                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   June 16, 2016
                Plaintiff-Appellant,

v                                                                  No. 328740
                                                                   Mackinac Circuit Court
RICHARD ALLAN MCKENZIE, JR.,                                       LC No. 15-003602

                Defendant-Appellee.


Before: MARKEY, P.J., and OWENS and BOONSTRA, JJ.

PER CURIAM.

       Plaintiff appeals by leave granted1 from the trial court order granting defendant’s motion
to suppress a number of statements he made both before and after he was advised of his
Miranda2 rights. We affirm in part and reverse in part.

                                           I. FACTS

       This case arises from the murder of Richard Allan McKenzie Sr., defendant’s father.
Responding to a report regarding an incident between a father and son, Michigan State Police
troopers found defendant lying unconscious on the cement floor of a pole barn. Defendant was
not wearing any pants and had severe lacerations on his arms and upper body. Trooper John
Ferguson testified that because of defendant’s physical appearance, he believed that defendant
was the father. When EMTs arrived, Ferguson left the pole barn to secure the scene as EMTs
awakened defendant. Defendant was sitting up on the gurney and receiving medical attention
when Ferguson returned to the pole barn.

       In the process of attempting to ascertain defendant’s identity, Trooper Ferguson called
defendant “Dick” because he had been informed that the father went by “Dick” and that the son
went by “Rick.” When defendant told the trooper that he was Rick, Ferguson asked where his


1
  People v McKenzie, unpublished order of the Court of Appeals, entered December 4, 2015
(Docket No. 328740).
2
    Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).


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father was. Defendant said that he was dead inside the house. Defendant told the trooper that
he, defendant, had shot his father. Another trooper then went into the house to determine if the
information provided by defendant was true. Ferguson stayed in the pole barn with defendant.
When Ferguson confirmed for defendant that his father was dead, defendant said that he was
glad and that he had accomplished his mission. Defendant was then placed into an ambulance to
be transported to the hospital. Ferguson rode in the ambulance with defendant.

        An audio recording captured statements made by defendant in the ambulance and at the
hospital before he was advised of his Miranda rights. Defendant’s statements provided details of
the crime as well as a motive. Defendant said that he had intended to commit suicide when he
“ate all the pills [he could].” When an emergency room doctor asked defendant if he had been
drinking, defendant stated that he had “a little bit” and then said, “I just wanted him dead.”

        As Trooper Ferguson was attempting to get defendants’ attention and explain to him that
he needed to read defendant his Miranda rights, defendant said, “I could have shot my fucking
self after I killed my dad.” Defendant then asked, “Is he dead?” and Ferguson replied, “Yes, he
is, Rick.” Defendant said, “Thank me. I love it. You know, that’s what my mission was.”
Ferguson interrupted defendant again in an attempt to advise him of his rights, but defendant
ignored the trooper and said, “I did not think about doing this until that night when my old lady
pissed me off.” Defendant then became silent and Ferguson was able to read the Miranda rights.
Thereafter, Ferguson began to question defendant about the shooting and defendant’s motive.
Defendant again admitted that he shot his father and provided details of the shooting as well as a
motive.

        Defendant moved to suppress the statements he made in the pole barn, in the ambulance,
and at the hospital. At the hearing on the motion, Trooper Ferguson testified that his initial
conversation with defendant was intended to ascertain defendant’s identity and determine “who
the players were” in the situation. He testified that defendant was merely a person of interest
after he stated that he had shot his father until it could be determined whether a crime had, in
fact, been committed. Ferguson said that defendant was not free to leave after it was determined
that his father was dead. Ferguson testified that he did not question defendant until after
Miranda warnings were given at the hospital.

       An expert in toxicology and pharmacology testified that defendant’s blood alcohol level
at 11:18 p.m. was 0.20, and that a urine test revealed the presence of opiates and
benzodiazepines, all of which were consistent with defendant’s statement that he had consumed
morphine, Dilaudid, and valium. The expert stated that he could not state the extent to which a
person with a 0.20 blood alcohol level who tested positive for opiates and benzodiazepines
would be able to understand and waive his Miranda rights, but he opined that the alcohol and
drugs would “certainly affect his capability to do so.” According to the expert, such a person’s
judgment would definitely be impaired.

        The court found that Ferguson’s “testimony suggests that his questioning of the
Defendant was after he was placed on the gurney. The Trooper, to his credit, acknowledged that
at the point the Defendant was placed on the gurney, the Defendant was ‘not free to leave’ and
was a ‘person of interest’ . . . .” The court ruled as follows:


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               In this circumstance it is difficult, at best, to say that the Defendant had his
       wits about him on the night in question. He was found lying unconscious and
       partially clothed on the floor of a pole barn, with several lacerations about his
       body. When awoken by the EMTs, using a fist to the Defendant’s chest, he began
       a rambling and less than coherent diatribe about his activities on the night in
       question. He was obviously intoxicated, and later learned to have consumed large
       amounts of medication. The whole time he was being questioned by the
       Troopers, he was receiving medical care for his issues. The tape recording of the
       Defendant clearly indicates he was shivering and crying throughout the time he
       was being transported to the hospital and continued after his arrival at the
       hospital. Further, his Miranda rights were not immediately read to him and his
       response to the same, when read his rights, was not audible on the tape recording.

               Given all of the above facts, it is clear to this Court that the circumstances
       surrounding the taking of the Defendant’s statements were not such that the
       Defendant was capable of knowingly or intelligently waiving his Miranda rights
       or able to voluntarily make a rational decision regarding the same. This was
       further supported by the testimony of the Defendant’s expert in toxicology.

The court suppressed all of defendant’s statements.

                                          II. ANALYSIS

                                 A. STANDARDS OF REVIEW

        The question of whether an individual was subject to custodial interrogation, and thus
entitled to Miranda warnings, is a mixed question of law and fact. People v Coomer, 245 Mich
App 206, 219; 627 NW2d 612 (2001). The trial court’s factual findings underlying its
conclusion that a defendant was in custody are reviewed for clear error, while the legal question
on whether a defendant was in custody for purposes of Miranda is reviewed de novo. People v
Steele, 292 Mich App 308, 313, 316; 806 NW2d 753 (2011). “A factual finding is clearly
erroneous if it leaves the Court with a definite and firm conviction that the trial court made a
mistake.” Id.

        We review de novo a trial court’s determination that defendant’s waiver of Miranda
rights was knowing, intelligent, and voluntary. People v Gipson, 287 Mich App 261, 264; 787
NW2d 126 (2010). “To the extent that a trial court’s ruling on a motion to suppress involves an
interpretation of the law or the application of a constitutional standard to uncontested facts, our
review is de novo.” People v Attebury, 463 Mich 662, 668; 624 NW2d 912 (2000).

                                    B. UNDERLYING LAW

       A defendant has a constitutional right to remain silent during custodial interrogation.
People v Henry (After Remand), 305 Mich App 127, 145; 854 NW2d 114 (2014). Thus,
statements made by a defendant during custodial interrogation are inadmissible at trial unless the
defendant knowingly, intelligently, and voluntarily waived his Miranda rights. People v Tierney,

                                                 -3-
266 Mich App 687, 707; 703 NW2d 204 (2005). It is not necessary that a defendant understand
the consequences and ramifications of waiving his rights but he must have a basic understanding
of those rights. Gipson, 287 Mich App at 265. “Intoxication from alcohol or other substances
can affect the validity of a waiver of Fifth Amendment rights, but is not dispositive.” Tierney,
266 Mich App 707.

       We bifurcate our analysis of this question by examining whether the defendant waived
his Miranda rights (1) knowingly and intelligently and (2) voluntarily. Id. To determine
whether a defendant knowingly and intelligently waived his Miranda rights, we examine the
defendant’s level of understanding of the waiver. Gipson, 287 Mich App at 265. In reviewing
whether a defendant voluntarily confessed to a crime, this Court examines the totality of the
circumstances and determines whether “the confession is ‘the product of an essentially free and
unconstrained choice by its maker,’ or whether the accused’s ‘will has been overborne and his
capacity for self-determination critically impaired . . . .’ ” People v Cipriano, 431 Mich 315,
334; 429 NW2d 781 (1988), quoting Culombe v Connecticut, 367 US 568, 602, 81 S Ct 1860, 6
L Ed 2d 1037 (1961). In determining voluntariness, factors to consider include:

       [T]he age of the accused; 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 the detention of the accused before he gave the
       statement in question; the lack of any advice to the accused of his constitutional
       rights; whether there was an unnecessary delay in bringing him before a
       magistrate before he gave the confession; whether the accused was injured,
       intoxicated or drugged, or in ill health when he gave the statement; whether the
       accused was deprived of food, sleep, or medical attention; whether the accused
       was physically abused; and whether the suspect was threatened with abuse.
       [Cipriano, 431 Mich at 334.]

       C. DEFENDANT’S STATEMENTS IN THE POLE BARN AND AMBULANCE

        Plaintiff first argues that the trial court erred in finding that he was in custody and subject
to custodial interrogation when he gave incriminating statements in the pole barn and ambulance.
It is not disputed that Trooper Ferguson did not give defendant Miranda warnings until
defendant was at the hospital.

        Miranda warnings are not, however, required in every circumstance. An accused is not
entitled to Miranda warnings unless he is subject to custodial interrogation. People v Elliott, 494
Mich 292, 302; 833 NW2d 284 (2013). “Generally, a custodial interrogation is a questioning
initiated by law enforcement officers after the accused has been taken into custody or otherwise
deprived of his or her freedom of action in any significant way.” Steele, 292 Mich App at 316-
317. To determine whether a defendant was in custody at the time of the interrogation, courts
look at the totality of the circumstances, with the key question being whether the accused
reasonably could have believed that he was not free to leave. People v Roark, 214 Mich App
421, 423; 543 NW2d 23 (1995). The determination of custody depends on the objective
circumstances of the interrogation rather than the subjective views harbored by either the
interrogating officers or the person being questioned. Stansbury v California, 511 US 318, 323;
114 S Ct 1526; 128 L Ed 2d 293 (1994). Police officers are not required to give Miranda

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warnings “simply because the questioning takes place in the station house, or because the
questioned person is one whom the police suspect.” Oregon v Mathiason, 429 US 492, 495; 97 S
Ct 711; 50 L Ed 2d 714 (1977). General on-the-scene questions to investigate a crime do not
implicate Miranda. People v Ish, 252 Mich App 115, 118; 652 NW2d 257 (2002).

        When Ferguson initially encountered defendant he did not know defendant’s identity,
whether he was the victim, or that defendant’s father lay dead in the house. At the hearing on the
motion to suppress, Ferguson testified he was asking defendant questions in the attempt to
ascertain defendant’s identity and the location of others involved in the incident when defendant
told him that his father was in the house, dead, and that defendant had shot him. Thus,
Ferguson’s initial questioning of defendant in the pole barn constituted general on-the-scene
preliminary inquiries regarding a crime. See People v Ridley, 396 Mich 603, 609-610; 242
NW2d 402 (1976) (police were not required to give Miranda warnings to a defendant during the
preliminary exploration of a “crime in progress”). Ferguson did not arrest defendant or engage
in any conduct that deprived defendant of his freedom at that point, so Ferguson was not required
to inform defendant of his Miranda rights. Ish, 251 Mich App at 118.

        Even assuming that defendant was in custody at the time of Ferguson’s inquiries, we
conclude he was not subject to custodial interrogation. In assessing whether a police officer’s
statements or questions constitute an interrogation, “the dispositive question is whether the
suspect’s incriminating response was the product of words or actions on the part of the police
that they should have known were reasonably likely to elicit an incriminating response.” People
v McDonald, 303 Mich App 424, 438; 844 NW2d 168 (2013) (internal quotation marks and
citations omitted). But the Fifth Amendment does not bar the admission of volunteered
statements of any kind. People v Anderson, 209 Mich App 527, 532; 531 NW2d 780 (1995).

        When Ferguson asked defendant, “Where’s Dick?” defendant said that he was in the
house, that he was dead, and that he, defendant, had shot him. Ferguson’s question about the
location of defendant’s father was not reasonably likely to elicit an admission from defendant
that he shot and killed his father. Then, after it was confirmed that McKenzie Sr. was dead,
Ferguson merely answered defendant’s question about his father’s condition. Defendant asked if
his father was dead. Ferguson’s response, “apparently so,” was not reasonably likely to elicit
defendant’s incriminating response that he was glad and that he had accomplished his mission.
McDonald, 303 Mich App at 438. Accordingly, the trial court erred by suppressing defendant’s
incriminating statements that were made in the pole barn and ambulance.

                             D. WAIVER OF MIRANDA RIGHTS

                                  1. VOLUNTARY WAIVER

       Plaintiff argues that the trial court erred when it determined that defendant’s Miranda
waiver was involuntary without first finding evidence of police coercion or misconduct.

        A suspect’s waiver of his Miranda rights must be made “voluntarily, knowingly, and
intelligently.” Miranda, 384 US at 444. The United States Supreme Court has articulated a two-
part inquiry to determine whether a waiver is valid:


                                               -5-
         First, the relinquishment of the right must have been voluntary, in the sense that it
         was the product of a free and deliberate choice rather than intimidation, coercion
         or deception. Second, the waiver must have been made with a full awareness of
         both the nature of the right being abandoned and the consequences of the decision
         to abandon it. Only if the totality of the circumstances surrounding the
         interrogation reveal both an uncoerced choice and the requisite level of
         comprehension may a court properly conclude that the Miranda rights have been
         waived. [Moran v Burbine, 475 US 412, 421; 106 S Ct 1135; 89 L Ed 2d 410
         (1986) (citations and quotation marks omitted).]

“[W]hether a waiver of Miranda rights is voluntary depends on the absence of police coercion.”
People v Daoud, 462 Mich 621, 635; 614 NW2d 152 (2000). “[T]he voluntariness prong cannot
be resolved in [a] defendant’s favor absent evidence of police coercion or misconduct.” People v
Howard, 226 Mich App 528, 543; 575 NW2d 16 (1997). The prosecution bears the burden of
proving voluntariness by a preponderance of the evidence. Daoud, 462 Mich at 634.

       The trial court found that defendant’s intoxication and consumption of “large amounts of
medication,” as well as his ongoing medical treatment for “his issues,” rendered him incapable
“of knowingly or intelligently waiving his Miranda rights or able to voluntarily make a rational
decision regarding the same.” The trial court, however, failed to articulate any finding of police
coercion or misconduct. Accordingly, the court committed a legal error when determining that
defendant’s Miranda waiver was involuntary. See Daoud, 462 Mich at 635.

                          2. KNOWING AND INTELLIGENT WAIVER

      The prosecution argues that the trial court erred by finding that defendant’s waiver of his
Miranda rights was not knowing and intelligent.

        With respect to whether a defendant’s waiver of his Miranda rights was knowing and
intelligent, a court will examine the defendant’s level of understanding of the waiver. Gipson,
287 Mich App at 265. “A defendant does not need to understand the consequences and
ramifications of waiving his or her rights.” Id. Advanced intoxication by drugs or alcohol,
however, may preclude an effective waiver of Miranda rights. People v Davis, 102 Mich App
403, 410; 301 NW2d 871 (1980).

        Whether defendant was too intoxicated to comprehend his rights was a question of fact
that the trial court was required to resolve at the Walker3 hearing and which is accorded due
deference on appeal. People v Prast (On Rehearing), 114 Mich App 469, 484; 319 NW2d 627
(1982). “Credibility is crucial in determining a defendant’s level of comprehension, and the trial
court is in the best position to make this assessment,” People v Cheatham, 453 Mich 1, 30; 551
NW2d 355 (1996), and this Court must give deference to the trial court’s superior ability to




3
    People v Walker, 374 Mich 332; 132 NW2d 87 (1965).


                                                 -6-
judge the credibility of the witnesses, and will not reverse the trial court’s factual findings unless
they are clearly erroneous, People v Tyner, 497 Mich 1001; 861 NW2d 662 (2015).

        The trial court found that it was difficult, at best, to find that defendant “had his wits
about him” on the night of the incident. The court noted that defendant was found unconscious
and partially clothed on the floor of a pole barn, with several lacerations on his body; he had to
be awakened by EMTs using a fist to the chest. The court noted that defendant engaged in a
rambling and less than coherent diatribe about his activities on the night in question, that he
made statements while receiving medical care, and that he was shivering and crying while being
treated at the hospital. The court also concluded that defendant was “obviously intoxicated” and
later found “to have consumed large amounts of medication.” The court found that in light of
these facts, as well as the opinion of the toxicology expert, defendant was not capable of
knowingly or intelligently waiving his Miranda rights.

       The evidence in the record supported the trial court’s finding that the circumstances
surrounding the taking of defendant’s statements were such that he was incapable of knowingly
and intelligently waiving his rights. Blood drawn an hour after defendant was found
unconscious in the pole barn showed that defendant had a blood serum level of 0.236, which
equated to a blood alcohol content of 0.20, and urine tests showed concentrations of opiates and
benzodiazepines in his system. An expert toxicologist testified that given these circumstances,
defendant was likely unable to understand his Miranda rights and make a clear, knowledgeable
decision about whether to waive them. Further, the trial court had the benefit of listening to the
audiotape and defendant’s responses as Ferguson was attempting to read him the Miranda rights.

       In sum, the trial court erred by suppressing defendant’s statements that were made in the
pole barn and the ambulance. But the trial court did not clearly err finding that defendant did not
knowingly and intelligently waive his Miranda rights and therefore suppressing the result of
custodial interrogation after defendant was advised of his rights. Tierney, 266 Mich App 707.

       We affirm in part and reverse in part. We do not retain jurisdiction.

                                                              /s/ Jane E. Markey
                                                              /s/ Donald S. Owens




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