People v. Geno

Decision Date07 July 2004
Docket NumberDocket No. 241768.
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dale Allen GENO, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Tony Tague, Prosecuting Attorney, Victor A. Fitz, Senior Assistant Prosecuting Attorney, and Charles F. Justian, Chief Appellate Attorney, for the people.

State Appellate Defender (by Randy E. Davidson), for the defendant on appeal.

Before: WHITE, P.J., and MARKEY and OWENS, JJ.

OWENS, J.

Defendant appeals as of right from his conviction, following a bench trial, of first-degree criminal sexual conduct, MCL 750.520b(1)(a) (sexual penetration with victim under thirteen years of age). The trial court subsequently sentenced defendant as a second-offense habitual offender, MCL 769.10, to thirty to ninety years' imprisonment. We affirm.

Defendant's conviction arises out of the sexual assault of the two-year-old daughter of defendant's girlfriend. When the victim's father picked the victim up from the home of her mother and defendant, he noticed that she was uncomfortable and did not want her father to change her. Once he did, her father noticed irritation and bruising around the child's vaginal area as well as blood in the child's pull-up underpants. Her father contacted Children's Protective Services, which arranged to have an assessment and interview of the child by the Children's Assessment Center. At the interview, the victim asked the interviewer to accompany her to the bathroom. The interviewer noticed blood in the child's pull-up underpants and asked the child if she "had an owie?" The child answered, "yes, Dale [defendant] hurts me here," pointing to her vaginal area.

Defendant was questioned by a city of Muskegon police detective and explained that, some weeks earlier, he had changed the child and may have hurt her. He denied, however, touching her in a sexual way. During subsequent police interviews, defendant admitted that he was molested as a child, that he was sexually attracted to children, and that he had sexually fantasized about the victim. He also explained that while wiping the victim in the course of changing her, he may have accidentally inserted his finger into the victim's vagina. Defendant later wrote and signed a statement in which he admitted that his finger "penetrated her vaginal lips slightly" and that he "was slightly aroused because my finger accidentally touched her vagina."

Before trial, defendant moved to suppress this statement, arguing that it was coerced by the detectives and that the detectives made promises of leniency and threats that they would prosecute defendant's girlfriend if he did not make the statement. An evidentiary hearing was held at which defendant testified that such promises and threats were made and the detectives testified that promises and threats were not made. The court found that, on the basis of the demeanor and credibility of the witnesses, it believed the detectives, and therefore concluded that threats and promises were not made and that the statement was voluntary. The court also granted the prosecution's pretrial motion to allow the admission of hearsay evidence under the residual exception, MRE 803(24).

On appeal, defendant first argues that trial court should have suppressed all testimony arising out of the custodial interrogations because the police failed to make audio or video recordings of the interrogations. We disagree.

Defendant did not raise this issue of alleged constitutional error below and therefore it is unpreserved on appeal. As such, we will only review for plain error. People v. Carines, 460 Mich. 750, 597 N.W.2d 130 (1999). Otherwise, we review claims of constitutional error de novo. People v. Rodriguez, 251 Mich.App. 10, 25, 650 N.W.2d 96 (2002).

The United States Supreme Court has refused to extend the Due Process Clause of the United States Constitution1 to require that electronic recordings be made of custodial interrogations. California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). However, defendant points to an Alaska case in which the due process provision of the Alaska constitution was construed to require that electronic recordings be made. Stephan v. State, 711 P.2d 1156 (Alaska1985). Defendant argues that the Due Process Clause of the Michigan Constitution2 requires the same interpretation. This very question, however, has already been decided by a panel of this Court. In People v. Fike, 228 Mich.App. 178, 577 N.W.2d 903 (1998), we clearly and explicitly rejected the defendant's argument that testimony arising out of his custodial interrogation should be suppressed because it was not tape recorded. We relied heavily on the fact that this is not required by the United States Constitution, stating:" `the courts of this state should reject unprincipled creation of state constitutional rights that exceed their federal counterparts.'" Id., 185, 577 N.W.2d 903, quoting Sitz v. Dep't of State Police, 443 Mich. 744, 763, 506 N.W.2d 209 (1993). The panel, after examining the Alaska decision that defendant cites here, also noted that most states have rejected the requirement as being constitutionally mandated.3 Fike, supra at 185, 577 N.W.2d 903. Ultimately, we concluded that granting the defendant's request would constitute an unprincipled creation of state constitutional rights.

The Fike decision is controlling, MCR 7.215(J)(1), and we reject defendant's invitation to create a new legal requirement governing custodial interrogations because we are bound by our prior decision. Therefore, defendant's argument here fails.

Next, defendant argues that the prosecution failed to show that defendant's statements were made voluntarily. We disagree.

Michigan's constitutional provision against self-incrimination, Const 1963, art 1, § 17, is construed in line with and no more liberally than the Fifth Amendment of the United States Constitution. Paramount Pictures Corp. v. Miskinis, 418 Mich. 708, 728, 344 N.W.2d 788 (1984). "The constitutional privilege against self-incrimination protects a defendant from being compelled to testify against himself or from being compelled to provide the state with evidence of a testimonial or communicative nature." People v. Burhans, 166 Mich.App. 758, 761-762, 421 N.W.2d 285 (1988). To determine whether evidence was compelled in violation of this constitutional protection, the trial court must ascertain "whether, considering the totality of all the surrounding circumstances, the confession is `the product of an essentially free and unconstrained choice by its maker,' or whether the accused's `will has been overborne and his capacity for self-determination critically impaired....'" People v. Cipriano, 431 Mich. 315, 333-334, 429 N.W.2d 781 (1988), quoting Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961).

Defendant argued before the trial court that his oral and written statements made to the police were coerced because the detectives made promises of leniency or otherwise threatened to prosecute defendant's girlfriend if he did not write out the statement. After an evidentiary hearing, however, the trial court found that the detectives' story was more credible and made the factual finding that no such promises or threats were made. On appeal, defendant bases his coercion argument on his contention that threats and promises were made. In People v. Burrell, 417 Mich. 439, 448-449, 339 N.W.2d 403 (1983), our Supreme Court said:

This Court will not disturb a trial court's ruling at a suppression hearing unless that ruling is found to be clearly erroneous. Resolution of facts about which there is conflicting testimony is a decision to be made initially by the trial court. The trial judge's resolution of a factual issue is entitled to deference. This is particularly true where a factual issue involves the credibility of the witnesses whose testimony is in conflict. People v. White, 401 Mich. 482, 257 N.W.2d 912 (1977). See People v. Dinsmore, 103 Mich.App. 660, 303 N.W.2d 857 (1981).

Giving proper deference to the trial court's credibility determination, there were no promises or threats made, and thus the factual predicate for defendant's argument is unsupported. Therefore, defendant's argument here fails.

Next, defendant argues that the court erred in allowing the admission of the hearsay testimony of the executive director of the Children's Assessment Center under MRE 803(24). We disagree.

On appeal, defendant claims that introduction of the child's statement through the testimony of the Children's Assessment Center's executive director violated his constitutional right to confront the declarant. US Const, Am VI; Const 1963, art 1, § 20. Defendant did not raise this issue in the trial court; his only objection was that the statement should not be admitted under MRE 803(24), and that argument forms the basis of defendant's analysis on appeal. Defendant's evidentiary objection in the trial court was insufficient to preserve his appellate claim of a constitutional violation. People v. Stimage, 202 Mich.App. 28, 30, 507 N.W.2d 778 (1993). Therefore, defendant's claim of lack of confrontation is not preserved for appellate review and we will only review this argument for plain error. Carines, supra at 763-764, 597 N.W.2d 130.

Although defendant argues on appeal that admission of the child's statement violated his right of confrontation, his argument is based on the assertion that the trial court incorrectly analyzed the admissibility factors of MRE 803(24) and that the statement was not, in fact, trustworthy and reliable. Defendant's confrontation argument consists of general references in his appellate brief to the protections afforded by the Confrontation Clause, and his...

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