PEOPLE OF MI V JOHNATHAN AARON BROWN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 15, 2009
Plaintiff-Appellee,
v
No. 285830
Wayne Circuit Court
LC No. 07-015417-FC
JOHNATHAN AARON BROWN,
Defendant-Appellant.
Before: K. F. Kelly, P.J., and Jansen and Fitzgerald, JJ.
PER CURIAM.
A jury convicted defendant of second-degree murder, MCL 750.317, felon in possession
of a firearm, MCL 750.224f, and possession of a firearm during the commission of a felony
(second offense), MCL 750.227b. The trial court sentenced defendant to prison terms of 9 to 20
years for second-degree murder, 1 to 5 years for felon in possession, and to a consecutive 5-year
term for felony-firearm. Defendant appeals as of right. We affirm.
During an interview with police following his arrest, defendant wrote out a statement in
which he acknowledged shooting at the victim but asserted that he acted in self-defense.
Defendant’s statement was admitted at trial without an objection. After filing a claim of appeal
in this Court, defendant moved for a Ginther1 hearing on the ground that defense counsel was
ineffective by failing to move to suppress the statement that was obtained in violation of his
constitutional rights. This Court granted defendant’s motion and remanded the case to the trial
court. Following a Ginther hearing, the trial court ruled that defendant’s statement was
voluntary, that he waived his right to counsel before making the statement, and that he was not
denied the right to the effective assistance of counsel.
Whether defendant was denied his right to effective assistance of counsel generally
presents a mixed question of fact and constitutional law. People v LeBlanc, 465 Mich 575, 579;
640 NW2d 246 (2002). A trial court’s findings of fact, if any, are reviewed for clear error and
issues of constitutional law are reviewed de novo by this Court. Id. Review of a trial court’s
decision whether a statement was voluntary requires this Court to conduct an independent
1
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
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analysis of the record to determine whether the trial court’s ruling was clearly erroneous. People
v Cipriano, 431 Mich 315, 339; 429 NW2d 781 (1988). This Court gives “deference to the trial
court’s findings, especially where the demeanor of the witnesses is important, as where
credibility is a major factor.” People v Williams, 470 Mich 634, 642; 683 NW2d 597 (2004)
(quotation omitted). This Court will reverse a trial court’s finding on the voluntary nature of a
defendant’s statements only if it is left with a “definite and firm conviction that a mistake has
been made.” People v Sexton (After Remand), 461 Mich 746, 752; 609 NW2d 822 (2000). A
trial court’s determination that a defendant effectively waived his Fifth Amendment and Sixth
Amendment rights requires de novo review of the entire record, but a trial court’s factual
findings will not be disturbed absent clear error. Williams, supra at 640-641.
An involuntary statement made by a defendant introduced in a criminal trial for any
purpose violates that defendant’s due process rights. Cipriano, supra. The determination
whether a statement was voluntary “should be 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 self determination critically impaired.’” Id. at 333-334 (quotation omitted). In
making this determination a trial court should consider factors including:
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.
[Cipriano, supra at 334.]
The presence or absence of a single factor is not dispositive. Id. Instead, whether a statement is
voluntary depends on the totality of the circumstances surrounding the statement. Id.
Applying the relevant factors in Cipriano, supra, and reviewing the totality of the
circumstances in the instant case, we conclude that the trial court did not err in finding that
defendant acted voluntarily in making his statement. At the time of the custodial interrogation,
defendant was 29 years old with three years’ of college education, and had had previous contacts
with police. The interview lasted only approximately two hours, the interviewing officer
reviewed defendant’s constitutional rights with him, defendant read his rights aloud, indicated
that he understood his rights, and initialed next to each one. Defendant was not under the
influence of any intoxicants or drugs, did not appear tired, did not ask for food or drink, or to use
a restroom, and did not have any medical conditions. Furthermore, the officer did not threaten
defendant or promise him anything; defendant agreed the officer was polite, and defendant also
acknowledged that his statement was voluntary, that his statement was truthful, and that he
wanted to inform police he acted in self-defense. Viewing the totality of these circumstances, we
are not left with a “definite and firm conviction” that the trial court erred in finding defendant’s
statements were voluntarily made. Sexton (After Remand), supra.
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With respect to defendant’s argument that his Sixth Amendment right to counsel was
violated during the police interview, a criminal defendant’s Sixth Amendment right only attaches
once “adversarial legal proceedings have been initiated against a defendant by way of
indictment, information, formal charge, preliminary hearing, or arraignment.” People v
Marsack, 231 Mich App 364, 376-377; 586 NW2d 234 (1998). In this case, defendant made his
statement to police before any formal charges were brought against him and before he was
brought before a court; defendant’s Sixth Amendment right to counsel had not yet attached.
Defendant also contends that his statement was obtained in violation of his Fifth
Amendment right to counsel. The Fifth Amendment requires that “custodial interrogation be
preceded by advice to the [] [defendant] that he has the right to remain silent and also the right to
the presence of an attorney.” Edwards v Arizona, 451 US 477, 481-482; 101 S Ct 1880; 68 L Ed
2d 378 (1981), citing Miranda v Arizona, 384 US 436, 479; 86 S Ct 1602; 16 L Ed 2d 694
(1966). Once a defendant invokes his Fifth Amendment right to counsel, all questioning must
cease absent an attorney. Davis v United States, 512 US 452, 458; 114 S Ct 2350; 129 L Ed 2d
362 (1994). However, law enforcement may question a defendant who waives his right to
counsel after being informed of his Miranda rights. Davis, supra at 548. A waiver of a
defendant’s Fifth Amendment right to counsel is effective if it is made voluntarily, knowingly,
and intelligently. Williams, supra at 640. In making this determination, “[c]redibility is crucial
in determining a defendant’s level of comprehension, and the trial judge is in the best position to
make this assessment.” People v Cheatham, 453 Mich 1, 30; 551 NW2d 355 (1996).
Defendant testified at both trial and at the Ginther hearing that he asked for an attorney
several times and that the interviewing officer refused to comply with his request. Whether
defendant invoked his Fifth Amendment right to counsel involves a credibility contest, and the
trial court was in the best position to judge credibility of witnesses. Cheatham, supra. In
addition to the interviewing officer’s trial testimony, defendant signed a form indicating that he
was aware he had the right to a lawyer, that he did not have to talk, and that he desired to answer
questions. Defendant agreed that he understood his rights and was not coerced in any way.
Furthermore, defendant stated at the Ginther hearing that he wanted to inform police he was
acting in self-defense on the night of the incident. On this record, the trial court’s factual finding
that defendant knowingly, intelligently, and voluntarily waived his constitutional right to counsel
was not clearly erroneous. Id.
In light of our conclusion that defendant’s statement was not obtained in violation of his
constitutional rights, we also conclude that defendant was not denied the effective assistance of
counsel when trial counsel declined to move to suppress the statement. See 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”). Further, defense counsel used the statement as part of
the trial strategy to show that defendant was always consistent about the shooting and claimed
self-defense from the first time he spoke with police through the time of trial. We “will not
second-guess counsel on matters of trial strategy” or “assess counsel’s competence with the
benefit of hindsight.” People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008).
Finally, in his Standard 4 brief on appeal, defendant contends that he was denied the
effective assistance of counsel when his counsel failed to investigate a security camera that he
claims was in place at the location where the victim was discovered dead inside his vehicle.
Defendant has not established the factual predicate for his claim of ineffective assistance of
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counsel, and thus, he cannot prevail. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).
Specifically, defendant failed to cite any evidence in the record to support the existence of a
surveillance camera at the location where the victim was discovered. Moreover, the mere
assertion that there may be useful evidence out there, somewhere, does not adequately
substantiate that defense counsel was ineffective for failing to adequately investigate. See
People v Hyland, 212 Mich App 701, 710; 538 NW2d 465 (1995), vacated in part on other
grounds 453 Mich 902 (1996).
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Kathleen Jansen
/s/ E. Thomas Fitzgerald
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