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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v DELRICO SCOTT HENLEY, Defendant-Appellant.

UNPUBLISHED May 19, 1998

No. 198580 Detroit Recorder's Court LC No. 95-011611

Before: Cavanagh, P.J., and White and Young, Jr., JJ. PER CURIAM. Defendant appeals as of right from his jury trial convictions of second-degree murder, MCL 750.317; MSA 28.549, armed robbery, MCL 750.529; MSA 28.797, and conspiracy to commit armed robbery, MCL 750.157a; MSA 28.354(1). Defendant was sentenced to three concurrent ten to twenty-five year prison terms. We affirm. Defendant first argues that the trial court erred in denying his motion to suppress statements made to the police after his arrest. Specifically, defendant contends that the statements were involuntary because (1) he was subjected to custodial interrogation without having been advised of his Miranda1 rights, (2) his statements were induced by promises, and (3) the police purposely delayed his arraignment in order to obtain more incriminating evidence against him. We disagree. The voluntariness of a defendant's statement is a question for the trial court to determine by viewing the totality of the circumstances. People v Godboldo, 158 Mich App 603, 606; 405 NW2d 114 (1986). When reviewing a trial court's determination of voluntariness, this Court must examine the entire record and make an independent determination. People v Robinson, 386 Mich 551, 557; 194 NW2d 709 (1972). However, we give deference to the trial court's assessment of the weight of the evidence and the credibility of the witnesses, and the trial court's findings will not be reversed unless they are clearly erroneous. People v Bordeau, 206 Mich App 89, 92; 520 NW2d 374 (1994). The trial court's finding that defendant's statements were voluntary was not clearly erroneous. After reporting the shooting to police, defendant and another witness were taken to the homicide section of the Detroit Police Department. Because defendant was not in custody when he gave his first -1

statement at 12:20 a.m. on September 23, 1995, there was no need for the police to advise him of his Miranda rights. People v Hill, 429 Mich 382, 384; 415 NW2d 193 (1987). In any event, that statement was exculpatory. Before giving his second and third statements, which were inculpatory, defendant was advised of his Miranda rights, which he read aloud, indicated that he understood, and waived both times. We acknowledge defendant's testimony that the police told him he could go home and that he would receive medical attention if he gave a statement. Defendant also claims that he requested an attorney but was told that he did not need one. However, the police officers who questioned defendant denied making any promises. T he trial court found that defendant's testimony was not credible, and we give deference to that judgment. Boreau, supra. We also acknowledge that there was an unexplained delay in accomplishing defendant's arraignment. However, the voluntariness of a confession is determined by the totality of the circumstances. People v Cipriano, 431 Mich 315, 334; 429 NW2d 781 (1988). A confession will not be excluded solely because of prearraignment delay. People v Spinks, 184 Mich App 559, 563; 458 NW2d 899 (1990). Importantly, the trial court specifically found that the police did not intentionally delay defendant's arraignment in order to extract a statement from him. There was also no evidence that defendant lacked the ability to understand his rights or that the police attempted to trick or deceive him. We conclude that the totality of the circumstances supports the trial court's finding that defendant's statements were freely given. Defendant also contends that his statements should have been suppressed because his detention was unlawful. We disagree. The prosecution conceded at defendant's Walker2 hearing that there was no probable cause to arrest defendant after he gave his first statement. However, based on the information they received from Vincent Valentine that defendant was involved in planning the robbery, the police did have probable cause to arrest defendant by the time he gave his second statement. See People v Mitchell, 138 Mich App 163, 167; 360 NW2d 158 (1984). Therefore, the fact that defendant was lawfully in custody at the time he gave his second statement was a sufficient intervening circumstance to attenuate the taint of defendant's initial unlawful detention. See People v Washington, 99 Mich App 330, 335-336; 297 NW2d 915 (1980).3 Finally, defendant argues that the prosecution failed to provide sufficient evidence of malice to convict him of second-degree murder. When reviewing a challenge based on the sufficiency of the evidence, this Court views the evidence in a light most favorable to the prosecution to determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). The elements of second-degree murder are "`(1) a death, (2) caused by an act of the defendant, (3) absent circumstances of justification, excuse, or mitigation, (4) done with an intent to kill, an intent to inflict great bodily harm, or an intent to create a very high risk of death with the knowledge that the act probably will cause death or great bodily harm.'" People v Bailey, 451 Mich 657, 669; 549 NW2d 325 (1996) (citation omitted). Malice may be inferred from the facts and circumstances of the crime, including evidence that a defendant "intentionally set in

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motion a force likely to cause death or great bodily harm." People v Lewis, 168 Mich App 255, 270; 423 NW2d 637 (1988). In People v Aaron, 409 Mich 672, 729-730; 299 NW2d 304 (1980), the Supreme Court explained: [W]henever a killing occurs in the perpetration or attempted perpetration of an inherently dangerous felony . . . in order to establish malice the jury may consider the "nature of the underlying felony and the circumstances surrounding its commission[."] People v Fountain, 71 Mich App 491, 506; 248 NW2d 589 (1976). In People v Flowers, 191 Mich App 169, 178-179; 477 NW2d 473 (1991), this Court explained the requirements for holding a defendant liable for a killing on an aiding and abetting theory: In situations involving the vicarious liability of co-felons, the individual liability of each felon must be shown. It is fundamentally unfair and in violation of basic principles of individual criminal culpability to hold one felon liable for an unforeseen death that did not result from actions agreed upon by the participants. In cases where the felons are acting intentionally or recklessly in pursuit of a common plan, liability may be established on agency principles. Aaron, supra at 731. If the homicide is not within the scope of the main purpose of the conspiracy, those not participating are not criminally liable. 40 Am Jur 2d, Homicide,

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