People v. Fike
| Citation | 577 N.W.2d 903,228 Mich.App. 178 |
| Decision Date | 20 February 1998 |
| Docket Number | Docket No. 199564 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John J. FIKE, Defendant-Appellant. |
| Court | Court of Appeal of Michigan (US) |
Page 903
v.
John J. FIKE, Defendant-Appellant.
Decided Feb. 20, 1998, at 9:20 a.m.
Released for Publication May 22, 1998.
Page 904
[228 Mich.App. 179] Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Randy Colbry, Prosecuting Attorney, and Michael E. Moody, Assistant Attorney General, for People.
State Appellate Defender by Randy E. Davidson and Pamella R. Szydlak, for defendant-appellant on appeal.
Before FITZGERALD, P.J., and O'CONNELL and WHITBECK, JJ.
O'CONNELL, Judge.
Defendant appeals as of right from his conviction by a jury of first-degree criminal sexual conduct, M.C.L. § 750.520b(1)(f); M.S.A. § 28.788(2)(1)(f). Defendant was sentenced to a term of ten to thirty years' imprisonment. We affirm.
[228 Mich.App. 180] Defendant's conviction stems from the August 24, 1995, rape of a fourteen-year-old girl on the garage floor at her house. As a result of the incident, the complainant suffered severe vaginal laceration and loss of blood. Several weeks after the incident, the complainant told Detective Keith Kewish that
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she had been sexually assaulted by defendant. On September 11, 1995, Kewish contacted defendant and confronted him with the allegations raised by the victim. Defendant denied having any contact with the complainant on the day in question.On September 29, 1995, defendant voluntarily agreed to participate in an interview at the state police headquarters in Lansing. He was taken into an interview room that was being monitored by closed-circuit television, advised of his constitutional rights, and, upon waiving his rights and agreeing to speak, was then questioned for approximately 2 1/2 to 3 hours. During the interview, defendant admitted having sexual intercourse with the complainant, but claimed that it was consensual. The entire interview was observed by Detective Kewish; Kewish thereafter conducted his own audiotaped interview with defendant. In the second interview, defendant was again advised of his constitutional rights and, after agreeing to speak, told Kewish that he had consensual sexual intercourse with the victim. Defendant was arrested and later convicted of first-degree criminal sexual conduct.
Defendant first argues that he was denied a fair trial because his trial counsel was ineffective in failing to file a motion to suppress his confession to the [228 Mich.App. 181] police. According to defendant, trial counsel was aware of his low intelligence level, his inability to read and write, and his tendency to be easily confused. Defendant now contends that such circumstances, coupled with the fact that he was questioned for nearly three hours in a small interrogation room, would likely have led the trial court to rule that the evidence was inadmissible. We disagree.
To properly preserve this issue defendant would have had to object to his counsel's performance in the court below and establish a record of facts pertaining to such allegations. He did neither and therefore failed to preserve the issue. People v. Ginther, 390 Mich. 436, 443, 212 N.W.2d 922 (1973). Accordingly, in determining whether defendant has overcome the presumption that counsel was effective, our review is limited to the facts apparent in the lower court record. People v. Sharbnow, 174 Mich.App. 94, 106, 435 N.W.2d 772 (1989). After reviewing the record, we find that defendant has failed to overcome that presumption because he has not shown that his trial counsel acted in a manner that cannot reasonably be attributed to trial strategy or that counsel's actions detrimentally affected the outcome of his trial. People v. Barnett, 163 Mich.App. 331, 338, 414 N.W.2d 378 (1987).
In determining whether defendant's confession was knowing, voluntary, and intelligent, we apply an objective standard and examine the totality of the circumstances. People v. Cipriano, 431 Mich. 315, 334, 429 N.W.2d 781 (1988). Such circumstances may include the age, education, intelligence level, and experience of the defendant, the duration of the defendant's detention and questioning, the defendant's [228 Mich.App. 182] mental and physical state, and whether the defendant was threatened or abused. Id. No single factor is determinative, and in order to establish a valid waiver of the right to remain silent, the prosecution need only prove that the defendant was aware of his available options. People v. Cheatham, 453 Mich. 1, 28, 36, 551 N.W.2d 355 (1996).
In the present case, the record does not support defendant's contention that his statements were not voluntary or that he did not intelligently and knowingly waive his rights. Although defendant may have a...
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