PEOPLE OF MI V MARIO EVANS
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 18, 2004
Plaintiff-Appellee,
v
No. 240357
Wayne Circuit Court
LC No. 01-003333
MARIO EVANS,
Defendant-Appellant.
Before: Hoekstra, P.J., and Fitzgerald and White, JJ.
PER CURIAM.
Defendant appeals as of right his convictions of second-degree murder, MCL 750.317,
and possession of a firearm by a felon, MCL 750.224f. The trial court sentenced defendant to 65
to 120 years’ imprisonment for the second-degree murder conviction, and to forty to sixty
months’ imprisonment for the possession of a firearm by a felon conviction, the sentences to be
served consecutively to an unrelated sentence. We affirm defendant’s convictions, but remand
for amendment of the judgment of sentence.
Defendant first claims that the trial court should have suppressed his inculpatory
statement, in which he admitted shooting the victim, because he made the statement after being
detained by the police, without arraignment, for more than eighty-six hours. We disagree.
We review de novo a trial court’s ultimate decision on a motion to suppress; however, we
review for clear error the trial court’s underlying findings of fact. People v Beuschlein, 245
Mich App 744, 748; 630 NW2d 921 (2001). A finding of fact is clearly erroneous if, after a
review of the record, we are left with a definite and firm conviction that the trial court made a
mistake. People v Manning, 243 Mich App 615, 620; 624 NW2d 746 (2000); People v Givans,
227 Mich App 113, 119; 575 NW2d 84 (1997).
“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.” Manning, supra at 631, 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
-1-
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.
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 selfdetermination 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
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.]
Here, defendant was detained for over eighty-six hours before he confessed, and a
magistrate issued an arrest warrant based on probable cause more than four days following
defendant’s arrest. Therefore, a judicial determination of probable cause was made well outside
the forty-eight hour time frame set forth by the United States Supreme Court in Riverside Co,
supra, and adopted by this Court in Manning, supra. Thus, the burden shifted to the government
to show the existence of a bona fide emergency or other extraordinary circumstances. Riverside
Co, supra at 57; Manning, supra at 631. However, the record is devoid of any such
circumstances. The testimony indicates that the delay may have been used to gather evidence
against defendant. One officer testified at the Walker1 hearing that the police held defendant in
order to locate the witness needed to prove the case, and another officer testified that during the
delay, the police attempted to verify information contained in defendant’s first statement. A
1
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
-2-
delay for the purpose of gathering additional evidence to justify an arrest constitutes
unreasonable delay. Manning, supra at 630, citing Riverside Co, supra at 56-57. Accordingly,
the delay between defendant’s arrest and the probable cause determination was unreasonable and
without justification, and thus, presumptively violative of the Fourth Amendment.
However, although we do not approve of such an unreasonable delay, we conclude that
the trial court did not clearly err in finding that defendant voluntarily provided his statement to
the police. In holding that defendant’s statement was voluntary, the trial court accepted the word
of the officers who testified that defendant did not ask for a lawyer and that they advised
defendant of his Miranda2 rights. The trial court found defendant’s testimony to lack credibility.
We are not left with a definite and firm conviction that the trial court erred in allowing
defendant’s statement into evidence. See Manning, supra at 620. Indeed, police officers
testified that they advised defendant of his constitutional rights before questioning him, that
defendant read the constitutional rights form and initialed by each number and signed the form,
that defendant acknowledged understanding those rights, was cooperative and did not appear
under the influence of alcohol or drugs. Further police testimony indicated that defendant did
not ask to speak to a lawyer, was alert, not sleepy, did not complain about being tired, was
eighteen or nineteen years old and had had previous contacts with the police, including arrests.
There was also testimony concerning the delay in the arraignment. There is no evidence that the
police subjected defendant to continuous or prolonged interrogation or intimidating police
conduct during the detention, nor is there any indication in the record of physical abuse or threats
of physical abuse. Defendant testified that he was twenty-one years old,3 and while detained he
was tired because he did not get much sleep due to the conditions where he was detained. He
testified that he asked for an attorney on more than one occasion. Defendant admitted that the
police advised him of his Miranda rights, that he could read and write, that his initials and
signature were on the proffered documents, and stated that he just “said anything” so he could go
home. The trial court was faced with a credibility contest and determined that the police
testimony was more credible. Issues of credibility should be left to the trial court, which has a
superior opportunity to evaluate matters of credibility. People v Sexton (After Remand), 461
Mich 746, 752; 609 NW2d 822 (2000). Given this record, and having examined the totality of
the circumstances surrounding defendant’s statement, id. at 752-753, we conclude that the trial
court did not clearly err in determining that defendant’s statement was voluntary.
Defendant also contends that Manning, supra, is distinguishable from the case at bar
because the record in Manning showed that the police had probable cause to detain the defendant
when he was arrested whereas, in the instant case, the police used the prearraignment delay to
gather evidence to establish probable cause. Defendant contends that detention without probable
cause to arrest implicates the traditional “fruit of the poisonous tree” analysis, and not the totality
of the circumstances test employed by Cipriano. We need not address this contention because
Manning is not distinguishable from the instant case on the basis alleged.
2
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
3
Defendant’s birth date was April 16, 1980, and he confessed on March 4, 2001.
-3-
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. We agree.
“A police officer may arrest an individual without a warrant if a felony has been
committed and the officer has probable cause to believe that the individual committed the
felony.” People v Kelly, 231 Mich App 627, 631; 588 NW2d 480 (1998), citing MCL 764.15(c);
and People v Champion, 452 Mich 92, 115; 549 NW2d 849 (1996); see generally MCL 764.15.
“In reviewing a challenged finding of probable cause, an appellate court must determine whether
the facts available to the arresting officer at the moment of arrest would justify a fair-minded
person of average intelligence in believing that the suspected individual had committed the
felony.” Kelly, supra.
Here, a police officer testified at the evidentiary hearing that while at the scene of a fatal
shooting, he took a statement from the brother of the deceased who indicated that he saw three
guys running down the street and one walking through the alley, past a four-door white Cadillac,
got into the back seat of that car and left. One of the guys wore a big jacket, a skull cap, and a
“hoodie” and was 6’1’’, dark skinned, and a little heavy set. The officer also took a statement
from the decedent’s mother, who indicated that she saw a scuffle in the alley, heard gunshots,
and saw there black males leaving the area. She gave a similar description of the tall suspect.
The officer and his partner went to the area where the car had supposedly been parked and spoke
with a person who said that the vehicle belonged to defendant and gave the police defendant’s
address. When they went to the given address, they saw no Cadillac and nobody answered when
they knocked. The officer’s partner testified that he spoke with another brother of the decedent
and he said when he heard gunshots from the alley, he went to the door and saw “three black
guys” running from the alley, and he gave a description of each of the men. That officer testified
that he wrote up a teletype that was issued to all units of the Detroit police department because
“we felt we had enough probable cause to arrest these individuals for investigation of a critical
shooting that had happened earlier.” Examining the facts available to the police, a fair-minded
person of average intelligence would believe that defendant was involved in the commission of a
felony. Because the police had probable cause to arrest defendant, the arrest was not illegal.
Thus, Manning, supra, cannot be distinguished from the instant case on the basis of illegal arrest.
Defendant next claims that the prosecutor committed misconduct by improperly
mischaracterizing the evidence when he remarked during closing argument:
He’s a liar. He’s a theft [sic]. And today, he’s a murderer.
He lies on the stand. Commits crimes; he’s been convicted. Had several
contacts with the police. He knows how the system works.
But because he wanted to have a little fun that day, murder was on his list.
-4-
Defendant contends that the argument was improper because evidence of defendant’s prior
crimes and prior police contacts were only admissible to impeach defendant’s credibility, not to
prove defendant’s propensity to commit a crime. Because defendant did not object to the
challenged remarks, our review is precluded unless defendant demonstrates a plain error
affecting his substantial rights. People v Carines, 460 Mich 750, 763-764, 774; 597 NW2d 130
(1999); People v Watson, 245 Mich App 572, 586, 588; 629 NW2d 411 (2001).
In Watson, supra, this Court explained:
We review claims of prosecutorial misconduct case by case, examining
the remarks in context, to determine whether the defendant received a fair and
impartial trial. People v Bahoda, 448 Mich 261, 266-267; 531 NW2d 659 (1995);
People v Paquette, 214 Mich App 336, 342; 543 NW2d 342 (1995). However, a
defendant's unpreserved claims of prosecutorial misconduct are reviewed for
plain error. People v Schutte, 240 Mich App 713, 720; 613 NW2d 370 (2000). In
order to avoid forfeiture of an unpreserved claim, the defendant must demonstrate
plain error that was outcome determinative. People v Carines, 460 Mich 750,
763; 597 NW2d 130 (1999). “No error requiring reversal will be found if the
prejudicial effect of the prosecutor's comments could have been cured by a timely
instruction.” Schutte, supra at 721. [Id. at 586.]
When making argument to the jury, a prosecutor has wide latitude and may argue the
evidence and reasonable inferences from it. Bahoda, supra at 282. However, “a prosecutor may
not argue facts not in evidence or mischaracterize the evidence presented.” Watson, supra at
588. Generally, evidence tending to show that a defendant committed other criminal offenses is
inadmissible with regard to the issue of the defendant’s guilt or innocence. People v Mitchell,
223 Mich App 395, 397-398; 566 NW2d 312 (1997); MRE 404(b)(1).
Arguably, defendant’s claim that the prosecution’s argument was improper has merit.
However, the prosecutor’s argument did not affect defendant’s substantial rights, and thus, under
plain error analysis, defendant’s claim fails. Carines, supra at 763-764. The trial court
instructed the jury regarding the presumption of innocence, the burden of proof, and that
argument by the lawyers is not evidence. Also, argument concerning defendant’s past criminal
conviction for receiving stolen property was unlikely to have affected the trial outcome in light
of the overwhelming evidence against defendant, including the admission of his confession
wherein he admitted shooting the victim. Under these circumstances, the argument did not affect
defendant’s substantial rights. Carines, supra at 763-764. Any prejudicial effect of the remarks
was cured by the instruction or could have been cured by a further timely cautionary instruction.
Watson, supra at 586. Moreover, even if defendant could establish plain error that affected his
substantial rights, reversal is unwarranted because, given defendant’s confession, any alleged
error did not result in the conviction of an actually innocent defendant or did not seriously affect
the fairness, integrity or public reputation of the proceedings. Carines, supra.
To the extent that defendant claims that the trial court erred in failing to sua sponte
provide a limiting instruction concerning the admission of his prior conviction, we disagree.
“[I]n the absence of request or proper objection under present Michigan law, there is no absolute
requirement that the trial judge give limiting instructions, even though such an instruction should
-5-
have been given.” People v Chism, 390 Mich 104, 120-121; 211 NW2d 193 (1973); see People
v Rice (On Remand), 235 Mich App 429, 444; 597 NW2d 843 (1999); MCL 768.29 (“The failure
of the court to instruct on any point of law shall not be ground for setting aside the verdict of the
jury unless such instruction is requested by the accused.”); see also People v DerMartzex, 390
Mich 410; 213 NW2d 97 (1973) (defense counsel may have declined to request a limiting
instruction to avoid highlighting the prior acts to the jury). A failure to instruct “where there was
no request for such instruction and no objection to the failure to instruct” is not reversible error.
Chism, supra at 121.
Defendant further claims that the trial court erred in departing upwards from the
legislative sentencing guidelines. We disagree. In People v Babcock, 469 Mich 247; 666 NW2d
231 (2003), our Supreme Court articulated our standard of review for sentence departures:
[T]he existence or nonexistence of a particular factor is a factual
determination for the sentencing court to determine, and should therefore be
reviewed by an appellate court for clear error. The determination that a particular
factor is objective and verifiable should be reviewed by the appellate court as a
matter of law. A trial court's determination that the objective and verifiable
factors present in a particular case constitute substantial and compelling reasons
to depart from the statutory minimum sentence shall be reviewed for abuse of
discretion. [Id. at 264-265 (quotation and citation omitted).]
An abuse of discretion exists when the sentence imposed is not within the range of principled
outcomes. Babcock, supra at 269. In ascertaining whether the departure was proper, this Court
must defer to the trial court's direct knowledge of the facts and familiarity with the offender. Id.
at 270.
A court may depart from the sentencing guidelines range only if it has a substantial and
compelling reason to do so, and it states on the record the reasons for departure. MCL
769.34(3). People v Hegwood, 465 Mich 432, 439; 636 NW2d 127 (2001). “[A] substantial and
compelling reason must be construed to mean an objective and verifiable reason that keenly or
irresistibly grabs our attention; is of considerable worth in deciding the length of a sentence; and
exists only in exceptional cases.” Babcock, supra at 257-258 (quotations and citation omitted).
A trial court may not base its departure on a characteristic of the offense or of the offender
already considered by a defendant's offense variable and prior record variable scores unless it
specifically finds from facts on the record that a disproportionate or inadequate weight was given
to the characteristic. MCL 769.34(3)(b); see Babcock, supra at 258 n 12.
In the present case, in departing from the legislative guidelines the trial court relied on
defendant’s criminal history for committing murder, specifically that the guidelines did not take
into consideration that this was the second time defendant shot and killed someone under similar
circumstances with the same shotgun. Although defendant’s prior conviction for first-degree
murder is an objective and verifiable factor, it was already taken into consideration in scoring the
prior record variables and offense variables, and thus cannot be used a second time to justify a
sentencing departure “unless the court finds from the facts contained in the court record,
including the presentence investigation report, that the characteristic has been given inadequate
or disproportionate weight.” MCL 769.34(3)(b). While the fact that defendant was previously
-6-
convicted of a felony was considered in the guidelines by PRV 7, MCL 777.57(1)(a) (two or
more subsequent or concurrent convictions), and OV 13, MCL 777.43(1)(c),4 (the offense was a
part of a pattern of felonious criminal activity), the trial court indicated that the variables were
given inadequate or disproportionate weight by stating that the guidelines failed to “take into
consideration that this is the second time he’s done it, under similar circumstances, with the
same shotgun.” The fact that defendant committed two murders, under similar circumstances,
i.e., in both cases the evidence established that defendant shot multiple times from a shotgun at
close range and that he killed two people he did not know, is such a situation which “keenly” or
“irresistibly” grabs our attention. We cannot say that the trial court’s determination to depart
upward was an abuse of discretion. Babcock, supra at 264-270.
Defendant also claims, and the prosecution agrees, that the trial court erred in imposing a
sentence that runs consecutively to an unrelated sentence because the court lacked the statutory
authority to impose such a sentence. We also agree.
Upon de novo review, People v Alexander, 234 Mich App 665, 675; 599 NW2d 749
(1999), we conclude that the trial court erred in requiring, without statutory authority, that
defendant’s sentence in this case to run consecutively to an unrelated sentence on the basis that
defendant committed the offenses six months apart and against two different individuals. “A
consecutive sentence may be imposed only if specifically authorized by statute.” Id. We remand
to the trial court for correction of the judgment of sentence.
Affirmed, but remanded for further action consistent with this opinion. We do not retain
jurisdiction.
/s/ Joel P. Hoekstra
/s/ E. Thomas Fitzgerald
/s/ Helene N. White
4
Defendant was convicted of carrying a concealed weapon in 1997, receiving or concealing
stolen property over $100 in 1999, and first-degree murder and possession of a firearm by a felon
in 2001.
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
