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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v BURTON DAVID CORTEZ, Defendant-Appellant.

FOR PUBLICATION October 27, 2011 9:00 a.m. No. 298262 Montcalm Circuit Court LC No. 2009-012502-FH Advance Sheets Version

Before: O'CONNELL, P.J., and METER and BECKERING, JJ. PER CURIAM. Defendant, Burton David Cortez, appeals as of right his convictions on two counts of being a prisoner in possession of a weapon, MCL 800.283(4), entered after a jury trial. The trial court sentenced defendant as a second-offense habitual offender, MCL 769.10, to concurrent terms of 24 to 90 months in prison. At the time of the incident in question defendant was an inmate at the Carson City Correctional Facility. On July 21, 2009, Michigan Department of Corrections (MDOC) officers discovered two weapons in defendant's cell during a search of a number of inmates' cells. Before trial, defendant moved to suppress a recorded statement taken during an interview with him after the weapons were discovered and in which he admitted possessing the weapons. At issue on appeal is whether the trial court erred by ruling that the MDOC officer who questioned defendant during the interview was not required to provide him with Miranda1 warnings before subjecting him to the questioning and by admitting defendant's incriminating statements at trial. We affirm. I On July 21, 2009, a "siren drill" was carried out at the prison. Leading up to the drill there had been several assaults and fights involving suspected gang members; weapons were used and there were shots fired by corrections officers from the gun tower. On the morning of the drill, two homemade weapons had been found on an inmate who was a suspected gang

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Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

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member. Prison officials decided to conduct the siren drill to search for more weapons and identify inmates involved in the suspected gang activity. Pursuant to protocol for the siren drill, all inmates were required to return to their cells for a lockdown, and the corrections officers then searched various cells for contraband. During the drill, an MDOC officer, Lieutenant Robert Vashaw,2 provided other corrections officers with a list of suspected gang members whose cells were to be searched. Defendant's name was on the list. MDOC Officer Robert Hanes explained that before a cell is searched, the corrections officers have the inmates step out one at a time, undergo a pat-down search, and then proceed to a day room while their cell is searched. According to defendant, about 30 minutes after the drill started, he was asked to leave his cell and was patted down.3 He was then sent to a day room or activity room. Officer Hanes searched the area of defendant's cell that was considered to be in defendant's area of control. The cell was basically divided so that defendant, who slept on the bottom bunk, had the left side of the cell and the inmate who slept on the top bunk had the right side of the cell as their areas of control. Officer Hanes found pieces of metal in a trash can on the left side of defendant's cell. He also noticed that a metal shelf was missing from defendant's desk. At that point, Lieutenant Vashaw directed that a thorough search of the cell be conducted. The search revealed a homemade shank, specifically a piece of sharpened metal that was inserted into a white plastic handle. The shank was stuck in the bottom bunk's framework on the underside of the bed frame. Officer Hanes turned the shank over to Lieutenant Vashaw and then continued to search the cell. A second shank was found inside a corner of the mattress on the bottom bunk. The second shank was made of a piece of metal wrapped in a bluish cloth and was also turned over to Lieutenant Vashaw. Lieutenant Vashaw testified that he took control of the shanks, "bagged and tagged" them, and placed them in the Michigan State Police evidence locker. Once the shanks were in the locker, Lieutenant Vashaw no longer had control over them; only the state police had access to them. Lieutenant Vashaw testified that the two shanks were in the evidence locker when he later interviewed defendant but that the trash can containing the metal pieces may have been in the interview room during the interview. Defendant, on the other hand, testified that the shanks, which had been placed inside tubes, and the trash can, were all in the interview room. Officer Vashaw testified that if an inmate is found with dangerous contraband, departmental policy calls for the inmate to be placed in segregation until his misconduct report is heard. On the basis of the items found in defendant's area of control, Officer Hanes prepared a misconduct report, and Lieutenant Vashaw ordered staff to escort defendant to a segregation cell

Lieutenant Vashaw testified at the suppression hearing in this matter and stated that at the time of this incident he was "an acting Inspector" for the facility.
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Defendant did not testify at the suppression hearing, but he did testify at trial.

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or solitary confinement.4 While in the segregation unit, an inmate must be handcuffed and escorted by a staff member whenever he leaves segregation. Approximately an hour to an hour and a half after Officer Hanes found the second shank, Lieutenant Vashaw requested to speak with defendant. Because defendant was already in segregation, he was escorted in handcuffs to the control center to meet Lieutenant Vashaw.5 According to the lieutenant, he had defendant come to the control center to be interviewed because inmates are often reluctant to speak openly in front of others. Lieutenant Vashaw and defendant then went to a back office for the interview.6 According to Lieutenant Vashaw, defendant hesitated to speak at the outset of the interview and initially "denied everything." The lieutenant then told defendant that the evidence the corrections officers had obtained was "pretty damaging" and that two weapons had been found in defendant's area of control. Lieutenant Vashaw said that defendant needed to tell him what was going on inside the prison because violent events had recently occurred; defendant needed to tell him why he was making weapons or was in possession of weapons. The lieutenant testified that he never threatened defendant. Lieutenant Vashaw further testified that defendant soon started to talk, and the lieutenant brought out a tape recorder. Defendant knew the recorder was running, and he did not hesitate to discuss the matter. On the recording, which was played, in part, for the jury, defendant said that the weapons were his and that gang members had forced him to make them. One weapon was for his own protection, and the other was to be sold. He also admitted selling a third weapon the previous day. Defendant also talked about gangs that operated within the prison. The interview lasted approximately 15 minutes, and defendant never sought to end the interview. After the interview, a staff member escorted defendant back to segregation pursuant to departmental policy. According to defendant, Lieutenant Vashaw showed him the trash can and both shanks in the interview room. Defendant told the lieutenant that the items were not his, but then the lieutenant told him they could make a deal. Lieutenant Vashaw proposed that defendant either admit possessing the weapons, do his segregation time after his misconduct ticket was heard, and go home as scheduled in approximately 11 months, or the lieutenant could keep defendant from ever going home. Defendant testified that everything he admitted on the recording was untrue; he just said what he needed to say in order to get out of prison and go home.

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According to defendant, before being placed in segregation, he was ordered to quickly shower with his prison clothes on and was then strip-searched and given a brown jumpsuit to put on.

Defendant testified that he had been in segregation for approximately 15 or 20 minutes when he was handcuffed and escorted to the control center. The office belonged to the facility's "Inspector" and was being used at that time by Lieutenant Vashaw as "an acting Inspector."
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Before trial, defendant moved to suppress his confession on the grounds that he was not given Miranda warnings and it was highly prejudicial because the recording of his confession mentioned the length of time he had been in prison and detailed gang-related activity. Defendant renewed his objection to the admission of the recording during trial. At the suppression hearing, during direct examination, Lieutenant Vashaw testified about his reasons for placing defendant in segregation and interviewing him: Q. So--you end up in possession of that first weapon found? A. Well, he, Officer Hanes . . . gave it to me and I took possession of it then, yes. Q. Okay. And then were you called back to the cell, or somehow you found another--came into possession of another weapon from the defendant's cell? A. Well, I wanted to get control of the prisoner, so I instructed Officer Hanes to do--I want you guys to finish going through this cell because there could be possibly more weapons in here, and then I left with the weapon and the metal contraband. I called in some additional staff to take Mr. Cortez to segregation. Q. Okay. So, you moved him from the day room to . . . A. Segregation. Q. What's segregation? What's that, what . . . A. Solitary confinement. They're placed in there for detention and various protection and they're also placed in there pending, what we call, investigation or due process. Pending . . . investigation until we finish looking in to this incident or pending due process until we write misconduct and then they have a certain amount of days to be heard on that misconduct. Q. And that's all stuff that's done internally within the prison? A. Correct. * * * Q. Okay. And--and the reason, what is the reason he was put into segregation, at that point? A. Because prisoner[s], when they're found with dangerous contraband which was the broken pieces of metal or a weapon, that's called a non bondable offense and for that reason, we're required to place them in segregation.

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Q. This is all Department of Corrections policy? A. Correct. Q. Nothing that the police have directed you have to? A. No. * * * A. Well, after he's placed in seg[regation] . . . Officer Hanes . . . subsequently found the second weapon in his mattress. * * * A. . . . Given the nature of what had been goin [sic] on for the past week, I wanted to talk to him [defendant] about the activity. Q. For what reason? A. To try to get a handle, make sure we--cuz [sic] it's not every day that you find two weapons on a guy and then the same two weapons we found in his cell were similar to the first two we found in the start of the day. So, it's leadin [sic] me to believe we've got a gang problem going on, plus with the stuff that happened earlier in the week, I was trying to interview him find out what exactly was going on with those gang members or specifically in that level four unit. Q. And--and you wanted information on the gang members because of what reason? A. For prison safety. For future, I mean, if we got a war going on that's something we need to take control of. * * * Q. Okay. Were you requested by any police agency to question him regarding the knives, the weapons that were found in his cell? A. No, I was not. Q. Did you even have any contact with any outside police agency like the State Police, prior to questioning him in any regard? A. No, I did not. In regard to the content of his interview of defendant, Lieutenant Vashaw testified: Q. So, how does the conversation start? I mean what--what do you say to him? -5-

A. Basically, what's going on out there? I mean, we found these weapons in your cell, . . . I want to know what--can you tell me what's going on. I mean, this doesn't look good, you know. And that's how it starts out. Q. But again, you wanted to know what's going on because of what reason? A. Prison safety, with--we're having these gang problems and I want to know are we expecting more trouble, are we--you know, is there more weapons floating around out there, you know, concerned about the prisoner and staff safety. * * * Q. Did he tell you about the gang activity and his take on who's who-- who's members of a gang and . . . A. Yes. * * * Q. Was that helpful to you, in terms of again, maintaining peace and order in the prison? A. Yes, specifically, because one name he did mention was a prisoner named Cain (phonetic) and we had received previous information that some of the Gangster Disciples had actually put a hit out on one of our officers. And we believed it to be credible enough, we kept the officer out of the institution, out of the inside and that prisoner Cain (phonetic), he was telling me about was one of the suspected GD's that was going to stab this officer. Q. GD is--is what? A. Gangster Disciple. Q. That's the name of a gang? A. Yes. Later during the suppression hearing, the court asked Lieutenant Vashaw whether the MDOC had any arrangement with the state police in regard to conducting interviews of inmates suspected of criminal activity: Q. Does the department have any type of arrangement or policy with the State Police, that you folks will do the interview? So they don't have to come out?

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A. No, they've never--they've never said that. Typically we give them whatever information we have and then we lay [sic] it to them if they would like to come out and talk to the . . . Q. So, there's no DOC policy that the Inspector or someone else would do, or interview, possible defendants for the State Police? A. Uh, uh. Not unless--I mean there's no policy on it, no, that I've ever seen. Q. Okay. Was there an arrangement or an unofficial policy or anything like that? A. . . . [N]o sir . . . Defense counsel continued with a similar line of questioning on recross-examination: Q. Is it your practice to provide those interviews to the State Police? A. If we're going to seek prosecution, yes. Q. Okay. So, whenever you might seek criminal prosecution, you provide, not only the physical evidence that you've put in their police locker, but you also provide a report? A. If they want it. Q. Okay. A. I've--well I, typically I fill out--we give em (sic) a synopsis of what we've had. We tell em (sic) either . . . verbally or, you know, in writing, what-- what's transpired and we would like to seek prosecution on this inmate, you know, and I'm just talking in general, you know, for different instances. And they may come and talk to the inmate themselves or they may not. They may take the report we have, and use--just use that. * * * A. They will usually come to the facility there after, and say what do [you] have? And then if we have a report or what--whatever evidence or information we have, we then give [it] to them. The court then resumed its questioning of the lieutenant: Q. The distinction I was trying to--to make, it seems like you guys do have an arrangement or a policy that if there's evidence, you put it into the State Police, what do you call it?

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A. Evidence locker. * * * Q. Yes? A. Yes. Q. Okay. But you don't have any type of arrangements or policy that you will do the interview for the State Police? A. Right. No, we don't. The trial court denied defendant's motion to suppress and objections to the recording. The court determined that defendant was in custody and was being interrogated but that Lieutenant Vashaw's testimony was credible and that he was not "acting as a tool of the State Police." In so holding, the court cited People v Anderson, 209 Mich App 527; 531 NW2d 780 (1995), wherein this Court explained that "constitutional protections apply only to governmental action" and, therefore, that "a person who is not a police officer and is not acting in concert with or at the request of the police is not required to give Miranda warnings before eliciting a statement." Id. at 533, citing Grand Rapids v Impens, 414 Mich 667, 673; 327 NW2d 278 (1982). Additionally, the trial court in this case noted that "there were many good, legitimate reasons why the Department of Corrections followed up with an interview of the defendant, relating to the safety and security of the prison, not only corrections officers but also inmates. Also, in [an] effort to find out, not only what is going on, but whether there was a gang problem, and specifically what's going on in that unit." Further, while the trial court denied defendant's motion to suppress and objections to the recording, it attempted to minimize the prejudicial effect of the recording by allowing only a shortened version of it to be played for the jury. The shortened version eliminated any reference to defendant's length of incarceration. The court also gave a limiting instruction to the jury. The jury returned a verdict of guilty on both counts of being a prisoner in possession of a weapon. Defendant was sentenced as described. He now appeals as of right. II Defendant argues that the trial court committed error that requires reversal by ruling that Lieutenant Vashaw, the corrections officer who questioned him, was not required to provide him with Miranda warnings before subjecting him to custodial interrogation, contrary to his Fifth Amendment rights, and therefore erroneously admitted his incriminating statements at trial. We disagree. Although the facts of this case fall in the middle area of a spectrum of cases in which the factual situations of some require Miranda warnings and others do not, the circumstances of the questioning in this case did not require Miranda warnings. When reviewing a motion to suppress evidence of a confession, we defer to the trial court's findings of fact unless they are clearly erroneous. People v Herndon, 246 Mich App 371, 395; 633 NW2d 376 (2001). We review legal conclusions de novo. Id. -8-

The protections of the Fifth Amendment, US Const, Am V, and Const 1963, art 1,

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