PEOPLE OF MI V THOMAS WADE COATS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 18, 2002
Plaintiff-Appellee,
v
No. 226187
Monroe Circuit Court
LC No. 99-029961-FH
THOMAS WADE COATS,
Defendant-Appellant.
Before: Saad, P.J., and Sawyer and O’Connell, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial conviction for operating a vehicle while under
the influence of intoxicating liquor (OUIL) and/or operating a vehicle with an unlawful bodily
alcohol level (UBAL), third offense, MCL 257.625. The court sentenced defendant as a second
habitual offender, MCL 769.10, to twenty-eight to ninety months’ imprisonment. We affirm.
Defendant claims that comments made by the trial court judge resulted in a coerced
verdict. We disagree.
At trial, the judge instructed the jury, dismissed two alternate jurors, and sent the
remaining twelve jurors to deliberate at 3:32 p.m. The judge recalled the jury at 5:47 p.m., and
told them that he might send them home until the following day. A juror interrupted the judge
and stated that he would not be there the next day. After hearing this, the judge said:
Oh, and we’re down to twelve. Then I am going to do the following, send you
back to the jury room to continue deliberations, because I can’t do it with eleven.
So you’re back to that room then if you please.
Neither party objected, and the jury returned at 6:35 p.m. and announced it reached a verdict of
guilty.
“Claims of coerced verdicts are reviewed case by case, and all the facts and
circumstances, as well as the particular language used by the trial court, must be considered to
determine whether the defendant was denied a fair trial.” People v Turner, 213 Mich App 558,
583; 540 NW2d 728 (1995). Generally, a “court may impress upon the jury the propriety and
importance of coming to an agreement, and harmonizing their views, state the reasons therefore
and tell them it is their duty to try to agree; but should not give instructions having a tendency to
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coerce the jury into agreeing on a verdict. People v Malone, 180 Mich App 347, 352-353; 447
NW2d 157 (1989), quoting People v Strzempkowski, 211 Mich 266, 268; 178 NW 771 (1920).
Language in jury charges should contain no “pressure, threats, embarrassing assertions, or other
wording that would cause this Court to feel that it constituted coercion.” People v Holmes, 132
Mich App 730, 749; 349 NW2d 230 (1984). This Court has noted that merely because a jury
returned within one-half hour after an instruction did not, by itself, constitute any proof of
coercion. Id.
In Malone, supra, the trial court judge made several comments to the jury regarding its
deliberations, including:
My experience has been--and I might be right, I can easily be wrong, that in most
cases there’s either a verdict shortly after dinner or it's hopeless, and so if shortly
after dinner you have a verdict, fine. If not, I will be calling you in after a rather
brief period of time and see if you people think that it might be a few more
minutes or forever and if it's forever, we will just have to discharge you and send
you home. If it’s impossible to reach a verdict, that's unfortunate, we don't like to
have that, but sometimes that’s the way it is. [Id. at 350.]
In reviewing the defendant’s claim of jury coercion, this Court ruled the judge’s comments,
taken as whole, were confusing and may have improperly implied that, if it did not reach a
verdict that evening, the jury would be considered deadlocked and would be permanently
discharged. Id. at 353. This Court also found it significant that the judge never told the jury that
it could resume deliberations on the following Monday. Id. Ultimately, while the Court ruled
that the verdict may have been coerced, the Court reversed the defendant’s conviction based on
the cumulative effect of numerous errors. Id., 362.
Here, the trial court judge’s comment did not result in a coerced verdict. The language
used by the judge contained no pressure or threats; rather, the trial court was simply responding
to the situation, after a juror announced that he could not return the following day. Holmes,
supra, at 749. The jury was aware that the court was attempting to accommodate a juror, and
was not confused by the trial court’s comments. Malone, supra at 347, 353. The trial court
judge did not require the jury to deliberate until an unreasonable hour. The judge sent the jury to
begin deliberations at 3:33 p.m. after a one-day trial, the trial court reviewed the situation at 5:47
p.m., and a verdict was reported at 6:35 p.m. Without more, the fact that the jury returned only
forty-eight minutes after the instruction does not, by itself, constitute proof of coercion. Holmes,
supra, at 749. We find that the trial court’s comment did not result in a coerced verdict.
Defendant also alleges that the court erred when it stated that twelve jurors must decide
the case, because MCR 6.410(A) states that the parties may stipulate to have the case decided by
a jury of less than twelve jurors. However, MCR 6.410(A) also states that the trial court has the
right to refuse such a stipulation in the interest of justice. According to MCR 6.410(A), the trial
court need only state its reasons for refusing to accept the stipulation on the record. Because the
trial court is so empowered by the court rules, and makes the final decision regarding the number
of jurors, we find defendant’s argument without merit.
Further, defendant contends that he received ineffective assistance of counsel because
defense counsel did not move to suppress his confession to the police. According to defendant,
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because he was intoxicated, his confession was involuntary and made pursuant to an invalid
waiver of his Miranda1 rights. Defendant further maintains that the police coerced his
confession by threatening to prosecute his girlfriend, Natalie Shaw, for causing the accident.
To establish ineffective assistance of counsel, “a defendant must show that counsel’s
performance fell below an objective standard of reasonableness and that the deficient
performance prejudiced the defense so as to deny defendant a fair trial.” People v Smith, 456
Mich 543, 556; 581 NW2d 654 (1998). “As for deficient performance, a defendant must
overcome the strong presumption that his counsel’s action constituted sound trial strategy under
the circumstances.” People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000).
To
demonstrate prejudice, a defendant must show “that there is a reasonable probability that but for
the unprofessional errors the result of the proceeding would have been different.” People v
Mitchell, 454 Mich 145, 158; 560 NW2d 600 (1997).
“To properly preserve this issue defendant would have had to object to his counsel’s
performance in the court below and establish a record of facts pertaining to such allegations.”
People v Fike, 228 Mich App 178, 181; 577 NW2d 903 (1998). Because defendant failed to
move for an evidentiary hearing below, People v Ginther, 390 Mich 436, 212 NW2d 922 (1973),
our review of this issue is limited to mistakes apparent on the record. People v McCrady, 213
Mich App 474, 479; 540 NW2d 718 (1995). Our review of the record does not reveal that
defense counsel’s “performance fell below an objective standard of reasonableness” or that “but
for errors of counsel, there was a reasonable probability of a different outcome.” Toma, supra at
310-311.
“In determining whether defendant’s confession was knowing, voluntary, and intelligent,
we apply an objective standard and examine the totality of the circumstances.” Fike, supra at
181. The relevant factors for consideration include:
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 an unnecessary delay in bringing him before the
magistrate before he gave the confession; whether the accused was injured,
intoxicated or drugged, or in ill health when he gave the statement; whether the
accused was deprived of food, sleep, or medical attention; whether the accused
was physically abused; and whether the suspect was threatened with abuse.
[People v Cipriano, 431 Mich 315, 334; 429 NW2d 781 (1988).]
No single factor is determinative, and the absence or presence of any factor is not decisive in
considering voluntariness. People v Sexton, 461 Mich 746, 753; 609 NW2d 822 (2000), citing
Cipriano, supra at 334.
1
Miranda v Arizona, 384 US 436; 86 S Ct 1602, 16 L Ed 2d 694 (1966).
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The record indicates that defendant was intoxicated when state troopers arrived at the
scene of the accident. Further, defendant’s blood alcohol level was measured at .15 percent after
he was taken to the police station. According to State Trooper Delman Putnam, prior to his
arrest, defendant asserted that Shaw drove the truck into the ditch and that she left the scene on
foot to find assistance. However, after Trooper Putnam told defendant that the police would
have to question Shaw about the accident, defendant admitted that he was driving the truck when
it drove into the ditch. After they took defendant into custody, the troopers read defendant his
Miranda rights, defendant waived those rights, and the troopers conducted an interview at the
police station. Trooper Putnam testified that, during the interview, defendant admitted that he
drank several beers at a friend’s house and then drove his truck into the ditch.
At trial, defendant testified that he was not driving the vehicle on the night of the incident
and that he told the troopers several times that Shaw was driving the truck. Further, defendant
maintained that he was cold, wet and tired after the accident and that the troopers questioned him
several times about the incident but refused to believe his statement. According to defendant, he
never actually admitted to driving the truck but, in light of the troopers’ disbelief, he merely told
them that, if Trooper Putnam believed he was the driver, then he was the driver. Shaw and a
friend, Robert Nolff, also testified at trial that Shaw, not defendant, was driving the truck on the
night of the incident.
Defendant has failed to overcome the presumption that defense counsel’s decision not to
request a suppression hearing constituted sound trial strategy, “an area in which this Court will
not substitute its judgment for that of counsel.” Fike, supra at 183. The record reflects that
defendant maintained that he told the troopers several times that Shaw was driving the truck and
that, after maintaining his innocence, he merely told Trooper Putnam that “whatever you say and
if you say I was the driver, I was the driver, you don’t believe anything I say anyway.” Further,
at trial, defendant and two witnesses testified that Shaw was driving the vehicle. Based on
defendant’s position at trial, that he repeatedly told the troopers that he was not the driver,
defense counsel could have easily concluded that a pre-trial suppression hearing was
unwarranted. Defense counsel could also have so concluded based on potential trial testimony
from Shaw and Nolff, who claimed to personally witness defendant in the passenger seat of the
truck.
Moreover, defense counsel could have alternatively concluded that a motion to suppress
defendant’s statements to police would have been futile. Though defendant may have been
intoxicated at the time of his arrest, no evidence suggests he did not understand or appreciate his
right to remain silent, his right to an attorney or that his statements might be used against him at
trial. Not only did Trooper Putnam read defendant his Miranda rights, defendant has had
sufficient previous experience with the police and to have been aware of his rights. Further, the
record does not indicate that the police took advantage of defendant’s condition or otherwise
coerced him into confessing. Again, defendant testified at trial that, when questioned, he
repeatedly told police that Shaw was driving the truck. Further, even if the troopers told
defendant that they needed to question Shaw and that she might be arrested if she was driving,
this does not amount to undue pressure, threat or coercion that would render defendant’s
statement involuntary.
Based on the circumstances surrounding defendant’s confession, defense counsel could
have reasonably concluded, that he would have been unsuccessful in filing a motion to suppress
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defendant’s statements. Indeed, the record before us reveals that defendant’s statements were
properly admitted at trial, “and trial counsel cannot be faulted for failing to raise an objection or
motion that would have been futile.” Fike, supra at 182.
Were we to find that defense counsel’s failure to seek suppression of defendant’s
statements constituted deficient performance, defendant has nonetheless failed to show that,
absent this failure, the jury would have acquitted him. Mitchell, supra at 158. The prosecutor
presented ample evidence that defendant was the driver of the truck when it ran into the ditch.
An eyewitness, Jack Penwarden, testified that he saw a man behind the wheel of the truck
immediately after the accident and that he saw the man attempt to drive out of the ditch. Further,
Penwarden testified that he saw the man exit and reenter the truck, but saw no one else involved
in the accident. The state troopers provided testimony corroborating Penwarden’s observations.
The troopers found a wallet lying on the ground near the bumper of the truck and saw signs that
someone had exited the vehicle on the driver’s side but no sign that anyone exited on the
passenger’s side. Moreover, the only personal items the troopers found in the truck belonged to
defendant.
In sum, substantial direct and circumstantial evidence proved that defendant committed
the crime. Accordingly, there is no reasonable likelihood that, if defense counsel attempted to
suppress defendant’s confession, the jury would have found defendant not guilty. Because
defendant has failed to show that defense counsel’s performance was deficient and that his errors
prejudiced him so as to deny him a fair trial, defendant has failed to establish a viable claim of
ineffective assistance of counsel. Smith, supra at 556.
Affirmed.
/s/ Henry William Saad
/s/ David H. Sawyer
/s/ Peter D. O’Connell
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