People v. Ayers

• Decision Date: 06 October 1995
• Docket Number: Docket No. 164934
• Citation: 213 Mich.App. 708,540 N.W.2d 791
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John AYERS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 791

540 N.W.2d 791

213 Mich.App. 708

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John AYERS, Defendant-Appellant.

Docket No. 164934.

Court of Appeals of Michigan.

Submitted March 7, 1995, at Detroit.

Decided Oct. 6, 1995, at 9:20 a.m.

Released for Publication Dec. 18, 1995.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Joseph A. Puleo, Assistant Prosecuting Attorney, for the People.

State Appellate Defender by Susan M. Meinberg, for defendant on appeal.

Before WHITE, P.J., and BANDSTRA and CYNAR, ^* JJ.

PER CURIAM.

Defendant conditionally pleaded guilty of arson of a dwelling house, M.C.L. § 750.72; M.S.A. § 28.267, and burning insured property, M.C.L. § 750.75; M.S.A. § 28.270. He was sentenced to concurrent terms of five to twenty years for the arson conviction and five to ten years for the conviction of burning insured property. He now appeals as of right. We affirm, but remand.

Defendant was charged with the two offenses after he went to the police and confessed his participation in the burning of a house belonging to codefendant Peter Kosciolek. Defendant filed a motion to dismiss, asserting that his confession was induced by a promise of immunity, and that he was entitled to specific performance of that promise. An evidentiary hearing was held, and the court denied defendant's motion. Immediately thereafter, defendant tendered his conditional plea of guilty, expressly reserving the right to appeal the court's ruling denying his motion to dismiss.

At the evidentiary hearing, Detective-Sergeant Joseph Wedesky of the Romulus Police Department testified that he was contacted by Charles Sprinkle on July 8, 1992. Sprinkle said he had purchased a tractor-mower from Peter Kosciolek, but had also heard that Kosciolek had reported the mower stolen and had collected the insurance proceeds. Defendant, who was staying with Sprinkle, then told Wedesky that he had a "friend" who was a witness to an arson and was looking for some kind of immunity. Wedesky asked defendant what his friend knew, and defendant stated that Peter Kosciolek's house had been intentionally set on fire. Wedesky told defendant he would check with the prosecutor's office to see whether any type of immunity might be available. Defendant was not considered a suspect at this point.

After speaking to defendant, Wedesky retrieved the report regarding the fire at Kosciolek's house, which occurred in October 1991. The case was "pretty much closed," but the report classified the fire as one of a "suspicious nature," and noted that an anonymous telephone call had been received reporting that a fireman had knowledge that the fire was intentionally set. Wedesky then spoke to assistant prosecutor Doug Baker, who told Wedesky that there "could possibly" be some kind of immunity if the person had a character beyond reproach, had no criminal history, and was absolutely truthful about everything. Additionally, Wedesky checked with a confidential informant who was familiar with the community. The informant did some checking and then informed Wedesky the next day that a person named "John" had burned Kosciolek's house. The informant did not know the last name of the person, but said she could find out. At that point, Wedesky began suspecting defendant. Wedesky checked defendant's record and discovered that he had a criminal history. ¹

Wedesky next spoke to defendant by telephone on Friday, July 10, 1992. Wedesky testified that he told defendant that he knew that he had set the fire, but defendant denied doing so. Wedesky also claimed that he informed defendant that the prosecutor had stated that immunity might be granted only "if the person didn't have any criminal history and had an outstanding character and never told any lies." Wedesky said he told defendant he was not eligible because he had a criminal history. Defendant asked to meet with Wedesky on the following Monday, and Wedesky agreed.

Wedesky met with defendant as planned on Monday, July 13, and defendant gave a written statement confessing his participation in the intentional burning of Peter Kosciolek's house. Defendant said that Kosciolek offered him a stereo, a television, two videocassette recorders, and a telephone if he would burn the house, and he agreed. Kosciolek subsequently contacted defendant, informing him that everyone was out of the house, and defendant went over and started a fire in a closet. Defendant received the items that he was promised, but Kosciolek subsequently took them back, promising to pay defendant $2,000 after receiving the insurance money. Later, Kosciolek paid defendant only $900.

Before defendant gave his written statement, Wedesky wrote out the following, which appears at the beginning of the statement:

I have not read John Ayers his Constitutional Rights prior to him making verbal and written statement. I have made no threats or promises to John Ayers.

At the end of the statement, defendant wrote out the following:

I'm making this statement with the prosecutor's word if it's true I will have immunity when I testify. I won't be prosecuted.

Wedesky testified that he did not offer or promise defendant immunity before obtaining his statement, nor was he authorized to do so. To the contrary, Wedesky stated, "I told him that there was no immunity--I said, I couldn't promise it." Wedesky acknowledged that the reason why he did not read defendant his constitutional rights was that assistant prosecutor Baker told him not to do so.

Wedesky testified that he also learned of defendant's participation in the burning of Kosciolek's house from several independent sources, none of whom were mentioned in defendant's statement. Specifically, Wedesky received some anonymous telephone calls in July 1992, from a person later identified as Glen Perone, who is a fried of Peter Kosciolek. Wedesky finally met Perone at a restaurant on July 10, and then obtained written statements from Perone on July 13 and 22. Perone advised Wedesky of the various people who had information about the case, including John Kosciolek, who is the son of codefendant Peter Kosciolek, and Patricia Ayers, who is defendant's ex-wife. Wedesky also spoke to Colin Gabbard, a fireman, after defendant had made a complaint accusing Gabbard of stealing some items from him. Gabbard provided Wedesky with information concerning the arson. Wedesky took a written statement from Gabbard on July 15. Wedesky also spoke to Dave Allison, an arson investigator for Romulus, and Rich Cahn, the insurance agent who investigated the case. Additionally, Wedesky spoke to the codefendant, Peter Kosciolek, who confessed to the crimes.

Anthony Perone ² was called as a witness and acknowledged making "one or two" anonymous telephone calls in July 1992 concerning the involvement of defendant and Peter Kosciolek in the burning of Kosciolek's house. Perone formerly was defendant's father-in-law and works for the Dearborn Police Department. Perone acknowledged meeting with Wedesky at a restaurant on July 10, and then giving a written statement on a later date.

Defendant testified that when he initially spoke to Wedesky, Wedesky informed him that he would have to check with the prosecutor regarding immunity, but told him "there was a good chance that if the person [with the information] came forward they would get immunity because the case was nothing to prove it." Defendant next spoke with Wedesky on the telephone on July 10. Defendant testified regarding his conversation with Wedesky:

[H]e said that he had spoken with Doug Baker or Barker, the prosecuting attorney and that Baker had said that--or whoever this person was, if they would come forward and give a true and factual statement if necessary and be willing to testify in court, that they would have immunity if they didn't have a serious criminal record.

At that time I said what do you call serious. And he said, murder, armed robbery, rape, if you have repeat cases, like that. Then the person probably wouldn't get immunity.

If there is a little minor thing, then there shouldn't be any problem with it. And he said, okay, I'll get back with you again. And I said, so, what's the deal. And he said, well, I think you are the one who set the fire.

And I said, well, what about the immunity? At that time he said if you come forward and give a statement and it's factual and you prove what you say is true and you are willing to testify, there will be some type of immunity granted.

He asked me can he come that day and take a statement. And I said, no. Would you wait until Monday so that there is somebody here besides me to be a witness to what's going on.

And he said, okay. But, you better do it quick. Because Pete's going to make an immunity deal.

Defendant subsequently met with Wedesky on July 13 and gave a written statement. Defendant's friend, Karen Rose, was present as a witness, and also present was Sergeant Early (or Sergeant Snyder according to Wedesky). Defendant described the circumstances surrounding his giving of the statement:

I said, so, what about the immunity? And he said, well, let's take the statement first and see if this thing is true. He said, if you show that what you say is true, then it shouldn't be any problem.

So, he asked me verbally first to give my statement. I did. And then he asked me to write it, and I said, the whole thing? And he said, well, the most important part of it.

And so after that, I wrote the statement out. And I put on the bottom about the immunity. Because he had told me if it was necessary, I may have to testify against Pete. And I said, I don't have any problem with it.

Okay. So, at that time, Sergeant Wedesky said, I don't know about you putting this immunity thing in here. And Sergeant Early said, that's not a problem about it. He's got immunity.

Defendant stated that,...