PEOPLE OF MI V TIMOTHY ALVIN WARRINER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 19, 1999
Plaintiff-Appellee,
v
No. 203075
Hillsdale Circuit Court
LC No. 00207526
TIMOTHY ALVIN WARRINER,
Defendant-Appellant.
Before: Murphy, P.J., and MacKenzie and Talbot, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of OUIL/per se, third offense, MCL
257.625(7)(d); MSA 9.2325(7)(d), resisting and obstructing a police officer, MCL 750.479; MSA
28.747, driving with a suspended driver’s license, MCL 257.904(1)(b); MSA 9.2604(1)(b), and failing
to report an accident, MCL 257.618; MSA 9.2318. Defendant appeals by right and we affirm. This
appeal is being decided without oral argument pursuant to MCR 7.214(E)
.
On appeal, defendant argues he was deprived of effective assistance of counsel at trial because
his trial attorney failed to move to suppress the statements he made to the police immediately prior to his
arrest on grounds that those statements were not made voluntarily and were made in violation of
defendant’s Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 694 (1966)] warning rights.
We disagree.
The obligation to give Miranda warnings to a person attaches only when the person is in
custody, meaning that the person has been formally arrested or subjected to a restraint on freedom of
movement of the degree associated with a formal arrest. Stansbury v California, 511 US 318; 114 S
Ct 1526, 1528-1529; 128 L Ed 2d 293 (1994). In deciding if the defendant was in custody, this Court
must look to the totality of the circumstances to determine whether defendant reasonably could have
believed that he was not free to leave. People v Mendez, 225 Mich App 381, 382; 571 NW2d 528
(1997); People v McElhaney, 215 Mich App 269, 278; 545 NW2d 18 (1996).
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Here, it is significant that the questioning took place at the home of defendant’s mother, as
opposed to a police station or other police-dominated setting. See McElhaney, supra; People v
Rogers, 14 Mich App 207, 212-213; 165 NW2d 337 (1968). During the initial questioning, defendant
was not told that he was under arrest or that he could not leave. Indeed, defendant’s initial refusal to
answer the officers’ questions indicates that he did not feel coerced at the time. Mendez, supra at 383.
Moreover, by the time defendant made the incriminating statements in question, defendant had already
begun exhibiting a more cooperative and friendly attitude, granting the officers’ request for permission to
enter the home to use the telephone and telling the officers to “come on in out of the rain” or similar
words to that effect. Contrary to defendant’s argument, there is nothing in the record to indicate that the
officers’ request to use the telephone was a ruse.
With regard to the voluntariness of defendant’s statements to the police officers, the test is
whether “considering the totality of all the surrounding circumstances, the confession is ‘the product of
an essentially free and unconstrained choice by its maker,’ or whether the accused’s ‘will has been
overborne and his capacity for self-determination critically impaired.’” People v Cipriano, 431 Mich
315, 333-334; 429 NW2d 781 (1988). The mere fact that defendant was found incompetent to stand
trial for a four-month period approximately two months after his arrest, without more, is insufficient to
establish a lack of volition rendering his statements to the police inadmissible. The record in this case
also fails to establish that the level of defendant’s intoxication was such as to substantially reduce his
willpower or impair his capacity for self-determination.
On this record, we conclude that defendant has failed to establish he was deprived of effective
assistance of counsel.
Affirmed.
/s/ William B. Murphy
/s/ Barbara B. MacKenzie
/s/ Michael J. Talbot
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