People v. Cortez
| Decision Date | 27 October 2011 |
| Docket Number | Docket No. 298262. |
| Citation | 294 Mich.App. 481,811 N.W.2d 25 |
| Parties | PEOPLE v. CORTEZ. |
| Court | Court of Appeal of Michigan — District of US |
OPINION TEXT STARTS HERE
Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Andrea Krause, Prosecuting Attorney, and Joel D. McGormley, Assistant Attorney General, for the people.
State Appellate Defender (by Peter Jon Van Hoek) for defendant.
Before: O'CONNELL, P.J., and METER and BECKERING, JJ.
Defendant, Burton David Cortez, appeals as of right his convictions on two counts of being a prisoner in possession of a weapon, MCL 800.283(4), entered after a jury trial. The trial court sentenced defendant as a second-offense habitual offender, MCL 769.10, to concurrent terms of 24 to 90 months in prison.
At the time of the incident in question defendant was an inmate at the Carson City Correctional Facility. On July 21, 2009, Michigan Department of Corrections (MDOC) officers discovered two weapons in defendant's cell during a search of a number of inmates' cells. Before trial, defendant moved to suppress a recorded statement taken during an interview with him after the weapons were discovered and in which he admitted possessing the weapons. At issue on appeal is whether the trial court erred by ruling that the MDOC officer who questioned defendant during the interview was not required to provide him with Miranda1 warnings before subjecting him to the questioning and by admitting defendant's incriminating statements at trial. We affirm.
On July 21, 2009, a “siren drill” was carried out at the prison. Leading up to the drill there had been several assaults and fights involving suspected gang members; weapons were used and there were shots fired by corrections officers from the gun tower. On the morning of the drill, two homemade weapons had been found on an inmate who was a suspected gang member. Prison officials decided to conduct the siren drill to search for more weapons and identify inmates involved in the suspected gang activity.
Pursuant to protocol for the siren drill, all inmates were required to return to their cells for a lockdown, and the corrections officers then searched various cells for contraband. During the drill, an MDOC officer, Lieutenant Robert Vashaw,2 provided other corrections officers with a list of suspected gang members whose cells were to be searched. Defendant's name was on the list.
MDOC Officer Robert Hanes explained that before a cell is searched, the corrections officers have the inmates step out one at a time, undergo a pat-down search, and then proceed to a day room while their cell is searched. According to defendant, about 30 minutes after the drill started, he was asked to leave his cell and was patted down.3 He was then sent to a day room or activity room.
Officer Hanes searched the area of defendant's cell that was considered to be in defendant's area of control. The cell was basically divided so that defendant, who slept on the bottom bunk, had the left side of the cell and the inmate who slept on the top bunk had the right side of the cell as their areas of control. Officer Hanes found pieces of metal in a trash can on the left side of defendant's cell. He also noticed that a metal shelf was missing from defendant's desk. At that point, Lieutenant Vashaw directed that a thorough search of the cell be conducted. The search revealed a homemade shank, specifically a piece of sharpened metal that was inserted into a white plastic handle. The shank was stuck in the bottom bunk's framework on the under-side of the bed frame. Officer Hanes turned the shank over to Lieutenant Vashaw and then continued to search the cell. A second shank was found inside a corner of the mattress on the bottom bunk. The second shank was made of a piece of metal wrapped in a bluish cloth and was also turned over to Lieutenant Vashaw.
Lieutenant Vashaw testified that he took control of the shanks, “bagged and tagged” them, and placed them in the Michigan State Police evidence locker. Once the shanks were in the locker, Lieutenant Vashaw no longer had control over them; only the state police had access to them. Lieutenant Vashaw testified that the two shanks were in the evidence locker when he later interviewed defendant but that the trash can containing the metal pieces may have been in the interview room during the interview. Defendant, on the other hand, testified that the shanks, which had been placed inside tubes, and the trash can, were all in the interview room.
Officer Vashaw testified that if an inmate is found with dangerous contraband, departmental policy calls for the inmate to be placed in segregation until his misconduct report is heard. On the basis of the items found in defendant's area of control, Officer Hanes prepared a misconduct report, and Lieutenant Vashaw ordered staff to escort defendant to a segregation cell or solitary confinement.4 While in the segregation unit, an inmate must be handcuffed and escorted by a staff member whenever he leaves segregation.
Approximately an hour to an hour and a half after Officer Hanes found the second shank, Lieutenant Vashaw requested to speak with defendant. Because defendant was already in segregation, he was escorted in handcuffs to the control center to meet Lieutenant Vashaw.5 According to the lieutenant, he had defendant come to the control center to be interviewed because inmates are often reluctant to speak openly in front of others. Lieutenant Vashaw and defendant then went to a back office for the interview.6
According to Lieutenant Vashaw, defendant hesitated to speak at the outset of the interview and initially “denied everything.” The lieutenant then told defendant that the evidence the corrections officers had obtained was “pretty damaging” and that two weapons had been found in defendant's area of control. Lieutenant Vashaw said that defendant needed to tell him what was going on inside the prison because violent events had recently occurred; defendant needed to tell him why he was making weapons or was in possession of weapons. The lieutenant testified that he never threatened defendant.
Lieutenant Vashaw further testified that defendant soon started to talk, and the lieutenant brought out a tape recorder. Defendant knew the recorder was running, and he did not hesitate to discuss the matter. On the recording, which was played, in part, for the jury, defendant said that the weapons were his and that gang members had forced him to make them. One weapon was for his own protection, and the other was to be sold. He also admitted selling a third weapon the previous day. Defendant also talked about gangs that operated within the prison. The interview lasted approximately 15 minutes, and defendant never sought to end the interview. After the interview, a staff member escorted defendant back to segregation pursuant to departmental policy.
According to defendant, Lieutenant Vashaw showed him the trash can and both shanks in the interview room. Defendant told the lieutenant that the items were not his, but then the lieutenant told him they could make a deal. Lieutenant Vashaw proposed that defendant either admit possessing the weapons, do his segregation time after his misconduct ticket was heard, and go home as scheduled in approximately 11 months, or the lieutenant could keep defendant from ever going home. Defendant testified that everything he admitted on the recording was untrue; he just said what he needed to say in order to get out of prison and go home.
Before trial, defendant moved to suppress his confession on the grounds that he was not given Miranda warnings and it was highly prejudicial because the recording of his confession mentioned the length of time he had been in prison and detailed gang-related activity. Defendant renewed his objection to the admission of the recording during trial.
At the suppression hearing, during direct examination, Lieutenant Vashaw testified about his reasons for placing defendant in segregation and interviewing him:
Q. So—you end up in possession of that first weapon found?
A. Well, he, Officer Hanes ... gave it to me and I took possession of it then, yes.
Q. Okay. And then were you called back to the cell, or somehow you found another—came into possession of another weapon from the defendant's cell?
A. Well, I wanted to get control of the prisoner, so I instructed Officer Hanes to do—I want you guys to finish going through this cell because there could be possibly more weapons in here, and then I left with the weapon and the metal contraband. I called in some additional staff to take Mr. Cortez to segregation.
Q. Okay. So, you moved him from the day room to ...
A. Segregation.
Q. What's segregation? What's that, what ...
A. Solitary confinement. They're placed in there for detention and various protection and they're also placed in there pending, what we call, investigation or due process. Pending ... investigation until we finish looking in to this incident or pending due process until we write misconduct and then they have a certain amount of days to be heard on that misconduct.
Q. And that's all stuff that's done internally within the prison?
A. Correct.
* * *
Q. Okay. And—and the reason, what is the reason he was put into segregation, at that point?
A. Because prisoner[s], when they're found with dangerous contraband which was the broken pieces of metal or a weapon, that's called a non bondable offense and for that reason, we're required to place them in segregation.
Q. This is all Department of Corrections policy?
A. Correct.
Q. Nothing that the police have directed you have to?
A. No.
* * *
A. Well, after he's placed in seg[regation] ... Officer Hanes ... subsequently found the second weapon in his mattress.
* * *
A. ... Given the nature of what had been goin [sic] on for the past week, I wanted to talk to him [defendant] about the activity.
Q. For what reason?
A. To try to get a...
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- People v. Cortez, Docket No. 298262.
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People v. Cortez, Docket No. 144302.
...No. 144302.COA No. 298262.Supreme Court of Michigan.May 25, 2012. OPINION TEXT STARTS HERE Prior report: 294 Mich.App. 481,811 N.W.2d 25.Order On order of the Court, the application for leave to appeal the October 27, 2011 judgment of the Court of Appeals is considered and, pursuant to MCR ......