PEOPLE OF MI V DAVID WAYNE SMITH
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 11, 1997
Plaintiff-Appellee,
v
No. 191388
Allegan Circuit Court
LC No. 95-009676 FC
DAVID WAYNE SMITH,
Defendant-Appellant.
Before: Cavanagh, P.J., and Doctoroff and D.A. Teeple*, JJ.
MEMORANDUM.
Defendant appeals by right his jury conviction of first degree murder and felony firearm. This
case is being decided without oral argument pursuant to MCR 7.214(E).
Defendant first contends that the trial court erred in finding his confession to Detective Kapenga
voluntary. The voluntariness of a confession is a mixed question of law and fact which is reviewed de
novo on appeal. Thompson v Keohane, 516 US ___; 116 S Ct 457; 133 L Ed 2d 383 (1995);
People v Robinson, 386 Mich 551, 558; 194 NW2d 709 (1972). However, to the extent the
resolution of the disputed factual questions turns on the credibility of witnesses, this Court properly
defers to the trial court which had a superior opportunity to evaluate such matters. People v Marshall,
204 Mich App 584; 517 NW2d 554 (1994).
Here, defendant claims that he was drunk and under the influence of drugs and had tried to
commit suicide earlier on the day in question. On the other hand, Detective Kapenga testified that when
defendant appeared voluntarily at the police station, unsummoned, he did not seem to be intoxicated but
at most a bit tired. The trial court found Detective Kapenga’s testimony credible, and found as
historical fact that defendant not only appeared at the police station of his own volition, but after being
advised that he was under no obligation to say anything and was free to leave, he elected to confess.
Under the totality of the circumstances, the trial court did not err in finding defendant’s confession
voluntary. People v Young, 212 Mich App 630, 634; 538 NW2d 456 (1995).
* Circuit judge, sitting on the Court of Appeals by assignment.
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Defendant next contends that his confession was inadmissible because he had not been given
Miranda warnings. Defendant was entitled to such advice of rights only if he was in custody at the time
of his confession. People v Hill, 429 Mich 382; 450 NW2d 193 (1987). Here, historical findings of
fact made by the trial court are reviewed for clear error; mixed findings of law and fact are subject to de
novo review. Thompson v Keohane, supra; People v Burrell, 417 Mich 439, 448-449; 339 NW2d
403 (1983).
In this respect, the trial court found that defendant was not only actually not in custody, but that
he had been advised he was not in custody, and had opted to come to the police station of his own
volition or at the urging of his father. While there was contrary evidence, the trial court did not find it
credible, and the record provides no basis for a finding that the trial court’s credibility determination was
clearly erroneous. Accordingly, defendant was not in custody as a matter of historical fact and therefore
the failure to provide him with Miranda warnings did not render his confession inadmissible.
By supplemental brief, defendant contends that trial counsel was ineffective at the first Walker
hearing concerning admissibility of his confession for failing to call defense witnesses. Assuming
arguendo that this was ineffective assistance of counsel, a second Walker hearing was held (actually, a
continuation of the first), at which these witnesses did testify for the defense, although their testimony
failed to persuade the trial judge, as trier of fact, that different factual conclusions were appropriate. As
the ruling reviewed by this Court is based on the testimony of these additional witnesses for the defense,
defendant has failed to establish any prerequisite prejudice from this ostensible dereliction of his original
trial counsel. People v Pickens, 446 Mich 298; 521 NW2d 797 (1994).
In a similar vein, defendant contends that counsel was ineffective at the second Walker hearing
in failing to call defendant as a witness. This concerns a strategic decision, since although defendant’s
testimony at such a hearing could not be used against him substantively, it would be available for
impeachment purposes under the doctrine of Harris v New York, 401 US 222; 91 S Ct 643; 28 L Ed
2d 1 (1971). People v Bender, 452 Mich 594, 627-628; 551 NW2d 71 (1996). Defendant has not
even made an offer of proof in this Court, let alone of record, to establish that minimally competent
defense counsel could not possibly have pursued such a strategy, and the issue is without merit. People
v LaVearn, 448 Mich 207, 216; 528 NW2d 721 (1995).
Defense counsel’s concession during trial that defendant was guilty of manslaughter and that
defendant had been present at the scene of the crime at the time of the crime was an admission only of
the undeniable. That does not represent ineffective assistance of counsel, where the concession is
limited to a lesser included offense. People v Krysztopaniec, 170 Mich App 588, 596; 429 NW2d
828 (1988). Similarly, acknowledging in closing argument that the defense had been unable to
conclusively identify the actual perpetrator of the homicide, where the defense could rely on the trial
judge instructing the jury that the defense was under no obligation to prove anything while the
prosecution had to prove defendant’s guilt beyond a reasonable doubt, was not ineffective assistance of
counsel, since a contrary argument would have deprived defense counsel of all credibility with the jury.
Affirmed.
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/s/ Mark J. Cavanagh
/s/ Martin M. Doctoroff
/s/ Donald A. Teeple
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