                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   May 26, 2016
               Plaintiff-Appellee,

v                                                                  No. 325641
                                                                   Wayne Circuit Court
JOSEPH HENRY MANCILL,                                              LC No. 12-006036-FC

               Defendant-Appellant.


Before: OWENS, P.J., and BORRELLO and STEPHENS, JJ.

PER CURIAM.

        Defendant appeals by right his bench trial conviction of second-degree murder, MCL
750.317. Defendant was acquitted of first-degree premeditated murder. MCL 750.316(1)(a).
The trial court sentenced defendant to 30 to 50 years’ imprisonment. For the reasons set forth in
this opinion, we affirm.

                                           I. FACTS

         Defendant’s conviction arises out of the stabbing death of Dawn Williams on the evening
of May 1, 2012 or early morning hours of May 2, 2012. Timmy Mancill, defendant’s brother,
testified that he went to defendant’s house on the evening of May 1, 2012, and defendant and
Williams were at the home. Timmy testified that Williams told him that defendant had “been
through fights out there because he was jealous of her and some other men or whatever she had
going on, some other friends.” Defendant and Williams bragged about “beating somebody else
down” earlier and Williams “wanted to go back out there and party” or fight, but defendant did
not want her to.

        Timmy testified that he was sitting at a table. His cell phone was on the table and he had
his wallet out to check how much money he had. Defendant began “snatching things from me”
and they started arguing. Defendant said, “I’m a have to use something more than just what I got
on me” and went into the kitchen. When he returned, he opened his robe, pulled two knives
from his underwear, and started swinging or jabbing them at Timmy, scratching the back of his
right shoulder. Timmy ran out of the house. While standing on the porch, Timmy saw defendant
hit Williams in the face, drawing blood. Defendant “slammed the door” in Timmy’s face and
Timmy went home.



                                               -1-
        Defendant called Timmy around 6:30 a.m. on May 2, 2012, and asked Timmy to come
over because someone had broken into his house and beat him up. Timmy went to defendant’s
house. When he arrived, the front entry door was standing open, but the outer steel security door
was closed. Defendant came to the door and was crying. He had blood on his face and hands,
and was using a wash cloth to wipe blood from his chest. Defendant let Timmy in. Timmy
asked defendant what happened. Defendant did not really answer, but said that if he were to call
the police or to turn himself in, “it would make him have two bodies found dead at that house”
and he would go back to prison. He wanted to clean up and hide or dispose of the body. Timmy
asked defendant about Williams, and defendant said, “Oh, she ran, she gone.”

       Timmy saw “a thick trail” of blood leading from the living room to the bedroom and
bathroom. While Timmy was following the blood trail, defendant went to the bathroom and then
told Timmy, “[C]ome on back here. This is where I found her laying.” Standing in the
bathroom doorway, Timmy saw a woman’s body lying on its back between the tub and the toilet.
It was partially wrapped in a sheet. Either the face was only partially covered or defendant
pulled the sheet back from the face and Timmy saw enough to identify the body as that of
Williams. According to Timmy, defendant told him that if the police questioned him about
Williams’s death, “he would say she stabbed herself.” After seeing the body, Timmy ran out of
the house. Once he was a few blocks away, he called 911 to report “a body at Cliff Street.”
Then he went home.

       Louis Mueller, a Detroit police officer, testified that he and his partner were dispatched to
defendant’s house for “a possible homicide” concerning a “lady in the bathroom lying down with
blood.” Defendant came to the door wearing nothing but boxer shorts. He had a rag in one hand
and a spray bottle in the other. Upon entering, Mueller found a body in the bathroom. It was
covered by a sheet from the neck to the ankles and there was a pool of blood around the head.
Defendant identified the victim as his friend “Dawn.”

        Mueller testified that he found a blood trail between the bathroom and the adjoining
bedroom. Looking inside the bedroom, Mueller saw blood on the floor and a bed with no sheets
on it. He did not see any blood in the living room or dining room. In the kitchen, Mueller found
a broken steak knife on the counter. Most of the blade was missing and there was blood on the
wooden handle. A bloody paper towel was also on the counter. In the basement, Mueller found
some bloody sheets and some socks next to the washing machine and some pillows covered with
detergent in the washing machine.

         Officer Marcellus Inman arrived at the scene and testified regarding a statement
defendant made to him at the scene. Because defendant was in custody and had not been advised
of his rights, the testimony was stricken from the record.

       Office Javier Chapa responded to the scene and testified to seeing Williams’s body in the
bathroom with a lot of blood by the head. Williams had blood on her face and what appeared to
be defensive cut marks on her fingers and hands. There was a trail of blood between the
bathroom and the bed in the adjoining bedroom. The bed did not have any sheets on it and there
were two pools of blood on either side of the mattress. In the kitchen, Chapa saw a bloody filet
knife with a broken blade wrapped in a bloody paper towel. Chapa further testified that he saw
“cleaning products throughout the house” and smelled the odor of an orange-scented cleanser.

                                                -2-
There was some kind of product by the front door and other products and sponges in the
bathroom, along with a pail of water. Chapa saw spots within the house “where the blood had
been smeared in an attempt to clean it.” Chapa also testified to seeing “bloody socks and
blankets or something” by the washing machine and “some pillows or some blankets” inside the
washing machine. There were also drops of blood in the basement that had dripped from the
bathroom through a vent or something.

        Carl Schmidt, a forensic pathologist, performed an autopsy on Williams’ body on May 3,
2012. An external examination showed multiple cuts. Williams had stab wounds to the right
and left chest, which punctured both lungs, causing them to collapse. She had defensive cuts to
the front of the left thumb and back of the left index finger. She had multiple bruises on the
chest and arms. Schmidt concluded that Williams died from “multiple incised stab wounds” and
classified the death as a homicide. A toxicology screen showed that Williams had a blood
alcohol level of 0.248.

       Schmidt testified that it was unlikely that the chest wounds were self-inflicted. He
explained that self-inflicted wounds usually appear at a single site and have a particular pattern
not seen here. In addition, the other cuts and bruises were indicative of a struggle in which
Williams tried to defend herself.

        Monica Barylski, a forensic scientist, tested certain evidence in the case. In October
2012, she did serology testing, examining items for biological material. Numerous items were
positive for the possible presence of blood. These included a broken knife blade, a knife handle
with a broken blade, a paper towel wrapped around the knife handle and blade, a knife sheath, a
pair of jeans, a piece of fabric from a mattress, and a wash cloth. Barylski also swabbed the
inside waistband of the jeans and the knife sheath for skin cells. The serology samples were
forwarded to Amy Altesleben for DNA testing.

        Altesleben, a forensic biologist, testified that she performed DNA testing. The skin
sample collected from the knife sheath contained material from two donors. The DNA matched
Williams’ profile at 12 of the 16 locations and it matched defendant’s DNA profile at 15 of the
16 locations. The swab from the waistband of the jeans contained material from three donors.
Williams was the major donor and the sample matched her profile at 14 of 16 locations.
Defendant was a minor donor and the sample matched his profile at all 16 locations. Neither
could be excluded as a donor. The blood sample from the wash cloth contained material from
two donors. Williams was the major donor and the sample matched her profile at all 16
locations. Defendant was excluded as the minor donor.

        In February 2013, Barylski did a comparison of Timmy’s DNA to Altesleben’s DNA
profiles obtained from the serology samples. Timmy was excluded as a donor to the DNA
obtained from all of the samples.

        Defendant was arrested on May 2, 2012 and was interrogated at the police department. A
waiver form was admitted into evidence showing that defendant was advised of and waived his
Miranda rights at 10:47 a.m. The form was admitted into evidence. Police then proceeded to
interrogate defendant and the interrogation was recorded and played for the court at trial. In the
middle of the recording, defendant objected to the admission of a written statement he made

                                               -3-
during the interrogation and part of the recording itself. The video showed that defendant was
questioned by Officer Brannock after being advised of and waiving his rights. That interview
began around 11:00 a.m. Then, at about 1:00 p.m., Officer Adrian Lawrence entered and
questioned defendant and took a written statement. Lawrence asked defendant, “you’ve been
advised of your rights, are you clear on all that?” Defendant responded, “yes” and proceeded to
answer the questions.

        Defendant proceeded to draft a written statement. In the statement, defendant denied that
he argued with Williams, but stated that Williams was “suicidal, because she was afraid of me
putting her out.” Defendant denied seeing what happened to Williams, but stated that he “saw
her in the bathroom on the floor.” When asked how he got marks on his face, defendant stated
that he received the cuts when he and Williams were “attacked.” Defendant also stated that his
clothes were bloody because he moved Williams’ clothes and sheets after she “cut herself.”
Defendant stated that he did not call police because another individual had died in the same
house on a previous occasion. The prosecution entered the written statement into evidence.

        After defendant moved to suppress part of the recording and his written statement, the
trial court held a Walker1 hearing. At the hearing, Lawrence testified that he was not present
when Brannock questioned defendant. However, Brannock told him that he advised defendant
of his rights, so Lawrence did not go through them a second time. Instead, he asked defendant if
he had been advised of his rights and defendant said “yes.” Defendant also said “yes” when
asked if he was clear on or understood his rights. Lawrence did not ask defendant if he had any
questions about his rights. Lawrence testified that defendant did not ask for an attorney, decline
to make a statement, or ask to stop the interview.

        Lawrence testified that defendant gave his date of birth as August 10, 1953, making him
58 years old at the time of the interview. Defendant “was kind of slumped over” in his seat and
coughed “briefly.” Lawrence was not aware that defendant had “asked about medications” when
talking to Brannock. Defendant did ask Lawrence about them “at the end.”

       Lawrence asked defendant about “some bloody clothes at the scene[.]” Lawrence
admitted that he had seen bloody sheets and socks in the basement, but did not remember seeing
any other clothing. Lawrence denied using the term “bloody clothes” to “coerce Mr. Mancill
into admitting something.” He used the term because he had been advised by another officer that
defendant “was wearing clothes that had blood on them” at the scene.

       Apparently in reference to defendant’s written statement, Lawrence testified that
defendant appeared to read it, although he said “he had trouble reading without his glasses[.]”
Lawrence also read the questions and answers back to defendant and defendant initialed them.

       Following additional argument, the court denied the motion to suppress; the court
explained:




1
    People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).


                                               -4-
              This Court finds that . . . there’s really no grounds to suppress the
       statement or the portion of the video which reflects the interview that was
       conducted by Officer Lawrence.

              This Court finds that . . . this second conversation that began with Officer
       Lawrence took place on maybe two hours, two hours or so after [defendant] had
       been given his Miranda rights. It’s clear from the video that this Court has
       viewed that he had acknowledged after a question being raised by Officer
       Lawrence that he had . . . been advised previously of his rights. It’s true that he . .
       . was not asked whether he had any questions about the rights that he had been
       previously been given, but that, to this Court, does not at all mean that the
       statements that he made during the interview with Officer Lawrence should be
       rendered inadmissible just because of that one particular factor.

                [] [T]he Court is required to look at the totality of the circumstances. And
       [defendant] was a very active participant during the interview with Officer
       Lawrence, which is the interview that was . . . at question. He read statements, he
       had questions about the statements, he refuted or asserted his innocence as . . . it
       relates to his involvement in the death of the victim, Ms. Dawn [sic] here in this
       matter. And . . . this Court finds that there was nothing that was placed or nothing
       that was viewed in this interview that would indicate that the statement should be
       . . . suppressed.

               [] I didn’t hear any significant differences in the statement that he made to
       Officer Lawrence as compared to those that he made to Officer Brannock. And I
       think that’s a significant piece of information to be reviewed as well.

                This Court has viewed a reasonable number of confessions that have been
       made in the past, not dealing certainly with Mr. Mancill, but just other
       confessions. And I compare them in those instances where one, we’re dealing
       with perhaps, coercion, and this Court has found previously that there’s been
       coercion in other cases. I’m not afraid to do it. I think I recognize it when I see
       it, and I did not see it here in this situation.

               Also, the situation of asking for assistance medically. I didn’t sense from
       those statements that were made, Mr. Mancill takes care of himself, took care of
       himself, in this Court’s view, through that interview, and noted that he needed
       medication, that he was on medication, but I didn’t sense that there was any type
       of a medical emergency that he himself felt that he was in some type of distress
       and that he needed something immediately.

        Trial proceeded and defendant testified that Williams stayed at his house from time to
time and had come to stay with him again on May 1, 2012. Defendant testified that he did not
kill Williams. He believed that her boyfriend named Roger or Timmy killed her. Defendant told
the police that Williams had killed herself, explaining that she had been threatening to hurt
herself with a knife because she thought defendant was going to kick her out, something she had
done in the past. Defendant said he was “trying to solve the case by speculating.” Defendant did

                                                -5-
not implicate Timmy because “I knew that they was going to lock me up and I didn’t want two
brothers locked up at one time.” Defendant went on to say that much of what he told the police
was true in that the events related had happened, but at the same time was not true in that the
events related “didn’t happen that night.” Defendant implied that he inadvertently misled the
police because he was “under a demented mind just to get it over with so I can get my
medications and get some sleep.”

         Defendant also introduced the testimony of his cousin Larry. Larry testified that
defendant arrived at his home at about 2:00 a.m. on May 2, 2012, spent the night there, and then
left at 8:00 a.m. that morning.

       Defendant was convicted and sentenced as set forth above. This appeal ensued.

                                        II. SPEEDY TRIAL

        Defendant first argues that the trial court erred in denying his motion to dismiss due to a
violation of his right to a speedy trial.

       Whether a defendant was denied his constitutional right to a speedy trial is a mixed
question of law and fact. People v Waclawski, 286 Mich App 634, 664; 780 NW2d 321 (2009).
We review factual findings for clear error and constitutional questions de novo. People v
Gilmore, 222 Mich App 442, 459; 564 NW2d 158 (1997).

        “Both the United States Constitution and the Michigan Constitution guarantee a criminal
defendant the right to a speedy trial.” People v Williams, 475 Mich 245, 261-262; 716 NW2d
208 (2006). This Court applies the framework set forth in Barker v Wingo, 407 US 514; 92 S Ct
2182; 33 L Ed 2d 101 (1972), to determine whether a defendant has been denied his or her right
to a speedy trial. Williams, 475 Mich at 261-262. This inquiry involves balancing the following
four factors: “(1) the length of delay, (2) the reason for delay, (3) the defendant’s assertion of the
right, and (4) the prejudice to the defendant.” Id. “Following a delay of eighteen months or
more, prejudice is presumed, and the burden shifts to the prosecution to show that there was no
injury.” Id. at 262. “[A] presumptively prejudicial delay triggers an inquiry into the other
factors to be considered in the balancing of the competing interests to determine whether a
defendant has been deprived of the right to a speedy trial.” Id. In contrast, where the delay is
less than 18 months, “the burden is on the defendant to show actual prejudice.” People v
Holtzer, 255 Mich App 478, 492; 660 NW2d 405 (2003).

       In this case, defendant was arrested on May 2, 2012. The trial commenced on June 7,
2013; thus, the delay in this case was approximately 13 months. See Waclawski, 286 Mich App
at 665 (the time for determining whether a defendant was denied the right to a speedy trial runs
from the date of defendant’s arrest until the date the trial begins). Because the length of the
delay was less than 18 months, prejudice is not presumed and defendant had the burden of
showing actual prejudice. Holtzer, 255 Mich App at 492. A review of the record indicates that
defendant has failed to show prejudice.

        Here, a large portion of the delay was necessary to complete DNA testing on multiple
pieces of evidence. While the first DNA testing was completed in December 2012, both parties
indicated that additional testing was required and the additional testing was not completed until
                                                 -6-
February 2013. Defendant argues that the prosecution failed to timely submit the evidence for
DNA testing. However, while the prosecutor was uncertain when the evidence was submitted
for testing nothing in the record supports that the prosecutor acted in bad faith in submitting the
evidence and defendant did not raise the speedy trial issue until January 28, 2013.

        Moreover, defendant cannot show he was actually prejudiced by the delay. The right to a
speedy trial protects “three interests of the defendant: (1) prevention of oppressive pretrial
incarceration; (2) minimization of anxiety and concern of the accused; (3) limitation of the
possibility that the defense will be impaired.” People v White, 54 Mich App 342, 351; 220
NW2d 789 (1974). “In considering the prejudice to the defendant, the most serious inquiry is
whether the delay has impaired the defendant’s defense.” People v Simpson, 207 Mich App 560,
564; 526 NW2d 33 (1994).

        Here, defendant was incarcerated for nearly a year, which caused him anxiety. However,
“the prejudice prong . . . may properly weigh against a defendant incarcerated for an even longer
period if his defense is not prejudiced.” Williams, 475 Mich at 264. Defendant contends that his
defense was prejudiced by “the loss of his witness’s memory.” However, the only defense
witness apart from defendant himself was his cousin Larry, who never claimed a lack of memory
concerning defendant’s whereabouts between 2:00 and 8:00 a.m. on the morning of the murder.
Thus, the delay did not cause the defense to lose any evidence and the pretrial incarceration did
not hinder defendant’s ability to prepare a defense. While defendant claims that the pretrial
incarceration caused him “anxiety and concern,” the anxiety did not diminish his defense and
“anxiety, alone, is insufficient to establish a violation of [a] defendant’s right to a speedy trial.”
Gilmore, 222 Mich App at 462.

        In sum, the delay in this case was approximately 13 months, the delay was due primarily
to both parties’ need for the DNA test results, and defendant has not shown that his defense was
prejudiced by the delay. Accordingly, the trial court did not err in concluding that defendant was
not denied the right to a speedy trial. Waclawski, 286 Mich App at 664.

                                 III. STATEMENTS TO POLICE

        Defendant argues that his Fifth and Fourteenth Amendment rights were violated when the
prosecution introduced (1) the pre-Miranda statement he made to Officer Inman at the crime
scene, (2) the post-Miranda statement that defendant made wherein he repeated what he said to
Officer Inman, and (3) the written statement he gave to Officer Lawrence.

        We review de novo a trial court's ruling on a motion to suppress evidence. People v
Henry (After Remand), 305 Mich App 127, 137; 854 NW2d 114 (2014). A trial court’s factual
findings, if any, are reviewed for clear error, while underlying constitutional issues are reviewed
de novo. Id. To the extent we find that a constitutional error occurred, “[w]e review preserved
issues of constitutional error to determine whether they are harmless beyond a reasonable doubt.”
People v Dendel (On Second Remand), 289 Mich App 445, 475; 797 NW2d 645 (2010). “A
constitutional error is harmless if [it is] clear beyond a reasonable doubt that a rational jury
would have found the defendant guilty absent the error.” Id . (quotation marks and citations
omitted).


                                                 -7-
        “In Miranda, the Supreme Court of the United States determined that the coercive nature
of custodial interrogations implicated a defendant’s Fifth Amendment right to be free from
compelled self-incrimination.” People v Vaughn, 291 Mich App 183, 188–189; 804 NW2d 764
(2010) aff’d in part, vacated in part on other grounds, 491 Mich 642 (2012), citing Miranda v
Arizona, 384 US 436, 458; 86 S Ct 1602; 16 L Ed 2d 694 (1966). To safeguard against coercion,
the Miranda court held that “the prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the
use of procedural safeguards effective to secure the privilege against self-incrimination.”
Miranda, 384 US at 444. “Accordingly, before conducting a custodial interrogation, the
interrogating officer must advise the suspect of [his or her constitutional] rights.” Vaughn, 291
Mich App at 189. “[U]nless and until such warnings and waiver are demonstrated by the
prosecution at trial, no evidence obtained as a result of interrogation can be used against him.”
Miranda, 384 U.S. at 479.

                           A. STATEMENT TO OFFICER INMAN

        Inman testified that he responded to the scene and was standing next to defendant while
other officers searched the house. He asked defendant “what happened” and defendant said “she
stabbed herself.” That evidence was stricken from the record on Fifth Amendment grounds.
Defendant contends that the trial court, as the trier of fact, heard the evidence and therefore he
was prejudiced. However, this was a bench trial. The trial court was aware that the evidence
was inadmissible and the court did not consider the evidence in making its factual findings. In
the absence of proof to the contrary, the court is presumed to follow the law, People v Farmer,
30 Mich App 707, 711; 186 NW2d 779 (1971), and to have predicated its verdict only “upon
evidence properly offered and not upon . . . inadmissible testimony.” People v Payne, 37 Mich
App 442, 445; 194 NW2d 906 (1971). As is apparent from the findings that the court articulated
on the record, the court considered the statements defendant made during the recorded interview
and his trial testimony, but not the statement to Inman. Thus, defendant has not shown prejudice
and is not entitled to relief on this issue.

      B. RECORDED STATEMENTS TO OFFICERS BRANNOCK AND LAWRENCE

       Defendant argues that the improper statement to Officer Inman tainted the statements he
made to Officers Brannock and Lawrence two hours later after he waived his Miranda rights.

        In Oregon v Elstad, 470 US 298, 314; 105 S Ct 1285; 84 L Ed 2d 222 (1985), the Court
held that where police do not use “deliberately coercive or improper tactics” while questioning a
defendant, but fail to advise him of his Miranda rights, the “subsequent administration of
Miranda warnings . . . ordinarily should suffice to remove the conditions that precluded
admission of the earlier statement.” In other words, “if the prewarning statement was voluntary,
then the postwarning confession is admissible unless it was involuntarily made despite the
Miranda warning.” United States v Carter, 489 F3d 528, 534 (CA 2, 2007). If, however, the
police deliberately refrain from advising a defendant of his rights in order to obtain a confession
and, having once obtained the confession, then advise the defendant of his rights and obtain the
same confession, the Miranda warning is ineffective and the postwarning statement is
inadmissible. Missouri v Seibert, 542 US 600, 616-618, 620-621; 124 S Ct 2601; 159 L Ed 2d
643 (2004). The Seibert Court explained:

                                                -8-
       relevant facts that bear on whether Miranda warnings delivered midstream could
       be effective enough to accomplish their object: the completeness and detail of the
       questions and answers in the first round of interrogation, the overlapping content
       of the two statements, the timing and setting of the first and the second, the
       continuity of police personnel, and the degree to which the interrogator’s
       questions treated the second round as continuous with the first. [Id. at 615.]

        In this case, Inman asked a single isolated question at the scene. Although Inman did not
advise defendant of his rights, it does not appear that Inman intentionally failed to apprise
defendant of his rights in order to obtain a confession. In addition, defendant has not cited any
other relevant factors that would mandate a finding that the statement was involuntary under the
totality of the circumstances. See People v Cipriano, 431 Mich 315, 333-334; 429 NW2d 781
(1988) (discussed in more detail below).

        Shortly after Inman questioned defendant, defendant was brought to the police
department and questioned by Brannock and Lawrence. Defendant claims that he was brought to
the police department about two hours after Inman questioned him. The record shows that the
police were called to the scene at 8:14 a.m., that Brannock advised defendant of his rights at
10:47 a.m., and that Lawrence spoke to defendant 2-1/2 hours after that, at 1:10 p.m. There was
obviously no continuity of police personnel and no indication that either Brannock or Lawrence
was aware of defendant’s statement to Inman. It is clear from the record that defendant again
said nothing incriminating. He said he was at home with Williams, who was upset and
threatening to harm herself with a knife, and that she apparently stabbed herself. There is no
record evidence from which we can glean that Inman’s questioning of defendant was done with
the intent to circumvent Miranda. Also, the statement made to Inman did not implicate
defendant, rather he stated that the victim had committed suicide. Thus, “there is no concern
here that police gave [defendant] Miranda warnings and then led him to repeat an earlier murder
confession, because there was no earlier confession to repeat.” Bobby v Dixon, __ US __: 132 S
Ct 26, 31; 181 L Ed 2d 328 (2011).

                                 C. WRITTEN STATEMENT

         Defendant argues that his written statement was inadmissible because Lawrence did not
first re-advise him of his rights. While Lawrence did not advise defendant of his rights, the
record shows that defendant was advised of and waived his rights approximately 2-1/2 hours
earlier when questioned by Brannock. “[T]he Miranda rights are not a liturgy which must be
read each time a defendant is questioned.” People v Godboldo, 158 Mich App 603, 605; 405
NW2d 114 (1986). “[T]he failure to reread a defendant’s Miranda rights prior to each
interrogation does not render the subsequent statements inadmissible as evidence against him.
Rather, a factual question is raised as to whether the statements were voluntary.” Id. at 607. We
find this aspect of defendant’s claim without merit.

                                    D. VOLUNTARINESS

       Defendant lastly argues that his statements to Lawrence were involuntary. A statement is
voluntary if the totality of all the surrounding circumstances show that it is the product of an


                                               -9-
essentially free and unconstrained choice and not the result of an overborne will. Cipriano, 431
Mich at 333-334. Our Supreme Court has explained:

               In determining whether a statement is voluntary, the trial court should
       consider, among other things, the following factors: the 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. [Id. at 334.]

“The absence or presence of any one of these factors is not necessarily conclusive on the issue of
voluntariness,” Cipriano, 431 Mich at 334, and no single factor is determinative. People v
Tierney, 266 Mich App 687, 708; 703 NW2d 204 (2005). The ultimate test of admissibility is
whether the totality of the circumstances indicates that the statement was freely and voluntarily
made. Cipriano, 431 Mich at 334.

        The primary focus of defendant’s motion in the trial court was Lawrence’s failure to
reread his rights. Defendant was 58 years old. He was able to read. Defendant had extensive
prior experience with the police. Defendant was interviewed twice on the same day and the two
interviews together lasted about three hours. It appears that the second interview with Lawrence
began a short time after the first interview with Brannock ended. Defendant was advised of his
rights at the beginning of the first interview and acknowledged at the beginning of the second
interview that he had been advised of his rights and understood them. The trial court found that
the second interview occurred “two hours or so” after defendant was advised of his right and that
a two-hour gap did not render the second statement involuntary. See Godboldo, 158 Mich App
at 605-606.

         While defendant relies on his trial testimony regarding his illnesses and the medications
used to treat them, review is limited to the information made known to the trial court at the time
it ruled on the motion to suppress. People v Farrow, 461 Mich 202, 209; 600 NW2d 634 (1999).
Lawrence testified that defendant was slumped over in his seat, but did not attribute defendant’s
posture to fatigue, illness, or injury. Lawrence testified that defendant coughed briefly and,
toward the end of the interview, said something about the fact that he took medication. The trial
court found that the statement was not made in the context of a medical emergency such that
defendant “needed something immediately.” There is nothing in the record to indicate that
defendant was seriously ill, abused or threatened with abuse. The trial court found that
defendant’s statement was not coerced. The only suggestion of “coercion” was Lawrence’s
reference to “bloody clothes,” which was accurate in that bloody socks were found in the
basement. In any event, that reference did not induce defendant to made an incriminating
statement; the trial court found that there were no “significant differences in the statement that he
made to Officer Lawrence as compared to those that he made to Officer Brannock.” Considering
the totality of the circumstances, the trial court did not err in finding that defendant’s statement

                                                -10-
was voluntary. Cipriano, 431 Mich at 333-334. Accordingly, we assign no error and defendant
is not entitled to relief.

      Affirmed.



                                                       /s/ Donald S. Owens
                                                       /s/ Stephen L. Borrello
                                                       /s/ Cynthia Diane Stephens




                                           -11-
