People v. Smart, Docket No. 314980.

• Decision Date: 11 February 2014
• Docket Number: Docket No. 314980.
• Citation: 304 Mich.App. 244,850 N.W.2d 579
• Parties: PEOPLE v. SMART.
• Court: Court of Appeal of Michigan — District of US

304 Mich.App. 244

850 N.W.2d 579

PEOPLE

v.SMART.

Docket No. 314980.

Court of Appeals of Michigan.

Submitted Aug. 6, 2013, at Detroit.

Decided Feb. 11, 2014, at 9:05 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, David S. Leyton, Prosecuting Attorney, and Vikki Bayeh Haley, Assistant Prosecuting Attorney, for the people.

Daniel D. Bremer, Burton, for defendant.

Before: SERVITTO, P.J., and CAVANAGH and WILDER, JJ.

SERVITTO, P.J.

The prosecution appeals by leave granted ¹ the trial court's order suppressing statements made by defendant on March 15, 2011, and June 8, 2011. We affirm the order suppressing both statements.

“This Court reviews de novo the trial court's ultimate ruling on the defendant's motion to suppress.” People v. Brown, 279 Mich.App. 116, 127, 755 N.W.2d 664 (2008). If this Court's “inquiry requires interpretation of the Michigan Rules of Evidence, an issue of law is presented, which this Court reviews de novo.” People v. Dobek, 274 Mich.App. 58, 93, 732 N.W.2d 546 (2007). The trial court's findings of fact at a suppression hearing are reviewed for clear error. People v. Chowdhury, 285 Mich.App. 509, 514, 775 N.W.2d 845 (2009).

Defendant was charged with one count of felony murder, MCL 750.316(1)(b); two counts of armed robbery, MCL 750.529; one count of assault with intent to murder, MCL 750.83; and one count of carrying a firearm during the commission of a felony (felony-firearm), MCL 750.227b, in connection with the robbery and shooting death of Megan Kreuzer on May 31, 2010. Defendant supplied a gun to two other men who planned the robbery. Defendant also witnessed the robbery, during which one of the other men shot and killed Kreuzer.

Defendant's involvement was unknown until he was charged in another incident and advised his attorney in that case, Patricia Lazzio, that he had information concerning a homicide. Hoping to work out a favorable plea bargain in the pending case against him, Lazzio spoke with Assistant Prosecuting Attorney Richmond Riggs of the Genesee County Prosecutor's Office and thereafter arranged a meeting with Sergeant Mitch Brown, the officer in charge of the homicide case, to discuss the instant matter. Lazzio, believing that defendant may have been a witness to the murder, elicited an agreement from Riggs that the information defendant provided at the meeting would not be used against him. At the March 15, 2011 meeting attended by Sergeant Brown, defendant, and Lazzio, defendant (to Lazzio's surprise) admitted to providing a weapon to the individuals who planned the robbery of Kreuzer and then witnessing the shooting. Thereafter, defendant entered into a written plea agreement in the case pending against him. Defendant subsequently desired to schedule another meeting with Sergeant Brown because defendant questioned whether his attorney had secured the best possible plea agreement. Sergeant Brown and Lazzio both believed the plea agreement would not change, and Lazzio asked Sergeant Brown to tell defendant that the plea agreement would not improve. Nevertheless, the prosecutor's office urged Sergeant Brown to meet with defendant again to see if he could obtain more information from defendant about the homicide.

As a result, a second interview between defendant, Lazzio, and Sergeant Brown took place on June 8, 2011. At that meeting, Sergeant Brown told defendant that he did not think that the plea agreement was going to get any better and that it was the prosecutor's office that decided what plea deals to offer. Defendant and Sergeant Brown still continued to converse and defendant ultimately revealed further information about the robbery and homicide that implicated him more than he had originally admitted. Defendant was thereafter charged in the instant case.

Before trial, defendant orally moved to suppress the statements he had made at both the March 15, 2011 and June 8, 2011 meetings pursuant to MRE 410. The trial court conducted an evidentiary hearing to take testimony from those who had participated in the interviews and, at the conclusion of the hearing, the trial court suppressed both statements.

The prosecution conceded (and still concedes) that defendant's March 15, 2011 statement was inadmissible under MRE 410(4), as a statement made during plea discussions, but argues that MRE 410(4) does not apply to defendant's June 8, 2011 statement. We disagree.

MRE 410 provides:

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

* * *

(4) Any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

Citing People v. Dunn, 446 Mich. 409, 415–416, 521 N.W.2d 255 (1994), the prosecution first contends that defendant's expectation that the June 8, 2011 meeting would lead to a better plea agreement was unreasonable. In Dunn, our Supreme Court held that MRE 410 applies when (1) the defendant has “ ‘an actual subjective expectation to negotiate a plea at the time of the discussion,’ ” and (2) that expectation is reasonable “ ‘given the totality of the objective circumstances.’ ” Dunn, 446 Mich. at 415, 521 N.W.2d 255, quoting United States v. Robertson, 582 F.2d 1356, 1366 (C.A.5, 1978).

We note that the version of MRE 410 at issue in Dunn read as follows:

Inadmissibility of Pleas, Offers of Pleas, and Related Statements.

Except as otherwise provided in this rule, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, a plea of nolo contendere, or an offer to plead guilty or nolo contendere to the crime charged or any other crime, is admissible in a criminal proceeding for perjury or false statement. [Dunn, 446 Mich. at 414 n. 14, 521 N.W.2d 255 (citation and quotation marks omitted). See also People v. Stevens, 461 Mich. 655, 661 n. 4, 610 N.W.2d 881 (2000).]

Thus, the amendment of MRE 410 added a required element that the statement subject to exclusion must have been made in the course of plea discussions with an attorney for the prosecuting authority. In arguing that MRE 410 does not apply to the June 8, 2011 statement, the prosecution states that “[s]ince there was no attorney for the prosecuting authority present and since defendant had no reasonable basis to expect a second statement to result in further plea negotiations, the trial court erroneously applied MRE 410.” (Emphasis omitted.) However, the prosecution focuses its argument exclusively on whether defendant's subjective expectation of obtaining further plea negotiations was reasonable, given Sergeant Brown's and defendant's own attorney's statements to him that no better plea agreement would be obtained. The prosecution does not elaborate on its claim that there was no attorney present and did not even cite the prior language of MRE 410. “An appellant may not ... give issues cursory treatment with little or no citation of supporting authority.” Houghton v. Keller, 256 Mich.App. 336, 339, 662 N.W.2d 854 (2003). An appellant may also not merely announce a position and leave it to this Court to rationalize the basis for the claim, or elaborate the argument. Blackburne & Brown Mtg. Co. v. Ziomek, 264 Mich.App. 615, 619, 692 N.W.2d 388 (2004). “An appellant's failure to properly address the merits of his assertion of error constitutes abandonment of the issue.” Houghton, 256 Mich.App. at 339–340, 662 N.W.2d 854. We thus decline to address whether there was an attorney for the prosecuting attorney “present” during the June 8, 2011 meeting and whether that fact has any bearing on the admissibility of the challenged statement made during that meeting.

We specifically decline to address this issue not only because the prosecution abandoned it, but for additional reasons as well. First, although it has been established that no prosecuting attorney was physically present during the March 15, 2011 meeting between Sergeant Brown and defendant, the prosecution has nevertheless conceded that the March 15, 2011 statements were inadmissible under MRE 410. Clearly, then, the prosecution believes that the statements by defendant at the March 15, 2011 meeting were given “in the course of plea discussions with an attorney for the prosecuting authority” despite the absence of the physical presence of a prosecuting attorney during that meeting. For our purposes, and, we emphasize, in this particular case, then, the prosecution has conceded that a prosecuting attorney need not be physically present for statements to be deemed inadmissible under MRE 410. The prosecution has foreclosed review of this specific issue in this case by its concession.

Second, looking at MRE 410(4), the rule does not explicitly state that an attorney for the prosecuting authority must be physically present when the statement is made—and that is what the prosecution's single statement on this issue provides: that an attorney was not physically present. Rather, under MRE 410(4) statements are admissible only when made “in the course of plea discussions with an attorney for the prosecuting authority....” “In the course of” means “in the process of, during the progress of.” I Oxford English Dictionary (compact ed., 1971), p 1088. It is conceivable that a defendant may speak to persons other than an attorney for the prosecuting authority in the course of plea discussions. Indeed, a defendant may speak to persons, such as police officers, ...