            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     September 19, 2019
               Plaintiff-Appellee,

v                                                                    No. 344436
                                                                     Kalamazoo Circuit Court
CHARLES EDWARD PICKETT, JR.,                                         LC No. 2016-000774-FC

               Defendant-Appellant.


Before: SWARTZLE, P.J., and GLEICHER and M. J. KELLY, JJ.

PER CURIAM.

        Defendant, Charles Pickett, Jr., appeals as of right his jury convictions for five counts of
second-degree murder, MCL 750.317; five counts of operating a motor vehicle while intoxicated
causing death (OWI-death), MCL 257.625(4)(a); and four counts of operating a motor vehicle
while intoxicated causing serious impairment (OWI-serious impairment), MCL 257.625(5). The
trial court sentenced Pickett to 35 to 55 years’ imprisonment for each second-degree murder
conviction, with the sentences running concurrently; 8 to 15 years’ imprisonment for each OWI-
death conviction, with each sentence running concurrently with the second-degree murder
offenses but consecutive to one another; and 3 to 5 years’ imprisonment for each OWI-serious
impairment conviction, with each sentence running concurrently to all of the other convictions.
Because there are no errors warranting reversal, we affirm.

                                        I. BASIC FACTS

        On June 7, 2016, at around 6:00 p.m., the bicycling organization Chain Gang met for
their scheduled evening ride. Jennifer Johnson, the ride leader for the evening, led a group of
nine bicyclists along a route that they had cycled several times before. Paul Runnels, another of
the cyclists, heard members of the group announce “car back,” a phrase used to alert the
members of the group that a vehicle was approaching from behind. The vehicle approaching was
a pickup truck being erratically driven by Pickett. Moving at approximately 58 miles per hour in
the 35 mile per hour zone, and without braking, Pickett crashed into the group of cyclists, killing
Tony Nelson, Suzanne Sipple, Deb Bradley, Larry Paulik, and Melissa Fevig-Hughes, and
severely injuring Johnson, Runnels, Paul Goble, and Sheila Jeske.



                                                -1-
        Pickett was arrested at the scene and, because he was “out of it” and appeared to be under
the influence of something, he was taken to the hospital. He tested positive for amphetamine,
methamphetamine, hydrocodone, and tramadol, and a witness testified before the crash she saw
Pickett swallow a “pool of pills.” He then stated that he would just as soon be dead before
driving away by “burnin’ his tires.” A laboratory doctor for the Michigan State Police
Toxicology Laboratory testified that Pickett’s level of methamphetamine was above therapeutic
levels and, in any case, it was extremely rare to have a prescription for methamphetamine. She
explained how methamphetamine use, as a stimulant, could result in increased heart rate, blood
pressure, agitation, excitement, impulsivity, and recklessness. Ultimately, she opined that the
combined use of tramadol, cyclobenzaprine, and methamphetamine would likely result in
“difficulty processing what’s going [on] around you.”

        Other witnesses testified that before the crash, they observed or were endangered by
Pickett’s driving. One witness recounted hearing someone scream “watch out,” so he jumped
back and was able to avoid being hit by Pickett. This witness saw Picket crash into the cyclists.
Another witness stated that Pickett tailgated him, swerving back and forth, and then passed him
on the shoulder of the road; he added that Pickett’s truck was close enough that he could have
reached out the window and touched it. A third witness testified that he saw Pickett’s truck
remain at a green light for possibly half a minute before it sped up abruptly and almost drifted off
the road because two of its tires went over a curb. A fourth witness observed Pickett driving
erratically, crossing over both lanes, hitting the curb, and disrupting traffic. When that witness
tried to get Pickett’s license plate number, Pickett sped through the parking lot of a daycare to
avoid him. A fifth witness testified that Pickett nearly rear-ended him, and he recounted that he
could see leaves and sticks in the truck’s grill. A sixth witness recalled that Pickett had driven
onto his front yard, knocking over a bicycle chained to a tree and leaving tire marks on his
driveway and yard. Finally, another witness testified that she saw Pickett drive across a sidewalk
and crash into a sign before coming to a rest next to the driveway of Kalamazoo Central High
School. She related that the vehicle stayed there for about 5 minutes, and she stated that Pickett
“looked very disoriented” “was very fluidly moving, bobbing up and down,” and “just seemed
very disoriented and very confused.” Although multiple witnesses called 9-1-1, Pickett sped into
the group of unsuspecting bicyclists, killing five and seriously injuring four others before he
could be apprehended.

                      II. SUPPRESSION OF PICKETT’S CONFESSION

                                 A. STANDARD OF REVIEW

       Pickett argues that the trial court erred by admitting into evidence a confession that was
obtained in violation of his constitutional rights. A trial court’s decision to not suppress a
defendant’s confession is reviewed de novo. People v Barbarich (On Remand), 291 Mich App
468, 471; 807 NW2d 56 (2011).

       However, we review its factual findings for clear error. A finding is clearly
       erroneous when, although there is evidence to support it, the reviewing court is
       left with a definite and firm conviction that a mistake has been made. We
       overstep our review function if we substitute our own judgment for that of the


                                                -2-
      trial court and make independent findings. [Id. (quotation marks and citations
      omitted).]

                                       B. ANALYSIS

       In People v Kowalski, 230 Mich App 464, 472; 584 NW2d 613 (1998), this Court
explained:

      In Miranda [v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966)], the
      Supreme Court established a set of prophylactic rules to safeguard a suspect’s
      Fifth Amendment privilege against compulsory self-incrimination. The Court
      held that a suspect in police custody must be informed specifically of the
      suspect’s right to remain silent and to have an attorney present before being
      questioned. Id. at 479. The Court further held that “[i]f the individual states that
      he wants an attorney, the interrogation must cease until an attorney is present.”
      Id. at 474. Furthermore, “[i]f the interrogation continues without the presence of
      an attorney and a statement is taken, a heavy burden rests on the government to
      demonstrate that the defendant knowingly and intelligently waived his privilege
      against self-incrimination and his right to retained or appointed counsel.” Id. at
      475.

The Kowalski Court continued:

      In [Edwards v Arizona, 451 US 477, 479; 101 S Ct 1880; 68 L Ed 2d 378 (1981)],
      following some initial police questioning, the defendant invoked his right to
      counsel, and the interrogation ceased. The next morning, police officers went to
      the county jail and asked to see the defendant. The defendant refused to speak to
      them, but was told that “he had” to talk. Id. The officers informed defendant of
      his Miranda rights, following which he gave a statement implicating himself.
      Realizing that additional safeguards were necessary to protect an accused’s
      request for counsel, the Supreme Court in Edwards established a second layer of
      prophylaxis for the Miranda right to counsel:

             [W]e now hold that when an accused has invoked his right to have
             counsel present during custodial interrogation, a valid waiver of
             that right cannot be established by showing only that he responded
             to further police-initiated custodial interrogation even if he has
             been advised of his rights. We further hold that an accused, such
             as Edwards, having expressed his desire to deal with the police
             only through counsel, is not subject to further interrogation by the
             authorities until counsel has been made available to him, unless the
             accused himself initiates further communication, exchanges, or
             conversations with the police. [Id. at 477-478, quoting Edwards,
             451 US at 484-485.]




                                              -3-
Our Supreme Court subsequently described the constitutional ruling as a “bright-line rule” that
“the defendant must initiate communication concerning the investigation in order to avoid
running afoul of the rule articulated in Edwards.” People v McRae, 469 Mich 704, 715-716; 678
NW2d 425 (2004). Therefore, once a suspect invokes a constitutional right safeguarded by
Miranda, it is wholly improper for law enforcement to engage in any “express questioning or its
functional equivalent . . . that the police should know [is] reasonably likely to elicit an
incriminating response from the suspect.” Rhode Island v Innis, 446 US 291, 300-301; 100 S Ct
1682; 64 L Ed 2d 297 (1980).

        Here, the record reflects that Pickett was questioned by two police detectives on June 8,
2016. Detective Mattison testified at the suppression hearing that he advised Pickett of his
constitutional rights and that when he informed Pickett that he had a right to have a lawyer
present, Pickett stated, “I would like that.” Mattison testified that he finished advising Pickett of
his rights and asked if Pickett was willing to talk. He recounted that Pickett said he “would like
to have an attorney present.” In response, Mattison told Pickett that “we don’t provide [a
lawyer],” “handed him a business card,” and “told him that if he retains an attorney or if he is
assigned an attorney to have his attorney give [the detective] a call and perhaps in the future
[they] could sit down and talk.” Mattison stated that, at that point, the other detective present,
Detective McGehee, asked Pickett “if he was aware why he was being detained.” Pickett
answered “that he was aware that he was in an accident and that somebody was killed or that he
had killed somebody.” McGehee then said, “you killed five people . . . .” Mattison recalled that
Pickett’s “mouth kind of fell open” and that he appeared to be in shock and surprised before he
asked, “What did I do, hit a family or something?” Mattison told Pickett that they “couldn’t
discuss that with him because he had asked for an attorney.” At this point, Pickett “made some
comments about, well it has already happened, it can’t be changed, I might as well talk to you.”
Thereafter, Pickett made several incriminating statements, including an admission that he
voluntarily ingested numerous drugs before driving.

        The trial court found that after Pickett invoked his right to have a lawyer present Pickett
initiated communication with the detectives so no Miranda violation occurred. However, it is
clear that immediately after Pickett unequivocally invoked his right to a lawyer, a police
detective asked Pickett “if he was aware why he was being detained.” Regardless of the officer’s
reasons for asking that question, it is plain that the question was reasonably likely to elicit an
incriminating response. See id.; see also People v Paintman, 412 Mich 518, 529; 315 NW2d 418
(1982) (“[I]t is inconsistent with Miranda and its progeny for authorities to instigate a
reinterrogation of an accused in custody who has clearly asserted the right to counsel.”).
Accordingly, we conclude that the trial court clearly erred by finding there was no Miranda
violation in this case.

        Reversal, however, is unwarranted because the error is harmless. In Arizona v
Fulminante, 499 US 279, 285; 111 S Ct 1246; 113 L Ed 2d 302 (1991), the United States
Supreme Court held that a trial court’s error in admitting a confession obtained by such a
violation is subject to harmless-error analysis. “[I]f it is beyond a reasonable doubt that the jury
would have convicted [the] defendant on the basis of untainted evidence, [the] defendant is not
entitled to a new trial.” People v Dendel, 289 Mich App 445, 476; 797 NW2d 645 (2010); see
also People v Mass, 464 Mich 615, 640 n 29; 628 NW2d 540 (2001).


                                                -4-
        In this case, although his confession of ingesting pills and using methamphetamine was
improperly admitted, the prosecution presented untainted evidence establishing the same facts
that Pickett told the police about during his confession. Blood test evidence revealed that Pickett
had taken methamphetamine, hydrocodone, tramadol, ketamine, and cyclobenzaprine. The
police discovered methamphetamine, as well as pill bottles containing cyclobenzaprine and
tramadol, in his truck. Likewise, Pickett’s friend testified that she watched him take a “handful”
of unidentified pills before speeding away in his truck. Thus, the detective’s testimony regarding
Pickett’s statement, although improperly admitted, was entirely cumulative of other evidence
presented at trial, and the jury would have convicted Pickett regardless of whether the trial court
excluded his statement at trial. See Dendel, 289 Mich App at 476.

                          III. PROPORTIONALITY OF SENTENCE

                                 A. STANDARD OF REVIEW

         Pickett next argues that the trial court erred by imposing a sentence above the minimum
guidelines range. “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). “[T]he standard of review to be applied for appellate courts reviewing a sentence for
reasonableness on appeal is abuse of discretion.” People v Steanhouse, 500 Mich 453, 471; 902
NW2d 327 (2017). A trial court abuses its discretion by violating the principle of
proportionality, “ ‘which requires sentences imposed by the trial court to be proportionate to the
seriousness of the circumstances surrounding the offense and the offender.’ ” Id. at 459-460,
quoting People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). To facilitate appellate
review, the trial court must consult the applicable guidelines range and justify the sentence
imposed by stating the cause for any departure. Steanhouse, 500 Mich at 470. This means that
the trial court must explain “ ’why the sentence imposed is more proportionate to the offense and
the offender than a different sentence would have been.’ ” People v Dixon-Bey, 321 Mich App
490, 525; 909 NW2d 458 (2017), quoting People v Smith, 482 Mich 292, 311; 754 NW2d 284
(2008).

                                         B. ANALYSIS

        “Under the principle of proportionality standard, a sentence must be ‘proportionate to the
seriousness of the circumstances surrounding the offense and the offender.’ ” People v
Steanhouse (On Remand), 322 Mich App 233, 238; 911 NW2d 253 (2017), quoting Milbourn,
435 Mich at 636. Although they are only advisory, this Court follows our Supreme Court’s
directive that the sentencing guidelines “remain a highly relevant consideration in a trial court’s
exercise of sentencing discretion that trial courts must consult and take . . . into account when
sentencing . . . .” Dixon-Bey, 321 Mich App at 524, quoting Steanhouse, 500 Mich at 474-475
(quotation marks omitted). In Dixon-Bey, this Court explained:

       Because the guidelines embody the principle of proportionality and trial courts
       must consult them when sentencing, it follows that they continue to serve as a
       “useful tool” or “guideposts” for effectively combating disparity in sentencings.
       Therefore, relevant factors for determining whether a departure sentence is more
       proportionate than a sentence within the guidelines range continue to include (1)

                                                -5-
       whether the guidelines accurately reflect the seriousness of the crime; (2) factors
       not considered by the guidelines; and (3) factors considered by the guidelines but
       given inadequate weight. [Dixon-Bey, 321 Mich App at 524-525 (citations
       omitted).]

Factors not considered by the guidelines can include: “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,
353; 901 NW2d 142 (2017) (quotation marks and citation omitted).

        Here, the trial court considered a number of factors in support of its decision to depart
from the advisory guidelines range. The court started by stating its intention to “carefully
consider and balance the principles of punishment, rehabilitation, protection of society, as well as
deterrence.” It acknowledged Pickett’s lack of a criminal history, his consistent 30-year work
history, and family support as positive factors. However, the trial court emphasized the
toxicology report reflecting that Pickett had ingested methamphetamine. The trial court
continued:

               Of course, I also consider the most significant issue, the grave factual
       circumstances that bring him before this Court. It is important that Mr. Pickett be
       reminded of the horrifying and gruesome details of the incident that brings him
       [here] today. In particular, the Court and the Jury heard about Mr. Pickett
       deciding to ingest multiple prescription medications, as well as
       methamphetamine. Then, deciding, and I want to stress these words; then
       deciding to drive a pickup truck on public roads during the late afternoon and
       early evening of a late spring day within Kalamazoo County.

                During the course of his travels, Mr. Pickett narrowly caused multiple
       collisions along Nichols Road. Then, faced a couple of possible head-on
       collisions on Arboretum Parkway, before dangerously traveling through a daycare
       center parking lot during a time when young children were being picked up [by]
       their parents. Mr. Pickett then progressed along Drake and undeterred by the
       traffic that comes with that time of day and location, he proceeded to drive off the
       road, into a traffic sign, before making his way into a school parking lot. Once
       again, at a time when multiple people, including children, were present.

               Either in an attempt not to . . . be apprehended, or because of his
       callousness, Mr. Pickett then continued through the northern part of Kalamazoo,
       driving completely off the roadway and through a family yard at G Avenue and
       Douglass, narrowly missing a residence before gathering himself enough to
       embark on North Westnedge. And, finally, just after nearly striking a pedestrian,
       [Pickett], at a high rate of speed, with no visible obstructions, continued his
       dangerous path and str—excuse me—struck not one, not two, not three, but nine
       unsuspecting bicyclists from behind, killing five of them; Fred Nelson, Suzanne
       Sipple, Debra Bradley, Larry Paulik, and Melissa Fevig-Hughes, and seriously
       injuring four others; Jennifer Johnson, Paul Gobble, Paul Runnels, and Sheila
       Jeske.

                                                -6-
                                              * * *

              Charles Pickett, on June 7th, 2016, you selfishly and unnecessarily
       murdered five people, and forever altered the lives of four others. What I mean
       when I say selfish, is that you had multiple occasions that day to either never
       begin or to terminate your travels before causing such grave suffering. Plenty of
       time on Nichols Road, Drake Road, Arboretum Parkway, Douglas Road, G
       Avenue, Westnedge, you could have and should have stopped. Simply stopped,
       given up, whether in the middle of the road, or on the side, or in a parking lot,
       simply stopped and said I can’t do this, I shouldn’t do this. Instead, despite all the
       warnings, all the signals, you said to yourself nothing will stop me from doing
       what I want to do. That is, drive around this proud community with a complete
       disregard for the lives of its citizens, and with the knowledge that your driving
       was unsafe, dangerous, and deadly.

The trial court recognized that, although nonbinding, it was required to consider the calculated
minimum sentence for the five separate second-degree murder convictions, noting that it had
scored them in the C-3 grid, providing a minimum range of 225 to 375 months. The trial court
found reason to depart upward from this range, explaining:

       Areas that are permitted to be considered, and that I have considered, in the
       instant case include your lawyer saying in his sentencing memorandum and orally
       today, and a forensic assessment prepared, as well as your remarks a bit ago
       regarding remorse. In my opinion, you have not expressed a considerable amount
       of remorse for the loss of the five lives you caused, or the shattered lives of four
       others. During the trial, as well as other court hearings, you exhibited virtually no
       emotion. Neither today, nor during any previous courtroom experience, have I
       found you legitimately to be remorseful, either in your actions or verbally. I
       recognize that a moment ago you did express some remorse, but I find that to be
       (inaudible) inadequate.

The trial court further found that Pickett’s conduct was “so violent and horrifying that the
standard guideline scoring method simply fails to reflect their severity.” Pickett’s offense
variable score was 200, which included “a full 100 points that [were] not fully accounted for in
calculating the sentencing guideline range.” To account for the disparity, the trial court
determined that it would “use the next most severe cell available on the applicable grid in an
attempt to makeup for those considerations not accounted for by the sentencing guidelines, and
utilize this cell to provide objective factual guideposts to determine a proportionate sentence in
this matter.” Accordingly, the trial court relied on the next available grid along the prior record
variable (PRV) level, which established a range of 270 to 450 months. In doing so, the court
gave principled reasons for both the fact that it was departing from the minimum advisory
sentencing range and for the extent of the departure.

         On appeal, Pickett contends that the trial court failed to take into account the possibility
that trial strategy might have impacted his ability to show remorse during the trial. However,
Pickett did not argue at sentencing that he was unable to show remorse because of trial strategy.
Moreover, although he suggests that he may have been advised by his defense lawyer to not

                                                -7-
show remorse during the trial, he does not actually assert that his lawyer did, in fact, so advise
him. Thus, he asks this Court to speculate that he may have had a valid reason for not showing
remorse during the trial. We decline to do so. The trial court was in a better position to view
Pickett’s demeanor during the trial and at sentencing, and we will not interfere with its
determination that Pickett did not show significant remorse. See People v Kowalski, 236 Mich
App 470, 474-475; 601 NW2d 122 (1999) (“The sentencing of a defendant requires a trial court
to rely on its experience as well as its overall perceptions adduced at trial. The trial court is in a
unique position to weigh many intangibles apparent only to those present at a trial.”).

        Pickett also suggests that his diagnosis of bi-polar disorder could explain why his
demeanor could have been interpreted as inappropriate during the trial. Yet, the details of
Pickett’s bi-polar diagnosis are not in the record and Pickett only directs this Court to a general
statement from the Mayo Clinic regarding the typical symptoms of bi-polar disorder and major
depressive disorder. Given that there is nothing on the record to support that Pickett’s actual
diagnosis would affect his ability to show “remorse,” we will give no credit to Pickett’s
speculative challenge to the trial court’s findings. See id.

        Next, Pickett asserts that the trial court erred by concluding that a departure was justified
because the Legislature did not contemplate situations where the offense variable (OV) level
reached 200 points. Rather, Pickett maintains that a plain text reading of MCL 777.64
demonstrates that the Legislature did in fact intend to incorporate such situations within a given
grid guideline because it chose to use a “+” symbol. However, Pickett acknowledges that this
Court must follow the reasoning set forth in Smith, 482 Mich at 294-295, which explained that a
trial court “may render a proportionate sentence above the highest minimum for someone with a
similar PRV score . . . because the Legislature did not contemplate a defendant with such a high
OV score, given that it used 100 OV points as the maximum for the grid.” This authoritative
pronouncement on the precise question at issue binds this Court. Moreover, as is clear from
Dixon-Bey, 321 Mich App at 525, the trial court is permitted to consider factors that are given
inadequate weight under the sentencing guidelines. Here, the court determined that the
guidelines failed to account for 100 OV points; its consideration of the inadequate weight under
the guidelines is proper.

        Pickett’s final argument is that the trial court’s characterization of his conscious decision
to take medications and illicit drugs before driving was “no more or less than the standard for a
case” of driving while intoxicated. We disagree. The record shows that before crashing into a
group of nine bicyclists while traveling at approximately 58 miles per hour, Pickett had seven
separate instances of erratic and extremely dangerous driving. The trial court did not err by
finding that each one of those instances provided Pickett ample opportunity to cease driving.
Contrary to Pickett’s suggestion, this case was not akin to a “standard” driving while intoxicated
case. In sum, we conclude that the trial court adequately justified the sentence imposed.

       Affirmed.

                                                              /s/ Brock A. Swartzle
                                                              /s/ Elizabeth L. Gleicher
                                                              /s/ Michael J. Kelly


                                                 -8-
