PEOPLE OF MI V WALTER ROBERT ATKINS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 16, 2004
Plaintiff-Appellee,
v
No. 237788
Wayne Circuit Court
LC No. 00-001886
WALTER ROBERT ATKINS,
Defendant-Appellant.
Before: Hoekstra, P.J., and Fitzgerald and White, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial conviction of felony murder, MCL 750.316.1
The trial court sentenced defendant to mandatory life imprisonment. We affirm.
On September 1, 1999, a woman’s body was discovered in a dumpster in Detroit. After
conducting an autopsy, a medical examiner determined that the victim died from manual
strangulation. In addition to signs of strangulation, the medical examiner observed defensive
wounds and bite marks on the body. At trial, defendant was identified as the perpetrator through
admissions he made to an acquaintance and to a police investigator, and through DNA evidence.
Also, witnesses testified that they observed scratches and bite marks on defendant’s body shortly
after the incident.
On appeal, defendant first argues that the trial court erred in denying his motion to
suppress his statement because his confession was involuntary. Specifically, defendant contends
that his confession was induced by expectations of leniency in return for his cooperation and
because defendant was not mentally capable of understanding or intelligently waiving his
constitutional rights. We disagree.
With regard to the admissibility of an accused’s statement to the police, in People v
Howard, 226 Mich App 528; 575 NW2d 16 (1997), the Court explained:
1
Defendant was charged with both felony murder and first-degree premeditated murder. The
jury returned a verdict for felony-murder as charged and the lesser offense of second-degree
murder. At sentencing, the trial court “merged” the second-degree murder conviction with
felony-murder conviction and imposed sentence on the felony murder conviction only.
-1-
Statements of an accused made during custodial interrogation are
inadmissible unless the accused voluntarily, knowingly, and intelligently waives
his Fifth Amendment rights. Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602;
16 L Ed 2d 694 (1966); People v Garwood, 205 Mich App 553, 555-556; 517
NW2d 843 (1994). Whether a waiver of Miranda rights is voluntary and whether
an otherwise voluntary waiver is knowing and intelligent are separate questions.
People v Cheatham, 453 Mich 1, 27, 44; 551 NW2d 355 (1996); Garwood, supra
at 555. While the voluntariness prong is determined solely by examining police
conduct, a statement made pursuant to police questioning may be suppressed in
the absence of police coercion if the defendant was incapable of knowingly and
intelligently waiving his constitutional rights. Whether a suspect has knowingly
and intelligently waived his Miranda rights depends in each case on the totality of
the circumstances, including the defendant’s intelligence and capacity to
understand the warnings given. Cheatham, supra at 27, 44. [Id. at 538.]
We review de novo the entire record to determine whether an accused has knowingly and
intelligently waived his Miranda rights; however, we give deference to a trial court’s findings at
a suppression hearing and we will not disturb a trial court’s factual findings unless they are
clearly erroneous. People v Abraham, 234 Mich App 640, 644; 599 NW2d 736 (1999), quoting
Cheatham, supra at 29-30. Further, with respect to whether a statement is voluntary, in People v
Sexton (After Remand), 461 Mich 746, 752-753; 609 NW2d 822 (2000), our Supreme Court
explained:
[The Court of Appeals] review of the issue of voluntariness must be
independent of that of the trial court. People v Robinson, 386 Mich 551, 558; 194
NW2d 709 (1972). However, we will affirm the trial court’s decision unless we
are left with a definite and firm conviction that a mistake has been made. Id.;
People v DeLisle, 183 Mich App 713, 719; 455 NW2d 401 (1990). Further, if
resolution of a disputed factual question turns on the credibility of witnesses or
the weight of the evidence, we will defer to the trial court, which had a superior
opportunity to evaluate these matters. See People v Marshall, 204 Mich App 584,
587; 517 NW2d 554 (1994).
In evaluating the admissibility of a particular statement, we review the
totality of the circumstances surrounding the making of the statement to
determine whether it was freely and voluntarily made in light of the factors set
forth by our Supreme Court in People v Cipriano, 431 Mich 315, 334; 429 NW2d
781 (1988):
“[T]he 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,
-2-
sleep, or medical attention; whether the accused was physically abused;
and whether the suspect was threatened with abuse.
“The absence or presence of any of these factors is not necessarily
conclusive on the issue of voluntariness. The ultimate test of admissibility
is whether the totality of the circumstances surrounding the making of the
confession indicates that it was freely and voluntarily made. [Citations
omitted.]”
In the present case, three Detroit police homicide officers testified at a suppression
hearing that on four separate occasions during the investigation defendant was advised of his
Miranda rights. Two officers testified that that they advised defendant of his Miranda rights on
September 2, 1999, and a third officer testified that he advised defendant of his Miranda rights
on September 5, 1999, and again on January 21, 2000.2 Each officer acknowledged to some
extent that defendant had limited literacy skills and little education, but that in their opinion
defendant understood his Miranda rights and defendant waived those rights and agreed to speak
to the officers. Defendant signed and/or initialed by the statements of his rights printed on a
standard form.
Defendant’s testimony at the hearing varied significantly from that of the police officers.
Although he identified his signature and initials on the advice of rights and statement forms
introduced at the hearing, defendant maintained that because he essentially could not read he did
not know what was written on them and only signed or initialed them because the officers told
him that he needed to so that he could be released.
In ruling on defendant’s motion to suppress, the trial court stated that “what this ends up
being is a credibility contest.” The trial court found that in fact the officers had informed
defendant of his Miranda rights and that defendant understood those rights. On appeal,
defendant challenges, in essence, this finding by the trial court on the basis of defendant’s lack of
sophistication, repeated contacts with homicide investigators, and his inability to read. However,
after reviewing the record, and giving deference to the trial court’s findings, we find no clear
error and agree with the trial court that defendant knowingly and intelligently waived his
Miranda rights.
With respect to the voluntariness of his statements to police, defendant claims that he was
intimidated by the presence of numerous police officers, received rough treatment from the
police, and received promises of leniency that induced him to confess on January 21, 2000. The
trial court’s ruling did not address these claims. The record from the evidentiary hearing reveals
that defendant never claimed in his testimony that he was treated roughly by the police or that he
was intimidated by the number of police present. As to leniency, defendant never asserted that
he confessed because the police promised him that if he did that he would be released. Rather,
2
Both statements given by defendant on September 2, 1999 were exculpatory, but he confessed
to the killing in his statement of January 21, 2000. The record does not reveal whether defendant
made a statement on September 5, 1999.
-3-
he maintained, in essence, that on January 21, 2000, he was duped into signing a confession that
he did not make on the pretext that his signatures and initials were necessary requirements for his
release. Thus, defendant’s testimony at the hearing is distinctly different than that which
defendant now asserts on appeal. Because the record does not support defendant’s assertions
that police promises of leniency induced him to confess, we find defendant’s claims made on
appeal regarding whether his statements were voluntary are without merit. In sum, the trial court
did not err in denying defendant’s motion to suppress his statement.
Next, defendant claims that the trial court erred in denying his request to have the jury
instructed on “the cognate lesser offense of manslaughter”3 because a rational view of the
evidence supported giving the instruction. Specifically, defendant argues that a voluntary
manslaughter instruction was appropriate because a rational view of the evidence would support
a finding that defendant was provoked into strangling the victim to death because she attempted
to ward off his attempt to rob her by brandishing a box-cutter and, consequently, he was
frightened “to the point where his emotions became so intense that they distorted the very
process of choosing what course of action to follow.” Additionally, defendant contends that
these same circumstances give rise to a claim that defendant could only be guilty of voluntary
manslaughter based on the imperfect self-defense doctrine. We disagree.
“An inferior-offense instruction is appropriate only when a rational view of the evidence
supports a conviction for the lesser offense.” People v Mendoza, __ Mich __; __ NW2d __
(2003) [Docket No. 120630, rel’d 6/20/03]. Murder is reduced to voluntary manslaughter if the
defendant kills in the heat of passion that is adequately provoked and before a lapse of time
during which a reasonable person could control their passion. People v Pouncey, 437 Mich 382,
388; 471 NW2d 346 (1991). For the passion to be adequate it must be that which would cause a
reasonable person to lose control. Id. at 389. When the evidence does not support a finding of
voluntary manslaughter, the trial court may exclude a requested instruction. Id. at 392. Here, we
find defendant’s claim in this regard without merit. Like the trial court, we find that the evidence
does not support a finding that defendant was adequately provoked. Adequate provocation does
not arise out of a victim’s attempts to defend herself from a robbery.
Defendant also relies on the imperfect self-defense doctrine in support of his argument
that the trial court should have given a voluntary manslaughter instruction. We find this defense
unavailing because it is applicable only if “the defendant would have been entitled to selfdefense had he not been the initial aggressor.” People v Butler, 193 Mich App 63, 67; 483
NW2d 430 (1992). Because defendant manually strangled the victim with his hands, a
mechanism for inflicting death that requires choking the victim into unconsciousness and then
maintaining the choking for an additional period of time until the victim dies, we find that
defendant would not be entitled to claim self-defense. People v Kemp, 202 Mich App 318, 325
and n 2; 508 NW2d 184 (1993).
3
Although defendant refers to voluntary manslaughter as a cognate lesser offense, the Supreme
Court recently held that it is an inferior, not cognate, offense to murder because it is a necessarily
included lesser offense. People v Mendoza, __ Mich __; __ NW2d __ (2003).
-4-
Moreover, even if the evidence did support a voluntary manslaughter instruction, any
error for not giving a voluntary manslaughter instruction would be harmless because the jury had
the choice of the intermediate offense of second-degree murder, but convicted defendant of the
greater offense of felony-murder. People v Zak, 184 Mich App 1, 16; 457 NW2d 59 (1990).
Next, defendant claims that his felony-murder conviction must be reversed because there
was no evidence of the alleged predicate felony of larceny. We disagree. In his statement of
January 21, 2000, defendant admitted that he confronted the victim with a weapon, demanded
that she give him her money, and then choked her to death when she refused and attempted to
resist. Further, he said that afterward he took $120 from the victim’s purse, then put her clothes
and purse in a garbage bag and put them in a dumpster. From this evidence, a rationale trier of
fact could have found the elements of the predicate felony of larceny4 were proven beyond a
reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), amended 441
Mich 1201 (1992); People v Herndon, 246 Mich App 371, 415; 633 NW2d 376 (2001); People v
Cain, 238 Mich App 95, 120; 605 NW2d 28 (1999) (elements of larceny). Defendant predicates
his argument on the fact that the victim’s purse was not recovered; however, this argument goes
to the weight to be given to defendant’s admission, not to whether the evidence taken in a light
most favorable to the prosecution is sufficient to establish a larceny.
Finally, defendant challenges the trial court’s admission of DNA evidence. Defendant
contends that the prosecutor failed to establish that generally accepted laboratory procedures
were utilized, failed to establish that the method of statistical analysis used has general
acceptance in the scientific community, and failed to lay an adequate foundation for the
admission of defendant’s blood sample. In general, we review a trial court’s decision to admit or
exclude evidence for an abuse of discretion. People v Spanke, 254 Mich App 642, 644; 658
NW2d 504 (2003). However, because defendant failed to object to the admission of DNA
evidence on the same basis as he argues on appeal, this issue is unpreserved.5 MRE 103(a);
People v Aguwa, 245 Mich App 1, 6; 626 NW2d 176 (2001). Accordingly, we review this
unpreserved claim for plain error affecting defendant’s substantial rights, i.e., affecting the
outcome of the proceedings. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).
Having reviewed the record in light of defendant’s argument, we conclude that defendant has
failed to establish outcome-determinative plain error.
4
In pertinent part, MCL 750.316(1)(b) (felony murder), provides that a defendant is guilty of
first degree murder if the killing is “committed in the perpetration of, or attempt to perpetrate,
arson, criminal sexual conduct in the first, second, or third degree, child abuse in the first degree,
a major controlled substance offense, robbery, carjacking, breaking and entering of a dwelling,
home invasion in the first or second degree, larceny of any kind, extortion, or kidnapping.”
[Emphasis supplied.]
5
At trial, defendant objected to the prosecutor’s proposed expert in DNA testing on the basis that
there is no agency that certifies people with regard to DNA testing.
-5-
Affirmed.
/s/ Joel P. Hoekstra
/s/ E. Thomas Fitzgerald
/s/ Helene N. White
-6-
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