People v. Seymour, Docket No. 123826

• Decision Date: 15 April 1991
• Docket Number: Docket No. 123826
• Citation: 470 N.W.2d 428,188 Mich.App. 480
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Patrick Paul SEYMOUR, Defendant-Appellant. 188 Mich.App. 480, 470 N.W.2d 428
• Court: Court of Appeal of Michigan — District of US

Page 428

470 N.W.2d 428

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Patrick Paul SEYMOUR, Defendant-Appellant.

Docket No. 123826.

188 Mich.App. 480, 470 N.W.2d 428

Court of Appeals of Michigan.

Submitted Sept. 11, 1990, at Grand Rapids.

Decided April 15, 1991, at 9:45 a.m.

Released for Publication June 21, 1991.

[188 MICHAPP 480] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Dennis LaBelle, Pros. Atty., and Thomas S. Gilbert, Asst. Pros. Atty., for the People.

Blakeslee, Chambers, Peterson, Dalrymple & Christopherson by James A. Christopherson, Traverse City, for defendant-appellant on appeal.

Before MacKENZIE, P.J., and HOLBROOK and SHEPHERD, JJ.

[188 MICHAPP 481] SHEPHERD, Judge.

On August 3, 1989, defendant pleaded guilty to armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, and was subsequently sentenced to five to ten years in prison. His plea was conditioned on his right to bring this appeal in which he contests the trial court's denial of his motion to suppress. We affirm.

Defendant's conviction stems from a February 16, 1989, incident in which defendant, wielding a large knife, allegedly robbed a pizza restaurant. He was arrested by the state police the following day on a different charge. At the time of arrest, he was advised of his Miranda ¹ rights and waived them, but denied involvement in the robbery. After being taken to the police station, defendant invoked his right to an attorney, and all questioning ceased. While defendant was at the station, his girl friend and codefendant, Ruth Ziemkowski, arrived and talked to Detective, now Lieutenant, Goeman for over an hour, during which she related the financial difficulties the couple had been having, as well as her involvement in the robbery. She was not under arrest or in custody at the time, but did write a letter of apology to the victims. Though Ziemkowski stated that the police did not mistreat her in any way and did not threaten her or promise her anything, she got the impression that "things would happen a lot faster, a lot smoother" if she and defendant cooperated. Ziemkowski had also been advised that defendant had invoked his right to counsel.

At her insistence, Ziemkowski was then permitted to visit defendant. No officers were present during the meeting between defendant and Ziemkowski, except that Detective Goeman periodically checked on them to see if they needed anything. [188 MICHAPP 482] As a result of Ziemkowski's visit, defendant changed his mind and decided to give a statement without counsel present. According to defendant and Ziemkowski, defendant decided to give a statement after Ziemkowski told him she would put their two-year-old daughter up for adoption. Ziemkowski has maintained that this is what she truly intended to do because she believed the child needed both a mother and a father and she would not raise the child alone. She knew, however, that neither her statement nor defendant's would alter their financial difficulties or make defendant's arrest go away. At the time defendant wrote his "letter of apology," which began with the statement, "I hereby give up my right to an attorney at this time so that I might give this statement," he also relinquished to the police some of the stolen money and told them where he had hidden the knife and tennis shoes used during the robbery.

Defendant claims that the police used Ziemkowski to wear him down and extract the statement from him and that his statement was therefore coerced and not voluntary. Though he did not make the precise argument below, he further claims that, even if the police did not use Ziemkowski as their agent, her threat of putting their child up for adoption nonetheless rendered his statement involuntary. Lastly, defendant asserts that he did not knowingly and intelligently waive his right to counsel before giving the statement and informing the police regarding where they would find the physical evidence.

We first address the voluntariness issue. When reviewing a trial court's determination of voluntariness, we examine the entire record and make an independent determination. People v. Robinson, 386 Mich. 551, 557, 194 N.W.2d 709 (1972); People v. Stricklin, 162 Mich.App. 623, 635, 413 N.W.2d 457[188 MICHAPP 483] (1987). Great deference is given, however, to the trial court's assessment of the credibility of the witnesses. People v. Marbury, 151 Mich.App. 159, 161, 390 N.W.2d 659 (1986). The trial court's findings will not be reversed unless clearly erroneous. People v. Kvam, 160 Mich.App. 189, 196, 408 N.W.2d 71 (1987).

In determining the voluntariness of a statement, the trial court should consider all the facts and circumstances, including the duration of detention and questioning, the defendant's age, intelligence, education and experience, his physical and mental state, and the diverse pressures which sap or sustain his powers of resistance and self-control. Id.; People v. Belknap, 146 Mich.App. 239, 241, 379 N.W.2d 437 (1985). While allegations of coercive tactics are usually directed toward the police, this Court has held that a confession coerced by a private citizen can also render the statement involuntary and inadmissible in evidence. People v. Switzer, 135 Mich.App. 779, 784, 355 N.W.2d 670 (1984).

Here, the trial court found, after conducting a Walker ² hearing, that the state police officers handling defendant's case properly ceased questioning defendant when he invoked his right...