                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    March 12, 2015
               Plaintiff-Appellee,

v                                                                   No. 316771
                                                                    Wayne Circuit Court
KEITH ROMOND CHARLESTON,                                            LC No. 13-000342-FC

               Defendant-Appellant.


Before: MARKEY, P.J., AND MURRAY AND BORRELLO, JJ.

PER CURIAM.

         Defendant appeals by right his convictions after a jury trial of first-degree premeditated
murder, MCL 750.316(1)(a), possession of a firearm by a person convicted of a felony (felon-in-
possession), MCL 750.224f, and possession of a firearm during the commission of a felony
(felony-firearm), MCL 750.227b. Defendant was sentenced to life in prison without parole for
his first-degree premeditated murder conviction, three to five years’ imprisonment for his felon-
in-possession conviction, and two years’ imprisonment for his felony-firearm conviction. We
affirm.

       This case arises from the murder of Charles Wall in Detroit, Michigan. Defendant first
argues that he did not waive his Miranda rights1 knowingly and intelligently. We disagree.

        A defendant preserves the issue of whether he knowingly, intelligently, and voluntarily
waived his Miranda rights by filing a pretrial motion to suppress his statement to the police. See
People v Henry (After Remand), 305 Mich App 127, 144; 854 NW2d 114 (2014). Defendant
filed a motion to suppress the statement he made to the police, but he only argued that his
statement to the police was involuntary. On appeal, defendant argues that his waiver of his
Miranda rights was not knowing and intelligent. The issue of whether a defendant voluntarily
confessed to a crime is separate from the issue of whether a defendant knowingly, intelligently,



1
 These are Fifth Amendment rights the Supreme Court’s decision in Miranda v Arizona, 384 US
436; 86 S Ct 1602; 16 L Ed 2d 694 (1966) was intended to protect.


                                                -1-
and voluntarily waived his Miranda rights although the analysis for determining voluntariness of
a Miranda waiver is essentially the same. See People v Ryan, 295 Mich App 388, 396-397; 819
NW2d 55 (2012). Consequently, the issue of whether defendant knowingly and intelligently
waived his Miranda rights is unpreserved. See Henry (After Remand), 305 Mich App at 144.

        Because defendant failed to preserve the issue of whether he knowingly and intelligently
waived his Miranda rights, we review the unpreserved claim of constitutional error for plain
error affecting defendant’s substantial rights. People v Carines, 460 Mich 750, 763-764; 597
NW2d 130 (1999). To prevail, defendant must show: “1) error must have occurred, 2) the error
was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.” Id. at 763.
With regard to the last element, defendant must show that the error affected the outcome in the
trial court. Id. Moreover, plain error warrants reversal only if it results in the conviction of an
actually innocent defendant or seriously affected the fairness, integrity or public reputation of
judicial proceedings regardless of the defendant’s guilt or innocence. Id. at 763.

        A defendant has a constitutional right to remain silent during custodial interrogation.
Henry (After Remand), 305 Mich App at 145. Thus, statements made by a defendant during
custodial interrogation are inadmissible at trial unless the defendant knowingly, intelligently, and
voluntarily waived his Miranda rights. People v Tierney, 266 Mich App 687, 707; 703 NW2d
204 (2005). This Court will conduct a bifurcated analysis and will examine whether the
defendant waived his Miranda rights (1) knowingly and intelligently and (2) voluntarily. Id.
“Intoxication from alcohol or other substances can affect the validity of a waiver of Fifth
Amendment rights, but is not dispositive.” Id. With regard to whether a defendant’s waiver of
his Miranda rights was knowing and intelligent, a court will examine the defendant’s level of
understanding of the waiver. People v Gipson, 287 Mich App 261, 265; 787 NW2d 126 (2010).
“A defendant does not need to understand the consequences and ramifications of waiving his or
her rights.” Id.

        In reviewing whether a defendant voluntarily confessed to a crime, this Court examines
the totality of the circumstances and determines whether “the confession is ‘the product of an
essentially free and unconstrained choice by its maker,’ or whether the accused’s ‘will has been
overborne and his capacity for self-determination critically impaired.’ ” Ryan, 295 Mich App at
396-397 (citation omitted). In determining voluntariness, factors to consider include:

       [T]he age of the accused; his lack of education or his intelligence level; the extent
       of his previous experience with the police; the repeated and prolonged nature of
       the questioning; the length of the detention of the accused before he gave the
       statement in question; the lack of any advice to the accused of his constitutional
       rights; whether there was an unnecessary delay in bringing him before a
       magistrate before he gave the confession; whether the accused was injured,
       intoxicated or drugged, or in ill health when he gave the statement; whether the
       accused was deprived of food, sleep, or medical attention; whether the accused
       was physically abused; and whether the suspect was threatened with abuse.
       [People v Cipriano, 431 Mich 315, 334; 429 NW2d 781 (1988).]




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        A Walker2 hearing was held on defendant’s motion to suppress on February 22, 2013.
Detroit Police Officer Derrick Maye testified that he interviewed defendant on December 26,
2012, at approximately 8:00 p.m. Defendant was not deprived of any food or water, and
defendant had a carton of juice with him during the interview. Officer Maye explained that the
Second Precinct where the interview occurred had scheduled feeding times. The scheduled
feeding time on that day was 6:00 p.m. Defendant did not tell Officer Maye that he was hungry
during the interview. Defendant was 29 years old at the time of the interview and had completed
the ninth grade. Officer Maye provided defendant with a notice of constitutional rights form,
read the form aloud to defendant, and gave defendant the opportunity to read it himself.
Defendant did not slur his speech. Defendant did not appear to be drunk or tired. His eyes were
not bloodshot. Defendant also did not appear confused or disoriented. Defendant was coherent
and was able to understand the conversation. During the interview, defendant told Officer Maye
that he was living in Atlanta at the time of the incident. Defendant eventually stated that he lived
on the street where the incident occurred.

        Defendant also testified at the hearing. According to defendant, he was intoxicated at the
time of the incident. Defendant explained that he had consumed six or seven daiquiris, which
contain vodka, before the interview. He began drinking at approximately 12:30 a.m. or 1:00 a.m.
on December 26, 2012. Defendant also smoked four or five blunts of “Cush,” which he
explained is strong marijuana; however, defendant explained that he smoked one blunt and had
two daiquiris during the daytime on December 26, 2012. Defendant smoked the other blunts and
drank the other daiquiris during the early morning hours of December 26, 2012. Defendant went
to sleep on December 26, 2012, at 2:00 a.m. and woke up at approximately noon. Defendant did
not remember the police interview at the time of the motion hearing or Officer Maye’s asking
him, “[D]o you know who this is?” Defendant also explained that on the day of his arrest, the
police came to the house. His girlfriend Lida Love, defendant’s niece, and defendant’s nephew
were in the house. Defendant was trying to find something in the closet when he was arrested.
Defendant asked the police officers why they came to the house. The police officers told
defendant that they had a warrant based on defendant’s outstanding traffic tickets.

        Defendant’s mother, Linda Moore, also testified at the hearing. Moore explained that on
December 26, 2012, police officers entered her home without her invitation. She also testified
that the officers did not show her an arrest warrant. But Moore also explained that she was not at
home at the time of defendant’s arrest because she was at work. Defendant was awake when
Moore left for work, and defendant had been drinking vodka, gin, and beer the entire day of his
arrest. Defendant also smoked approximately two marijuana cigarettes. Moore explained that
defendant was intoxicated at the time of his arrest, and she knew this even though she left for
work at 8:00 a.m.

        The trial court ruled that there was no indication that defendant was intoxicated during
the interview with Officer Maye and based its decision on its observations from watching the




2
    People v Walker, 374 Mich 331; 132 NW2d 87 (1965).


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first 20 minutes of the videotaped recording of defendant’s interview by Officer Maye. The trial
court noted that it had considered defendant’s answers to Officer Maye’s questions, as well as
how defendant gave his answers. The court observed that defendant read and initialed the
Miranda waiver form. The trial court also noted that defendant appeared to remember certain
details of the interrogation while forgetting others. The court also reasoned that defendant had
ingested most of the alcohol on the day before he was arrested. The court pointed out that
defendant’s statement to the police was cogent and that defendant slept several hours on the day
of the interview. Finally, the court noted that Moore was not with defendant most of the day and
could not have observed whether defendant consumed alcohol. Thus, the court ruled that
defendant’s statement was voluntary and denied defendant’s motion to suppress.

        Defendant’s waiver of his Miranda rights was knowing and intelligent. According to
Officer Maye, defendant did not appear to be drunk or tired at the time of the interrogation.
Defendant did not slur his speech. His eyes were not bloodshot. Defendant also did not appear
confused or disoriented, and he was coherent and was able to understand the conversation.
Officer Maye was able to reason with defendant. Although defendant consumed alcohol and
marijuana before the interview, defendant consumed most of the marijuana and alcohol in the
early morning hours of the day of the interview. Officer Maye read a constitutional rights form
to defendant and gave defendant the opportunity to read it himself. Although Moore testified
that defendant was intoxicated, she had not been home for the majority of the day of defendant’s
arrest. Defendant stated at the hearing that he could not remember the interview, but he later
stated that he remembered certain details of the interview. From these facts we conclude as did
the trial court that defendant knowingly and intelligently waived his rights. Gipson, 287 Mich
App at 265.

        In addition, although defendant does not raise the issue of whether he voluntarily
confessed to shooting Wall and also does not discuss in his brief on appeal whether his waiver of
his Miranda rights was voluntary, we hold that defendant’s waiver of his Miranda rights and his
statement to the police were voluntary based on the totality of the circumstances. See People v
Billings, 283 Mich App 538, 549; 770 NW2d 893 (2009) (acknowledging this Court’s ability to
address issues not raised by the appellant on appeal). At the time of the interview, defendant was
29 years old and had completed the ninth grade. Defendant was not deprived of any food or
water during the interview. Defendant had a juice carton in his possession at the time of the
interview. The scheduled feeding time on that day would have been 6:00 p.m., and defendant
was interviewed around 8:00 p.m. Defendant slept for at least eight hours the night before he
was interviewed. As discussed above, although defendant testified at the hearing that he had
consumed alcohol and marijuana on the day of his police interview, there is no indication that he
was intoxicated when he waived his Miranda rights and provided a statement to the police.
There is no indication that there was a prolonged delay between defendant’s arrest and the
interview or that the interview was unreasonably long. Thus, the totality of the circumstances
surrounding defendant’s interview shows that defendant voluntarily waived his Miranda rights
and gave the statement to the police. See Cipriano, 431 Mich at 334; Ryan, 295 Mich App at
396-397.




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        Defendant next argues that there was insufficient evidence to submit the charge of first-
degree premeditated murder to the jury and for the jury to convict him of the offense. Defendant
also argues that the prosecution failed to prove beyond a reasonable doubt he did not act in self-
defense. We disagree.

       This Court reviews a claim of insufficient evidence de novo. People v Eisen, 296 Mich
App 326, 331; 820 NW2d 229 (2012). This Court reviews the trial evidence in a light most
favorable to the prosecution to determine whether it would justify a rational trier of fact in
finding that all the elements of the crime were proved beyond a reasonable doubt. Id. In
conducting this review, we will not interfere with the trier of fact’s role in determining the
weight of the evidence or assessing the credibility of witnesses. Id.

        First-degree premeditated murder is defined as “[m]urder perpetrated by means of poison,
lying in wait, or any other willful, deliberate, and premeditated killing.” MCL 750.316(1)(a). In
order to convict a defendant of this crime, the prosecution must prove beyond a reasonable doubt
that “‘the defendant intentionally killed the victim and that the act of killing was premeditated
and deliberate.’ ” People v Jackson, 292 Mich App 583, 588; 808 NW2d 541 (2011) (citation
omitted). To prove the elements of premeditation and deliberation, the prosecution must show
that the defendant had sufficient time to take a “second look” regarding his actions. Id. The
elements of premeditation and deliberation may be established from the circumstantial evidence
and reasonable inferences drawn from the evidence presented at trial. People v Unger, 278 Mich
App 210, 229; 749 NW2d 272 (2008). “Premeditation may be established through evidence of
(1) the prior relationship of the parties, (2) the defendant’s actions before the killing, (3) the
circumstances of the killing itself, and (4) the defendant’s conduct after the homicide.” Id.

        At common law, self-defense justified the killing of another person if the accused
honestly and reasonably believed that his life or the life of another person was in imminent
danger or that there was a threat of serious bodily harm. People v Guajardo, 300 Mich App 26,
35, n 2; 832 NW2d 409 (2013). The Self-Defense Act (SDA), MCL 780.971 et seq., “modified
the common law’s duty to retreat that was imposed on individuals who were attacked outside
their own home or were not subjected to a ‘sudden, fierce, and violent” attack.’ ” Id. at 35-36
(citation omitted). The SDA provides that for lawful self-defense an individual must have a legal
right to be where he is, must not be engaged in the commission of a crime, and has no duty to
retreat. MCL 780.972(1). In addition, once a defendant puts forth some evidence sufficient to
support a prima facie defense of self-defense, the prosecution has the burden to exclude the
possibility beyond a reasonable doubt that the defendant acted in self-defense. People v Dupree,
486 Mich 693, 709-710; 788 NW2d 399 (2010).

       We conclude sufficient evidence of premeditation and deliberation justified submitting
the charge of first-degree premeditated murder to the jury and for the jury to convict defendant.
Lawrence Helzer and defendant had a previous relationship: defendant regularly sold cocaine to
Helzer. On the day of the shooting death, defendant and another man confronted Helzer
regarding money Helzer allegedly owed defendant. Defendant and his companion assaulted
Helzer, knocking him to the ground. Wall came out of the apartment and pulled defendant off
Helzer; defendant and his companion began to hit Wall. Helzer retrieved a sword from his
apartment, and he and Wall chased defendant and the man with him. Wall and Helzer then went
back into their apartment building. Defendant later called Helzer and told him that if he did not

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come outside, he would never be able to go back inside again. Subsequently, Helzer looked out
a window and saw defendant riding a bicycle. Defendant was holding what looked like a pistol.
Helzer could not see defendant at the moment he heard the first of five gunshots. After the
shooting, Helzer looked through the door of the apartment building and saw Wall lying on the
ground outside. Helzer testified defendant was no longer present when he found Wall’s body.

       Karla Nash, who witnessed the shooting, testified the man who did it ran away. Nash
saw two men standing outside but did not see anything in either man’s hands. She testified that
the man who fell to the ground had his hands to his side during the encounter.

       According to defendant’s statement to the police, defendant retrieved a gun from
underneath logs. Defendant went back to the apartment and talked to Helzer on the telephone.
Wall came out of the apartment building and started to walk toward defendant. Wall reached “in
his back area,” which made defendant think that Wall had something in his possession.
Defendant shot Wall three or four times because he was defending himself.

        There was sufficient evidence for the jury to find that defendant acted with premeditation
and deliberation. From the evidence, the jury could find that defendant went to another area,
retrieved a gun, shot Wall multiple times, and then fled the scene. See Jackson, 292 Mich App at
588. The time period in which defendant retrieved the gun was sufficient for him to take a
second look. See id. Even if defendant intended to shoot Helzer instead of Wall, the doctrine of
transferred intent allows a jury to find that the defendant intended to kill one person but
mistakenly or accidentally killed another person. “‘It is only necessary that the state of mind
exist, not that it be directed at a particular person.’ ” People v Lawton, 196 Mich App 341, 351;
492 NW2d 810 (1992) (citation omitted). Thus, even if defendant intended to kill Helzer instead
of Wall, the doctrine of transferred intent allowed the jury to find that the requisite state of mind
existed for first-degree premeditated murder. Id. at 350-351.

        In addition, there was evidence presented at trial to discredit defendant’s self-defense
claim. On the one hand, defendant claimed in his statement to the police that he acted in self-
defense. This is further supported by the fact that Wall had cocaine in his system at the time of
his death, which could have caused “euphoria, excitement, restlessness, risk taking, sleep
disturbance, and aggression.” But there was no other evidence at trial that Wall attacked
defendant after the initial physical altercation in the apartment building. Furthermore, Wall had
seven gunshot wounds. Six shell casings were recovered from the scene of the incident. This
contradicts defendant’s claim that he acted in fear for his life. Additionally, there was no
evidence that defendant shot Wall at close range. No weapons were found at the scene of the
incident near Wall’s body or in the hallway of the apartment building. According to Nash, Wall
had his hands at his sides during the encounter. This contradicts defendant’s statement to the
police that Wall was reaching for a weapon. Thus, there was ample evidence to disprove
defendant’s claim that he honestly and reasonably believed his life was in imminent danger or
that there was a threat of serious bodily harm. Guajardo, 300 Mich App at 35. To the extent
that defendant’s statement to the police conflicted with other testimony at trial, we note that it
was the jury’s role to decide the credibility of witnesses. Eisen, 296 Mich App at 331.
Consequently, we conclude there was sufficient evidence to submit the charge of first-degree
premeditated murder to the jury and for the jury to convict defendant of the offense.


                                                -6-
       Defendant next argues that defense counsel was ineffective for failing to investigate
whether the police officers unlawfully arrested defendant and for failing to challenge the delay in
defendant’s arraignment on the warrant. We disagree.

         A defendant preserves the issue of whether defense counsel was ineffective by moving in
the trial court for a new trial or an evidentiary hearing to support his claims. People v Petri, 279
Mich App 407, 410; 760 NW2d 882 (2008). Defendant did not do so. Our review is therefore
limited to mistakes that are apparent on the record. Id. An ineffective assistance of counsel
claim involves issues of law and issues of fact. Id. The trial court’s findings of fact, if any, are
reviewed for clear error, and the ultimate constitutional claim of ineffective assistance of counsel
is reviewed de novo. Id.

        In order to establish ineffective assistance of counsel, “a defendant must show that (1)
counsel’s performance fell below an objective standard of reasonableness and (2) but for
counsel’s deficient performance, there is a reasonable probability that the outcome would have
been different.” People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). There is a
strong presumption that defense counsel’s conduct constituted sound trial strategy. Id. at 52. It
is the duty of defense counsel to reasonably investigate possible defenses or to decide that
particular investigations are unnecessary on the basis of reasonable professional judgments. Id.
Defense counsel’s failure to investigate an aspect of the case constitutes ineffective assistance of
counsel only if the failure to investigate undermines confidence in the outcome of the trial.
People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012). In contrast, defense counsel
is not ineffective for failing to raise a meritless argument or futile objection in the trial court.
People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).

        Defense counsel did not render ineffective assistance. First, defendant fails to establish
the factual predicate for his claim that the police officers did not have a warrant to arrest him for
the homicide. See People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

        Defendant was arrested on December 26, 2012. The felony warrant associated with this
case file was signed on December 28, 2012. But during the hearing on defendant’s motion to
suppress, Officer Maye testified that the officers arrested defendant on an outstanding homicide
warrant. There is also a detainee input sheet in connection with defendant’s arrest in the lower
court record. The detainee input sheet is dated December 26, 2012, and it lists the numeric codes
for five different holds or warrants related to defendant’s arrest.

        Defendant attached to his motion to remand in this Court a Detroit Police Department
arrest report. The arrest report is not located in the lower court record; therefore, it is not part of
the record on appeal. See Petri, 279 Mich App at 410. But even if the arrest report were part of
the lower court record, we note that it does not contradict Officer Maye’s testimony that the
officers had an outstanding homicide warrant for defendant’s arrest. The report makes reference
to a homicide case and outstanding traffic warrants. In sum, defendant has failed to prove the
factual predicate of his claim. Hoag, 460 Mich at 6.




                                                 -7-
        Moreover, even assuming that the police officers only had a warrant for defendant’s
arrest in connection with his traffic tickets, defendant’s claim fails. Our review of the record
supports that the police had probable cause to arrest him for homicide even if they did not have
an arrest warrant. A police officer may arrest a person without an arrest warrant if the police
officer has probable cause to believe that a felony was committed and that the person committed
a felony. MCL 764.15(1)(d); People v Cohen, 294 Mich App 70, 74; 816 NW2d 474 (2011).
Probable cause to arrest exists when the facts and circumstances known by the police on the
basis of reasonably trustworthy information are sufficient to warrant a man of reasonable caution
to believe that an offense has been or is being committed. Id. at 75. The record supports that the
police had gathered sufficient reasonably trustworthy information from their investigation of the
shooting of Wall to have probable cause to believe that defendant committed the homicide. For
the same reasons, even if the police officers entered his mother’s home without valid consent,
defendant’s arrest was otherwise lawful and did not taint defendant’s subsequent voluntary
statement after his voluntary, knowing and intelligent waiver of his Miranda rights. See e.g.,
People v Frazier, 478 Mich 231, 235; 733 NW2d 713 (2007) (the exclusionary applies only to
evidence obtained as a result of police misconduct). And again for the same reasons, defense
counsel was not ineffective because a challenge to the arrest would have been futile. See
Ericksen, 288 Mich App at 201.

        Defendant also argues that defense counsel was ineffective when he failed to interview
Moore and Love. Defendant argues that Moore would have testified at a hearing that she was
not at home at the time of defendant’s arrest; defendant was a guest in her home, and she did not
consent to allowing the police to enter her home. Moore, however, provided this testimony
during the hearing on defendant’s motion to suppress his statement to the police. Defendant also
argues that Love would have provided testimony establishing that the police officers arrived at
the home, searched through the home, did not receive Moore’s consent to enter the home, and
told Love that they had several arrest warrants for defendant’s arrest. But defendant fails to
establish any factual support for his argument that Love would have provided favorable
testimony. See Hoag, 460 Mich at 6.

         Defense counsel also did not render ineffective assistance for failing to challenge the
delay between defendant’s arrest and his arraignment because defendant’s statement was not
obtained as a result of the delay. In general, under the Fourth Amendment’s promptness
requirement, the police may only detain a person arrested without a warrant for more than 48
hours without an arraignment if they are able to “‘demonstrate the existence of a bona fide
emergency or other extraordinary circumstance’ that would justify the delay.” People v
Whitehead, 238 Mich App 1, 2; 604 NW2d 737 (1999) (citation omitted). When there is an
improper delay, the remedy is the suppression of evidence obtained as a result of the improper
delay. People v Mallory, 421 Mich 229, 240; 365 NW2d 673 (1984). In People v Cain, 299
Mich App 27, 49-50; 829 NW2d 37 (2012), vacated in part on other grounds 495 Mich 874
(2013), this Court held that, although the defendant was arraigned more than 48 hours after his
arrest, the trial court did not err in failing to suppress the defendant’s statements to the police on
the day of his arrest because the statements were not obtained as a result of the improper delay.

       Although more than 48 hours elapsed between defendant’s arrest and his arraignment on
the charges in this case, Officer Maye interviewed defendant on the evening of his arrest. Thus,
defendant’s statement to the police was not obtained as a result of undue delay in being

                                                 -8-
arraigned. See Cain, 299 Mich App at 49-50. Defendant otherwise fails to show how he was
prejudiced as a result of the delay. Therefore, defense counsel was not ineffective for failing to
challenge admission of the statement based on the delay between defendant’s arrest and
arraignment since the challenge would have been unavailing. Ericksen, 288 Mich App at 201.

       We affirm.

                                                            /s/ Jane E. Markey
                                                            /s/ Christopher M. Murray
                                                            /s/ Stephen L. Borrello




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