People v. Sexton

• Decision Date: 22 October 1999
• Docket Number: Docket No. 177061.
• Citation: 601 N.W.2d 399,236 Mich. App. 525
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Corey Edward SEXTON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

601 N.W.2d 399

236 Mich. App. 525

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Corey Edward SEXTON, Defendant-Appellant.

Docket No. 177061.

Court of Appeals of Michigan.

Submitted September 21, 1998, at Lansing.

Decided July 13, 1999, at 9:00 a.m.

Released for Publication October 22, 1999.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, David Gorcyca, Prosecuting Attorney, and Kathryn G. Barnes, Assistant Prosecuting Attorney, for the people.

Robyn B. Frankel, Bloomfield Hills, for the defendant.

Before FITZGERALD, P.J., and HOLBROOK, Jr., and MURPHY, JJ.

ON REMAND

HOLBROOK, JR., J.

This case is before us following remand from the Supreme Court. Originally, we held that pursuant to the then recently decided case of People v. Bender, 452 Mich. 594, 551 N.W.2d 71 (1996), two statements made by defendant had to be suppressed because they were made after the police failed to inform defendant that counsel had been retained to represent him. People v. Sexton, unpublished opinion per curium of the Court of Appeals, issued December 20, 1996 (Docket No. 177061). Subsequently, our Supreme Court held that the decision in Bender was only to be given prospective application, and thus was inapplicable to defendant's case. People v. Sexton, 458 Mich. 43, 68, 580 N.W.2d 404 (1998). The Supreme Court then remanded the case to this Court for further proceedings. Once again, we reverse and remand.

I

On September 8, 1993, defendant's cousin, Damian Phillips, was shot and killed at defendant's residence. When the police arrived, they encountered defendant and two other males, one of whom was a juvenile. The three were placed in a patrol car, where they were questioned by one of the responding officers. The three were then transported to the Hazel Park police station, where they were asked to give written statements. None of the three were handcuffed or placed under arrest at the time.

The three arrived at the police station at about 2:00 p.m. They were taken into a secure area of the station house, where they were promptly given an atomic absorption given an atomic absorption test. They were then separated so that they could be interviewed individually. Defendant was questioned by Detective Melvin Marchlones. Defendant gave Marchlones his first statement at approximately 2:23 p.m. In this first statement, defendant denied all culpability in the killing. Approximately one hour later, defendant asked if he could telephone his father. Defendant was told that he could do so "later." No such call was ever made. Marchlones then confronted defendant with what the detective said were inconsistencies between what defendant told the police officer who questioned him at the scene and what he had just told Marchlones. The detective also told defendant that his story was allegedly inconsistent with that told by the two other males. Defendant then gave Marchlones a second statement at about 4:00 p.m. In this second statement, defendant claimed that as he was handing the gun to his cousin, the gun slipped through his cousin's hands, fell to the floor, and accidentally discharged.

Next, at about 5:15 p.m., Marchlones brought up the possibility of defendant taking a polygraph examination. When defendant indicated a willingness to take a polygraph test, Marchlones read defendant the Miranda¹ warnings so that defendant would be familiar with them when they were given to him at the polygraph examination. The record indicates that defendant did not waive his Miranda rights at this time. Defendant then gave a third statement at about 5:20 p.m., after Marchlones once again told defendant that his previous statement was not in accord with the facts. In this third statement, defendant claimed that as he was holding the gun, it accidentally discharged after his cousin pointed the barrel at his own head.

In the meantime, the juvenile male returned to defendant's house. According to defendant's father, the boy informed him that defendant "was being held for first-degree murder." Defendant's father went down to the Hazel Park police station at approximately 4:45 p.m. and tried to see his son. His requests were denied. Defendant's father then contacted his attorney, Neil Miller, at about 5:00 p.m. Soon thereafter, Miller called the Hazel Park police station from a mobile telephone. Miller identified himself as being defendant's attorney. According to Miller, he was told that defendant was not at the station. Miller "left a message for whoever was holding Corey to" call him. No such call was made. At about 6:00 p.m., defendant was transported to the Southfield police station to undergo the polygraph examination.

Miller arrived at the Hazel Park police station at around 7:00 p.m. He was told by the desk officer that defendant was at another police station undergoing a polygraph examination. While there is some confusion in the record with regard to exactly what the officer told Miller, both men agree that Miller was misinformed about defendant's whereabouts. The desk officer refused Miller's request to contact Marchlones. Miller then left the station and returned to his office. The polygraph examiner testified that his pretest examination of defendant began at 7:13 p.m. Just before the pretest examination, the examiner read defendant the Miranda warnings, and defendant waived his rights by so indicating on a standard waiver form. Before the test began, defendant told the examiner that the shooting had been an accident. Marchlones estimated that the polygraph examination lasted somewhere between 3½ and 4 hours.

During the course of the examination, the desk officer at the Hazel Park police station paged Marchlones. The desk officer testified that he did so because Miller was "becoming a little bit agitated and quite pressing." Marchlones answered the page, but he did not pass on to defendant the information that an attorney had been retained to represent him. According to the testimony of Marchlones and the desk officer, their conversation took place sometime between 10:00 p.m. and 10:30 p.m. Around 10:20 p.m., Miller handed the desk officer a piece of paper on which the attorney had written, "I represent Cory Sexton. Please cease any questioning of Corey Sexton immediately." The note was addressed to both the desk officer and Marchlones. The desk officer testified that he "forwarded" the note on to Marchlones. After presenting the desk officer with this note, Miller then placed a number of telephone calls from his mobile telephone trying to find defendant. Miller's attempt to locate defendant was unsuccessful.

After the polygraph examination ended, the examiner informed defendant that the polygraph indicated that defendant was not being truthful about the shooting. According to the examiner, defendant then made the following statement (defendant's fourth statement):

I picked up the gun and was holding the gun and aiming it at his body.... I was about four feet away. He reached down for the gun, put it to his forehead, everything went blank, and I pulled the trigger. He didn't pull the trigger. I did. I knew the gun was loaded. I yelled, "I killed my .... fucking cousin." Marchlones testified that he overheard this admission. Marchlones then placed defendant under arrest and read him his Miranda rights. Marchlones testified that defendant waived those rights and repeated the story he had told the polygraph examiner. This fifth and final statement was made at about 11:35 p.m. Defendant was then returned to the Hazel Park police station, where he spoke with his attorney for the first time at approximately 12:30 a.m.

In our previous opinion, we concluded that defendant's first three statements could be entered into evidence. That holding was unaffected by the Supreme Court's holding. Our analysis, therefore, is focused solely on defendant's final two statements.

II

Defendant raises a two-pronged challenge to the admissibility of the statements. First, defendant argues that his waivers of Miranda rights were ineffective because they were involuntary. Second, he argues that the two statements were not voluntarily made.

A

We begin our analysis of the waiver issue by looking to see if defendant was in custody at the time the waivers were made. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (observing that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination"). Accord People v. Blackburn, 135 Mich.App. 509, 517, 354 N.W.2d 807 (1984). If defendant was not in custody at the time, then Miranda is not applicable. Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (observing that the Miranda warnings need be given only "where there has been such a restriction on a person's freedom as to render him in custody'").²

With respect to the fifth statement, there is no question that defendant was in custody when it was made, as Marchlones testified that he placed defendant under arrest just before taking this statement. The fourth statement, however, was made just before defendant was arrested. Accordingly, we must examine the totality of the circumstances surrounding defendant's detention in order to determine if he was "deprived of his freedom of action in a meaningful way.... The key question is whether the defendant could reasonably believe he was not free to leave." Blackburn, supra at 518, 354 N.W.2d 807. Accord People v. Williams, 171 Mich.App. 234, 237, 429 N.W.2d 649 (1988).

After reviewing the record, we conclude that defendant could have reasonably believed he was in custody when he made his fourth statement. The statement was taken from defendant at the Southfield police station. The statement was made at approximately 10:30 p.m., after defendant had undergone...