PEOPLE OF MI V BRYAN PATRICK ADAMSKIAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
June 14, 2002
Shiawasee Circuit Court
LC No. 00-004777-FH
BRYAN PATRICK ADAMSKI,
Before: Whitbeck, C.J., and O’Connell and Meter, JJ.
A jury convicted defendant Bryan Patrick Adamski of receiving or concealing a stolen
firearm,1 larceny from a building,2 and possession of a firearm during the commission of a felony
(felony-firearm).3 The trial court sentenced Adamski to concurrent prison terms of one to ten
years for the receiving or concealing conviction and six to forty-eight months for the larceny
conviction, to be served consecutive to a two-year prison term for the felony-firearm conviction.
He now appeals as of right. We affirm.
I. Basic Facts
The facts of this case, presented at trial, are fairly simple. Adamski and James Veytruba
worked with each other at the same place for approximately six months. On March 18, 1999,
Veytruba was still in bed at his home around 8:30 a.m. when he heard a noise. Adamski then
poked his head in Veytruba’s bedroom to say that he had stopped by. Adamski reportedly told
Veytruba not to bother getting up because he would return another time. Veytruba left his home
a short time later. When he returned that evening, he noticed that nine firearms he had on
display in his living room were missing.
Veytruba then went to speak with his neighbor, Jeffrey Gindlesperger, to ask him if he
had done anything with the missing guns. Gindlesperger denied doing anything with the guns,
but told Veytruba that he saw Adamski coming from Veytruba’s house at around 12:30 p.m.
Adamski then asked him, Gindlesperger, where Veytruba was. Gindlesperger suggested that
Adamski check at the diner down the road. When Adamski left, Gindlesperger did not see him
with any guns. After discussing the missing guns, Veytruba and Gindlesperger contacted the
police, who took Veytruba’s complaint before following the two men to Adamski’s house.
At Adamski’s house, Shiawassee County Sheriff’s Deputy Thomas Passinault knocked
on the door. Adamski answered the door. He admitted that he had visited Veytruba that day and
asked why the deputy was at his home. Passinault explained that someone had broken into
Veytruba’s home and had taken some firearms. Initially, Adamski said he did not know
anything about the missing guns. Passinault asked Adamski whether he owned any guns of his
own. Adamski said he did own guns, and showed the deputy a gun case containing three or four
guns that did not fit the description of the stolen guns. Passinault then asked Adamski whether
he had any other firearms in the house. Adamski replied that he had two shotguns under his bed.
With Adamski’s permission, Passinault searched Adamski’s home. After finding the two
shotguns under Adamski’s bed, Passinault again asked Adamski whether there were any other
guns, which Adamski denied. Passinault, however, ultimately discovered the stolen guns in
Adamski’s basement. When Passinault found these firearms, Adamski began to step backwards,
prompting Passinault and another officer present to tell Adamski that he was not free to leave.
Adamski told the officers that his father gave the guns to him several years ago.
The officers escorted Adamski upstairs and informed him he was going to be placed
under arrest. To avoid any trauma to Adamski’s children, the officers did not handcuff Adamski
at that time. While in the process of leaving the home, Adamski asked to speak to his wife.
Passinault agreed to allow him to do so while he listened. According to Passinault’s recollection,
in response to his wife’s questions, Adamski said that “he knew it was stupid and knew he
shouldn’t have done it.” Adamski then left the house and the officers placed him under arrest.
Passinault handcuffed Adamski and put him in the cruiser, and then read him his Miranda
rights.4 Adamski, however, said that he was willing to waive his rights at that time.
When the officers returned to the station with Adamski, they again advised him of his
rights and Adamski agreed to give a written statement. In his statement, Adamski said that he
knew he should not have taken the firearms, but he did so to hold them as collateral for a
financial debt Veytruba owed him.
The defense slightly expanded this collateral theory at trial, contending that Adamski and
Veytruba had an agreement allowing Adamski to take the guns. Adamski and his wife, Debra
Adamski, both testified that they sold a white pickup truck to Veytruba for $500 in July 1999,
but that he never paid them for it. Adamski added that, on the day in question, he went to
Veytruba’s house and asked Veytruba about the debt. Veytruba reportedly said that he did not
have the money to pay the debt, but that he could give Adamski some guns as collateral.
Adamski then told Veytruba that he could not take the guns at that time, but would return later to
retrieve them. Indeed, Adamski did return later in the day to take the guns.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
Despite the Adamskis’ testimony, Veytruba said that he did not give Adamski permission
to take his guns. Nor did he give Adamski permission to enter his home that day when he was
not there. Veytruba also denied having any arrangement with Adamski to use the guns as
collateral for the debt.
A. Standard Of Review
Adamski first argues that the trial court erred in not suppressing the statement he made at
home to his wife while he was in custody. According to Adamski, the statement was
inadmissible because he was in police custody and had not yet been advised of his Miranda
rights. Adamski failed to challenge the admissibility of this statement in the trial court, thereby
failing to preserve this issue for our review. As a result, Adamski is not entitled to relief on this
basis unless he establishes plain error affecting his substantial rights.5
By requiring law enforcement to advise suspects of their rights, Miranda helps a suspect
avoid compelled self-incrimination, which the Fifth Amendment bars.6 “The failure to give
Miranda warnings prior to a statement made during a custodial interrogation renders the
statement inadmissible [at trial] for purposes other than impeachment.”7 However, the key
words in this exclusionary rule are “custodial interrogation”; not every statement a suspect
makes within earshot of a law enforcement agent must be suppressed in the absence of Miranda
warnings.8 “Interrogation refers to express questioning and to any words or actions on the part
of police that the police should know are reasonably likely to elicit an incriminating response
from the subject.”9
There is no dispute that Adamski was in custody at the time he made the statement to his
wife. While it is possible that his wife’s entreaties convinced him to make the statement, it is
clear that neither Passinault nor the other officer asked any questions or took any actions to
prompt him to make the statement. In short, there was no interrogation. All the circumstances
point to a statement made voluntarily, without any compulsion by law enforcement.
Consequently, Adamski has failed to demonstrate the plain error that is the prerequisite to
granting him relief.
People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
See People v Attebury, 463 Mich 662, 668; 624 NW2d 912 (2001).
See People v Raper, 222 Mich App 475, 479; 563 NW2d 709 (1997).
Id. (emphasis added).
III. Ineffective Assistance Of Counsel
A. Standard Of Review
Adamski argues that he was denied his Sixth Amendment right to effective assistance of
counsel when his trial attorney failed to challenge the admissibility of the statement he made to
his wife, did not request a Walker10 hearing on the matter, and failed to move to suppress
evidence of his previous conviction. De novo review is appropriate for this issue because it
presents a constitutional question11 and does not require us to defer to the trial court in any
B. Legal Standards
As this Court explained in People v Knapp,13
To establish a claim of ineffective assistance of counsel, a defendant must
show that counsel’s performance fell below an objective standard of
reasonableness and that, but for defense counsel’s errors, there was a reasonable
probability that the result of the proceeding would have been different. People v
Stanaway, 446 Mich 643, 687-688; 521 NW2d 557 (1994). A defendant must
affirmatively demonstrate that counsel’s performance was objectively
unreasonable and so prejudicial as to deprive him of a fair trial. People v Pickens,
446 Mich 298, 303; 521 NW2d 797 (1994). The defendant must also overcome
the presumption that the challenged action might be considered sound trial
strategy. People v Tommolino, 187 Mich App 14, 17; 466 NW2d 315 (1991),
citing Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674
Because Adamski did not raise these issues in the trial court, our review is limited to the existing
C. Adamski’s Statements
The first two arguments that Adamski now raises, both of which revolve around his
voluntary statement to his wife, require little discussion. As we have already indicated, there is
no merit to his contention that his statement was inadmissible because he had yet to be read his
rights at the time he made the statement. The law does not require attorneys to engage in
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
See People v Houstina, 216 Mich App 70, 73; 549 NW2d 11 (1996).
See, generally, People v Toma, 462 Mich 281, 303-305; 613 NW2d 694 (2000) (Supreme
Court directly examined the evidence on the record).
People v Knapp, 244 Mich App 361, 385-386; 624 NW2d 227 (2001).
See People v Snider, 239 Mich App 393, 423; 608 NW2d 502 (2000).
meritless steps to fulfill their roles as legal advocates and counselors.15 Yet, this is exactly what
Adamski claims his trial attorney should have done by arguing that the attorney was ineffective
for failing to challenge his statement at trial or in a Walker hearing. There was no error requiring
reversal in this respect.
D. Prior Conviction
As for Adamski’s argument concerning his trial counsel’s failure to ask the trial court to
exclude evidence of his previous conviction for filing a false police report16 pursuant to MRE
404(b), we also disagree that this was ineffective assistance. The court rules endorse multiple
theories of admissibility, meaning that evidence that should be excluded on one ground may be
admissible for other purposes.17 In this case, even assuming that MRE 404(b) would have
required the trial court to suppress the evidence of Adamski’s previous conviction, Adamski does
not dispute its admissibility pursuant to MRE 609. The prosecutor introduced this evidence in
order to impeach Adamski’s testimony, properly relying on the false statement element of the
previous crime to demonstrate to the jury that he was not a credible witness.18 Thus, Adamski
has not demonstrated why his trial counsel should have made this meritless argument to the trial
IV. Double Jeopardy
A. Standard Of Review
Adamski contends his multiple convictions for larceny in a building, receiving or
concealing a stolen firearm, and felony-firearm violate the constitutional prohibitions against
double jeopardy.20 Review de novo is appropriate for this legal issue.21
B. Multiple Punishments
Adamski invokes the constitutional protection against multiple punishments for the same
offense in that the essence of his argument is that he is being punished three times for the same
criminal conduct. The constitutional bar against double jeopardy ensures that a defendant is not
punished more severely than the Legislature intended.22 However, “[t]his protection is a
People v Torres (On Remand), 222 Mich App 411, 425; 564 NW2d 149 (1997).
See MCL 750.411a.
See People v VanderVliet, 444 Mich 52, 73; 508 NW2d 114 (1993).
See MRE 609(a)(1); People v Parcha, 227 Mich App 236, 241; 575 NW2d 316 (1997).
See Torres, supra at 425.
US Const, Am V; Const 1963, art 1, §15.
See People v Kulpinski, 243 Mich App 8, 12; 620 NW2d 537 (2000).
See People v Griffis, 218 Mich App 95, 100; 553 NW2d 642 (1996).
limitation on the courts and the prosecutors, not on the Legislature’s power to define crimes and
Blockburger v United States24 articulates the proper analysis for a double jeopardy
challenge under the federal constitution.25 As the Michigan Supreme Court has explained, under
Blockburger, we must examine whether each offense requires proof of an element for which the
other offenses do not require proof.26 If the necessary proof of each crime differs by even one
factor, then we presume that conviction of more than one does not violate the bar against double
jeopardy.27 However, when analyzing a double jeopardy claim under the state constitution, we
employ “more traditional means of determining legislative intent.”28 Relevant factors courts
have considered in the past include whether the respective statutes prohibit conduct that violates
distinct social norms, the punishments the statutes authorize, whether the statutes are hierarchical
or cumulative, and any other factors that are suggestive of legislative intent.29
In People v Mitchell,30 the Michigan Supreme Court held that dual convictions of
receiving or concealing a stolen firearm and felony-firearm do not violate the constitutional
prohibitions against double jeopardy. Given that Mitchell addressed the constitutional challenge
under the state and federal constitutions, we need not address this issue further.
Under the reasoning in Mitchell that emphasizes the Legislature’s limited exceptions in
the language of the felony-firearm statute, it is also apparent that Adamski’s dual convictions of
larceny in a building and felony-firearm do not violate his double jeopardy rights under the state
constitution.31 Simply put, larceny is not an offense enumerated as an exception in the felonyfirearm statute.32 This combination of offenses also passes the Blockburger test, because larceny
requires an unauthorized taking of property from a building, which is not required for a
conviction for felony-firearm.33 Additionally, felony-firearm requires that the defendant possess
the firearm during the commission of another felony, which is not required for larceny.
Therefore, Adamski’s dual convictions of larceny and felony-firearm do not violate either
constitutional prohibition against double jeopardy.
Id. at 100-101.
Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932).
See People v Denio, 454 Mich 691, 707; 564 NW2d 13 (1997).
Id. at 708.
Id. at 708-709.
See People v Mitchell, 456 Mich 693, 697-698; 575 NW2d 283 (1998).
Id. at 693.
See MCL 750.227b.
See MCL 750.227b and MCL 750.360.
The only remaining question is whether Adamski’s convictions of larceny in a building
and receiving or concealing a stolen firearm implicate his double jeopardy rights. Addressing
the federal test first, conviction of larceny in a building requires proof that property of another
was taken within the confines of a building, which is not an element needed to prove that a
defendant received or concealed a stolen firearm.34 Conversely, a conviction for receiving or
concealing a stolen firearm requires proof that a person receives, conceals, stores, barters, sells,
disposes of, or accepts as security for a loan, a firearm that has been stolen, none of which are
required to establish a conviction for larceny. Given the different proofs that these crimes
require, Adamski’s dual convictions of these offenses did not violate his federal constitutional
Nor do we see any state constitutional error in Adamski’s conviction for the larceny and
receiving and concealing offenses. MCL 750.360 and MCL 750.535b each address conduct that
violates the social norm against the theft of property.35 However, the focus of the larceny statute
is the initial taking of property, whereas the receiving or concealing statute focuses on the facts
that follow the taking. The crime of larceny is complete at the time of taking, before the crime of
receiving or concealing takes place. These differences indicate that the Legislature intended
separate punishments for these different types of criminal conduct. Additionally, these crimes do
not appear either hierarchical or cumulative. In fact, the Legislature codified them in separate
chapters of the Penal Code, further supporting our conclusion that the Legislature intended the
multiple punishments under the circumstances of this case.36 There was no state double jeopardy
/s/ William C. Whitbeck
/s/ Peter D. O’Connell
/s/ Patrick M. Meter
See MCL 750.360 and MCL 750.535b.
See, generally, People v Ainsworth, 197 Mich App 321, 326; 495 NW2d 177 (1992).
People v Rivera, 216 Mich App 648, 651; 550 NW2d 593 (1996).