People v. Leighty

• Citation: 411 N.W.2d 778,161 Mich.App. 565
• Decision Date: 18 September 1987
• Docket Number: Docket No. 77849
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Vicki Marie LEIGHTY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 778

411 N.W.2d 778

161 Mich.App. 565

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Vicki Marie LEIGHTY, Defendant-Appellant.

Docket No. 77849.

Court of Appeals of Michigan.

Submitted Jan. 8, 1987.

Decided July 20, 1987.

Released for Publication Sept. 18, 1987.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Christopher S. Boyd, Pros. Atty., and Mitzi L. McPeck, Asst. Pros. Atty., for the People.

State Appellate Defender by Richard B. Ginsberg, for defendant-appellant on appeal.

Before HOOD, P.J., and BEASLEY and TOWNSEND, ^* JJ.

PER CURIAM.

Defendant appeals as of right from her jury trial conviction for possession with intent to deliver 225 or more grams of cocaine, MCL 333.7403(2)(a)(ii); MSA 14.15(7403)(2)(a)(ii). She was sentenced to from twenty to thirty years imprisonment pursuant to the statute. This appeal raises six claims of error, none of which we find meritorious. We thus affirm defendant's conviction and sentence.

Defendant was arrested at the Saginaw County Jail just after she concluded visitation with her boyfriend, Tony Restrepo, who had been arrested earlier in possession of nearly two pounds of cocaine. Restrepo had been arrested for supplying cocaine to Kathy Baugh, who identified defendant as the person with Restrepo on the night he supplied Baugh with cocaine. Based on these facts, the police waited for defendant to visit Restrepo in order to arrest her for her involvement in supplying cocaine to Baugh. However, at the time of her arrest cocaine was found in her purse and a subsequent search of her rented car resulted in discovery of 536 grams of cocaine which gave rise to the charge for which she was convicted.

Defendant first asserts that the trial judge erred in denying her motion for a new trial on the grounds that the discovery of the cocaine in her car was the fruit of an unlawful search. Defendant was arrested by Officer James Dankert of the Saginaw Township Police Department. After waiving her Miranda ¹ rights, she was interrogated by Dankert and FBI Special Agent Ben Walker. On the basis of information garnered during defendant's interrogation, Officer Dankert impounded defendant's car and sought a search warrant. When defendant's car was searched, a total of 536 grams of eighty-nine percent pure cocaine was found.

Following defendant's post-trial Walker ² hearing, the trial judge ruled that defendant had knowingly and intelligently waived her Miranda rights when questioned by police and that her statements made to police officers could be used to support a search warrant. He also found that, even without defendant's incriminating statements, the search warrant affidavit was sufficient to justify a search of defendant's car. Finally, he concluded that defendant's statements were not induced by a promise of leniency.

Recently, in People v. Lumley, 154 Mich.App. 618, 620, 398 N.W.2d 474 (1986), this Court succinctly reiterated the applicable appellate review standard:

"On appeal from a Walker hearing, we are required to examine the entire record and reach an independent determination of the voluntariness of the defendant's statements. People v. Catey, 135 Mich.App. 714; 356 N.W.2d 241 (1984), lv den 422 Mich. 940 (1985). We will affirm the trial court's ruling unless it is clearly erroneous, such that we have a definite and firm conviction that a mistake has been made. People v. Price, 112 Mich.App. 791; 317 N.W.2d 249 (1982), lv den 414 Mich. 946 (1982).

"The voluntariness of a confession must be determined from all of the facts and circumstances, including the duration of detention, the manifest attitude of the police toward the suspect, the physical and mental state of the suspect, and the pressures which may sap or sustain the suspect's powers of resistance and self-control. People v Belknap, 146 Mich.App. 239, 241; 379 N.W.2d 437 (1985)."

Defendant argues that her statements were involuntary because in the days immediately preceding her arrest she had freebased substantial quantities of cocaine, which seriously influenced her judgment. At the evidentiary hearing the detective and the FBI agent who questioned defendant testified that, while they thought she was a cocaine user, she was coherent and responded in a normal way and her demeanor was not that of a person so narcotized as to be unable to knowingly waive her rights and make a voluntary confession. She waived her rights in writing, signing both the waiver and the acknowledgment without difficulty. Dr. Michael Abramsky, a psychologist testifying for the defense about the effects of cocaine on the brain, opined that at the time of her arrest defendant's judgment would have been impaired due to her consumption of cocaine. However, cocaine is primarily a mood-altering, not a mind-altering drug and he could not be certain whether the effects of the cocaine would have worn off to the point where she could function normally again at the time of her arrest or her statements.

Defendant herself testified that she was able to carry out most normal activities. She had great recall during interrogation of the events preceding her arrest, as well as of the incident 2 1/2 months earlier when her boyfriend sold cocaine to Kathy Baugh. However, defendant was evasive at the "proper" points. She did not want to talk about Restrepo or incriminate him.

We are not left with a definite and firm conviction that the trial court erred in finding defendant's statement voluntary. When interviewed, defendant appeared normal until she was asked to consent to a search of her car. Although she broke down at this point after about two hours of interrogation, significantly, she was able to exercise her judgment and refused to consent to the search. Additionally, she understood that she was under arrest and attempted to bargain with police. After being told that she was being less than truthful, she responded, "I am trying to cooperate, but you haven't promised me a fucking thing."

While advanced intoxication from drugs or alcohol may preclude an effective waiver of Miranda rights, People v. Davis, 102 Mich.App. 403, 410, 301 N.W.2d 871 (1980), the fact that a person was narcotized or under the influence of drugs is not dispositive of the issue of voluntariness. People v. Lumley, supra, 154 Mich.App. at p. 624, 398 N.W.2d 474; People v. Prast (On Rehearing), 114 Mich.App. 469, 483-485, 319 N.W.2d 627 (1982). The trial judge's ruling that the statements were voluntary was not erroneous. Further, the trial judge's holding that no promises were made to defendant in return for her statements is supported by the FBI agent's testimony that he informed defendant that neither he nor the detective could extend any type of promise to defendant although the court would be informed of her cooperation if her statements proved truthful. Obviously, defendant did not consider that any promises had been made to her, as during her interview she stated that she was trying to cooperate but had not been promised anything in return. Thus, defendant's suggestion that there were promises of leniency is without merit.

Defendant's assertion that the cocaine seized from her car should have been suppressed because the warrant affidavit contained deliberately or recklessly false statements is also without merit. Defendant contends that the following statement in the affidavit was false:

"Leighty further admitted to Dankert that Antonio Restrepo had requested that she, Leighty, pick up money from drug transactions at several locations about the time of her return recently to Saginaw, and that said money was in a car rented by her from Redmond's Car Rental of Saginaw that day, which car Detective Dankert found parked outside the county jail, and is a 1981 Chevette as described above."

According to defendant, the statement was false because, although Dankert testified that defendant informed him she was picking up drug money at Restrepo's request, she later recanted the statement. Further, although she informed Dankert that she had $1,000 in her car and that that was all the money she had, because that amount of money was discovered following the search of her motel room the police had no reason to believe defendant's car contained any money.

While it is true that suppression of evidence discovered pursuant to a search warrant is required even if the affidavit remains valid after excising an erroneous statement when the statement was intentionally false or given with reckless disregard for the truth, Franks v. Delaware 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); People v. Howey, 118 Mich.App. 431, 434-435, 325 N.W.2d 451 (1982), lv. den. 418 Mich. 882 (1983), there is no evidence suggesting such in this case. Defendant inconsistently stated at different times during the interrogation that all of her belongings were in her car and that she had only $1,000 to her name (which the police had already discovered in her motel room) even though she had previously made the statement following the request to search her car that she could not get $50,000 to replace "it." These contradictory statements by defendant preclude the conclusion that the complained-of statement in the affidavit was intentionally false or made with reckless disregard for the truth.

Defendant also argues that her statement to the effect that she was dead if the police searched her car since she could not come up with the $50,000 to replace "it" was illegally obtained by questioning her after she had requested counsel and thus was improperly used in the affidavit. However, although the testimony of Officer Dankert and Special Agent Walker is inconsistent with regard to when defendant requested counsel, they both testified that defendant's request occurred after she had made the statement. Thus, defendant's argument is without merit.

More importantly, the trial court found that the affidavit established probable cause to search defendant's car even absent all...