PEOPLE OF MI V TORIANO JACOE TISDALE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 2, 1997
Plaintiff-Appellee,
v
No. 193962
Recorder’s Court
LC No. 94-011239
TORIANO JACOE TISDALE,
Defendant-Appellant.
Before: Fitzgerald, P.J., and Markey and J.B. Sullivan,* J.J.
PER CURIAM.
Defendant appeals as of right from his bench trial convictions of second-degree murder, MCL
750.317; MSA 28.549, and possession of a firearm during the commission of a felony (felony-firearm),
MCL 750.227b; MSA 28.424(2). Defendant was sentenced to serve twenty-five to sixty years in
prison for his second-degree murder conviction and two years for his felon-firearm conviction. We
affirm.
Defendant first argues that, because the trial court erred in denying his motion to suppress his
statement to the police, the evidence was insufficient to support his conviction of second-degree murder.
We disagree. Although defendant frames the issue as one of sufficiency, he concedes that his sufficiency
argument is dependent upon a determination that the trial court erred when it found defendant’s
statement to have been made voluntarily.
The issue of the voluntariness of a confession is a question of law for the court’s determination.
People v Etheridge, 196 Mich App 43, 57; 492 NW2d 490 (1992). In reviewing the trial court’s
findings, this Court examines the entire record and makes an independent determination of voluntariness.
However, recognizing the trial court’s superior ability to view the evidence, this Court gives deference to
the trial court’s findings unless they are clearly erroneous. Id. A finding is clearly erroneous if, although
there is evidence to support it, this Court is left with a definite and firm conviction that a mistake has
been made. People v Jobson, 205 Mich App 708, 710; 518 NW2d 526 (1994). Particular
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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deference should be given where the demeanor and credibility of witnesses are important to the trial
court’s determination. See, People v Mack, 190 Mich App 7, 18; 475 NW2d 830 (1991).
When evaluating the voluntariness of a confession, a court must determine whether, “considering
the totality of all the surrounding circumstances, the confession [was] ‘the product of an essentially free
and unconstrained choice by its maker,’ or whether the defendant’s ‘will [was ] overborne and his
capacity for self-determination critically impaired.’” People v Cipriano, 431 Mich 315, 333-334; 429
NW2d 781 (1988), quoting Culombe v Connecticut, 367 US 568, 602; 81 S Ct 1860; 6 L Ed 2d
1037 (1961). When applying the “totality of the circumstances” test to determine whether a statement
was voluntarily made, a court should consider, among other things, the age of the accused, his lack of
education or his intelligence level, the extent of his previous experience with the police, the repeated and
prolonged nature of the questioning, the length of the detention of the accused before he gave the
statement in question, the lack of any advice to the accused of his constitutional rights, whether there
was unnecessary delay in bringing him before a magistrate before he gave the statement, whether the
accused was injured, intoxicated or in ill health when he gave the statement, whether the accused was
deprived of food, sleep, or medical attention, and whether the accused was physically abused or
threatened with abuse. Cipriano, supra, 334.
The record in the instant case indicates that when defendant made his statement to Detroit
Police Investigator Dale Collins, he appeared to be in good physical health and was not under the
influence of narcotic drugs or alcohol. Defendant, who had attended school through the eleventh grade
and earned his GED, was twice advised of his Miranda1 rights. There was no evidence of prolonged
or repeated questioning, and defendant admitted that he was not treated roughly by the police.
Moreover, Collins testified that he made no threats or promises to defendant, that defendant never
requested that the questioning stop, that defendant never requested an attorney, that defendant never
requested any food, and that defendant checked the written version of his statement for errors and
made and initialed five or six corrections. Although Collins’ testimony was disputed by defendant, we
defer to the trial court’s finding that Collins’ testimony was more credible than defendant’s testimony.
Etheridge, supra, 57. Finally, upon the trial court’s questioning at defendant’s Walker2 hearing,
defendant indicated that food had been provided to him. Accordingly, we hold that the trial court did
not clearly err when it determined, based on the totality of the circumstances, that defendant’s statement
was made voluntarily. Cipriano, supra, 333-334.
Defendant next argues that the trial court imposed a sentence that was disproportionately
severe, given defendant’s lack of a serious prior criminal record. We disagree. A sentence within the
sentencing guidelines’ range can be disproportionate if unusual circumstances exist. People v
Milbourn, 435 Mich 630, 661; 461 NW2d 1 (1990). However, if a defendant believes that unusual
circumstances exist so that a sentence within the guidelines’ range would not be proportionate, those
circumstances should be presented to the sentencing judge in open court before sentencing so that the
judge may consider them. People v Sharp, 192 Mich App 501, 505-506; 481 NW2d 773 (1992). If
this is not done, the issue may not be raised on appeal. Id., 506.
In the instant case, defendant failed to cite his lack of a serious prior criminal record as an
unusual circumstance meriting deviation from the sentencing guidelines’ recommended minimum
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sentence range. Accordingly, this issue is not preserved for appeal. Sharp, supra. In any event, the
lack of a prior criminal history is not an unusual circumstance that can overcome the presumption that a
minimum sentence within guidelines’ range is proportionate. People v Daniel, 207 Mich App 47, 54;
523 NW2d 830 (1994).
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Jane E. Markey
/s/ Joseph B. Sullivan
1
See, Miranda v Arizona, 84 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
2
See, People v Walker (On Rehearing), 374 Mich 331, 338; 132 NW2d 87 (1965).
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