People v. Cortez, Docket No. 298262.

• Decision Date: 12 March 2013
• Docket Number: Docket No. 298262.
• Citation: 299 Mich.App. 679,832 N.W.2d 1
• Parties: PEOPLE v. CORTEZ (On Remand).
• Court: Court of Appeal of Michigan — District of US

299 Mich.App. 679

832 N.W.2d 1

PEOPLE

v.CORTEZ (On Remand).

Docket No. 298262.

Court of Appeals of Michigan.

Submitted June 20, 2012, at Lansing.

Decided March 12, 2013, at 9:05 a.m.

Bill Schuette, Attorney General, John J, Bursch, Solicitor General, Richard A. Bandstra, Chief Legal Counsel, and David H. Goodkin, 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.

ON REMAND

METER, J.

This case is before us on remand from the Michigan Supreme Court. Defendant appeals as of right his convictions by a jury of two counts of being a prisoner in possession of a weapon, MCL 800.283(4). The trial court sentenced him, as a second-offense habitual offender, MCL 769.10, to concurrent prison terms of 24 to 90 months. In a previous opinion, we affirmed defendant's convictions. People v. Cortez, 294 Mich.App. 481, 811 N.W.2d 25 (2011), vacated in part and remanded 491 Mich. 925, 813 N.W.2d 293 (2012). Shortly after we decided our previous opinion, the United States Supreme Court decided Howes v. Fields, 565 U.S. ––––, 132 S.Ct. 1181, 182 L.Ed.2d 17 (2012). We are directed on remand to reconsider in light of Fields defendant's challenge under Miranda v. Arizona¹ to the use of his confession at trial. People v. Cortez, 491 Mich. 925, 813 N.W.2d 293 (2012). We once again affirm defendant's convictions.

I. FACTS AND PROCEDURAL HISTORY

We set forth the relevant facts in our previous opinion:

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 Miranda warnings before subjecting him to the questioning and by admitting defendant's incriminating statements at trial....

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, 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[s] [are] searched. According to defendant, about 30 minutes after the drill started, he was asked to leave his cell and was patted down. 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 [underside] 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. 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. 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.

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. [Cortez, 294 Mich.App. at 482–487, 811 N.W.2d 25 (footnotes omitted).]

Before trial, defendant moved to suppress his confession on the basis that he was not given Miranda warnings. Id. at 487, 811 N.W.2d 25. He additionally argued that the admission of his confession would be unfairly prejudicial because his recorded confession mentioned the length of time that he had been in prison as well as his gang activity. Id.

At the suppression hearing, Lieutenant Vashaw explained that his purpose in questioning defendant was to obtain information about ongoing prison gang activity. Id. at 487–489, 811 N.W.2d 25. The lieutenant was concerned about maintaining prison safety. Id. at 489, 811 N.W.2d 25. In response to the prosecution's and the court's questioning, Lieutenant Vashaw denied that the Department of Corrections had any arrangement with the police with respect to conducting interviews of inmates who are suspected of criminal activity. Id. at 490–492, 811 N.W.2d 25. He had no contact with any outside police agency before he questioned defendant. Id. at 489, 811 N.W.2d 25.

The trial court denied defendant's motion to suppress the confession and overruled his objections to playing the recording for the jury. Id. at 492, 811 N.W.2d 25. The trial court concluded that although defendant had been in custody and subjected to interrogation, Lieutenant Vashaw was not acting in the place of a police officer and therefore was not required to give Miranda warnings. Id. The trial court also recognized that “ ‘there were many good, legitimate reasons why the Department of Corrections follows up with an interview of the defendant, relating to the safety and security of the prison, not only corrections...