PEOPLE OF MI V MARIO EVANS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 18, 2004
Plaintiff-Appellee,
v
No. 238184
Wayne Circuit Court
LC No. 01-003572
MARIO EVANS,
Defendant-Appellant.
Before: Hoekstra, P.J., and Fitzgerald and White, JJ.
PER CURIAM.
Defendant appeals as of right his convictions of first-degree murder, MCL 750.316,
possession of a firearm by a felon, MCL 750.224f, and possession of a firearm during the
commission of a felony, MCL 750.227b. The trial court sentenced defendant to life
imprisonment for the murder conviction and forty to sixty months’ imprisonment for the felonin-possession conviction, to be served consecutive to two years’ imprisonment for the felonyfirearm conviction. We affirm.
On appeal, defendant argues that he was denied the effective assistance of counsel.
Because this Court denied defendant’s motion to remand this case to the lower court for a
Ginther1 hearing, our review of this issue is limited to errors apparent on the existing record.
People v Snider, 239 Mich App 393, 423; 608 NW2d 502 (2000); People v Johnson, 144 Mich
App 125, 129-130; 373 NW2d 263 (1985).
We will not reverse a conviction based on ineffective assistance of counsel unless the
defendant establishes that (1) counsel’s performance was below an objective standard of
reasonableness under prevailing professional norms; and (2) there is a reasonable probability
that, but for counsel’s error, the result of the proceedings would have been different. Strickland
v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Toma, 462
Mich 281, 302-303; 613 NW2d 694 (2000). “‘A reasonable probability is a probability sufficient
to undermine confidence in the outcome.”’ People v Carbin, 463 Mich 590, 600; 623 NW2d
884 (2001), quoting Strickland, supra at 694. Effective assistance of counsel is presumed, and
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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the defendant bears a heavy burden of proving otherwise. Carbin, supra; People v Rockey, 237
Mich App 74, 76; 601 NW2d 887 (1999).
Defendant first claims that he was denied the effective assistance of counsel because
defense counsel failed to move to suppress his custodial statement and the lineup identification
on the ground that they were illegally obtained during an unreasonable prearraignment delay.
We disagree.
“A delay of more than forty-eight hours between an arrest without a warrant and a
probable cause arraignment shifts the burden to the government to show the existence of a bona
fide emergency or other extraordinary circumstances.” People v Manning, 243 Mich App 615,
631; 624 NW2d 746 (2000), citing Riverside Co v McLaughlin, 500 US 44, 56-57; 111 S Ct
1661; 114 L Ed 2d 49 (1991). “Absent such a showing, the delay is unreasonable per se under
the Fourth Amendment.” Id. Nevertheless, such a delay does not necessarily require the
suppression of statements obtained while a person is in police custody during the delay.
Manning, supra at 631-632, 643. Instead, the proper analysis is whether the accused’s statement
was obtained voluntarily as determined by the factors listed in People v Cipriano, 431 Mich 315,
333-334; 429 NW2d 781 (1988), and unreasonable delay before arraignment is only one of the
factors that should be considered in determining whether a defendant’s custodial statement was
voluntary. Id.; Manning, supra at 634-635, 643.
In this case, the prosecutor does not dispute that defendant was held for over forty-eight
hours before defendant made the statement introduced at trial. In fact, defendant was detained
for over ninety-three hours before he made his inculpatory statement and the record indicates that
a magistrate issued an arrest warrant based on probable cause more than seven days following
defendant’s arrest. Therefore, a judicial determination of probable cause was made well outside
the forty-eight hour requirement set forth in Riverside, supra. Although plaintiff contends on
appeal that the delay was justified, the record reveals that during the delay the police were
attempting to locate persons to verify defendant’s initial exculpatory statements concerning an
unrelated homicide and to locate an eyewitness to identify defendant in a lineup in this case.
These circumstances do not constitute extraordinary circumstances to justify the unreasonable
delay. Rather, a delay for the purpose of gathering additional evidence to justify an arrest
constitutes an unreasonable delay. Riverside, supra at 56-57; Manning, supra at 630.
However, our analysis does not end here; rather, “[w]hen a confession was obtained
during an unreasonable delay before arraignment, in Michigan the Cipriano factors still must be
applied.” Manning, supra at 643. According to the Cipriano Court, the test of voluntariness is
whether, “considering the totality of all the surrounding circumstances, the confession is the
product of an essentially free and unconstrained choice by its maker, or whether the accused’s
will has been overborne and his capacity for self-determination critically impaired.” Cipriano,
supra at 333-334 (internal quotations and citation omitted). In Cipriano, supra, our Supreme
Court set forth the following nonexclusive list of factors to consider in determining whether a
statement is voluntarily made:
In determining whether a statement is voluntary, the trial court should
consider, among other things, the following factors: 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
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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. [Id. at 334.]
In Manning, supra, this Court explained:
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, a result that is directly contrary to Cipriano
and that … Riverside Co [does not require].” [Id. at 643.]
However, “[t]he longer the delay, the greater the probability that the confession will be held
involuntary.” Manning, supra. Although this Court has recognized “the possibility that in some
situations the length of the delay alone may be a sufficient ground to suppress a defendant’s
statement, particularly where the delay is so inexplicably long that it raises an inference of police
misconduct,” id. at 645, we do not find this to be such a case.
Here, examining the totality of the circumstances, we conclude that the evidence
demonstrates that defendant voluntarily provided his statement to the police. Significantly, the
record indicates that defendant was apprised of and understood his Miranda2 rights on at least
two occasions before he confessed and he spoke willingly to the police. On both occasions, after
the officer advised defendant of his rights, defendant acknowledged that he understood those
rights by placing his initials next to each right and signing the constitutional rights form.
According to the officer, defendant never expressed any hesitation about talking about the
shooting and did not request to speak with a lawyer. The record indicates that defendant had
prior experience with the police because he was convicted of second-degree home invasion in
1998, receiving and concealing stolen property over $100 in 1999, and attempted carrying a
concealed weapon in 1997, and thus, defendant was familiar with Miranda. The record does not
indicate that defendant was intoxicated, in ill health, under the influence of drugs or deprived of
food, sleep, or water when he gave the statement. To the contrary, officer testimony indicated
that defendant was awake and alert and did not complain about lack of sleep when he gave his
statement. Nor did defendant appear to be under the influence of drugs or alcohol. The record
does not indicate that defendant was threatened with abuse or uneducated, illiterate or
unintelligent. Defendant was approximately twenty years old when he confessed and he had
obtained a GED. Although there is evidence that the police engaged in repeated questioning
before defendant gave his statement, there is no evidence that he was subjected to continuous
interrogation or to intimidating police conduct.
2
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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In sum, we find, under the totality of the circumstances, defendant’s decision to make an
inculpatory statement was voluntary, i.e., the product of a free and deliberate choice,
notwithstanding the unreasonable prearraignment delay.3 Cipriano, supra at 333-334; Manning,
supra at 643. Because we find that defendant’s statement was voluntary, defense counsel was
not ineffective for failing to move to suppress it. Defense counsel was not required to bring a
frivolous or meritless motion.4 People v Darden, 230 Mich App 597, 605; 585 NW2d 27 (1998).
Defendant further claims that defense counsel was ineffective because he failed to move
to suppress the lineup identification as a product of the unreasonable delay. We disagree.
Although the lineup identification occurred approximately eighty-one hours following
defendant’s arrest during what we find was an unreasonable delay, defendant failed to establish
that there is a reasonable probability that, but for counsel’s error, the outcome of the trial would
have been different. Strickland, supra at 694; Toma, supra at 302-303. Even if trial counsel had
“move[d] to suppress the lineup identification” as defendant now claims his counsel should have
done, it is unlikely that such a motion would have been successful. The eyewitness had made a
statement to the police on the day of the shooting, and thus the eyewitness’ identity was known
to the police before defendant’s arrest. In light of this circumstance, the eyewitness would have
identified defendant despite defendant’s unlawful detention.
Because the eyewitness
identification of defendant was inevitable, it is not evidence that would not have been discovered
but for the direct procurement of evidence from an unlawfully detained person. See People v
Lewis, 168 Mich App 255, 262-263; 423 NW2d 637 (1988), citing People v Mallory, 421 Mich
229, 240-241; 365 NW2d 673 (1984). In addition, the eyewitness’ testimony concerning the
incident largely corroborated defendant’s statement, which, as discussed supra, was voluntary
and admissible. Accordingly, defendant has failed to establish his claim of ineffective assistance
of counsel.
3
Although the prosecution supports its argument with citation to a Walker hearing transcript, see
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965), it is not clear from the
lower court record whether defendant moved to suppress his statements to the police relative to
this case, whereas it is clear that a motion was made in an unrelated case (People v Evans,
Docket No. 240357). In the event that the Walker hearing was undertaken with respect to the
instant case also, we agree with the trial court’s ruling that defendant’s statements to the police
were voluntary.
4
To the extent that defendant’s ineffective assistance of counsel claim arguably could be based
on counsel’s failure to move for suppression of defendant’s statement as the fruit of an illegal
arrest, defendant is still entitled to no relief. On this Court’s own motion pursuant to MCR
7.216(A)(5) and in light of People v McKinney, 251 Mich App 205; 650 NW2d 353 (2002),
vacated 468 Mich 926; 663 NW2d 469 (2003), this case was remanded to the trial court for
“further fact-finding regarding the issue whether defendant’s statements should have been
suppressed as the product of an illegal arrest.” After an evidentiary hearing, the trial court
determined that probable cause to make the initial arrest existed. Because the a fair-minded
person of average intelligence would be justified in believing that the suspected individual had
committed the felony, People v Kelly, 231 Mich App 627, 631; 588 NW2d 480 (1998), we agree
that there was probable cause for an arrest, and thus the statement was not the fruit of an illegal
arrest.
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Defendant next claims that he was denied the effective assistance of counsel due to
defense counsel’s failure to move to obtain an expert witness on identification or to seek a
cautionary instruction on the dangers of misidentification. We disagree.
“[O]ther than psychiatric experts, a defendant is entitled to the appointment of an expert
at public expense only if he cannot otherwise proceed safely to trial without the expert.” People
v Leonard, 224 Mich App 569, 582; 569 NW2d 663 (1997), citing MCL 775.15; see also People
v Jacobsen, 448 Mich 639; 532 NW2d 838 (1995). An error that deprives an indigent defendant
of the appointment of an expert constitutes reversible error only “if defendant was prejudiced and
received a fundamentally unfair trial as the result of not having expert assistance.” Leonard,
supra at 583.
In the present case, defendant failed to establish that the outcome of the trial would have
differed had an expert testified regarding the fallibility inherent in eyewitness identification. In
his statement, defendant admitted to participating in the shooting. The identification evidence
corroborated defendant’s statement by placing him at the scene of the crime. Thus, even if an
expert testified regarding the fallibility inherent in eyewitness identification, defendant
implicated himself by his own statement. Furthermore, defense counsel competently attacked
the eyewitness’ identification through cross-examination by eliciting testimony that it was dark
outside at the time of the shooting and concerning the perpetrator’s description. Defense counsel
then attacked the eyewitness’ identification by arguing in his closing argument that his
description of the perpetrator also fit the description of Fred Bishop, who defendant implicated
as the shooter in his statement, and that the dark conditions might have caused him to misidentify
the person he observed fire the shotgun. Further, at the conclusion of trial, the trial court
instructed the jury on witness credibility and identification, informing the jury of the proper
considerations in determining whether to accept or reject the eyewitness identification. These
considerations included, among others, how long the witness observed the offender, how far
away from the scene the witness was located, how well the area was lighted, and the
circumstances at the time of the identification. Under these facts, we find that defendant’s trial,
without expert testimony regarding the fallibility of eyewitness identifications, was not
fundamentally unfair, Leonard, supra at 582, and that the jury was sufficiently informed of the
proper considerations in determining whether to accept or reject eyewitness identification,
People v Carson, 220 Mich App 662, 678; 560 NW2d 657 (1996), adopting certain findings of
the vacated decision People v Carson, 217 Mich App 801, 807; 553 NW2d 1 (1996). Defendant
has not shown that counsel’s assistance was deficient.
Finally, defendant argues that a mandatory life sentence, without the possibility of parole,
is a determinate sentence that violates the indeterminate-sentence principle of article 4, § 45, of
the Michigan Constitution. We disagree.
This Court already has rejected this argument. In Snider, supra, we determined that
“there is nothing in Const 1963, art 4, § 45 requiring indeterminate sentencing for particular
crimes, such as [the defendant’s] first-degree premeditated murders.” Id. at 426-427; People v
Cooper, 236 Mich App 643, 660-664; 601 NW2d 409 (1999). Thus, defendant’s argument is
without merit.
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Affirmed.
/s/ Joel P. Hoekstra
/s/ E. Thomas Fitzgerald
/s/ Helene N. White
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