Mich 443, 455; 458 NW2d 880 (1990) (opinion of Brickley, J.]
The uncharged shoplifting offense was dealt with at length by both parties during the trial. Both sides
questioned the grocery store employees and the police concerning the incident Therefore, because the
issue was sufficiently examined during trial, and because the court’s focus on the alleged shoplifting was
limited to how it impacted the circumstances surrounding the CCW offense, the trial court did not abuse
it s discretion when considering the uncharged offense during sentencing.
Fifth, defendant correctly argues that the case should be remanded so that the trial court can
correct the presentence investigation report, and then forward the corrected report on to the
Department of Corrections. The errors defendant identifies were properly brought to the attention of
the trial judge, who ruled that the report would be changed to reflect defendant’s corrections.
Apparently, however, the uncorrected report was sent along to the Department of Corrections. As we
observed in People v Norman, 148 Mich App 273, 275; 384 NW2d 147 (1986), “the presentence
investigation report should accurately reflect any determination the sentencing judge has made
concerning the accuracy or relevancy of the information contained in the report.” Accordingly, the case
should be remanded so that a corrected presentence investigation report can be prepared and sent to
the Department of Corrections.
Finally, although he does not raise it as a separate issue, within his first two issues defendant
argues that he received ineffective assistance of counsel. Although defendant did not move for either a
new trial or an evidentiary hearing, People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973),
appellate review of a claim of ineffective assistance of counsel may be appropriate where the details of
the claimed deficiencies are apparent in the record. People v Juarez, 158 Mich App 66, 73; 404
NW2d 222 (1987). In both instances in which defendant raises the argument, he fails to establish that
his counsel’s performance was below an objective standard of reasonableness, and that the result of the
trial was adversely affected by alleged deficiencies. People v Stanaway, 446 Mich 643, 687-688;
521 NW2d 557 (1994). As noted, the admission of the statement of defendant’s wife and the
admission of his utterance of the word “nada” were not in error. Additionally, because the admission of
testimony about these two statements was essential to defendant’s trial strategy, defendant has failed to
overcome the “strong presumption that counsel’s assistance constituted sound trial strategy.” Id. at
687.
Defendant’s convictions are affirmed, but we remand for the trial court to make the appropriate
corrections to the presentence investigation report, and to forward the corrected report on to the
Department of Corrections. We do not retain jurisdiction.
/s/ Michael R. Smolenski
/s/ Michael J. Kelly
/s/ Roman S. Gribbs
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