PEOPLE OF MI V DAVID DENNARD MCKINNEY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 27, 2007
Plaintiff-Appellee,
v
No. 269823
Wayne Circuit Court
LC No. 05-000357-01
DAVID DENNARD MCKINNEY,
Defendant-Appellant.
Before: Whitbeck, C.J., and Wilder and Borrello, JJ.
WHITBECK, C.J. (concurring in part and dissenting in part).
I write separately because I do not agree with the majority’s conclusion that Inkster
Detective Anthony Delgreco’s statement regarding the death penalty constituted impermissible
interrogation intended to elicit an incriminating response from defendant David McKinney.
Here, after McKinney was arrested, Detective Delgreco read him the Miranda warnings,
and McKinney signed a constitutional rights form indicating that he understood his rights.
McKinney then signed a statement indicating that he agreed to waive his right to have an
attorney present and to talk to Detective Delgreco. After Detective Delgreco told McKinney
what evidence they had against him, McKinney put his head down and said, “I planned it.”
McKinney then asked for his attorney. Detective Delgreco stopped the interview and walked
McKinney back to his cell. While they were walking, Detective Delgreco told McKinney that
the ATF was involved in the case because the gun shop was federally-licensed and that “we still
did not know if we were going to take this case state or federally and at the federal level that
there was the death penalty involved in this case possibly.” McKinney did not respond to the
comment, and Detective Delgreco placed McKinney in his cell.
The next morning, Detective Delgreco arrived at the police station for “lock-ups” duty,
which involved counting the number of people in custody. According to Detective Delgreco, as
he passed by McKinney’s cell, McKinney called Detective Delgreco over to his cell window and
said that he wanted to talk. Detective Delgreco repeatedly told McKinney that he could not talk
to McKinney without McKinney’s lawyer present, but McKinney persisted and finally said that
he would talk without his lawyer present. Specifically, McKinney “wanted to hear what the ATF
had against him.” Detective Delgreco testified that he then contacted the ATF agent in charge,
Ray Tomaszewski, and told him to come to the police station. Next, he drafted a letter stating
that McKinney agreed to speak to Detective Delgreco and Agent Tomaszewski. McKinney
signed the letter, and Detective Delgreco and Agent Tomaszewski witnessed it. Detective
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Delgreco again read McKinney his Miranda rights, and again McKinney signed a constitutional
rights form indicating he understood his rights. Agent Tomaszewski then told McKinney what
evidence they had against him. McKinney then gave a written statement regarding the events of
the robbery. Specifically, McKinney stated that he planned the larceny of the gun shop and
served as the lookout during the larceny.
As stated by the majority, the issue here is whether Detective Delgreco’s statement about
the possibility of the death penalty being involved in McKinney’s case qualifies as interrogation
impermissible after McKinney invoked his right to counsel.1 More specifically, the issue is
whether Detective Delgreco intended that or should have known that his statement was
reasonably likely to elicit an incriminating response from McKinney.2
In People v McCuaig, after the defendant indicated that he wished to remain silent and
that he wanted to speak with an attorney, a police officer advised the defendant concerning the
nature of the charge against him and described the circumstances that led the police to believe
that the defendant was the culprit.3 The defendant responded by stating that he wished to make a
statement. On appeal, the defendant argued that his statement should have been suppressed.
This Court disagreed, concluding that the officer’s statements could not be characterized as
further interrogation or its functional equivalent, and further explaining that “[t]he nature of the
statements were not such that it can be said that they were intended to elicit a response.”4
I believe that this case falls in line with McCuaig. Here, Detective Delgreco was simply
commenting on the nature of the charges against McKinney and the possible penalty associated
with those charges. Aside from his single comment, he did not attempt to discuss anything
further with McKinney or subject McKinney to any express questioning. Regardless of my
disagreement with the majority on this point, I agree with the majority’s conclusion to affirm the
admission of McKinney’s incriminating statements to the extent that they have concluded that
McKinney’s incriminating statements the next morning constituted communication initiated by
the accused under Edwards.
I concur with the remainder of the majority’s opinion.
/s/ William C. Whitbeck
1
See Minnick v Mississippi, 498 US 146, 152; 111 S Ct 486; 112 L Ed 2d 489 (1990); Edwards v
Arizona, 451 US 477, 484-485; 101 S Ct 1880, 68 L Ed 2d 378 (1981); People v Wright, 441
Mich 140, 169; 490 NW2d 351 (1992).
2
See Rhode Island v Innis, 446 US 291, 301; 100 S Ct 1682; 64 L Ed 2d 297 (1980); People v
Anderson, 209 Mich App 527, 532-533; 531 NW2d 780 (1995).
3
People v McCuaig, 126 Mich App 754, 759; 338 NW2d 4 (1983).
4
Id. at 760.
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