PEOPLE OF MI V TIMOTHY LEE KISSINGER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 24, 2002
Plaintiff-Appellee,
v
No. 225193
St. Joseph Circuit Court
LC No. 97-008746-FC
TIMOTHY LEE KISSINGER,
Defendant-Appellant.
Before: Neff, P.J., and White and Owens, JJ.
PER CURIAM.
Defendant appeals as of right his conviction by a jury of armed robbery, MCL 750.529,
and possession of a firearm during the commission of a felony, MCL 750.227b. He was
sentenced as an habitual offender, fourth offense, MCL 769.12, to twenty-seven to fifty years’
imprisonment for the armed robbery conviction and a consecutive two-year term for the felonyfirearm conviction. We affirm.
I
Defendant was convicted of armed robbery following a hold-up at gunpoint of an elderly
woman, who lived with her husband in a mobile home park in St. Joseph County. The woman
was awakened at approximately 4:20 a.m. on September 25, 1997, to find an intruder standing in
her bedroom doorway. Her husband was sleeping. The intruder had a gun and demanded
money. After the woman gave the intruder more than $150 from her purse, the man ordered the
couple to remain in bed, covered up, while he escaped or he would shoot them.
Defendant was subsequently arrested and confessed to the robbery. Before trial, he
moved to have his confession suppressed on the ground that it was involuntary. Following a
Walker1 hearing, the trial court denied defendant’s motion. Defendant was convicted as charged.
1
People v Walker (On Rehearing), 374 Mich 331, 338; 132 NW2d 87 (1965).
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II
Defendant first argues that the court erred in denying his motion to suppress his
confession because the confession was involuntary. Further, any error is not harmless because
the confession was the only evidence linking defendant to the crime.
We review a trial court’s findings of fact following a suppression hearing for clear error.
People v Givans, 227 Mich App 113, 119; 575 NW2d 84 (1997). We review de novo a trial
court’s conclusions of law. People v Snider, 239 Mich App 393, 406; 608 NW2d 502 (2000).
When reviewing a trial court's determination of voluntariness, this Court must examine
the entire record and make an independent determination of the issue. People v Sexton (After
Remand), 461 Mich 746, 752; 609 NW2d 822 (2000). However, this Court will affirm the trial
court’s determination unless left with a definite and firm conviction that a mistake was made. Id.
If resolution of a factual question hinges on the credibility of the witnesses or the weight of the
evidence, we will defer to the trial court, which is in a superior position to evaluate these matters.
Id.
Whether a statement is voluntary is determined by the totality of the circumstances.
People v Manning, 243 Mich App 615, 635; 624 NW2d 746 (2000); Snider, supra at 417. The
test is whether the confession was the product of an essentially free and unconstrained choice, or
whether the accused individual’s will was overborne and the capacity for self-determination
critically impaired. Manning, supra at 635. In People v Cipriano, 431 Mich 315, 334; 429
NW2d 781 (1988), the Court set out various factors for determining whether a statement was
voluntary: the age of the accused; the lack of education or intelligence level; the extent of
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. Manning, supra at 635.
Defendant claims that his confession was involuntary because it was the product of an
alleged threat by the interrogating officer, Deputy Kennedy, and because of defendant’s unstable
physical and mental state. Defendant contends that Kennedy threatened to arrest defendant’s
wife in connection with the crimes if defendant did not cooperate, and that, at the time, defendant
was suffering from depression, post traumatic stress syndrome, alcohol and drug abuse, and
alcohol and nicotine withdrawal.
With respect to the alleged threat, the trial court determined as a matter of fact that
defendant did not confess because of the alleged threat. The court found Kennedy’s testimony
credible, finding that Kennedy did not improperly threaten to arrest defendant’s wife. Even had
defendant perceived such a threat, the court found defendant’s assertions of coercion implausible
and unlikely to be true. After an extensive analysis, the court determined that defendant’s
actions following his confession were inconsistent with his claims, but that his actions were not
inconsistent with the ability to exercise free will. Giving deference to the court’s findings of
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fact, which are not clearly erroneous, we conclude that defendant’s confession was not the result
of a coercive threat sufficient to render the confession involuntary.
We likewise find no clear error in the court’s conclusion that defendant’s physical and
psychiatric state did not render him incapable of acting voluntarily. While a defendant’s
physical and mental state is a factor to be considered, no one factor is determinative. People v
Fike, 228 Mich App 178, 181-182; 577 NW2d 903 (1998). This Court has previously ruled that
the fact that a person is under the influence of drugs is not dispositive of the issue of
voluntariness. See People v Feldmann, 181 Mich App 523, 530-531; 449 NW2d 692 (1989).
“[A] deficiency in the defendant that is not exploited by the police cannot annul the voluntariness
of a confession unless there is evidence of police coercion.” Fike, supra at 182. Further,
credibility is appropriately determined by the trial court; a trial court is not required to believe a
defendant’s assertion that he was suffering from drug-related distress at the time of a confession.
People v Smith, 80 Mich App 106, 109, 112; 263 NW2d 306 (1977).
In this case, the record does not support that defendant exhibited, or that Kennedy
observed, signs of distress as the result of substance withdrawal or psychiatric ailments. The
record also does not support that Kennedy took advantage of any alleged physical or mental
deficiency. Defendant was on his proper medication and was not under the influence of any
intoxicants. The record supports that he was able to understand the conversation and coherently
participate. The trial court did not clearly err in finding that this factor did not render defendant
unable to exercise his free will.
Further, as the court noted, defendant’s own expert testified that if there was no threat
against defendant’s wife, his confession may have been voluntary. The court found no credible
evidence of a threat. Any physical or mental distress suffered by defendant was insufficient, by
itself, to support that his confession was involuntary.
Reviewing the totality of the circumstances and giving deference to the trial court’s
findings of fact, we affirm the determination that defendant’s confession was voluntary and
admissible, given the factors in Cipriano, supra. Defendant was nearly thirty-eight years old at
the time of the crimes. He had a GED and could read and write. He had extensive prior
experience in dealing with the police and with respect to the criminal system. The questioning
by Kennedy took place for a short time in the back of a police car on September 26, 1997, and
for approximately one hour and five minutes on the evening of the confession at issue. Thus,
there was no repeated or prolonged questioning. Defendant was being detained on matters in
Kalamazoo at the time of his confession. Thus, he was not being detained pending questioning
or a confession on the St. Joseph County matters. Defendant acknowledged that he was advised
of his Miranda2 rights and signed a waiver card. He was not injured at the time of the
questioning that led to his confession and there was no evidence that he was deprived of food,
sleep or medical attention. In fact, defendant was receiving his Prozac on a regular schedule
unlike before his arrest. Further, there was no evidence of physical abuse or a threat of physical
abuse.
2
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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III
Defendant next argues that his statements to the police should have been suppressed
because at the time of the interrogation he was illegally detained and should have been free on
bond. We disagree.
When reviewing the denial of a request to suppress a confession, this Court reviews the
record de novo, but the trial court's factual findings are reviewed under the clearly erroneous
standard. People v Adams, 245 Mich App 226, 230; 627 NW2d 623 (2001). The trial court’s
finding that there was no causal nexus between defendant’s delayed release on bond and his
confession was not clearly erroneous.
Our courts have consistently recognized that where there is an illegal detention, whether
resulting from a statutory or constitutional violation, the exclusionary rule operates to suppress
evidence only if there is a nexus between the unlawful detention and the procurement of the
evidence. See People v Mallory, 421 Mich 229, 239-243; 365 NW2d 673 (1984) (statutory right
to prompt arraignment);3 People v Kelly, 231 Mich App 627, 633-634; 588 NW2d 480 (1998)
(illegal arrest); People v Feldmann, 181 Mich App 523, 528-531; 449 NW2d 692 (1989)
(violation of the right against self-incrimination and the prompt arraignment statute); People v
Jordan, 149 Mich App 568, 577-578; 386 NW2d 594 (1986) (unlawful detention of a juvenile).
Whether the connection between an unlawful detention and a confession is sufficiently
attenuated to purge the primary taint depends on: 1) the temporal proximity between arrest and
confession, 2) the flagrancy of the official misconduct, 3) any intervening circumstances
occurring after arrest, and 4) any circumstances antecedent to arrest. Feldmann, supra at 529.
The trial court, applying the above exclusionary rule considerations, concluded that there
was no causal nexus between the detention and the confession. This finding is not clearly
erroneous. Defendant’s statements to Kennedy were made more than twenty-four hours after his
bond was posted and the Kalamazoo authorities determined that defendant would not be
released. That defendant’s confession was not close in time to the decision to hold defendant
supports the conclusion that the unlawful detention was not the result of a desire to allow
Kennedy to question defendant.
Moreover, the conduct of the Kalamazoo authorities was not flagrant misconduct. The
Sheriff believed, albeit incorrectly, that the bond requirements had not been met. His actions in
contacting the tether agent support this conclusion. The record does not indicate that Kennedy or
any authority from St. Joseph County participated in the decision to detain defendant after bond
was posted.
Defendant argues that, but for the unlawful detention, Kennedy would not have obtained
the confession. However, there was no evidence that anyone, including defendant, understood
that he was being unlawfully detained at the time of Kennedy’s interview. It cannot be said that
defendant’s confession was obtained by exploiting the illegal detention, about which no one was
3
The Mallory Court noted that an identical result is reached when the starting point is a
constitutionally unlawful detention. Mallory, supra at 243, n 8.
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aware at the time. The trial court was not required to suppress the statement on the ground that it
was the product of an unlawful detention.
IV
Defendant next argues that he was denied his constitutional right to present a defense
where the trial court excluded evidence of the circumstances surrounding the voluntariness of his
statement. We disagree.
The decision whether to admit evidence is within the discretion of the trial court. People
v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). This Court will not disturb a trial
court’s decision with respect to the admission of evidence absent a clear abuse of discretion. Id.
Defendant sought to introduce evidence refuting Kennedy’s testimony that on September
29, 1997, he visited defendant at the Kalamazoo County jail and advised him of his rights and
defendant signed a Miranda card. The trial court ruled that the proffered, extrinsic evidence was
inadmissible. Further, defendant could inquire into the veracity of Kennedy’s testimony with
respect to the September 29, 1997, Miranda card and jail visit, but would not be allowed to
refute or disprove those answers with any extrinsic evidence to impeach Kennedy’s credibility
because the matters concerning September 29 were collateral.
MRE 608(b) provides:
Specific instances of the conduct of a witness, for the purpose of attacking
or supporting the witness’ credibility, other than conviction of a crime as provided
in Rule 609, may not be proved by extrinsic evidence. They may, however, in the
discretion of the court, if probative of truthfulness or untruthfulness, be inquired
into on cross-examination of the witness (1) concerning the witness’ character for
truthfulness or untruthfulness ….
“Extrinsic evidence may be used to impeach a witness [only] on a material, as opposed to
collateral, matter.” People v Sutherland, 149 Mich App 161, 164; 385 NW2d 637 (1985). In
other words, while a party may contradict answers elicited from a witness on cross-examination,
he may only do so regarding matters germane to the issue and not with respect to collateral,
irrelevant or immaterial matters. People v Vasher, 449 Mich 494, 504; 537 NW2d 168 (1995).
“The purpose of the rule that a witness cannot be impeached on a collateral matter by use of
extrinsic evidence is to avoid the waste of time and confusion of issues that would result from
shifting the trial’s inquiry to an event unrelated to the offense charged.” People v Guy, 121 Mich
App 592, 604; 329 NW2d 435 (1982).
Whether Kennedy visited defendant and obtained defendant’s signature on the Miranda
card on September 29, 1997, was a collateral matter although it was related to Kennedy’s general
credibility. MRE 608(b); Guy, supra at 604-605. The matter did not fit within any of the
categories of noncollateral facts. Id. Here, the entire jury trial, excluding jury selection,
occurred over a period of less than two full days. The trial court correctly recognized that the
testimony defendant sought to admit, including complicated, expert handwriting testimony,
would have taken at least another day or day and a half of trial time, elevating its importance far
beyond the mere impeachment on a matter that related only to credibility and not to the
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substantive issue in the case. Defendant was not prohibited from presenting a defense, but only
from injecting the truth or falseness of a collateral issue into the trial.
V
Defendant next argues that the trial court erred in denying defendant’s motion for
rehearing on the motions to suppress his statement and quash the information, and for a new trial.
We disagree.
A trial court’s ruling on a motion for new trial is reviewed for an abuse of discretion.
People v Johnson, 245 Mich App 243, 250; 631 NW2d 1 (2001). Further, whether a statement
should be suppressed on grounds that it was involuntary presents a question of law that is
determined by the totality of the circumstances. Snider, supra at 417. We will not reverse a trial
court’s findings on voluntariness unless clearly erroneous. Id.
The trial court properly denied defendant’s motion for new trial and the attendant,
renewed motion to suppress the October 1, 1997, statement.
To merit a new trial on the basis of newly discovered evidence, a defendant must
show that the evidence (1) is newly discovered, (2) is not merely cumulative, (3)
would probably have caused a different result, and (4) was not discoverable and
producible at trial with reasonable diligence. Newly discovered evidence is not
ground for a new trial where it would merely be used for impeachment purposes.
[People v Davis, 199 Mich App 502, 515-516; 503 NW2d 457 (1993) (citations
omitted.]
The handwriting evidence presented post-trial by defendant was not newly discovered
evidence, but rather evidence that merely assisted in the understanding of the previously known
evidence. Thus, the evidence at issue was cumulative to information previously received by the
trial court. Further, while evidence of a polygraph may be considered in deciding a motion for
new trial, People v Mechura, 205 Mich App 481, 484; 517 NW2d 797 (1994), the subject on
which defendant took his polygraph was known before trial and a polygraph could have been
obtained before trial in an attempt to convince the trial court that Kennedy was not worthy of
belief. Thus, the polygraph evidence was also not newly discovered.
The essential purpose of this evidence was to impeach Kennedy’s credibility. Given the
trial court’s analysis, defendant has failed to show that the evidence would likely have resulted in
a different outcome. The trial court did not abuse its discretion in denying a new trial or
evidentiary hearing based on the “newly presented” evidence.
VI
Finally, defendant argues that his conviction must be reversed where he was denied his
state and federal constitutional right to a speedy trial when he was not brought to trial until
approximately fourteen months after his arrest. We disagree.
This constitutional issue is reviewed de novo. People v Cain, 238 Mich App 95, 111;
605 NW2d 28 (1999). Four factors are considered in determining if a pretrial delay violated a
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defendant's right to a speedy trial: (1) the length of the delay, (2) the reasons for the delay, (3)
the defendant’s assertion of the right, and (4) prejudice to the defendant. Id. at 111-112. A delay
that is under eighteen months requires a defendant to prove that the defendant suffered prejudice.
Id. at 112.
In this case, the factors do not support defendant’s speedy trial claim. Much of the delay
occurred because of defendant’s actions, particularly defendant’s vigorous pretrial tactics.
People v Williams, 163 Mich App 744, 755-756; 415 NW2d 301 (1987). Defendant waited
almost a full year before asserting his speedy trial right, only a few weeks before trial. Cain,
supra at 113-114. Defendant has failed to show prejudice, either “(1) prejudice to his person in
the form of oppressive pretrial incarceration and excessive anxiety and concern,” or “(2)
prejudice to his defense caused by loss of evidence or unavailability of key witnesses.” People v
Missouri, 100 Mich App 310, 323; 299 NW2d 346 (1980). Defendant’s mere assertion that the
delay caused anxiety is insufficient to establish a violation of the right to a speedy trial. People v
Jackson, 171 Mich App 191, 201; 429 NW2d 849 (1988). Moreover, a portion of defendant’s
incarceration was apparently related to his sentence on the Kalamazoo crimes and not because of
any oppressive pretrial incarceration in this case.
Affirmed.
/s/ Janet T. Neff
/s/ Helene N. White
/s/ Donald S. Owens
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