PEOPLE OF MI V TERRY LEE MORGAN II
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 27, 2004
Plaintiff-Appellee,
v
No. 243440
Wayne Circuit Court
LC No. 01-007128
TERRY LEE MORGAN, II,
Defendant-Appellant.
Before: Fort Hood, P.J., and Bandstra and Meter, JJ.
PER CURIAM.
Defendant appeals as of right from his conviction by a jury of two counts of felonious
assault, MCL 750.82, and one count each of possession of a short-barreled shotgun, MCL
750.224b, intentionally discharging a firearm from a motor vehicle, MCL 750.234a, possession
of a loaded firearm in a vehicle, MCL 750.227c, and possession of a firearm during the
commission of a felony, MCL 750.227b. The trial court sentenced him to (1) 1 ½ to four years’
imprisonment each for the two felonious assault convictions and for intentionally discharging a
firearm from a motor vehicle, (2) 1 ½ to five years’ imprisonment for possessing a short-barreled
shotgun, (3) sixteen months to two years’ imprisonment for possessing a loaded firearm in a
vehicle, and (4) a mandatory consecutive term of two years’ imprisonment for felony-firearm.
We affirm.
Defendant first argues that the failure of the police to record his custodial statements
violated his constitutional due process rights and that the statements therefore should have been
suppressed. While defendant acknowledges that this Court held otherwise in People v Fike, 228
Mich App 178, 183; 577 NW2d 903 (1998), defendant urges this Court to find that Fike was
wrongly decided.
We review an unpreserved claim of constitutional error such as the instant one1 to
determine if a plain, i.e., clear or obvious, error occurred that affected the defendant’s substantial
rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). In Fike, supra at 183,
this Court determined that police are not required to record electronically custodial interviews
1
Defendant admits in his appellate brief that “[d]efense counsel did not move to suppress
[defendant’s] statement based on the failure of the police to record the interrogation.”
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because the Legislature has not addressed the issue. The Court noted that “‘the courts of this
state should reject unprincipled creation of state constitutional rights that exceed their federal
counterparts’” and concluded that adopting a rule mandating electronic recording of interviews
would constitute such an unprincipled creation of rights. Id. at 185, quoting Sitz v Dep’t of State
Police, 443 Mich 744, 763; 506 NW2d 209 (1993). We find no basis to disagree with the
holding of Fike. Moreover, because of the existence of Fike, no clear or obvious error occurred
with respect to the lack of an electronic recording in the instant case, and reversal is unwarranted.
See Carines, supra at 763.
Defendant next argues that his statements were involuntary and that the trial court
therefore should have suppressed them. We disagree.
When reviewing a trial court’s decision whether to suppress a defendant’s statement, an
appellate court must examine the totality of the circumstances surrounding the statement and
must affirm unless left with a definite and firm conviction that the trial court erred. People v
Sexton (After Remand), 461 Mich 746, 752-753; 609 NW2d 822 (2000). Before a challenged
confession may be admitted as evidence, the prosecutor must establish by a preponderance of the
evidence that the defendant waived his Miranda2 rights. People v Daoud, 462 Mich 621, 632
634; 614 NW2d 152 (2000). The waiver must be voluntary, knowing, and intelligent. Id. at 639.
Whether the waiver was voluntary depends on the susceptibility of the defendant and whether
there was evidence of police coercion. See, generally, Sexton, supra at 752-753.
Defendant here places emphasis on the pre-arraignment delay he endured. We initially
note that this Court has upheld the admission of a defendant’s statement where the defendant
claimed he was “arrested, held overnight, and then questioned throughout the next day” but
where the court found no coercion. People v Snider, 239 Mich App 393, 417-418; 608 NW2d
502 (2000). Moreover, in People v Manning, 243 Mich App 615, 631, 643; 624 NW2d 746
(2000), the Court held that, although a delay of more than forty-eight hours between arrest and
arraignment is presumptively unreasonable, such a delay does not automatically require the
suppression of statements obtained during the detention period. Id. at 631, 643. The Court
stated the following with regard to the issue of suppression:
. . . automatic exclusion is not required. . . . The proper analysis is voluntariness
under the Cipriano [People v Cipriano, 431 Mich 315; 429 NW2d 781 (1988)]
factors. The delay of more than eighty hours presumptively violated the Fourth
Amendment, but an unnecessary delay does not require automatic suppression of
the confession. It is not automatic that evidence obtained during a Fourth
Amendment violation must be excluded. When a confession was obtained during
an unreasonable delay before arraignment, in Michigan the Cipriano factors still
must be applied. The unreasonable delay is but one factor in that analysis. The
longer the delay, the greater the probability that the confession will be held
involuntary. At some point, a delay will become so long that it alone is enough to
make a confession involuntary.
2
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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In engaging in the balancing process that Cipriano outlines, a trial court is
free to give greater or lesser weight to any of the Cipriano factors, including delay
in arraignment. A trial court cannot, however, give preemptive weight to that one
factor. . . . To do so is to adopt a rule of automatic suppression of a confession
obtained during the period of delay. . . . [Manning, supra at 643 (emphasis in
original)].
Accordingly, the issue facing us in the instant case is whether the trial court clearly erred
in analyzing and applying the Cipriano factors. See id. at 620. The Cipriano Court set forth the
following nonexclusive list of factors for use in determining whether a statement is voluntary:
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 a
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.
[Cipriano, supra at 334; see also Manning, supra at 635.]
Here, in holding that defendant’s statements were voluntary, the trial court stated, inter
alia:
The Defendant’s testimony adduced during the hearing demonstrated that
while he had taken . . . crank drugs some days before, he understood where he
was and was not confused about any of the questions.
The Court finds that there was a knowing waiver of the Defendant’s
Miranda Rights. I do not find that the Defendant made any request for an attorney
or that questioning ceased [sic] until he could get an attorney.
The Court finds that there was no coercion or inducement on the part of
Detective Neidy which caused the Defendant to give his statement. The
Defendant had access to food [and] restroom facilities and could have slept if he
had wanted to.
We are not left with a definite and firm conviction that the court erred in allowing
defendant’s statements into evidence. See Manning, supra at 620. Indeed, defendant indicated
at the suppression hearing that he was old enough to work, marry, and have children. He had
completed school through the ninth grade. Moreover, defendant claimed that he repeatedly
requested an attorney, an indication that he did understand his rights, despite his assertions to the
contrary. Additionally, the incriminating statements occurred within the forty-eight hour
window discussed in Manning, which suggests that the delay until arraignment was not used as a
tool to extract the confessions. Further, despite the claim of intoxication, defendant was able to
read and write and follow directions, and he could recall specific details about his police
interview. As noted in People v Feldman, 181 Mich App 523, 530-531; 449 NW2d 692 (1989),
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being intoxicated does not automatically render a statement involuntary. Defendant admitted
that he was offered food while in the holding cell, and his cell contained a bed; there is no
indication that the police prevented defendant from sleeping. As stated in People v Wells, 238
Mich App 383, 388; 605 NW2d 374 (1999), unless there is a causal connection between policy
conduct and a defendant’s statement, the statement will be considered uncoerced.
There was conflicting testimony regarding whether defendant was promised leniency or
requested an attorney. The trial court specifically examined the circumstances surrounding the
interrogation and ruled against defendant. Because the court was faced with resolving a
credibility contest, and deference is given to a trial court’s determination regarding witness
credibility, Sexton, supra at 752-753, we are not convinced that a mistake occurred. We find that
the trial court did not clearly err in concluding that defendant’s statements were voluntary and in
thus failing to suppress them.
Defendant next argues that the prosecutor failed to present sufficient evidence of intent to
kill to bind him over for trial on assault with intent to commit murder. We disagree.
Bindover requires probable cause to believe that a felony was committed and that the
defendant committed it. People v Goecke, 457 Mich 442, 469; 579 NW2d 868 (1998). Assault
with intent to commit murder requires proof that the defendant assaulted someone with the
specific intent to murder and proof that, if the assault had been successful, the killing would have
constituted murder. People v Rockwell, 188 Mich App 405, 411; 470 NW2d 673 (1991). The
prosecutor must support each element, People v Hill, 433 Mich 464, 469; 446 NW2d 140 (1989);
however, this support may involve circumstantial evidence and reasonable inferences drawn
from evidence, People v Greene, 255 Mich App 426, 444; 661 NW2d 616 (2003). We conclude
that the prosecutor presented sufficient evidence of an intent to kill, given evidence that
defendant shot at the rear window of the victims’ truck while the victims were driving down a
street. See, e.g., People v Brown, 196 Mich App 153, 159; 492 NW2d 770 (1992) (discussing
the nature of assaults involving guns).
Defendant also claims that the prosecutor presented insufficient evidence of a specific
intent to kill at trial. We disagree.
We review a claim of insufficient evidence de novo, People v Lueth, 253 Mich App 670,
680; 660 NW2d 322 (2002), viewing the evidence “in a light most favorable to the prosecution.”
People v Johnson, 460 Mich 720, 723; 597 NW2d 73 (1999), citing People v Hampton, 407
Mich 354; 285 NW2d 284 (1979). Because state of mind is difficult to prove, minimal
circumstantial evidence is sufficient. People v McRunels, 237 Mich App 168, 181; 603 NW2d
95 (1999). Given the testimony about the nature of the weapon used and the manner in which it
was used, see, generally, Brown, supra at 159, the prosecutor presented sufficient evidence of
defendant’s intent to kill. We note that a trial court may not assess weight of the evidence or
witness credibility when deciding a motion for directed verdict. People v Mehall, 454 Mich 1, 6;
557 NW2d 110 (1997).
Defendant next claims that he was denied a fair trial when the court refused to grant a
mistrial after one of the prosecution’s witnesses made an unsolicited remark regarding
defendant’s statement to police that he had previously killed two people. The comment was
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elicited during cross-examination of a police officer by defense counsel. We disagree that an
error requiring reversal occurred.
We review for an abuse of discretion a court’s decision to deny a mistrial. People v
Dennis, 464 Mich 567, 572; 628 NW2d 502 (2001). A mistrial should only be granted where a
trial irregularity is prejudicial to a defendant’s rights and impairs the defendant’s ability to obtain
a fair trial. People v Griffis, 218 Mich App 95, 100; 553 NW2d 642 (1996). Generally, “‘[a]n
unresponsive, volunteered answer to a proper question’” does not warrant a mistrial. People v
Griffin, 235 Mich App 27, 36; 597 NW2d 176 (1999), quoting People v Haywood, 209 Mich
App 217, 228; 830 NW2d 497 (1995).
Because a jury is generally presumed to follow instructions to disregard evidence,
Dennis, supra at 581, the court’s decision to give a limiting instruction rather than grant a
mistrial was justified and, thus, not an abuse of discretion. There is no evidence here to counter
the presumption that the jury followed the court’s instruction to disregard the officer’s statement.
We note that the jury convicted defendant of two counts of the lesser charge of felonious assault,
when there was ample evidence to convict defendant of assault with intent to murder. Where a
defendant is unable to demonstrate prejudice, the court does not abuse its discretion by denying a
request for a mistrial. Griffis, supra at 100.
Defendant lastly argues that the trial court abused its discretion when it allowed a witness
to testify at trial after he was seen reading an unidentified transcript containing testimony of
other witnesses. We disagree.
A trial court has discretion whether to exclude the testimony of a witness who has
violated a sequestration order. People v Solak, 146 Mich App 659, 669; 382 NW2d 495 (1985).
A sequestration order prevents a witness from conforming his testimony to the evidence. People
v Stanley, 71 Mich App 56, 61; 246 NW2d 418 (1976). When a witness’s testimony is not
related to other evidence presented, the court does not abuse its discretion by admitting the
witness’ testimony even though the witness violated a sequestration order. See, e.g., People v
Boose, 109 Mich App 455, 475; 311 NW2d 390 (1981). Moreover, a defendant must
demonstrate that prejudice resulted from the violation of the order in order to obtain appellate
relief. People v King, 215 Mich App 301, 309; 544 NW2d 765 (1996). Here, defendant has
failed to demonstrate how he was prejudiced. First, there was no definitive evidence regarding
the nature of the transcript the witness was seen reading and no basis on which to conclude that
the witness was influenced by the transcript. Additionally, we cannot conclude that the witness’
testimony, even assuming that he was influenced by the unspecified transcript, affected the
outcome of the case, considering the essentially cumulative nature of his testimony.
Affirmed.
/s/ Karen M. Fort Hood
/s/ Richard A. Bandstra
/s/ Patrick M. Meter
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