People v. Shipley

• Decision Date: 13 June 2003
• Docket Number: Docket No. 235564.
• Citation: 256 Mich. App. 367,662 N.W.2d 856
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Timothy James SHIPLEY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

662 N.W.2d 856

256 Mich. App. 367

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Timothy James SHIPLEY, Defendant-Appellant.

Docket No. 235564.

Court of Appeals of Michigan.

Submitted March 4, 2003, at Detroit.

Decided April 24, 2003, at 9:10 a.m.

Released for Publication June 13, 2003.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Anica Letica, Assistant Prosecuting Attorney, for the people.

Arthur H. Landau, Southfield, for the defendant.

Before: HOEKSTRA, P.J., and SMOLENSKI and FORT HOOD, JJ.

SMOLENSKI, J.

Following a bench trial, defendant was convicted of three counts each of first-degree home invasion, M.C.L. § 750.110a(2); possession of a firearm during the commission of a felony, M.C.L. § 750.227b; and larceny of a firearm, M.C.L. § 750.357b, offenses that stemmed from three separate home-invasion incidents.¹ In lower-court docket no. 00-170753-FH, defendant was sentenced to concurrent prison terms of four to thirty years for the home-invasion conviction and one to five years for the larceny conviction. In lower-court docket no. 00-170754-FH, defendant was sentenced to concurrent prison terms of four to twenty years for the home-invasion conviction and one to five years for the larceny conviction. In lower-court docket no. 00-170760-FH, defendant was sentenced to concurrent prison terms of four to twenty years for the home-invasion conviction and one to fifteen years for the larceny conviction. In each case, defendant's sentences were to be preceded by a two-year term of imprisonment for the felony-firearm conviction with credit for 216 days served. Defendant appeals as of right. We affirm, but remand for the ministerial task of correcting defendant's sentences.

Officer Shannon Luther testified that, on December 11, 1999, she responded to a complaint of a "Breaking and Entering" at the Village apartment complex in Wixom, where she learned that three guns were taken from an apartment. She also testified that defendant made a written statement in which he acknowledged that he and "Steve" took thirty-five to forty-five dollars in change from an apartment.

Officer Luther further testified that she was present during a subsequent interview of defendant by Sergeant Charles Yon, during which defendant reaffirmed his involvement in the home invasion. At the end of this interview, defendant made the following written statement:

In Building 29 in the Village Steve [Yackley] opened a back window & opened the front door. He talked me and Jeff into coming into the apartment with him.

While we were inside I found a gun & showed it to Steve, but after we told him we didn't want anything to do with the guns.

He went around and put them all into a duffle bag without telling us. After we got back home we found out he took the guns anyways, and we told him to get rid of them. So he took the guns and I am not sure what he did with them after that. Yackley said his friend "Peanut" might buy them, but I am not sure what he did with them.

Sergeant Yon also testified, and he confirmed Officer Luther's account of defendant's statements.

Eldon Polson testified that on December 13 and 14, 1999, he lived in a mobile home at the Commerce Meadows mobile-home park in Commerce Township. When Polson returned home from a ski trip at about 12:30 or 12:45 a.m. on December 14, 1999, he found that the door to his home was open, even though he had left it closed and locked. He found "stuff strung all over the house" and eventually found that two laptop computers, a "change jug" with about one hundred dollars worth of change, some of his wife's jewelry, a "twelve (12) gauge Remmington 1187 fully rifled semi-auto" gun, some hunting knives, and "collectible items" had been taken. Polson said that he had not given anyone permission to enter his home and take those items.

Detective Mark Venus testified that, during an interview, defendant told him about a break-in at the Stratford Villa trailer park in which "all they had taken from that residence was two lap top computers and a shotgun," which were sold in Detroit. Detective Venus said that the Stratford Villa trailer park is directly to the east of the Commerce Meadows trailer park with a fence separating the two trailer parks.

Donald Hogue testified that on December 16 and 17, 1999, he lived at 2800 Woodlawn with his wife and two children. When he returned home from a vacation in the early morning hours of December 17, 1999, his house bad been "tore up pretty bad," and items were missing, including jewelry, money, a "twenty (20) gauge Ithica (phonetic) pump" shotgun, a video camera, and Christmas presents. He had given only his mother and sister permission to enter the house, and believed that his mother had called the police before he returned home.

Detective Venus testified that defendant told him, with regard to the Woodlawn home invasion, that defendant and two others had broken into a residence and had taken a shotgun, some Christmas gifts, CD's, and jewelry. Defendant wrote the following statement regarding the above incidents: "I took a shotgun out of Stratford. One out of a house on Woodlawn & a bunch of change & a guitar off Clara & Buss Drive. 3 houses."

Before trial, defendant moved to suppress his confessions to Detective Venus regarding the Stratford Villa and Woodlawn home invasions because they were involuntary. Defendant testified at a Walker² hearing and stated:

[Detective Venus] had some Home Invasion cases that he wanted to get taken care of, and he asked me if I had any involvement. And then he said that if I admitted to them that he could just get the cases closed, that I would only be charged with one.

Defendant further testified that he asked Detective Venus if he could "get that in writing," but the detective said "that he didn't have time to do all that, and I give you my word." Defendant indicated that he would not have told Detective Venus about his involvement in the other home invasions if it had not been for this promise. Defendant acknowledged having read and signed the "Advice of Rights" forms.

Detective Venus testified that he told defendant "that if there were any other B and E's in Commerce Township or any where else that we should know about that it would be in his best interests to let us know right now so everything would be taken care of at one time." However, he denied promising defendant that he would not be charged for those offenses.

In denying defendant's motion to suppress his statements to Detective Venus, the trial court stated:

The Court has read the Rule, the Court has had an opportunity to listen to the two Defendants making their claims.³ There is no question in this Court's mind that they were both given their Miranda Rights. There is no question in my mind that they signed a Waiver of Rights. And it is clear, common usage of the English language that it indicates that "no promises, threats, have been made to me. And no pressure or coercion of any kind has been used against me."

Now, taking the standard that this Court must on making the decision on this one, the Court feels that the Defendants freely and voluntarily gave their statements and waived their Rights, because they said there wasn't any promises or coercion made. And by a preponderance of the evidence the Court is satisfied, and therefore their Motion to Suppress is denied.

Subsequently, defendant was convicted and sentenced in the manner described above for his involvement in each of these three incidents.

Defendant first argues that the trial court erred in denying his motion to suppress. We disagree. When reviewing a trial court's determination of the voluntariness of inculpatory statements, this Court must examine the entire record and make an independent determination, but will not disturb the trial court's factual findings absent clear error. People v. Sexton (After Remand), 461 Mich. 746, 752, 609 N.W.2d 822 (2000). A finding is clearly erroneous if it leaves this Court with a definite and firm conviction that a mistake was made. People v. Givans, 227 Mich.App. 113, 119, 575 N.W.2d 84 (1997). However, deference is given to the trial court's assessment of the weight of the evidence and credibility of the witnesses. Sexton, supra at 752, 609 N.W.2d 822.

Defendant asserts that his statements were involuntary, and thus inadmissible, because he was induced to make them by Detective Venus's promise of leniency that, if he confessed to the other home invasions, he would only be charged with one. However, "a promise of leniency is merely one factor to be considered in the evaluation of the voluntariness of a defendant's statements." Givans, supra at 120, 575 N.W.2d 84. Detective Venus denied making this promise and testified that what he told defendant was that it would be in his "best interest" to talk about any other home invasions at that time, rather than having defendant repeatedly return. The trial court evidently believed the detective to be more credible and we defer to the trial court regarding this determination.

Whether a statement was voluntary is determined by examining the conduct of the police. People v. Howard, 226 Mich.App. 528, 538, 575 N.W.2d 16 (1997). Factors to consider include:

"[T]he age of the accused; his lack of education or his intelligence level; the extent of his previous experience with the police; the repeated and prolonged nature of the questioning; the length of the detention of the accused before he gave the statement in question; the lack of any advice to the accused of his constitutional rights; whether there was an unnecessary delay in bringing him before a magistrate before he gave the confession; whether the accused was injured, intoxicated or drugged, or in ill health when he gave the statement; whether the accused was deprived of food, sleep, or medical attention; whether the accused was

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