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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v PERCY DONELLE CUMMINGS, Defendant-Appellant.

UNPUBLISHED November 30, 2006

No. 262294 Genesee Circuit Court LC No. 04-013530-FC

Before: Wilder, P.J., and Kelly and Borrello, JJ. PER CURIAM. Following a jury trial, defendant was convicted of felony murder, MCL 750.316b, firstdegree home invasion, MCL 750.110a(2), unarmed robbery, MCL 750.530, and carjacking, MCL 750.529a. The trial court sentenced defendant as an habitual offender, third offense, MCL 769.11, to life imprisonment for felony murder, 14 to 40 years' imprisonment for home invasion, 14 to 30 years' imprisonment for unarmed robbery, and 46 to 70 years' imprisonment for carjacking. Defendant appeals as of right. For the reasons set forth in this opinion, we affirm the convictions and sentences of defendant. This case arises from the murder of Nadine Lightsey, which occurred during the weekend of June 14, 2003, in Flint, Michigan. The victim's sister discovered the victim dead in her home. According to the sister, she initially believed that the victim's home had been robbed or that there had been a fight. However, she soon discovered the victim's dead body, wrapped in a blanket, on her bed. Blood was spattered on every wall of the room. There was physical blood and DNA evidence which placed defendant at the crime. A small bloodstain found on defendant's right shoe was tested for DNA evidence and the test concluded that the victim's blood was present on the shoe. Other physical evidence linking defendant to the crime included shoe impressions found outside the victim's house and inside the home on the kitchen floor that matched the running shoes that defendant was wearing. In addition, a chess set that was stolen from the victim's home was recovered from defendant's house. The police were unable to match any fingerprint evidence at the scene of the crime to defendant however, and they were unable to secure any DNA evidence from the victim's fingerprints that matched defendant. In addition to the aforementioned evidence, defendant made a videotaped statement to the police in which he admitted to fighting with the victim, tying

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her up, robbing her, and stealing her car. However, defendant consistently denied that he killed the victim. Defendant first asserts on appeal that his statements to the police should not have been introduced at trial because the police obtained them in violation of his constitutional rights. Defendant argues that his statements were not voluntary and that waiver of his rights was not knowingly and intelligently made. Defendant also argues that he was deprived of his constitutional rights because the police continued to question him after he invoked his right to an attorney. The circumstances surrounding defendant's statements to the police are as follows. On June 21, 2003, Trooper Robert Mossing stopped a vehicle driven by defendant. The vehicle belonged to the victim. Defendant was arrested and taken into custody. Detective Sergeant Terry Coon, the officer in charge of the case, interrogated and took statements from defendant in the early morning of June 22, 2003. Sergeant Mitch Brown was in the room for the interviews, which were all videotaped. This first interview was very short because defendant quickly asked to have an attorney present. Detective Coon stopped the interrogation as soon as defendant asserted his right to counsel, and defendant was taken to booking. On the way to the booking department, no detectives or officers interrogated defendant. A short time later a police officer informed Detective Coon that defendant wanted to give a statement. Before Detective Coon resumed questioning defendant, he again advised defendant of his Miranda1 rights, and he had defendant sign written waivers. During this second police interview, defendant told police that he broke into the victim's house after he heard fighting inside between his girlfriend and the victim. He told the officers that he pushed the victim onto her bed and tied her up. He also stated that he and his girlfriend robbed the victim, taking a television and a computer to sell for crack. However, defendant stated that the victim was alive when he left her home, and he consistently denied killing the victim. He asserted that he went back to the victim's home a few hours later, found her dead, and tried to clean up the crime scene. On appeal, defendant challenges both the voluntariness of his waiver and whether his waiver was knowingly and intelligently made. Whether a defendant's statement was knowing, intelligent, and voluntary is a question of law that a court evaluates under the totality of the circumstances. People v Cheatham, 453 Mich 1, 27; 551 NW2d 355 (1996). "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 Shipley, 256 Mich App 367, 372-373; 662 NW2d 856 (2003). Similarly, this Court reviews de novo the entire record to determine whether an accused has knowingly and intelligently waived his Fifth Amendment rights. Cheatham, supra at 30. However, deference is given to the trial court's assessment of the weight of the evidence and the credibility of the witnesses, id.; Shipley, supra at 373, and the trial court's findings will not be reversed unless they are clearly erroneous and leave "this Court with a definite and firm conviction that a mistake was made." Shipley, supra at 373. Although this

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

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Court reviews for clear error the trial court's factual findings regarding a defendant's knowing and intelligent waiver of his rights, the meaning of "knowing and intelligent" is a question of law. People v Williams, 470 Mich 634, 640; 683 NW2d 597 (2004), quoting People v Daoud, 462 Mich 621, 629-630; 614 NW2d 152 (2000). We review questions of law de novo. Id. "[T]he Fifth Amendment right to counsel is a corollary to the amendment's stated right against self-incrimination and to due process." People v Marsack, 231 Mich App 364, 372-373; 586 NW2d 234 (1998). The right against self-incrimination is guaranteed by both the United States Constitution and the Michigan Constitution. US Const, Am V; Const 1963, art 1,

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