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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v COREY MANNING, Defendant-Appellant.

UNPUBLISHED October 2, 1998

No. 199646 Recorder's Court LC No. 95-012837

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v YUSEF QUALLS, Defendant-Appellant. No. 201270 Recorder's Court LC No. 95-012865

Before: Murphy, P.J., and Gribbs and Gage, JJ. PER CURIAM. Following a joint trial with separate juries, defendant Manning was convicted of two counts of first-degree premeditated murder, MCL 750.316(1)(a); MSA 28.548(1)(a), assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, first-degree home invasion, MCL 750.110a(2); MSA 28.305(a)(2), and possession of a firearm during the commission of a felony, MCL 750.227b(1); MSA 28.424(2)(1), while defendant Qualls was convicted of two counts of first-degree premeditated murder, assault with intent to murder, MCL 750.83; MSA 28.278, first-degree home invasion, and felony-firearm. The trial court sentenced defendant Manning to concurrent terms of mandatory life imprisonment without parole for the first-degree murder convictions, six to ten years' imprisonment for the assault conviction, and ten to twenty years' imprisonment for the home invasion conviction, with a consecutive two-year term for the felony-firearm conviction. The court sentenced

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defendant Qualls, a juvenile, as an adult to concurrent terms of mandatory life imprisonment without parole for the first-degree murder convictions, five to fifteen years' imprisonment for the assault conviction, and five to twenty years' imprisonment for the home invasion conviction, all consecutive to a two-year term for the felony-firearm conviction. Both defendants appeal as of right. We affirm. I Both defendants contend that the trial court erred in denying their motions to suppress their confessions. We review de novo a trial court's determination regarding whether a statement was made voluntarily, knowingly and intelligently. People v Cheatham, 453 Mich 1, 30, 44; 551 NW2d 355 (1996); People v Gould, 225 Mich App 79, 88; 570 NW2d 140 (1997). The trial court's findings of fact will not be disturbed unless they are clearly erroneous. People v LoCicero (After Remand), 453 Mich 496, 500; 556 NW2d 498 (1996). The trial court's factual findings are clearly erroneous if, after a review of the record, this Court is left with a definite and firm conviction that a mistake has been made. People v Givans, 227 Mich App 113, 119; 575 NW2d 84 (1997). To the extent that resolution of disputed factual questions turn on the credibility of witnesses or the weight of the evidence, this Court will ordinarily defer to the trial court, which has a superior opportunity to evaluate these matters. People v Young, 212 Mich App 630, 634; 538 NW2d 456 (1995), remanded on other grounds 453 Mich 976 (1996), on remand 222 Mich App 498; 565 NW2d 5 (1997), reversed on other grounds 458 Mich 43; 580 NW2d 404 (1998). A Defendant Manning contends that his waiver of his rights against self-incrimination and subsequent statement to police were neither voluntarily nor knowingly and intelligently made. Statements made during a custodial interrogation are inadmissible unless the defendant voluntarily, knowingly and intelligently waives his Fifth Amendment rights. People v Howard, 226 Mich App 528, 538; 575 NW2d 16 (1997). Whether a waiver of Miranda1 rights is voluntary and whether an otherwise voluntary waiver is knowing and intelligent are separate questions. Id. The issue of voluntariness is to be determined solely by examining police conduct, and cannot be resolved in defendant's favor absent some police coercion. Id.; People v Garwood, 205 Mich App 553, 555; 517 NW2d 843 (1994). The test of voluntariness considers whether, in light of the totality of the circumstances, the statement was the product of an essentially free and unconstrained choice or whether it was the result of an overborne will. People v Cipriano, 431 Mich 315, 333-334; 429 NW2d 781 (1988). Relevant factors in determining voluntariness include the defendant's age; 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 time defendant was detained before providing a statement; the lack of any advice to the defendant of his constitutional rights; whether there was an unnecessary delay in bringing him before a magistrate before he made his statement; whether the defendant was injured, intoxicated or drugged, or in ill health when he made the statement; whether the defendant was deprived of food, sleep or medical attention; and whether he was physically abused or threatened with abuse. Id. at 334. The absence or presence of any one of these factors is not necessarily conclusive on the issue of voluntariness. Id.

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In determining whether the defendant knowingly and intelligently waived his Miranda rights, an objective standard is used. Garwood, supra at 557. A determination whether a waiver was knowing and intelligent depends on the totality of the circumstances, including the defendant's education, experience, conduct, intelligence and capacity to understand the warnings given, as well as the credibility of the police officers' testimony. Howard, supra; Garwood, supra. Our review of the evidence adduced at the hearing reveals that defendant voluntarily, knowingly and intelligently waived his constitutional rights and offered his statement. Although defendant was attacked and beaten by a mob as the police led him from his house, the incident was not instigated by the police. The police did all they could to protect defendant from the angry mob. The officers' testimony established that defendant emerged relatively unscathed, showing no visible signs of injury and boasting that he could have defeated three or four of his assailants. Defendant, who was eighteen and had a ninth grade education, was advised of his rights and stated that he understood them. He was only interrogated once. The fact that the session was rather lengthy owed more to defendant's recitation of his life's history than to extended badgering by the interrogating officer. Defendant was given food and water and bathroom privileges during the session, and was not physically abused or threatened with abuse. Defendant did not appear to be drunk or high on drugs, and never indicated that he was unwell or needed medical attention. Although defendant disputed much of the officers' testimony, the trial court found him incredible based on his demeanor and the court's viewing of a videotape of the mob incident. This Court will not second-guess that finding. Therefore, based on the totality of the circumstances, we conclude that defendant waived his rights and made his statement voluntarily, knowingly and intelligently. The trial court correctly denied his motion to suppress. B Defendant Qualls first contends that his statement was taken in violation of his right to counsel. The United States Supreme Court, in Edwards v Arizona, 451 US 477, 484-485; 101 S Ct 1880; 68 L Ed 2d 378 (1981), has determined that an accused who has requested an attorney is not subject to further interrogation in the absence of counsel unless the accused himself initiates further communication. People v Kowalski, ___ Mich App ___; ___ NW2d ___ (Docket No. 190352, released 6/26/98), slip op p 6. Defendant testified that he requested an attorney and that the interrogating officer agreed to provide one. Defendant further explained that the officer did not stop the interview, and that he proceeded to give a statement because he somehow failed to notice that an attorney had not been provided. The trial court found that defendant's testimony on this issue was not credible. Given the fact that defendant and his mother had gone to the police voluntarily and that defendant knew the police wanted to question him about the homicides, in addition to defendant's claim that he paid no attention to the absence of an attorney, the inconsistencies throughout his testimony, and the fact that neither his mother nor the interrogating officer testified that defendant had invoked his right to counsel, we conclude that the trial court's finding was not clearly erroneous. C Defendant Qualls next contends that the officers' promises of leniency rendered his statement involuntary and thus inadmissible. A promise of leniency is one factor to be considered -3

in the evaluation of the voluntariness of a defendant's statements. Givans, supra at 120. Unspecified promises to help are not improper promises of leniency. People v Ewing (On Remand), 102 Mich App 81, 85-86; 300 NW2d 742 (1980). The interrogating officer testified that he did not promise anything to defendant, but that his partner said he would try to help defendant if he could, without specifying what help he could provide. Defendant conversely testified that the interrogating officer's partner did not say anything about helping him, but that the interrogating officer told him, again without making a specific offer of help, simply that he could help defendant if he gave a statement. Defendant's mother testified that both officers said they would work on defendant's behalf and would (depending on how one interprets her testimony) either recommend reduced charges to the prosecutor or see that the prosecutor filed reduced charges. While a promise to work on defendant's behalf is, like a general promise to help, too vague to constitute a promise of leniency, promising to convince the prosecutor to file reduced charges is a specific promise of leniency. People v Carigon, 128 Mich App 802, 810-811; 341 NW2d 803 (1983). However, a promise of leniency will not render a statement inadmissible unless the defendant relied on the promise in making the statement. People v Butler, 193 Mich App 63, 69; 483 NW2d 430 (1992). Defendant's mother did not contend that she urged her son to cooperate because of the alleged promise, and defendant did not claim that the alleged promise was made to him or that he acted in reliance on it. In fact, defendant admitted that the officer told him it did not matter if he made a statement or not. We conclude that because nothing in the record shows that the alleged promise induced defendant to make a statement, the trial court did not clearly err in finding that defendant's statement was not induced by a promise of leniency. Givans, supra. D Finally, defendant Qualls contends that his statement was involuntary under the totality of the circumstances. The admissibility of a juvenile's confession depends on whether, under the totality of the circumstances, it was voluntarily made. Id. The relevant factors that must be considered in applying the totality of the circumstances test include (1) whether the defendant was advised of and clearly understood and waived his constitutional rights, (2) the degree of police compliance with MCL 764.27; MSA 28.886 and the juvenile court rules, (3) the presence of an adult parent, custodian or guardian, (4) the juvenile's personal background, (5) the juvenile's age, education and intelligence level, (6) the extent of his prior experience with the police, (7) the length of detention before the statement was made, (8) the repeated and prolonged nature of the questioning, and (9) whether the defendant was injured, intoxicated, in ill health, physically abused or threatened with abuse, or deprived of food, sleep or medical attention. Id. at 121. Reviewing these factors in the instant case, defendant was advised of his constitutional rights. Hearing testimony revealed that the interrogating officer read defendant his rights, and that defendant himself read one of the rights. The interrogating officer testified that defendant stated that he understood his rights and agreed to make a statement, and defendant never alleged that he failed to comprehend the reading of his rights. The police were not required to take defendant before the probate court pursuant to

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