               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PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      February 14, 2019
                 Plaintiff-Appellee,

v                                                                     No. 339315
                                                                      St. Clair Circuit Court
ZDRAVKO DELJEVIC,                                                     LC No. 16-003043-FH

                 Defendant-Appellant.


Before: MURRAY, C.J., and STEPHENS and RIORDAN, JJ.

PER CURIAM.

        Defendant appeals as of right his jury-trial convictions of home invasion, first-degree,
MCL 750.110a(2), and conspiracy to commit home invasion, first-degree, MCL 750.110a(2) and
MCL 750.157a. 1 Defendant was sentenced as a fourth habitual offender, MCL 769.12, to
concurrent terms of 10 to 25 years for home invasion and the same for conspiracy. We affirm in
part but remand for a Walker hearing2 at which defendant may testify regarding his contention
that his confession was involuntary. We instruct the trial court that, if it concludes after the
hearing that the evidence was properly admitted, it need take no further action; but if it concludes
that the confession should have been suppressed, defendant shall be granted a new trial.

                                         I. BACKGROUND

        On January 4, 2016, defendant and two accomplices, Alante Deatrick and Diana Faieta,
executed the home invasion they had previously planned at the home of John and Marcilynn
Misaros, and stole at least three guns and over $25,000 worth of jewelry. The police did not
attempt to recover any fingerprint or DNA evidence at the Misaros home, and were unable to
locate the missing property at various pawn shops. Two weeks later, Detective Steve Surman
1
    The jury found defendant not guilty of felony-firearm, the third charge against him.
2
    People v Walker (On Rehearing), 374 Mich 331, 338; 132 NW2d 87 (1965).
received a call from the Michigan State Police after they interviewed all three coconspirators
regarding another home invasion. Upon receiving their names, Detective Surman investigated
all three in connection with the Misaros break-in. All three were eventually arrested and charged
with first-degree home invasion, conspiracy to commit first-degree home invasion and felony-
firearm. Deatrick and Faieta reached a plea deal pursuant to which they each agreed to testify
against defendant in exchange for the dismissal of their felony-firearm charges.

         At defendant’s trial, Deatrick and Faieta each testified that they had accepted a plea deal,
and that defendant planned and committed the home invasion with them. Detective Surman
testified that, upon receiving the names of the coconspirators from the Michigan State Police, he
obtained defendant’s information and contacted defendant’s parole officer, who told him that
defendant was then in a drug rehabilitation facility. When Detective Surman later interviewed
defendant, defendant denied involvement in the crime and said he had been in rehab on the date
of the robbery. When the prosecutor asked if he had investigated further, Detective Surman
responded that he already knew that defendant was not speaking to his parole officer. Based on
this second mention of the fact that defendant had a parole officer, defense counsel moved for a
mistrial, arguing that a jury instruction would only further highlight the information. The trial
court denied the motion and instead instructed the witness not to refer to defendant’s criminal
background again.

        Detective Surman also testified that defendant admitted during the initial interview that
he knew Deatrick and Faieta, that they lived across the street from him, that they all used heroin,
and that he had seen weapons like those stolen from the Misaros house in their house across the
street. Based on that information, Surman arranged for defendant to be given a polygraph test
with pretest and posttest interviews by Michigan State Police Detective Sergeant Derek Jordan in
Northville. Surman and another detective drove to Detroit to get defendant and drove him to
Northville for the polygraph test and interviews.

        Sergeant Jordan testified that his job was to conduct interviews for the biometrics
identification section of the Michigan State Police, and that he interviewed defendant in July
2016. He testified that he read defendant his rights before beginning the interview and testing
process, and provided defendant with a rights form, which defendant initialed and signed,
indicating that he knew each of his rights and his agreement to the process was voluntary.
Sergeant Jordan testified that, initially, defendant denied any involvement in the home invasion,
but he later stated that he had given his life to God and wanted to be honest. He then admitted
that he was present during the home invasion with another individual, and they stole a television,
jewelry and guns. Sergeant Jordan also admitted that the interviews and test had not been
recorded, as required by MCL 763.8.

        At the conclusion of plaintiff’s case, defense counsel moved for a directed verdict on the
conspiracy charge, which the trial court denied. Defendant did not testify or offer any evidence.
The jury began deliberations mid-afternoon of the second day of the trial, but informed the judge
toward the end of the day that they were unable to reach a verdict, and their vote was then nine to
three. The judge dismissed the jury and instructed them to return at 9:00 a.m. the next morning
to resume deliberations. After deliberating for about an hour the next morning, they sent a note
to the judge, asking in relevant part whether Deatrick and Faieta had named defendant as a
coconspirator and participant before or after they were offered plea deals. After being informed


                                                -2-
that both had named defendant during their initial interview with the Michigan State Police two
weeks after the home invasion, the jury resumed deliberations and reached a unanimous verdict
about half an hour thereafter. The jury found defendant guilty of conspiracy and home invasion,
but not guilty of felony-firearm. On June 26, 2017, the trial court sentenced defendant to 10 to
25 years of imprisonment for each conviction, to run concurrently to each other, but
consecutively to two other concurrent sentences from a different conviction. This appeal
followed.

                                  II. MOTION FOR MISTRIAL

        Defendant first argues that he is entitled to a new trial because the prosecutor and
Detective Surman intentionally attempted to influence the jury with the detective’s testimony
that defendant had a parole officer, and that this denied him his right to a fair trial. We disagree.

        Defendant preserved this issue by requesting a mistrial on the basis of Detective
Surman’s testimony. See People v Nash, 244 Mich App 93, 96; 625 NW2d 87 (2000). We
review the issue of whether a mistrial should have been granted for an abuse of discretion. Id.
“An abuse of discretion occurs when the court chooses an outcome that falls outside the range of
reasonable and principled outcomes.” People v Unger, 278 Mich App 210, 217; 749 NW2d 272
(2008). “A mistrial should be granted only for an irregularity that is prejudicial to the rights of
the defendant and impairs his ability to get a fair trial.” People v Haywood, 209 Mich App 217,
228; 530 NW2d 497 (1995) (internal citations omitted).

        “It is well settled that evidence of a prior conviction may be prejudicial to the accused,
the danger being that the jury ‘will misuse prior conviction evidence by focusing on the
defendant’s general bad character[.]’ ” People v Griffin, 235 Mich App 27, 36; 597 NW2d 176
(1999) overruled on other grounds by People v Thompson, 477 Mich 146; 730 NW2d 708
(2007), quoting People v Allen, 429 Mich 558, 569; 420 NW2d 499 (1988). See also People v
Holly, 129 Mich App 405, 416; 341 NW2d 823 (1983) (“Inadmissible evidence tying a
defendant to other crimes is highly prejudicial.”). Evidence that was volunteered and was
unresponsive to a proper question however, is generally not cause for granting a motion for
mistrial. Holly, 129 Mich App at 415. In this instance, the testimony came from a detective.
We examine unresponsive remarks from police officers with greater scrutiny. Id. Police officers
have a “special obligation not to venture into such forbidden areas” and are held to a higher
standard than civilian witnesses. Id. at 415-416.

         In the present case, Detective Surman made two references to the defendant having a
parole officer. In neither circumstance was the prosecutor attempting to elicit the improper
testimony. The first reference came when the prosecutor asked whether, and how, the detective
investigated defendant. The detective made the second reference after being asked whether he
had further investigated defendant’s alibi that he was in rehab on the day of the crime.
Defendant moved for a mistrial after the second statement. The court denied defendant’s motion,
but cautioned the detective to not make any reference to defendant’s past criminal history. The
prosecutor agrees that mention of the defendant’s parole status was improper and that Detective
Surman, having worked 29 years in law enforcement, should have known better. After careful
scrutiny of the entire exchange between the prosecutor and Detective Surman, we are left with
little doubt that the detective inserted the fact that defendant had a parole officer intentionally, on


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both occasions. We disagree that the prosecutor’s second inquiry, as to whether the detective
investigated the defendant’s assertion that on the day of the robbery he was already in re-hab,
invited the reference to parole. Instead, the prosecutor likely wanted to point out to the jury that
the defendant’s claim was false. As an experienced police officer, the detective was reasonably
expected to know that his reference to previous convictions was improper. Id. Additionally, his
answers to most of the other questions were directly responsive—they answered the question
asked and provided very little additional information. In contrast, the two answers at issue did
not answer the question directly and provided unsought and unnecessary information that this
Court has characterized as highly prejudicial. This is troubling. The prosecutor argues,
however, that even if the remarks were improper, defendant failed to make the requisite showing
of prejudice.

        “The test to be used in determining whether a mistrial should be declared is not whether
there were some irregularities, but whether the defendant had a fair and impartial trial.” People v
Lumsden, 168 Mich App 286, 298; 423 NW2d 645 (1988). Detective Surman’s testimony, while
irregular in nature, was brief and incidental, and volunteered in response to proper questioning.
The improper and non-responsive answers also fortunately did not describe the nature of the
prior conviction. We cannot conclude that the error of their admission was egregious as to deny
defendant a fair trial. The jury also heard the testimony of the accomplices, the circumstances of
their plea deals, and the defendant’s confession to Detective Jordan. It is noteworthy that the
jurors in this case based their decision, at least in part, on the important and legitimate factor of
the codefendants’ credibility. This was demonstrated by their question, shortly before reaching
their verdict, about when the coconspirators implicated defendant. The answer given to them
was that each codefendant had implicated defendant during their initial contact with the
Michigan State Police. In the final analysis, the trial court’s decision to deny defendant’s motion
for a mistrial was not outside the range of principled outcomes.

                                     III. WALKER HEARING

        Defendant next argues that the trial court erred by denying his motion for a Walker
hearing. We agree, and remand this case for a Walker hearing so that defendant can exercise his
right to testify that his confession was not knowing or voluntary.

        Defendant preserved this issue by requesting a Walker hearing along with his pretrial
motion to suppress his confession. We review preserved, constitutional issues de novo. People v
Nutt, 469 Mich 565, 573; 677 NW2d 1 (2004).

        “ ‘Statements of an accused made during custodial interrogation are inadmissible unless
the accused voluntarily, knowingly, and intelligently waives his Fifth Amendment rights.’ ”
People v Abraham, 234 Mich App 640, 644; 599 NW2d 736 (1999), quoting People v Howard,
226 Mich App 528, 538; 575 NW2d 16 (1997). “A confession or waiver of constitutional rights
must be made without intimidation, coercion, or deception” but rather “must be the product of an
essentially free and unconstrained choice by its maker.” People v Akins, 259 Mich App 545,
564; 675 NW2d 863 (2003).

      In People v Walker (On Rehearing), 374 Mich 331, 338; 132 NW2d 87 (1965), our
Supreme Court held that “when a defendant contends that statements that had been made were


                                                -4-
involuntary, the trial court must conduct a hearing outside the presence of the jury to determine
the issue of voluntariness, at which the defendant may take the stand without waiving the right
not to testify at trial.” People v Manning, 243 Mich App 615, 624-625; 624 NW2d 746 (2000)
(emphasis added). This Court has characterized this hearing as a “right” deriving from the Fifth
Amendment’s prohibition against self-incrimination. Id. at 625. A defendant may demand this
hearing once he or she challenges the voluntary nature of his or her confession. People v Ray,
431 Mich 260, 269; 430 NW2d 626 (1988). “The state has the burden of proving by a
preponderance of the evidence that there was a valid waiver of the suspect’s rights.” Abraham,
234 Mich App at 645.

        In this case, defendant timely demanded the Walker hearing in his pretrial suppression
motion. The trial court denied the motion after hearing oral argument. From the record, it
appears that the trial court concluded that the hearing was unnecessary because nothing
defendant could say would change the court’s opinion that his confession was knowing and
voluntary in light of the prosecution’s evidence. This was error because defendant was entitled
to testify on this matter at a hearing outside the jury’s presence before the court made a
determination regarding the voluntariness of his confession. Manning, 243 Mich App at 625.

       Additionally, we note that the trial court appears to have considered only defendant’s
previous experience with the criminal justice system before concluding that his release of rights
was knowing and voluntary. Our Supreme Court has provided guidance by directing trial courts
to consider several factors:

               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. [People v Cipriano, 431 Mich
       315, 334; 429 NW2d 781 (1988).]

In direct contrast, the trial court in the present case appears to have considered only one factor—
the extent of defendant’s previous experience with the criminal justice system. Defendant made
several arguments, both in his motion and at oral argument, which were not considered. Denying
defendant’s request for a Walker hearing was error.

        The proper remedy for a trial court’s error in this regard, however, is not to grant a new
trial. In Walker (On Rehearing), 374 Mich 331, the Michigan Supreme Court merely remanded
the matter to the trial court with instructions to hold the Walker hearing, allowing defendant to
testify without waiving his right to remain silent during a retrial, if any. Id. at 338. The Court
further instructed that if, after the hearing, the trial court were to determine that the confession
was involuntary, the defendant was to be granted a new trial. If, on the other hand, the court


                                                -5-
were to determine after the Walker hearing that the waiver of rights was voluntary, then the
defendant already would “have had a trial affording him constitutional due process.” Id.

      We affirm the trial court’s denial of defendant’s motion for mistrial and remand for a
Walker hearing consistent with this opinion. We do not retain jurisdiction.

                                                        /s/ Christopher M. Murray
                                                        /s/ Cynthia Diane Stephens
                                                        /s/ Michael J. Riordan




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