PEOPLE OF MI V JEFFREY DALE BROWN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 12, 2002
Plaintiff-Appellee,
v
No. 229930
Oakland Circuit Court
LC No. 00-170749-FH;
2000-170763-FH;
2000-170764-FH
JEFFREY DALE BROWN,
Defendant-Appellant.
Before: K. F. Kelly, P.J., and Doctoroff and Cavanagh, JJ.
PER CURIAM.
Defendant appeals by right from convictions of first-degree home invasion, MCL
750.110a(2), possession of a firearm during the commission of a felony, MCL 750.227b, and
larceny of a firearm, MCL 750.357b, for which he was sentenced to prison terms of 6½ to twenty
years’, two years’, and one to five years’, respectively. We affirm. This appeal is being decided
without oral argument pursuant to MCR 7.214(E).
Defendant first contends that the trial court erred in denying his motion to suppress his
confessions.
In reviewing a trial court’s determination of the voluntariness issue, this Court must
examine the entire record and make an independent determination. People v Gould, 225 Mich
App 79, 88; 570 NW2d 140 (1997). The trial court’s findings of fact will not be disturbed unless
they are clearly erroneous. People v LoCicero (After Remand), 453 Mich 496, 500; 556 NW2d
498 (1996). The trial court’s factual findings are clearly erroneous if, after review of the record,
this Court is left with a definite and firm conviction that a mistake has been made. People v
Givans, 227 Mich App 113, 119; 575 NW2d 84 (1997). However, this Court will ordinarily
defer to the trial court’s resolution of factual issues, especially when it involves the credibility of
witnesses whose testimony conflicts. People v Cartwright, 454 Mich 550, 555; 563 NW2d 208
(1997); People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983).
Statements made during a custodial interrogation are inadmissible unless the defendant
voluntarily, knowingly and intelligently waives his Fifth Amendment rights. Whether a waiver
of Miranda1 rights is voluntary and whether an otherwise voluntary waiver is knowing and
1
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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intelligent are separate questions. People v Howard, 226 Mich App 528, 538; 575 NW2d 16
(1997). The issue of voluntariness is to be determined solely by examining police conduct and
cannot be resolved in defendant’s favor absent some police coercion. Id.; People v Garwood,
205 Mich App 553, 555; 517 NW2d 843 (1994). The test of voluntariness is whether,
considering the totality of the circumstances, the statement was the product of an essentially free
and unconstrained choice or whether it was the result of an overborne will. People v Cipriano,
431 Mich 315, 333-334; 429 NW2d 781 (1988).
Relevant factors in determining voluntariness include the defendant’s age; 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 lack of any advice to the defendant of his
constitutional rights; whether there was an unnecessary delay in bringing him before a magistrate
before he made his statement; whether the defendant was injured, intoxicated or drugged, or in ill
health when he made the statement; whether the defendant was deprived of food, sleep or
medical attention; and whether he was physically abused or threatened with abuse. Id. at 334.
Another relevant factor is whether the police made any promises of leniency to induce the
confession. Givans, supra at 119-120. The absence or presence of any one of these factors is
not necessarily conclusive on the issue of voluntariness. The ultimate test is whether the totality
of the circumstances indicates that the statement was freely and voluntarily made. Cipriano,
supra.
There is no claim that defendant was unable to understand his rights and make a knowing
and intelligent waiver. The evidence showed that defendant was twenty years old, had an 11th
grade education, and could read, write, and understand English. There was no evidence that he
was of other than average intelligence, that he was suffering from any physical or mental
infirmity, that he was deprived of food or sleep, or was otherwise subjected to such ill treatment
that he felt compelled to confess. Officer Luther advised defendant of his rights and he waived
them. She stated that she made no promises to defendant and he did not testify to the contrary.
Although Luther said another officer told defendant that it was best to tell the truth, “mere
adjurations or exhortations to tell the truth, without more, are insufficient to vitiate the
voluntariness of a confession.” People v Conte, 421 Mich 704, 740; 365 NW2d 648 (1984)
(Williams, CJ.). Therefore, the trial court did not err in admitting defendant’s confession to the
Wixom offense.
Deputy Venus denied making any promises to defendant regarding the number of charges
to be filed against him. Although defendant testified to the contrary, that testimony was belied
by the fact that he read and signed a waiver form in which he confirmed that no promises had
been made to him. The court clearly found defendant’s credibility to be suspect and this Court
will defer to that finding. Based on the record, the trial court did not clearly err in finding that
defendant’s statement to Venus was not induced by a promise of leniency. Although Venus
admittedly told defendant that it was in his best interests to tell him about all the break-ins in
which he was involved, he said he made the statement only after defendant had admitted his
participation in the two Commerce Township crimes and thus it could not have induced
defendant to confess to those crimes. Therefore, the trial court did not clearly err in admitting
defendant’s confession to the two Commerce Township offenses.
Defendant next contends that the conviction of first-degree home invasion was against
the great weight of the evidence. The issue has not been preserved for appeal because defendant
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did not move for a new trial below. People v Winters, 225 Mich App 718, 729; 571 NW2d 764
(1997). Moreover, defendant’s claim is premised on the contention that the prosecutor failed to
prove that he intended to steal guns when he entered the homes. Apart from the fact that the
statute only requires the intent to commit a larceny in general, not a larceny of specific goods,
MCL 750.110a(2), defendant has waived this issue by failing to brief the merits of the claim.
See People v Kean, 204 Mich App 533, 536; 516 NW2d 128 (1994).
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Martin M. Doctoroff
/s/ Mark J. Cavanagh
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