PEOPLE OF MI V BOBBY J WILSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 21, 2004
Plaintiff-Appellee,
v
No. 250141
Wayne Circuit Court
LC No. 03-004755-01
BOBBY J. WILSON,
Defendant-Appellant.
Before: Meter, P.J., and Wilder and Schuette, JJ.
PER CURIAM.
Defendant was charged with possession with intent to deliver less than fifty grams of
cocaine, MCL 333.7401(2)(a)(iv), possession with intent to deliver less than fifty grams of
methadone, MCL 333.7401(2)(a)(iv), felony-firearm, MCL 750.227b, habitual offender second
offense notice, MCL 769.10, and habitual offender third offense notice, MCL 769.11. The
habitual offender notices were never considered in sentencing because defendant was found to
not have a previous criminal record. Defendant was convicted of possession of less than twentyfive grams of cocaine, MCL 333.7403(2)(a)(v), possession of less than twenty-five grams of
methadone, MCL 333.7403(2)(a)(v), and possession of a firearm during the commission of a
felony, MCL 750.227b. He was sentenced to five days in jail, with credit for time served, for the
possession of controlled substance convictions, and two years in prison for the felony-firearm
conviction. Defendant appeals as of right. We affirm. This case is being decided without oral
argument pursuant to MCR 7.214(E).
I. FACTS
On April 3, 2003, the police sent a raid team, with a valid search warrant, to 5858 Rohns
in Detroit, Michigan, in response to a complaint of drugs being sold in front of and inside the
premises. Officer Robert Gerak, who was the shotgun man,1 was the first to go inside. When
Gerak entered the house he saw Zora Reeves, who is defendant’s sister, and another black male
standing in the downstairs area. Gerak then went upstairs with Officer Debinski; they entered
the southeast bedroom and saw defendant on a bed with his right hand under a pillow.
1
The duty of the shotgun man is to enter the premises with a shotgun and go from room to room
securing the premises.
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Defendant’s son was also in the room. Gerak ordered defendant to put his hands on his head and
defendant complied. Debinski handcuffed defendant and his son and sent them downstairs to the
other officers. Debinski looked under the pillow that defendant’s hand had been under, and
found a .357 revolver, which was loaded. Gerak finished securing the house and then came back
to the southeast bedroom where defendant was originally found. Gerak looked underneath the
covers and recovered two more pistols, which were not loaded. Gerak ceased his search, took
the weapons downstairs, and later placed them in evidence. Gerak did not find any narcotics, nor
did he confiscate anything else in the house.
Officer Delshawn King placed defendant under arrest and said that defendant was very
cooperative. King read defendant his rights and said that it was defendant’s desire not to make a
statement. Defendant said that he was a drug user, but never said that he was a cocaine or
methadone user. After Gerak searched the house and secured the premises, King went up to the
southeast bedroom to search for weapons and suspected narcotics. King found drug
paraphernalia and seized it, but did not seize any narcotics.
Officer Tracy Bradford, who was outside security,2 entered the premises after the house
was secured. She began to take down information from defendant. Defendant was cooperative
and started to blurt out that narcotics were located in “one of the upper bedrooms.” Before
defendant completed his admission, Bradford advised him of his rights. Defendant then led
Bradford upstairs to the southeast bedroom to retrieve the narcotics. The narcotics were visible;
they were located between the mattress and the headboard and concealed in a brown paper bag.
Bradford confiscated the bag and put it in lock seal folder number 521564. Bradford did not
have to search for the narcotics because defendant showed her exactly where they were. The bag
in lock seal folder number 521564 was stipulated by the parties to contain a tablet of methadone
and .37 grams of cocaine.
II. STANDARD OF REVIEW
When reviewing unpreserved constitutional claims, this Court reviews for plain error
affecting the defendant's substantial rights. Reversal is warranted only when the defendant is
actually innocent or the error seriously affected the fairness, integrity, or public reputation of the
judicial proceedings. People v Carines, 460 Mich 750, 763, 773; 597 NW2d 130 (1999); People
v Newton, 257 Mich App 61, 65; 665 NW2d 504 (2003). This Court’s review is limited to the
record presented at trial. People v Robinson, 390 Mich 629, 632; 213 NW2d 106 (1973).
III. ANALYSIS
On appeal, despite failing to object to the use of his statements at trial, defendant claims
that his constitutional right against self-incrimination was violated when his statements were
used to find physical evidence that would not have been inevitably discovered without his
statements. We disagree.
2
The duty of the outside security officer is to maintain the perimeter until the premises is
secured, and then later enter the premises to assist in investigating and searching.
-2-
Both the United States and Michigan Constitutions guarantee the right against
self-incrimination. People v Watkins, 247 Mich App 14, 19; 634 NW2d 370 (2001), aff’d 468
Mich 233 (2003). This right protects an accused from being compelled to testify against himself
or provide incriminating evidence of a testimonial nature. People v Geno, 261 Mich App 624,
628; 683 NW2d 687 (2004). To be testimonial, the communication must relate a factual
assertion or disclose information. Hiibel v Sixth Judicial Distr Ct of Nevada, ___ US ___; 124 S
Ct 2451, 2460; 159 L Ed 2d 292, 305 (2004). To be incriminating, the communication must
present a reasonable basis to apprehend a real and appreciable danger to the accused from the
disclosure, such that the disclosure could be used in a criminal prosecution or lead to other
evidence that might be so used. Id.
Defendant’s statements regarding the location of the narcotics disclosed information, and
thus, were testimonial. Furthermore, defendant’s statements regarding the location of the
narcotics led to evidence, and thus, were incriminating. The only question that remains is
whether defendant’s statements were compelled. Defendant asks that this Court remand this case
to the lower court so that it can determine whether defendant’s statements were compelled.
Generally, voluntariness of a confession should be determined by the trial judge,
completely apart and independent from the jury who is limited to finding the truthfulness and
weight of the confession if the judge allows it in as being voluntary. People v Walker (On
Rehearing), 374 Mich 331, 338; 132 NW2d 87 (1965); People v Manning, 243 Mich App 615,
624-625; 624 NW2d 746 (2000). This is referred to as a Walker hearing. The rationale behind a
Walker hearing is that voluntariness should not be found by the body that is finding guilt or
innocence because even if it finds the confession to be involuntary, it has heard it, and thus, will
not be able to completely strike it from its mind when finding guilt or innocence. Walker, supra.
However, since defendant failed to object to the evidence that resulted from defendant’s
statements and failed to request a Walker hearing, he failed to properly preserve this issue for
appeal, and thus, this Court is limited to reviewing the trial courts failure to exclude the contested
evidence for plain error. Carines, supra.
The trial judges’s failure to sua sponte suppress the physical narcotic evidence or to hold
a Walker hearing was not a clear or obvious error. Defendant now claims that his constitutional
right against self-incrimination was violated, and that the evidence, which was discovered
because of his confession, should be suppressed. As discussed previously, defendant’s
confession was testimonial and incriminating, but from the evidence presented at trial it was not
plain error for the trial judge to fail to conclude, sua sponte, that there might be an issue
regarding whether the confession was also compelled. Officer King read defendant his rights
and defendant initialed the rights notification form, which certified that he had been read his
rights. Although defendant chose not to make a statement at this time, he later voluntarily
admitted that there were narcotics upstairs. Before defendant could complete his admission,
Officer Bradford interrupted him and read him his rights again. Defendant chose to finish the
statement, and furthermore, led Bradford upstairs to the narcotics and pointed them out to her.
Nothing on the record supports the conclusion that the confession was involuntary; therefore, the
trial judge did not commit plain error when he failed to inquire further into the confession.
Defendant’s contention that the narcotics would not have been inevitably discovered
without the confession need not be examined. Even if defendant’s contention in that regard is
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true, the evidence presented at trial showed that defendant’s confession was not compelled.
Thus, the trial judge did not commit plain error when he failed to sua sponte suppress the
evidence that was discovered because of the confession or to hold a Walker hearing to determine
whether the confession was compelled.
Affirmed.
/s/ Patrick M. Meter
/s/ Kurtis T. Wilder
/s/ Bill Schuette
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