PEOPLE OF MI V VICTOR LLOYD JACKSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 1, 2009
Plaintiff-Appellee,
v
No. 285285
Muskegon Circuit Court
LC No. 07-055439-FH
VICTOR LLOYD JACKSON,
Defendant-Appellant.
Before: Servitto, P.J., and Fitzgerald and Bandstra, JJ.
PER CURIAM.
Defendant Victor Jackson appeals as of right his jury trial conviction for one count of
second-degree criminal sexual conduct with a person under 13 years of age, MCL
750.520c(1)(a).1 We affirm.
Defendant first argues that trial counsel was ineffective for failing to object to, and
affirmatively contributing to, the admission of evidence that defendant was sexually abused as a
child, and by failing to object to the prosecution’s propensity argument. We disagree. Because
defendant failed to preserve this issue, our review is limited to errors apparent on the record.
People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002).
“Effective assistance of counsel is presumed, and defendant bears a heavy burden to
prove otherwise.” People v Dixon, 263 Mich App 393, 396; 688 NW2d 308 (2004). A
defendant seeking a new trial on the ground that trial counsel was ineffective must prove (1) that
counsel’s performance fell below an objective standard of reasonableness, and (2) that it is
reasonably probable that the outcome would have been different, but for counsel’s errors.
People v Frazier, 478 Mich 231, 243; 733 NW2d 713 (2007). “Defendant must [also] overcome
the strong presumption that counsel’s performance was sound trial strategy.” Dixon, supra at
396.
Having reviewed the record, we find that defense counsel had a sound, strategic reason
for seeking admission of, and not objecting to, evidence that defendant was sexually abused as a
child. After the victim reported defendant’s sexual misconduct, defendant was interviewed twice
1
The jury acquitted defendant of two other counts of second-degree criminal sexual conduct.
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by police. During the first interview, in the driveway of the home in which defendant was
residing, defendant revealed that he had been sexually abused by a foster parent during his
childhood. The second interview was conducted at the Michigan State Police Post, and was
recorded on a DVD. At the outset of this interview, defendant continuously denied the victim’s
allegations. Defendant was then questioned about the sexual abuse he experienced as a child by
his foster parent. Subsequently, defendant admitted that the victim touched his penis on three
separate occasions, but he indicated that the victim was the aggressor. Defendant was asked to
write this confession on a voluntary statement form. Before trial, defense counsel moved to
suppress the statement. Counsel argued alternatively that if the statement was deemed
admissible, the entire recording of the second interview should be admitted under the rule of
completeness in order to put the written statement into its proper context. Following a Walker2
hearing, the trial court ruled that defendant’s statement was admissible; it also ruled that the
entire recorded interview would be presented to the jury.
The only evidence implicating defendant was the victim’s testimony and defendant’s
confession. Therefore, as part of his trial strategy, defendant needed the jury to view the entire
recorded interview to substantiate his argument that his own written statement was false.
Defense counsel used the interview to show the jury that defendant was provided with
suggestions about what may have happened between him and the victim, which defendant then
repeated in his statement, and that police used the foster care incident to coerce defendant into
making the false confessions. Without the interview containing information of defendant’s own
abuse as a child to give context to the false, written confession, the jury may have accepted the
confession on its face and convicted defendant of all three counts with which he was charged,
rather than just one. Defense counsel also questioned defendant on direct examination about the
foster care incident, to show the jury that defendant would never sexually abuse another child
knowing how traumatic his own sexual abuse experience was. Defense counsel’s use of
evidence relating to defendant’s own sexual abuse as a child was a matter of trial strategy, which
this Court will not second-guess. People v Dendel, 481 Mich 114, 140; 748 NW2d 859 (2008)
(judicial scrutiny of counsel’s performance is to be highly deferential and will not be secondguessed).
Further, defense counsel was not ineffective for failing to object to the prosecution’s
admission of testimony and questioning of witnesses regarding the foster care incident. Because
defense counsel requested admission of the foster care incident, the prosecution was permitted to
ask questions regarding that incident. People v Paquette, 214 Mich App 336, 342; 543 NW2d
342 (1995); People v Lipps, 167 Mich App 99, 108; 421 NW2d 586 (1988) (holding that the
prosecution may examine witnesses on matters introduced by defendant). It would therefore
have been futile to object to the prosecution’s elicitation of such testimony. People v Goodin,
257 Mich App 425, 433; 668 NW2d 392 (2003) (“Defense counsel is not required to make a
meritless motion or a futile objection.”). Moreover, the prosecution’s introduction of evidence
does not unfairly affect the outcome of the proceedings if it is a “fair response” to an issue raised
by defense counsel. People v Jones, 468 Mich 345, 353-360; 662 NW2d 376 (2003). Thus,
2
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
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defense counsel was not ineffective for failing to object to the prosecution’s questioning.
Goodin, supra at 433.
In addition, defense counsel was not ineffective for failing to object to the prosecution’s
argument regarding the cycle of violence, and specifically to a comment that “[t]oday’s
perpetrator was yesterday’s victim.” The prosecutor’s argument in this regard was brief and was
made in response to defense counsel’s arguments, and on the record, we cannot conclude that but
for defense counsel’s failure to object to the argument, the outcome of the proceedings would
have been different. Frazier, supra. Moreover, to the extent that the argument may have been
prejudicial, any prejudice was dispelled by the trial court’s instructions to the jury to base its
verdict only on the evidence, that the “[e]vidence consists of the sworn testimony of the
witnesses and the exhibits that were admitted into evidence,” and that the lawyers’ statements
and questions are not evidence. Jurors are presumed to follow their instructions. People v
Unger, 278 Mich App 210, 235; 749 NW2d 272 (2008). In reaching our conclusion, we are not
bound by, and do not find persuasive, the unpublished authorities cited by defendant, each of
which is easily distinguished on its facts. MCR 7.215(C)(1).
Defendant next contends that the trial court committed error requiring reversal by
denying his motion to suppress his written confession. We review a trial court’s factual findings
for clear error, but review its ultimate decision on a motion to suppress de novo. People v
Bolduc, 263 Mich App 430, 436; 688 NW2d 316 (2004); People v Custer, 248 Mich App 552,
558; 640 NW2d 576 (2001).
To protect a defendant’s Fifth Amendment right against self-incrimination, custodial
interrogation must be preceded by advice to the accused that “he has a right to remain silent, that
any statement he does make may be used as evidence against him, and that he has a right to the
presence of an attorney, either retained or appointed.” Miranda v Arizona, 384 US 436, 444; 86
S Ct 1602; 16 L Ed 2d 694 (1966). “It is well settled that Miranda warnings need be given only
in situations involving a custodial interrogation.” People v Coomer, 245 Mich App 206, 219;
627 NW2d 612 (2001). “Custodial interrogation” is “questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise deprived of his freedom of action
in any significant way.” Miranda, supra at 444-445; Coomer, supra at 219. When determining
whether defendant was in custody at the time of interrogation, this Court reviews “the totality of
the circumstances . . . with the key question being whether the accused reasonably could have
believed that []he was not free to leave.” Id.; see also People v Roark, 214 Mich App 421, 423;
543 NW2d 23 (1995). The determination whether an accused was in custody at the time of his
statement “depends on the objective circumstances of the interrogation rather than the subjective
views harbored by either the interrogating officers or the person being questioned.” Id. at 219220.
As previously noted, the trial court denied defendant’s motion to suppress, concluding
that defendant was not in custody when he made either his verbal or written confession. The
record supports the trial court’s decision. The evidence presented at the Walker hearing showed
that (1) defendant asked for the second interview to be arranged, (2) defendant voluntarily drove
to the police post, (3) defendant walked around the building three times trying to get inside the
post, (4) the front door of the building was not locked behind defendant after he was admitted
into the building (5) defendant was told at the beginning of the interview that the door was
unlocked and that he was free to leave at any time, (6) defendant was told that he should read his
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constitutional rights printed at the top of the voluntary statement form before writing his
statement, (7) defendant was given the opportunity to read his rights, (8) defendant was left alone
in the room to write down his statement, and (9) defendant was never arrested or otherwise
detained until after giving his written statement. Considering the evidence presented, we cannot
say that the trial court’s finding that defendant was not in custody at the time of his interview
was clearly erroneous. Thus, defendant was not improperly interviewed without the benefits of
Miranda warnings. Id. at 219.
We reject defendant’s argument that a reasonable person in defendant’s position would
have believed he was locked inside the post. In reaching its conclusion, we note that the trial
court discredited defendant’s testimony at the Walker hearing and credited the interviewing
officer’s testimony that he did not lock the door behind defendant and did not see anyone else
lock the door. This Court defers to “the trial court’s superior ability to view the evidence and the
demeanor of the witnesses and will not disturb the trial court’s findings unless they are clearly
erroneous.” People v Johnson, 202 Mich App 281, 288; 508 NW2d 509 (1993).
We also reject the argument that even if defendant was not in custody initially, he was in
custody after he began making admissions and the interviewing officer said “we’ll get this thing
done with when it makes sense to me.” Based on the totality of the circumstances, the trial
court’s factual finding regarding custody was not clearly erroneous. Although defendant
testified that the officer’s statement caused him to believe that he had to make up a story in order
to secure his release, the determination whether defendant was in custody is to be based on the
objective circumstances and not on defendant’s subjective beliefs. Miranda, supra at 444-445;
Coomer, supra at 219.
Defendant argues further that the trial court erred by admitting his written statement into
evidence, because that statement, which was made after defendant was presented with Miranda
warnings, was not voluntary. The voluntary nature of a statement is determined by examining
police conduct. People v Abraham, 234 Mich App 640, 645; 599 NW2d 736 (1999). Only if the
totality of the circumstances surrounding the interrogation reveals that the waiver was both
voluntarily and knowingly and intelligently made may a waiver of Miranda rights be found.
People v Daoud, 462 Mich 621, 634; 614 NW2d 152 (2000).
In determining voluntariness, the court should consider all the circumstances,
including: “[1] the age of the accused; [2] his lack of education or his intelligence
level; [3] the extent of his previous experience with the police; [4] the repeated or
prolonged nature of the questioning; [5] the length of the detention of the accused
before he gave the statement in question; [6] the lack of any advice to the accused
of his constitutional rights; [7] whether there was an unnecessary delay in
bringing him before a magistrate before he gave the confession; [8] whether the
accused was injured, intoxicated or drugged, or in ill health when he gave the
statement; [9] whether the accused was deprived of food, sleep, or medical
attention; [10] whether the accused was physically abused; and [11] whether the
suspect was threatened with abuse.” No single factor is determinative. “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.” [People v Tierney, 266 Mich App 687, 708; 703 NW2d 204
(2005) (citations omitted).]
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The trial court in this case held that defendant voluntarily gave his written statement. The
record supports the trial court’s decision. The evidence on the record shows that (1) defendant
was 19 years old at the time of the interview; (2) defendant is a high school graduate with an
“impressive grade point” average, who can read and write; (3) the interview lasted only 1-1/2 to
1-3/4 hours; (4) the confession was made before defendant was ever arrested; (5) defendant did
not appear to be injured or intoxicated or under the influence of anything; (6) although he said he
had not had food for some time, defendant also said that he felt “pretty good”; (7) there was no
deprivation of any medical needs or sleep needs; (8) there was no physical abuse, nor any threat
of such abuse; (9) defendant had plenty of opportunity to persist in his denials; (10) when
defendant was asked to write out the statement, the officer’s instructions were “to write out
exactly what happened,” and were not suggestive in any way; and (11) defendant was not taken
into custody until after he wrote the statement. We affirm the trial court’s denial of defendant’s
motion to suppress.
Finally, defendant argues that the trial court erred in scoring ten points under offense
variable (OV) 19, MCL 777.49. Defendant claims that OV 19 should have been scored at zero
points, placing him within an intermediate sanction. A sentencing court has discretion in
scoring, and a trial court’s scoring of the OVs will be upheld if there is any evidence to support
the score. People v Endres, 269 Mich App 414, 417; 711 NW2d 398 (2006).
OV 19 is scored at ten points where the “offender otherwise interfered with or attempted
to interfere with the administration of justice.” MCL 777.49. “Our Supreme Court has
determined that the phrase ‘interfered with or attempted to interfere with the administration of
justice’ is broader than the concept of obstruction of justice and that conduct subject to scoring
under OV 19 ‘does not have to necessarily rise to the level of a chargeable offense . . . .’ People
v Barbee, 470 Mich 283, 287; 681 NW2d 348 (2004).” People v Passage, 277 Mich App 175,
179-180; 743 NW2d 746 (2007).
We note that the statute does not define the term “interfere.” We further note that, “[t]he
primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the
Legislature, People v Williams, 475 Mich 245, 250; 716 NW2d 208 (2006), and the first criterion
in determining intent is the specific language of the statute, People v Lively, 470 Mich 248, 253;
680 NW2d 878 (2004). If the plain and ordinary meaning of the language is clear, judicial
construction is normally neither necessary nor permitted. People v Weeder, 469 Mich 493, 497;
674 NW2d 372 (2004).” People v Underwood, 278 Mich App 334, 338; 750 NW2d 612 (2008).
Where a statute does not define a term, this Court may look to dictionary definitions. Allison v
AEW Capital Mgmt, LLP, 481 Mich 419, 427; 751 NW2d 8 (2008). “Interfere” is defined as “to
come into opposition or collision so as to hamper, hinder, or obstruct someone or something.”
Random House Webster’s College Dictionary (1997). In Barbee, supra at 285, 288, our
Supreme Court held that giving the police a false name in order to avoid arrest constitutes
interference with the administration of justice.
In the instant case, the trial court scored OV 19 based on its findings that defendant lied
during his first interview by police regarding whether he knew why he was being investigated
and that defendant’s verbal and written confessions during his second interview were false, as
both the victim and the defendant testified that they were false. We hold that defendant’s first lie
did not constitute interference with the administration of justice. Although defendant admitted at
trial that he lied about whether he knew why he was being interviewed, there is no evidence on
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the record that this hindered the police investigation in any way. However, we conclude that
defendant’s false verbal and written statements did hinder the administration of justice, and thus
that there is evidence in the record supporting the trial court’s scoring of OV 19.
Defendant argues that his false statements did not constitute interference with the
administration of justice under OV 19, because, if this Court were to so hold, “the imposition of
points under OV-19 . . . would apply in almost every criminal case,” because “[d]efendants
almost always seek to hide their criminal behavior and rarely step forward to offer evidence
proving their guilt.” However, this argument is without merit. The case upon which defendant
relies, People v Deline, 254 Mich App 595, 597-598; 658 NW2d 164 (2003), has been overruled
in pertinent part by Barbee, supra at 283. Contrary to defendant’s assertion, our Supreme Court
has explained that OV 19 encompasses conduct that interferes with the administration of justice,
such as providing a false name, or other false information to law enforcement officers. See, Id.
Here, defendant testified that he gave false verbal and written statements to police because he
believed that he could not leave the police post unless his statement matched that of the victim,
and consequently he gave a statement that closely matched what the interviewing officer
suggested was the victim’s statement, thereby making the victim appear as the aggressor. By
doing so, similar to the defendant in Barbee, supra, defendant wanted to avoid arrest and to be
allowed to leave. While it may be true that a general denial of accusation by a defendant cannot
support the scoring of OV 19, defendant’s actions in this case went beyond mere general denials.
Defendant actively lied to the police, providing a false version of events designed to avoid arrest
and to impugn the conduct and reputation of the victim. The record shows that defendant’s
active lies, attempting to portray the victim as the aggressor and designed to thwart prosecution,
interfered with the administration of justice. Thus, we affirm the trial court’s scoring of OV 19
on this basis. Consequently, we need not address the prosecution’s alternative bases for
affirmance.
We affirm.
/s/ Deborah A. Servitto
/s/ E. Thomas Fitzgerald
/s/ Richard A. Bandstra
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