PEOPLE OF MI V ERNESTO GONZALEZ
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 15, 2004
Plaintiff-Appellee,
v
No. 247312
Oakland Circuit Court
LC No. 2002-185414 FC
ERNESTO GONZALEZ,
Defendant-Appellant.
Before: Schuette, P.J., and Bandstra and Cooper, JJ.
PER CURIAM.
Defendant appeals as of right from his jury-trial conviction and the resulting sentence for
participating in a conspiracy to illegally manufacture or possess with intent to deliver 650 grams
or more of a mixture containing cocaine, MCL 750.157a, MCL 333.7401(2)(a)(i). For that
participation, the trial court sentenced defendant to a twenty to forty year prison sentence. We
affirm.
I. FACTS
This case arises from the June 6, 2002 arrest of defendant, Ernesto Gonzalez, and several
others in connection with a cocaine processing and distribution operation in Oakland County.
After conducting a controlled buy, police arrested a cocaine seller, who shared the location of his
source, a residence at 514 Highland, in Pontiac. Using this information, police surveilled the
residence and sought a search warrant. Upon execution of the warrant, two men fled through the
back door, later to be apprehended, while defendant was found hiding under a pile of clothes in
the back bedroom. No cocaine was found on defendant’s person or in the room in which he was
hiding, but the police did find $100 in cash on defendant. All three were arrested. Within the
residence, police found a full-scale processing and packaging operation1 in the small2 house’s
kitchen and dining room.
1
Officers testified that the house contained mixing bowls with white residue, food processors
containing cocaine, cutting agents, packages of various sizes of cocaine, plastic baggies, a digital
scale, and a cocaine press operated by hydraulic jacks. At the time of the raid, the house
contained more than two kilograms of cocaine, with empty packaging that suggested two
additional kilograms had been processed there.
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The night of the arrest, defendant was taken to the Oakland County Jail. Two days later,
police read an advice of rights form to defendant and defendant signed the form. Officers then
interrogated defendant and he gave oral and written inculpatory statements. Defendant explained
that he was hired by one of the other men arrested in the raid to act as lookout during the cocaine
processing and that he helped package a bag or two for sale. For these services, defendant
explained, he was paid $100—the $100 police found on his person during the raid.
Based on these statements and evidence found in the raid, defendant was charged with
illegally manufacturing or possessing 650 grams or more of a mixture containing cocaine with
intent to deliver, MCL 333.7401(2)(a)(i), and conspiracy to illegally manufacture or possess with
intent to deliver 650 grams or more of a mixture containing cocaine, MCL 750.157a.
Prior to trial, defendant moved to suppress his inculpatory statements. Accordingly, the
trial judge held an evidentiary hearing, pursuant to People v Walker (On Rehearing), 374 Mich
331; 132 NW2d 87 (1965), to determine whether the statements were in fact voluntary and made
after a knowing and intelligent waiver of defendant’s Fifth and Sixth Amendment rights.
At the hearing, officers testified that they interrogated defendant for the first time at 1:10
p.m. on June 8th, two days after his arrest. They testified that they had no knowledge of any
other officer questioning defendant at an earlier time. Prior to that interrogation, officers
testified they confirmed that defendant could read, write, and understand the English language
and that defendant had no difficulty understanding them during the questioning. The officers
noted that defendant did not complain of lack of sleep or appear to be under the influence of
drugs or alcohol. The officers testified that they read and briefly explained the advice of rights
form to defendant; defendant acknowledged that he understood it, signed the form, and, without
promise or threat, waived his Fifth and Sixth Amendment rights and gave his statements.
Defendant testified contrarily. According to defendant, on the night of his arrest, he was
placed in a small room where an unspecified officer tried to interrogate him. Defendant testified
that he refused to answer the officer’s questions and invoked his Sixth Amendment right to have
counsel present during questioning and that no counsel was provided. After this attempted
questioning, defendant testified that he was moved to a single-person cell, did not sleep much,
and was held without food or drink until the June 8th interrogation. Further, during this time,
defendant alleged that the police repeatedly refused to let defendant use the telephone. At the
June 8th interrogation, defendant testified that he again invoked his Sixth Amendment right to
counsel, which was ignored by the officers, and that he did not fully understand the advice of
rights form even after an officer “somewhat” explained the form. Ultimately, defendant testified
that he did not want to write out the inculpatory statement, but he felt pressured into doing so.
Defendant’s testimony also revealed that defendant had a ninth-grade formal education
and an adult criminal record with one felony possession of cocaine charge.
(…continued)
2
Reportedly, 800-900 square feet.
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Based on this testimony and evidence offered by the witnesses, the trial judge found the
inculpatory statements to have been voluntarily given after a knowing and intelligent waiver of
rights. Considering defendant’s age, experience, education, background, and intelligence, the
trial court held defendant had the capacity to understand the warning given to him, the nature of
his rights, and the consequences of waiving those rights. The trial judge noted that defendant did
not lack the intellect to understand the warnings and his prior experiences with the criminal
justice system suggested that he understood the implications of waiving his rights. Ultimately,
the trial judge found defendant’s testimony to be “simply not credible.”
II. SUPPRESSION OF DEFENDANT’S INCULPATORY STATEMENT
A. Standard of Review
This Court reviews a waiver of constitutional rights de novo by considering the totality of
the circumstances. Walker, supra at 338. However, this Court does not disturb a trial court’s
factual findings regarding a knowing and intelligent waiver of Miranda rights unless that ruling
is found to be clearly erroneous. People v Dauod, 462 Mich 621, 633; 614 NW2d 152 (2000). In
determining a defendant’s level of comprehension, credibility is crucial and the trial judge is in
the best position to make that assessment. Id.
B.Analysis
The Fifth and Sixth Amendments protect the right to remain silent and the right to counsel.
When in custody, once the right to remain silent is invoked, police must cease questioning,
suspend questioning for a significant time, and later re-Mirandize an individual before resuming
questioning. Michigan v Mosley, 423 US 96, 104-05; 96 S Ct 321; 46 L Ed 2d 313 (1975).
However, once the right to counsel is invoked by a suspect in custody, police must cease
questioning and cannot resume questioning in the absence of counsel unless the suspect initiates
further communication with police. Edward v Arizona, 451 US 477, 481-82; 101 S Ct 1880; 68
L Ed 2d 378 (1981). Therefore, if defendant did invoke his right to counsel on June 6th and 8th,
did not initiate communication with the police, and was not afforded counsel, as he contends,
then his Sixth Amendment right has been violated. However, if defendant waived his rights to
silence and counsel, his incriminating statements were properly admitted into evidence.
Whether counsel was ever invoked is a question of fact and ultimately turns on the
credibility of testimony offered. “Credibility is a matter for the trier of fact to ascertain. We will
not resolve it anew.” People v Vaughn, 186 Mich App 376; 465 NW2d 365(1990). As stated in
Dauod, supra at 633, the trial judge is in the best position to determine the credibility of
proffered testimony. In this case, the judge found defendant’s testimony to lack sufficient
credibility. This Court finds nothing in the record to leave it with a firm conviction that that was
a mistaken conclusion; in other words, the judge’s holding is not clearly erroneous.
Whether defendant knowingly, intelligently, and voluntarily waived his Fifth and Sixth
Amendment rights must be shown by the prosecution, which bears the burden of establishing a
valid waiver by a preponderance of the evidence. Colorado v Connelly, 479 US 157, 168; 107 S
Ct 515; 93 L Ed 2d 473 (1986). To determine whether defendant waived his Fifth and Sixth
Amendment rights, this Court employs a two-pronged inquiry:
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First, the relinquishment of the right must have been voluntary in the sense that it
was the product of a free and deliberate choice rather than intimidation, coercion,
or deception. Second, the waiver must have been made with a full awareness of
both the nature of the right being abandoned and the consequences of the decision
to abandon it. Moran v Burbine, 475 US 412, 421; 106 S Ct 1135; 89 L Ed 2d 410
(1986); see also People v Cheatham, 453 Mich 1, 14; 551 NW2d 355(1996).
As the trial judge did, this Court examines the “totality of the circumstances surrounding the
interrogation” to make these determinations. Cheatham, supra at 27. This examination includes
an evaluation of defendant’s “age, experience, education, background, and intelligence, and into
whether he has the capacity to understand the warnings given him, the nature of his rights, and
the consequences of waiving those rights.” Fare v Michael C, 442 US 707, 725; 99 S Ct 2560;
61 L Ed 2d 197 (1979); see also Cheatham, supra at 27.
1. Voluntariness Prong
The Voluntariness prong focuses on police conduct to determine 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.” People v Cipriano, 431 Mich 315, 333-34;
429 NW2d 798 (1988).
Ultimately, this issue depends on the credibility of defendant’s testimony. The trial judge
remains in the better position to determine credibility. Here, the trial judge did not find the
defendant’s testimony credible. This Court finds nothing in the record to show that holding to be
clearly erroneous. Rather, that defendant’s codefendant testified during the Walker hearing that
he was given food and drink on June 6th or 7th justifies the trial judge’s conclusion.
2. Knowing and Intelligent Waiver Prong
“[D]etermining whether a suspect’s waiver was knowing and intelligent requires an
inquiry into the suspect’s level of understanding, irrespective of police behavior.” Dauod, supra
at 634. The prosecution must show, by a preponderance of the evidence, that defendant
understood that he did not have to speak, that he had the right to the presence of counsel, and that
the state could use what he said in a later trial against him. Id. at 634, 637. “To waive rights
intelligently and knowingly, one must at least understand basically what those rights encompass
and minimally what their waiver will entail. The [necessary] mental state . . . involves being
cognizant at all times of the State’s intention to use one’s statements to secure a conviction and
of the fact that one can stand mute and request a lawyer.” Id. at 640-41.
The prosecution showed that defendant was provided an advise of rights form, which
disclosed defendant’s rights to silence and counsel and explained inculpatory statements could be
used against defendant. The prosecution showed that defendant signed the form, waiving his
rights. Defendant’s own testimony provided that he could read, write, and understand the
English language, including every word on the form; that officers “somewhat” broke down the
rights contained in the form, namely the right to remain silent and the right to counsel; that he
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had a ninth grade formal education; that he had had previous police contacts, evidenced by his
adult criminal record; and showed that he was able to competently testifying on his own behalf.
Considering the totality of these circumstances, as the trial judge did, this Court is not left
with a firm conviction that a mistake was made; thus, the trial judge’s conclusion was not clearly
erroneous. Here, we have a defendant that was not a stranger to the criminal justice process who
showed competence in his testimony and intelligence. That defendant did not fully comprehend
the ramifications of his admission to police does not make his waiver unknowing or
unintelligent. “[T]o knowingly waive [Fifth and Sixth Amendment] rights, a suspect need not
understand the ramifications and consequences of choosing to waive or exercise the rights that
the police have properly explained to him.” Cheatham, supra at 28. “Lack of foresight is
insufficient to render an otherwise proper waiver invalid.” Id. at 29. As the Supreme Court has
held, “we have never ‘embraced the theory that a defendant’s ignorance of the full consequences
of his decisions vitiates their voluntariness.’” Connecticut v Barrett, 479 US 523, 525-526; 107 S
Ct 828; 93 L Ed 2d 920 (1987) (citations omitted). Thus, that defendant’s choice was unwise or,
at least, unlawyerly does not evince that it was not made knowingly and intelligently.
Therefore, this Court holds that the record does not show that the trial judge made a clear
error when he determined defendant knowingly, intelligently, and voluntarily waived his Fifth
and Sixth Amendment rights. Thus, the admission of defendant’s statements into evidence was
warranted.
III. SUFFICIENCY OF EVIDENCE
A. Standard of Review
This Court reviews the sufficiency of evidence in a light most favorable to the
prosecution to determine whether a rational finder of fact could find that the essential elements
of the crime had been proven beyond a reasonable doubt. People v Petrella, 424 Mich 225; 380
NW2d 11 (1985).
B. Analysis
Defendant was convicted of participating in a conspiracy to illegally manufacture or
possess with intent to deliver 650 grams or more of a mixture containing cocaine, MCL
750.157a, MCL 333.7401(2)(a)(i). A conspiracy is a unlawful agreement between two or more
persons to participate in a criminal purposes. People v Turner, 213 Mich App 558, 569-570; 540
NW2d 728 (1995), overruled in part on other grounds by People v Mass, 464 Mich 615, 627-28;
628 NW2d 540 (2001). To prove a conspiracy, the prosecution must show that defendant had
specific intent to combine with others to accomplish an illegal goal. Id.
To prove the intent to combine with others for an unlawful purpose, it must be
shown that the intent, including knowledge, was possessed by more than one
person. A defendant may become a member of an existing conspiracy if he
cooperates knowingly to further the object of the conspiracy, although mere
knowledge that someone proposes unlawful action is alone not enough. For intent
to exist, the defendant must know of the conspiracy, know of the objective of the
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conspiracy, and intend to participate cooperatively to further that objective. Id.
(citations omitted).
Construing the record in a light most favorable to the prosecution, this Court finds that a
rational fact finder could have found every element of the conspiracy charge met beyond a
reasonable doubt. According to defendant’s admission, he was hired to act as lookout during
cocaine processing on the night of June 6th. Further, defendant admitted that he packaged a bag
or two of cocaine for sale. Defendant’s admissions suggest that he cooperated with others to
further an unlawful goal, namely, protecting a cocaine processing and distribution operation.
Defendant then knew of the conspiracy after being recruited, knew the nature of the operation,
and cooperated by bagging the cocaine and protecting the operation by acting as lookout. Any
reasonable trier of fact could find that this record sufficed to show that the essential elements of
the crime of conspiracy were met beyond a reasonable doubt.
This conclusion remains unchanged even though the jury refused to return a guilty verdict
for defendant’s second charge, illegally manufacturing or possessing 650 grams or more of a
mixture containing cocaine with intent to deliver, MCL 333.7401(2)(a)(i). Defendant contends
that because the jury found that defendant had not manufactured or possessed 650 plus grams of
cocaine, he could not be found guilty of conspiring to do the same. Implicit in this argument is a
challenge to the jury’s rationality. However, this Court reviews sufficiency of evidence
challenges by examining the record to determine whether any rational trier of fact could have
concluded that defendant conspired beyond a reasonable doubt irrespective of those charges for
which defendant was acquitted. This record evinces sufficient evidence for a rational trier of fact
to conclude that defendant conspired beyond a reasonable doubt. Therefore, defendants’
conviction is based on sufficient evidence.
IV. CRUEL AND UNUSUAL PUNISHMENT
A. Standard of Review
Constitutional questions are reviewed de novo. People v Houstina, 216 Mich App 70, 73;
549 NW2d 11 (1996).
B. Analysis
Defendant contends that his sentence of twenty to forty years is cruel and unusual
punishment because it violates the principle of proportionality. People v Milbourn, 435 Mich
630, 635-36; 461 NW2d 1 (1990). The principle of proportionality requires that sentences must
be proportionate to the seriousness of the crime committed. Id. The sentence imposed on
defendant was the statutory minimum. Statutory sentencing guides are presumptively
proportional. People v Williams, 189 Mich App 400, 404; 437 NW2d 727 (1991).
MCL 769.34(2)(a) provided, in pertinent part:
If a statute mandates a minimum sentence for an individual sentenced to the
jurisdiction of the department of corrections, the court shall impose sentence in
accordance with that statute.
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The conspiracy statute upon which defendant was convicted, MCL 750.157a, provides, in
pertinent part, “the person convicted under this section shall be punished by a penalty equal to
that which could be imposed if he had been convicted of committing the crime he conspired to
commit.” MCL 750.157a(a). Therefore, defendant was punished under MCL 333.7401 that, at
the time of defendant’s acts (the basis for his conviction),3 provided that one, like defendant,
found guilty under MCL 333.7401(2)(a) was punishable by life imprisonment or any term of
years not less than twenty. Thus, defendant was given the statutory minimum for his
involvement in the cocaine processing and distribution conspiracy.
The trial judge did not abuse his discretion when imposing this sentence, despite the fact
that the Michigan Department of Corrections Bureau of Probation’s pre-sentence investigation
report suggested that defendant only receive forty to seventy months for his involvement. Rather,
the trial judge was following a legislative mandate.
MCL 769.34(2)(a) provides that if a statute requires a minimum sentence, that the court
will impose that minimum sentence. Further, MCL 769.34(10) provides:
If a minimum sentence is within the appropriate guidelines sentence range, the
court of appeals shall affirm that sentence and shall not remand for resentencing
absent an error in scoring the sentencing guidelines or inaccurate information
relied upon in determining the defendant’s sentence.
Defendant has not claimed nor has this Court found any error in scoring the sentencing
guidelines or that the trial court relied on inaccurate information to determine defendant’s
sentence. Therefore, this Court is under a legislative mandate to uphold defendant’s sentence.4
Affirmed.
/s/ Bill Schuette
/s/ Richard A. Bandstra
/s/ Jessica R. Cooper
3
Pub Acts 2002, No 665, effective December 25, 2002, amended the statute and removed the
statutory minimum. According to MCL 769.34(2), the sentence is measured by the date of the
crime’s commission; therefore, Pub Acts 2002, No 665 does not apply to this case.
4
Our Supreme Court has recently upheld this mandate as a constitutional delegation of power.
People v Gazar, 469 Mich 431, 670 NW2d 662 (2003).
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