PEOPLE OF MI V ANTOINE MARIO MCKINNEY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 17, 2004
Plaintiff-Appellee,
v
No. 228530
Wayne Circuit Court
LC No. 99-010892
ANTOINE MARIO MCKINNEY,
Defendant-Appellant.
ON REMAND
Before: Jansen, P.J., and Zahra and Meter, JJ.
PER CURIAM.
Defendant originally appealed as of right from his convictions following a bench trial of
second-degree murder, MCL 750.317, assault with intent to commit murder, MCL 750.83, and
possession of a firearm during the commission of a felony, MCL 750.227b. This Court affirmed
his convictions,1 rejecting his argument that two inculpatory statements he made while in police
custody should have been suppressed at trial because he made the statements after being detained
by the police, without a warrant, for more than forty-eight hours. See People v McKinney, 251
Mich App 205; 650 NW2d 353 (2002). The Supreme Court, agreeing in part with the dissent
written by Judge Jansen, vacated our opinion and remanded the case to us based on an issue not
raised by defendant either below or an appeal to this Court. See People v McKinney, 468 Mich
928; 663 NW2d 469 (2003). Specifically, the Supreme Court directed us to “remand this case to
the Wayne Circuit Court for further fact finding regarding the issue whether defendant’s
statements should have been suppressed as the product of an illegal arrest.” Id. The proceedings
on remand having been concluded, we once again affirm.
James Fisher, an investigator with the Detroit Police Department, testified that after the
body of Zawadie Walker was found around 4:00 a.m. on October 4, 1999, he interviewed a
person, Richard Ward, who told him that defendant had a verbal and physical altercation with
Walker the night before Walker’s body was found. The prosecutor introduced into evidence the
statement given by Ward on October 4. In this statement, Ward claimed that defendant either
1
Judge Jansen dissented and would have reversed the convictions and remanded the case for a
new trial.
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shot Walker or “had him shot.” Ward further stated that he had seen the fight between defendant
and Walker and heard defendant say to Walker that he “would be dead.”
Fisher testified that, after interviewing Ward, he visited defendant’s home and told the
person who answered the door that he wanted to speak with defendant. Defendant appeared at
the police station around 9:00 p.m. on October 4 and acknowledged that he had fought with
Walker the night of October 3, but he denied killing Walker or shooting the second victim,
stating instead that Kareem Respress likely committed the crimes.2 Fisher stated that defendant
was not free to leave during this initial interview at the police station.
Fisher interviewed Respress, who denied committing the crimes. When asked if
defendant was under arrest for investigative purposes at the time of the Respress interview,
Fisher stated:
He was a suspect in the case. And I believe that that would be a fair
statement to further the investigation [sic], and to check out the statements that he
was giving us, wanting him to make consistent statements, and checking out those
statements that he was giving us; the information that he gave we had to check on
that information to make sure it was true or it was not true.
Fisher testified that after he confronted defendant with Respress’s denial, defendant gave
the name of another suspect, who, like Respress, denied committing the crimes. Fisher stated
that defendant, around 9:00 p.m. on October 5, then changed his story, stating that he and
another person, BB, had approached Walker and the other victim as they sat in their vehicle and
that BB had shot them. Subsequently, on October 7, defendant gave a third statement in which
he admitted to committing the shootings.3
Fisher stated that he had enough information to seek a warrant against defendant from the
prosecutor’s office “for accessory, i[f] nothing else,” at the time of defendant’s statement on
October 5, but that he waited to seek a warrant until he obtained more information.
Defendant confirmed that he was not allowed to leave police custody from October 4
forward. He stated that the police would not let him see his family until after he was formally
charged.
The trial court, in ruling that no illegal arrest occurred,4 emphasized, among other things,
that Ward had identified defendant as the perpetrator around 6:15 p.m. on October 4. The court
then stated:
2
We note that this statement was not at issue in defendant’s first appeal. Instead, defendant
focused on two statements he gave while in police custody on October 7, 1999.
3
It was this statement and a subsequent statement that defendant sought to suppress.
4
We review the trial court’s decision de novo. See People v Garvin, 235 Mich App 90, 102; 597
NW2d 194 (1999).
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After listening to the witnesses who testified in this particular case, as far
as this Court can glean, this particular defendant actually sent these particular
police officers on wild goose chases. This defendant sent these police officers up
blind alleys. All the alleys, all the leads in this particular case led back to
defendant as the one that actually was the shooter in this [case].
I think any and all delays, if there were any, in this particular case, were
attributable to the defendant himself.[5]
I think right from the get-go, within the twenty-four hour period, there was
more than enough probable cause to detain and/or arrest this particular defendant
while the police followed through on any of the statements that the defendant
gave to the police.
So in looking at the police conduct in this [case], I do believe that the
arrest was in fact proper and that there was probable cause to detain this particular
defendant.
As noted in People v MacLeod, 254 Mich App 222, 227-228; 656 NW2d 844 (2002), “[a]
custodial arrest is permitted if an arresting officer possesses enough information demonstrating
probable cause to believe that an offense has occurred and that the defendant committed it.”
Moreover,
[p]robable cause to arrest exists where the facts and circumstances within an
officer’s knowledge and of which he has reasonably trustworthy information are
sufficient in themselves to warrant a man of reasonable caution in the belief that
an offense has been or is being committed. [People v Champion, 452 Mich 92,
115; 549 NW2d 849 (1996).]
Here, there clearly was probable cause to arrest defendant by the time he made his initial
statement in which he admitted having fought with the victim before the victim died. Indeed, not
only had defendant, in the course of this first statement, admitted to fighting with the victim the
night before his body was found, but Ward had stated that defendant either killed the victim or
arranged for the killing. This information was sufficient to “warrant a man of reasonable caution
in the belief that [the] offense ha[d] been . . . committed” by defendant. Id. While it is true that
Fisher implied, during his testimony, that defendant had been arrested for investigative purposes,
which is impermissible, see Brown v Illinois, 422 US 590, 602, 605; 95 S Ct 2254; 45 L Ed 2d
416 (1975), we note that Fisher’s testimony in this regard was not definitive. While Fisher
obviously was interested in furthering the investigation, Fisher did not state with certainty that
probable cause to arrest defendant was lacking at the time defendant was first retained.
5
We note that we are not charged with examining “delay” in this remand but instead have been
instructed to determine if defendant was arrested illegally. If defendant’s initial arrest was
illegal, then his statements while in custody were inadmissible, unless they were acts of free will
sufficient to remove the taint of the unlawful arrest. See Kaupp v Texas, 538 US 626, 632; 123 S
Ct 1843; 155 L Ed 2d 814 (2003).
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Moreover, while Fisher stated that he did not feel comfortable with requesting a warrant from the
prosecutor’s office at the time of defendant’s initial retention, this too does not mean that
probable cause was lacking. As noted in this Court’s original opinion,
. . . at a point after defendant was arrested, Fisher did not believe he had enough
information to request formally a warrant. We do not believe, however, that this
statement should be equated with a conclusive admission that probable cause was
lacking. Indeed, Fisher may have concluded that while he did have probable
cause to arrest defendant, he preferred to conduct an additional investigation
before formally presenting his evidence to the magistrate. [McKinney, supra, 251
Mich App 213.]
We agree with the trial court that defendant’s arrest was proper. Probable cause did exist
at the time of defendant’s initial retention, in light of the clear and pertinent facts. Because
probable cause to arrest defendant existed, the two statements in question were not tainted by
illegality and were admissible.
Affirmed.
/s/ Brian K. Zahra
/s/ Patrick M. Meter
-4-
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