                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   October 12, 2017
              Plaintiff-Appellee,

v                                                                  No. 331568
                                                                   Wayne Circuit Court
LAKESHIA TULANI PEETE, also known as                               LC No. 14-004861-02-FC
LAKESHA TULANI PEETE,

              Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

v                                                                  No. 332006
                                                                   Wayne Circuit Court
DAIJA DENISE GATEWOOD,                                             LC No. 14-004862-01-FC

              Defendant-Appellant.


Before: SHAPIRO, P.J., and HOEKSTRA and M. J. KELLY, JJ.

PER CURIAM.

        Defendants, Lakeshia Peete (“Peete”) and her daughter, Daija Gatewood (“Gatewood”),
were each charged with first-degree felony murder, MCL 750.316(1)(b), and torture, MCL
750.85. Defendants were tried jointly, before separate juries. Peete was found not guilty of
felony murder and torture, but convicted of the lesser offense of assault with intent to do great
bodily harm less than murder (AWIGBH), MCL 750.84. Gatewood was convicted of second-
degree murder, MCL 750.317, and torture. The trial court sentenced Peete to 80 months to 10
years’ imprisonment for her assault conviction, and sentenced Gatewood to prison terms of 7 to
20 years for each of her convictions, to be served concurrently. Peete appeals as of right in
Docket No. 331568, and Gatewood appeals as of right in Docket No. 332006. For the reasons
explained in this opinion, we affirm in both appeals.

      Defendants’ convictions arise from the beating and shooting death of Laquita Logan
(“Logan”), who had been living with the Peete family, but was suspected of being involved in

                                               -1-
the murder of Peete’s husband, Kenneth Peete (“Kenneth”), who was killed during a home
invasion in August 2013. On August 9, 2013, shortly after Kenneth’s death, Peete, Gatewood,
and Kenneth’s son, Kenjuan Peete (“Kenjuan”), confronted Logan about her suspected
involvement in Kenneth’s homicide. The group took Logan to a bedroom in Peete’s home and
assaulted her in an effort to get her to confess about her role in Kenneth’s death. Logan was later
brought to the basement, where the interrogation and assault continued, and then escalated when
several other men arrived at the house and joined in assaulting Logan. One of those men, Mario
Johnson, eventually shot Logan in the head. The men thereafter removed Logan’s body and
dumped it inside an abandoned building, where it was discovered the next day. The medical
examiner opined that the cause of death was “a gunshot wound to the head” and “blunt force
impact.”1

                       I. DISQUALIFICATION OF JUDGE MORROW

        Both defendants argue that a new trial is required because the chief judge erred in
disqualifying the original assigned judge, Bruce Morrow, from presiding over the cases. We
review an order granting the disqualification of a trial judge for an abuse of discretion.
Czuprynski v Bay Circuit Judge, 166 Mich App 118, 124; 420 NW2d 141 (1988). The trial
court’s application of the law to the facts when deciding a motion to disqualify is reviewed de
novo. People v Wade, 283 Mich App 462, 469; 771 NW2d 447 (2009).

        The prosecutor sought to disqualify Judge Morrow because of his ex parte contacts with
the officer in charge of the case and the appearance of impropriety those contacts created. MCR
2.003(C)(1)(b)(ii) provides that disqualification of a judge is warranted when the judge, “based
on objective and reasonable perceptions, . . . has failed to adhere to the appearance of
impropriety standard set forth in Canon 2 of the Michigan Code of Judicial Conduct.” The Code
of Judicial Conduct, Canon 2(A), provides that “[a] judge must avoid all impropriety and
appearance of impropriety.” The Code of Judicial Conduct, Canon 3(A)(4), also provides that
“[a] judge shall not initiate, permit, or consider ex parte communications, or consider other
communications made to the judge outside the presence of the parties concerning a pending or
impending proceeding.” Exceptions to that rule include the following:

               (a) A judge may allow ex parte communications for scheduling,
       administrative purposes, or emergencies that do not deal with substantive matters
       or issues on the merits, provided:


1
  Several other individuals were also charged in connection with Logan’s death. Kenjuan
pleaded guilty to AWIGBH pursuant to an agreement whereby he agreed to testify against Peete
and Gatewood and he received a sentence of 5 to 10 years’ imprisonment. Mario Johnson
pleaded guilty to second-degree murder and felony-firearm, MCL 750.227b. Johnson was
sentenced to 23 to 35 years in prison for the murder conviction and a consecutive two years’
imprisonment for felony-firearm. Danny Preston pleaded guilty to accessory after the fact, MCL
750.505, and was sentenced to 2-1/2 to 5 years in prison. Jamall Ayers pleaded no contest to
felonious assault, MCL 750.82, and AWIGBH. Ayers was sentenced to 2 to 10 years in prison
for the AWIGBH conviction and two to four years for the felonious assault conviction.


                                                -2-
               (i) the judge reasonably believes that no party or counsel for a party will
       gain a procedural or tactical advantage as a result of the ex parte communication,
       and

              (ii) the judge makes provision promptly to notify all other parties and
       counsel for parties of the substance of the ex parte communication and allows an
       opportunity to respond.

The chief judge granted the prosecutor’s motion to disqualify Judge Morrow, finding that his
communications with the officer in charge were not for scheduling, administrative, or emergency
reasons, but instead involved substantive communications about the case, establishing a violation
of the Code of Judicial Conduct, Canon 3(A)(4).

        We conclude that the chief judge did not err in granting the prosecutor’s motion to
disqualify Judge Morrow. Judge Morrow’s contacts with the officer in charge involved inquiries
about evidence that had been collected in the case and the status of the police investigation.
These contacts were not merely administrative; they concerned substantive evidence in the case.
Defendants argue that the contacts occurred with the consent of the prosecutor, thereby
indicating that the prosecutor did not deem the contact improper. However, while Judge Morrow
stated that he would make an “inquiry,” he indicated that the phone call would be made by his
clerk. And, in any event, at most, the prosecutor agreed to Judge Morrow, or his clerk,
contacting the officer in charge to determine if defendants’ cell phones could be returned. Even
if such limited contact was permissible in light of the prosecutor’s agreement, Judge Morrow
exceeded the scope of this intended inquiry by asking for the investigator’s report and requesting
the evidence tag numbers for the cell phones. Judge Morrow’s conduct also created an
appearance of impropriety to support his disqualification under MCR 2.003(C)(1)(b)(ii) and the
Code of Judicial Conduct, Canon 2(A). By contacting the officer in charge and making inquiries
about potential evidence that went beyond ascertaining whether the evidence could be returned,
Judge Morrow’s conduct reflected poorly on his role as a neutral arbitrator of the facts.
Accordingly, the chief judge did not abuse his discretion in finding that the nature and scope of
the contacts justified Judge Morrow’s disqualification.2

                                       II. DISCOVERY




2
  We also disagree with defendants’ arguments that the prosecutor’s motion to disqualify Judge
Morrow amounted to improper judge shopping. The motion was based on objective events
related to Judge Morrow’s contacts with the officer in charge. Moreover, after Judge Morrow
was disqualified, the case was reassigned by lot in accordance with MCR 8.111(C)(1). See
People v Montrose (After Remand), 201 Mich App 378, 380 n 1; 506 NW2d 565 (1993). There
has been no suggestion that the judge who heard the case was biased or prejudiced, and
defendants have not demonstrated any prejudice from the reassignment. See People v McCline,
442 Mich 127, 134; 499 NW2d 341 (1993); Armco Steel Corp v Dep’t of Treasury, 111 Mich
App 426, 439; 315 NW2d 158 (1981).


                                               -3-
        Next, both defendants argue that the trial court erred by refusing to allow full discovery
of the police file related to Kenneth’s murder investigation. The trial court refused to allow
discovery of the entire file because the investigation was ongoing. However, the court did
require the prosecutor to produce any exculpatory information and other information relevant to
defendants’ cases. In particular, the prosecutor produced a photograph of the Peete household
that was taken during Kenneth’s murder investigation, which depicted a bedsheet that appeared
to match a sheet that was found at the location where Logan’s body was recovered. The court
also ordered production of the identity of the officer who photographed the bed sheet and any
police reports or notes relating to that bedsheet. The court further ordered the prosecutor to
review the police file to determine the existence of any exculpatory information, including
information that would be useful for cross-examination. The prosecutor reviewed the file and
informed the court that it did not contain any such information. On appeal, defendants argue that
because of the connection between Kenneth’s murder investigation and the instant cases, they
were entitled to full discovery of the police file in Kenneth’s case.

        Discovery in criminal cases is left to the discretion of the trial court. People v Lemcool,
445 Mich 491, 497; 518 NW2d 437 (1994). See also MCR 6.201(J). A trial court abuses its
discretion when its decision falls outside the range of reasonable and principled outcomes.
People v Schaw, 288 Mich App 231, 236; 791 NW2d 743 (2010).

         MCR 6.201(B)(2) provides that “[u]pon request, the prosecuting attorney must provide
each defendant” with “any police report and interrogation records concerning the case, except so
much of a report as concerns a continuing investigation.” MCR 6.201(B)(1) also provides that
the prosecutor must provide to the defendant “any exculpatory information or evidence known to
the prosecuting attorney.” MCR 6.201(B)(2) supports the trial court’s decision to limit
production of the police file related to Kenneth’s murder investigation because that investigation
was a continuing, ongoing investigation. The court was careful to balance the rights of the
public and defendants by precluding production of the entire police file because of the possibility
that it could jeopardize an ongoing investigation, while at the same time requiring production of
information that was exculpatory to defendants or shown to be relevant to defendants’
prosecutions.

        We note that MCR 6.201(B)(1) incorporates the prosecutor’s duty to turn over potentially
exculpatory information. The trial court recognized defendants’ entitlement to any such
information and ordered the prosecutor to review the open murder file regarding Kenneth’s death
to determine if there was any potentially exculpatory information that might assist defendants,
including information useful for impeachment. The prosecutor advised the court that Kenneth’s
file contained a photograph of a bedsheet in the Peete household that matched the bedsheet found
with Logan’s body, which would be introduced at trial. Otherwise, there was nothing in that file
that was of relevance to this case or that would assist defendants. In particular, there were no
statements or references to the victim in that file. There was no reason for the trial court to
disbelieve the representations of the prosecutor as an officer of the court bound by a duty of
candor. See People v Garland, 286 Mich App 1, 8; 777 NW2d 732 (2009).

      Defendants argue that the trial court should have conducted an in-camera review of
Kenneth’s murder file to determine for itself if it contained any information that was relevant or
would be useful to defendants, but a trial court is not obligated to conduct an in-camera review

                                                -4-
hearing unless a defendant first demonstrates “a good-faith belief, grounded in articulable fact,
that there is a reasonable probability that records protected by privilege are likely to contain
material information necessary to the defense.” MCR 6.201(C)(2). In this case, the trial court
ordered production of information from Kenneth’s murder file that might possibly be relevant to
this case. That information included a photograph of the Peete household that depicted a
bedsheet that appeared to be a match for the bedsheet that was discovered with Logan’s body.
The photograph was provided to defendants. Defendants also requested an opportunity to
discover the name of the officer who took the photograph, and to review any police reports or
notes relating to the photograph or bedsheet. The trial court ordered the prosecutor to provide
that information to defendants. Defendants did not establish a reasonable probability that the file
for Kenneth’s open murder investigation contained any other information, not disclosed, that
might be material to their defense, and thus there was no reason for in-camera inspection.

        Defendants also argue that the trial court’s failure to order full discovery of the police file
for Kenneth’s murder investigation violated their Sixth Amendment right of confrontation.
Because defendants did not raise this argument in the trial court, it is unpreserved and review is
limited to plain error affecting defendants’ substantial rights. People v Carines, 460 Mich 750,
763-764; 597 NW2d 130 (1999). The Confrontation Clause, US Const, Am VI, guarantees a
defendant the reasonable opportunity to test the truth of a witness’s testimony. People v
Slovinski, 166 Mich App 158, 169-170; 420 NW2d 145 (1988). Defendants had the opportunity
to confront the witnesses against them at trial. Defendants do not explain how production of
Kenneth’s murder investigation file was necessary to protect their right of confrontation.
Defendants have not demonstrated that the trial court’s ruling violated their rights under the
Sixth Amendment.

                              III. LESSER INCLUDED OFFENSES

        Both defendants also argue that the trial court erred in denying their requests for jury
instructions on the offenses of simple assault and aggravated assault, as lesser offenses to torture.

        Preliminarily, we disagree with the prosecutor’s position that defendants abandoned this
claim of error by expressing satisfaction with the trial court’s jury instructions as given. A claim
of instructional error will be deemed abandoned when a defense attorney expresses satisfaction
with the trial court’s jury instructions. People v Kowalski, 489 Mich 488, 503; 803 NW2d 200
(2011). In this case, however, both defendants expressed satisfaction with the court’s
instructions, “subject to our earlier discussion.” The record discloses that both defendants
requested instructions on the lesser offenses of simple assault and aggravated assault. The trial
court agreed to rule on those requests the next day. The matter was not addressed on the record
the next day, but the record indicates that the parties and the court discussed the jury instructions
that day, presumably in chambers. In light of this record, and the fact that the attorneys’
approval of the jury instructions was expressly made “subject to our earlier discussion,” we
cannot conclude that the record clearly demonstrates an affirmative approval of the trial court’s
failure to instruct the jury on simple assault and aggravated assault. Therefore, we decline to
consider this issue waived.




                                                 -5-
        Nevertheless, we do not believe that reversal is required due to the failure to include
either lesser included instruction. In People v Mitchell, 301 Mich App 282, 286; 835 NW2d 615
(2013), this Court explained:

                “We review a claim of instructional error involving a question of law de
       novo, but we review the trial court’s determination that a jury instruction applies
       to the facts of the case for an abuse of discretion.” People v Dupree, 486 Mich
       693, 702; 788 NW2d 399 (2010). However, not all instructional error warrants
       reversal. Reversal is warranted only if “ ‘after an examination of the entire cause,
       it shall affirmatively appear’ that it is more probable than not that the error was
       outcome determinative.” People v Lukity, 460 Mich 484, 495-496; 596 NW2d
       607 (1999), quoting MCL 769.26. “[T]he effect of the error is evaluated by
       assessing it in the context of the untainted evidence to determine whether it is
       more probable than not that a different outcome would have resulted without the
       error.” Lukity, 460 Mich at 495. The verdict is undermined when the evidence
       clearly supports the requested lesser included instruction that was not given to the
       jury. People v Cornell, 466 Mich 335, 365; 646 NW2d 127 (2002).

        A defendant is entitled to a lesser offense instruction only if the lesser offense is
necessarily included in the greater offense; that is, the offense must be committed as part of the
greater offense insofar as it would be “impossible to commit the greater offense without first
committing the lesser offense.” Cornell, 466 Mich at 354, 361. Instruction on cognate lesser
offenses is not permitted. Id. at 353-355. A cognate lesser offense is one that shares some
common elements with, and is of the same class as, the greater offense, but also has elements not
found in the greater. People v Wilder, 485 Mich 35, 41; 780 NW2d 265 (2010). “[A] requested
instruction on a necessarily included lesser offense is proper if the charged greater offense
requires the jury to find a disputed factual element that is not part of the lesser included offense
and a rational view of the evidence would support it.” Cornell, 466 Mich at 357.

         Aggravated assault is not a necessarily included lesser offense of torture. To prove
torture, the prosecution must prove that (1) the defendant intended to cause cruel or extreme
physical or mental pain and suffering, (2) the defendant inflicted great bodily injury or severe
mental pain or suffering upon another person, and (3) the victim was within the defendant’s
custody or physical control. MCL 750.85. See also Schaw, 288 Mich App at 233-234.
Aggravated assault occurs when a person “assaults an individual without a weapon and inflicts
serious or aggravated injury upon that individual without intending to commit murder or to
inflict great bodily harm less than murder . . . .” MCL 750.81a(1). Because aggravated assault
requires a “serious or aggravated injury” and torture can be committed without actually inflicting
a bodily injury, aggravated assault is not a necessarily included lesser offense of torture.
Therefore, the trial court did not err by failing to instruct the jury on aggravated assault.

        A simple assault is “an attempt to commit a battery or an unlawful act that places another
in reasonable apprehension of receiving an immediate battery.” People v Meissner, 294 Mich
App 438, 453-454; 812 NW2d 37 (2011) (citation and quotation marks omitted). “A battery is
an intentional, unconsented and harmful or offensive touching of the person of another. . . .” Id.
at 454 (citation and quotation marks omitted). To the extent that assault constitutes a necessarily


                                                -6-
included lesser offense of torture, the trial court’s failure to instruct on that offense does not
require reversal.

        In Peete’s case, a rational view of the evidence did not support an instruction on simple
assault. The defense theory at trial was that Peete did not participate in the assaultive conduct
against Logan, either as a principal or an aider or abettor. She claimed that it was Kenjuan who
instigated the assaults and that she left the home when she saw what was happening because she
did not want to be a part of it. Conversely, the prosecution presented evidence that Peete was
involved from the beginning and participated in assaulting Logan, both in the bedroom upstairs
and after she was moved to the basement, and the prosecutor argued that Peete actively
supported the assaultive conduct inflicted by other participants. The contested issues at trial
required the jury to determine Peete’s involvement in the ongoing assaultive conduct directed
against Logan, as a direct principal and an aider or abettor. Considering the severity of the
assaultive conduct, a rational view of the evidence did not support a finding that Peete’s
involvement, if any, was limited to a simple assault. Therefore, the trial court did not err by
refusing to instruct Peete’s jury on simple assault.

        The facts of Gatewood’s case differ from those in Peete’s case because Gatewood
admitted her participation in the assault against Logan, but she placed the primary blame on
Kenjuan and the other men. Thus, her involvement was not contested, and the jury was required
to determine the level of her involvement. But to the extent that a rational view of the evidence
would have supported an instruction on simple assault for Gatewood, failure to give that
instruction was harmless error. Gatewood’s jury convicted her of second-degree murder and
torture and, in doing so, rejected the option of finding her guilty of the lesser offense of
AWIGBH. In light of the jury’s rejection of this intermediate lesser offense, any error in failing
to instruct on simple assault does not undermine the reliability of the verdict in Gatewood’s case,
rendering any error harmless. Cornell, 466 Mich at 365 n 19.

                    IV. SCORING OF THE SENTENCING GUIDELINES

       Peete argues that she is entitled to resentencing because the trial court erred in scoring
offense variables (OVs) 3, 7, and 14. We disagree.

       In People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013), our Supreme Court
explained:

              Under the sentencing guidelines, the circuit court’s factual determinations
       are reviewed for clear error and must be supported by a preponderance of the
       evidence. Whether the facts, as found, are adequate to satisfy the scoring
       conditions prescribed by statute, i.e., the application of the facts to the law, is a
       question of statutory interpretation, which an appellate court reviews de novo.
       [Footnotes omitted.]




                                                -7-
        Peete argues that the trial court erred in assessing 50 points for OV 7, which, at the time
the offense was committed, authorized a 50-point score when “[a] victim was treated with
sadism, torture, or excessive brutality, or conduct designed to substantially increase the fear and
anxiety a victim suffered during the offense.” MCL 777.37(1)(a).3 “For OV 7, only the
defendant's actual participation should be scored.” People v Hunt, 290 Mich App 317, 326; 810
NW2d 588 (2010). For instance, in Hunt, “while [the] defendant was present and armed during
the commission of the crimes . . . he did not himself commit, take part in, or encourage others to
commit acts constituting ‘sadism, torture, or excessive brutality’ under OV 7.” Id. at 325-326.
In this case, the trial court determined that 50 points should be assessed because the victim was
treated with both excessive brutality and conduct designed to substantially increase the fear and
anxiety she suffered during the offense. Peete argues that 50 points should not have been scored
because any excessive brutality was inflicted by others.

        The evidence showed that Logan was assaulted over a span of a couple of hours.
Kenjuan testified that when Logan was initially confronted about her suspected involvement in
Kenneth’s death, Peete was present and struck Logan while she was in the upstairs bedroom.
Although Peete left the house when Logan was taken to the basement, Peete later returned and
participated in the continued questioning of Logan. By that time, other men had arrived and
began to assault Logan in the face. According to Kenjuan, Peete was not only present during
these assaults, Peete questioned Logan and actually struck Logan three or four times. Peete’s
step-daughter testified that she heard Peete admit that she “beat” Logan.

        A preponderance of the evidence clearly showed that Logan was treated with excessive
brutality. Even if Peete did not personally inflict the most serious injuries, her continued
participation in the protracted assault of Logan demonstrate her encouragement and complicity in
the excessive brutality directed against Logan, and the evidence supported a finding that the
continued assaultive conduct was intended to substantially increase Logan’s fear and anxiety in
order to get her to provide information. Accordingly, the trial court did not clearly erred in
assessing 50 points for OV 7.

       Peete also challenges the trial court’s assessment of 100 points for OV 3. MCL 777.33
provides, in relevant part:

               (1) Offense variable 3 is physical injury to a victim. Score offense
       variable 3 by determining which of the following apply and by assigning the
       number of points attributable to the one that has the highest number of points:

               (a) A victim was killed                                          100 points

                                             * * *



3
  MCL 769.34(2) requires the trial court to apply the version of the guidelines “in effect on the
date the crime was committed.” MCL 777.37(1)(a) was amended by 2015 PA 137, effective
January 5, 2016, to add the words “similarly egregious” before the word “conduct.”


                                                -8-
               (2) All of the following apply to scoring offense variable 3:

                                               * * *

             (b) Score 100 points if death results from the commission of a crime and
       homicide is not the sentencing offense.

Peete argues that 100 points should not have been assessed for OV 3 because she was acquitted
of murder and convicted only of assault with intent to do great bodily harm. However, while
there may have been more immediate causes of Logan’s death, the fact remains that Logan
would not have been killed but for the interrogation and assault in which Peete participated. See
People v Laidler, 491 Mich 339, 344-346; 817 NW2d 517 (2012). Moreover, the medical
examiner testified that Logan’s bodily injuries from the assault contributed to her death. The
trial court properly assessed 100 points for OV 3.

        Peete next argues that the evidence did not support a finding that she was a leader in this
offense, and therefore, the trial court erred in assessing 10 points for OV 14. The instructions for
OV 14 provide that 10 points are to be scored where “[t]he offender was a leader in a multiple
offender situation.” MCL 777.44(1)(a). For purposes of this variable, the term “leader” is
interpreted according to its ordinary dictionary definition as follows:

       According to Random House Webster's College Dictionary (2001), a “leader” is
       defined in relevant part as “a person or thing that leads” or “a guiding or directing
       head, as of an army or political group.” To “lead” is defined in relevant part as, in
       general, guiding, preceding, showing the way, directing, or conducting. [People v
       Rhodes (On Remand), 305 Mich App 85, 90; 849 NW2d 417 (2014).]

Under MCL 777.44(2) the trial court is required to consider “[t]he entire criminal transaction . . .
when scoring this variable” and, “[i]f 3 or more offenders were involved, more than 1 offender
may be determined to have been a leader.”

        In this case, Peete argues that Kenjuan was the leader. Although Kenjuan may have
instigated the incident, because more than three offenders were involved, the trial court could
find that more than one offender was a leader. The evidence showed that Peete was instrumental
in pursuing the prolonged assault of Logan to learn whether she was involved in Kenneth’s
death. The assault was carried out at Peete’s home, and Peete approvingly permitted the
participation of her daughter, Gatewood, in the assault. In addition, Peete participated in the
discussions about what to do with Logan and, according to Kenjuan, Peete rejected a suggestion
that Logan be taken to the police so that she could confess her participation in Kenneth’s
homicide because Peete was concerned that they would be charged with assaulting Logan.
Logan was shot shortly afterward. This evidence supports that Peete had a prominent role in the
offense. Considering “[t]he entire criminal transaction,” as the trial court was required to do, the
trial court did not clearly err in finding that Peete was a leader in this multiple offender situation,
even if there were others who also could be considered a leader. Accordingly, OV 14 was
properly scored at 10 points.

                             V. PEETE’S DEPARTURE SENTENCE


                                                 -9-
        Peete also argues that the trial court abused its discretion by departing from the
sentencing guidelines range of 10 to 23 months and imposing a sentence of 80 months to 10
years’ imprisonment for Peete’s conviction of AWIGBH. “A sentence that departs from the
applicable guidelines range will be reviewed by an appellate court for reasonableness.” People v
Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015). This Court reviews the reasonableness of
a trial court’s departure sentence for an abuse of discretion, applying the principle-of-
proportionality test. People v Steanhouse, ___ Mich ___; ___ NW2d ___ (2017) (Docket Nos.
152671, 152849, 152871-152873, 152946-152948); slip op at 14-15. That test requires a court to
impose a sentence that is proportionate to the seriousness of the circumstances surrounding the
offense and the offender. Id. at ___; slip op at 3. Factors to be considered include, but are not
limited to:

       (1) the seriousness of the offense; (2) factors that were inadequately considered by
       the guidelines; and (3) factors not considered by the guidelines, such as the
       relationship between the victim and the aggressor, the defendant's misconduct
       while in custody, the defendant's expressions of remorse, and the defendant's
       potential for rehabilitation. [People v Walden, 319 Mich App 344, __; __ NW2d
       __ (2017); slip op at 5 (citation omitted).]

        In this case, the trial court found that the guidelines did not adequately reflect the
seriousness of this offense considering the brutal, vicious, and prolonged beating suffered by
Logan at the hands of Peete and her codefendants. Peete was one of the persons who initiated
the crime, she allowed it to be carried out inside her home by her guests, and she either
personally participated in or supported the events that occurred over the following hours. Peete
also allowed her children to participate in the beating. Logan was shot by one of the
codefendants after a discussion in which Peete participated, and after Peete rejected a suggestion
that they contact the police about Logan’s involvement in Kenneth’s homicide because she was
concerned about being charged with assaulting Logan. The trial court also characterized Peete’s
conduct as particularly callous given that Logan was someone Peete had taken into her home and
considered a sister, and yet Peete allowed Logan’s body to remain in the morgue unidentified
after it was discovered, and Peete attempted to cover up the crime when interviewed by the
police. In addition, while Peete was on bond for this case, she incurred an additional charge for
embezzlement, for which she was convicted. The trial court also found it noteworthy that
Peete’s total OV score of 185 points was more than double the 75 points necessary to place her
in the highest category of offense severity, thereby indicating that the guidelines range did not
adequately reflect the seriousness of the offense. Given the seriousness of the circumstances
surrounding the offense and the offender, including circumstances not adequately accounted for
by the guidelines, the trial court’s sentencing decision satisfied the principle of proportionality
and it was thus reasonable under Lockridge.

                  VI. VOLUNTARINESS OF GATEWOOD’S STATEMENT

       Finally, Gatewood argues that the trial court erred in denying her motion to suppress her
police statement on the ground that it was not voluntary. This Court reviews de novo the
question of voluntariness. People v Tierney, 266 Mich App 687, 707; 703 NW2d 204 (2005).
However, deference is given to the trial court’s factual findings, and those findings will not be


                                               -10-
disturbed unless they are clearly erroneous. People v Kowalski, 230 Mich App 464, 471-472;
584 NW2d 613 (1998).

        Whether a defendant’s statement was voluntary is determined by examining the conduct
of the police. Tierney, 266 Mich App at 707. “[T]he voluntariness prong cannot be resolved in
defendant’s favor absent evidence of police coercion or misconduct.” People v Howard, 226
Mich App 528, 543; 575 NW2d 16 (1997).

       In determining voluntariness, the court should consider all the circumstances,
       including: “[1] the age of the accused; [2] his lack of education or his intelligence
       level; [3] the extent of his previous experience with the police; [4] the repeated
       and prolonged nature of the questioning; [5] the length of the detention of the
       accused before he gave the statement in question; [6] the lack of any advice to the
       accused of his constitutional rights; [7] whether there was an unnecessary delay in
       bringing him before a magistrate before he gave the confession; [8] whether the
       accused was injured, intoxicated or drugged, or in ill health when he gave the
       statement; [9] whether the accused was deprived of food, sleep, or medical
       attention; [10] whether the accused was physically abused; and [11] whether the
       suspect was threatened with abuse.” People v Cipriano, 431 Mich 315, 334; 429
       NW2d 781 (1988). No single factor is determinative. . . . “The ultimate test of
       admissibility is whether the totality of the circumstances surrounding the making
       of the confession indicates that it was freely and voluntarily made.” [Tierney, 266
       Mich App at 708.]

        In this case, Gatewood was 18-years-old and pursuing a college degree. Before speaking
with the police, Gatewood was advised of her constitutional rights, she signed an advice of rights
form, and she expressed her understanding of those rights. There is no indication that Gatewood
was physically abused or threatened by the police. Further, Gatewood was not injured,
intoxicated or drugged, or in ill health when she gave her statement. The police inquired about
Gatewood’s physical condition before questioning her, Gatewood had water to drink during the
interview, and there is no evidence that she was denied food or medical attention.

        Although Gatewood emphasizes that she was held in the interview room for
approximately four hours, the recording reveals that the interview did not last four hours.
Indeed, Gatewood made incriminating statements after about two hours. While the interview
occurred late at night, she did not tell the police that she was tired or that she did not wish to
continue. Moreover, Gatewood appeared composed and articulate while talking to the police.
Overall, considering the totality of the circumstances, it does not appear that the length of the
interview, or its timing, rendered Gatewood’s statement involuntary.

        Gatewood has not shown that the totality of the circumstances surrounding her interview
establish that her statement was involuntary or coerced. Thus, the trial court did not err in
denying her motion to suppress her statement.




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Affirmed.



                   /s/ Douglas B. Shapiro
                   /s/ Joel P. Hoekstra
                   /s/ Michael J. Kelly




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