                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  December 4, 2014
                Plaintiff-Appellee,

v                                                                 No. 315611
                                                                  Kalamazoo Circuit Court
ANTONIO MARTEZ LIVINGSTON,                                        LC No. 2012-001229-FC

                Defendant-Appellant.


Before: FITZGERALD, P.J., and SAWYER and SHAPIRO, JJ.

PER CURIAM.

        Defendant Antonio Martez Livingston appeals as of right his convictions for assault with
intent to rob and steal while armed, MCL 750.89; first-degree home invasion, MCL
750.110(a)(2); and first-degree murder, the latter of which the jury found was supported by two
theories: first-degree premeditated murder, MCL 750.316(1)(a), and first-degree felony murder,
MCL 750.316(1)(b). Defendant was sentenced to 20 to 50 years’ imprisonment for his assault
with intent to rob and steal while armed conviction, 10 to 20 years’ imprisonment for his first-
degree home invasion conviction, and life in prison for his first-degree murder conviction. On
appeal, defendant argues that the trial court erred in denying his motion to suppress because he
was not given his Miranda1 warnings and his statements were not made voluntarily. We
disagree and affirm.

       The issue whether defendant was in custody and, therefore, entitled to Miranda warnings
is preserved on appeal because defendant filed a pretrial motion to suppress the challenged
evidence. People v Gentner, Inc, 262 Mich App 363, 368-369; 686 NW2d 752 (2004).

       “The ultimate question whether a person was ‘in custody’ for purposes of Miranda
warnings is a mixed question of fact and law, which must be answered independently by the
reviewing court after de novo review of the record.” People v Mendez, 225 Mich App 381, 382;
571 NW2d 528 (1997) (citation omitted). “This is so because an ‘in-custody’ determination calls
for application of the controlling legal standard to the historical facts.” People v Coomer, 245
Mich App 206, 219; 627 NW2d 612 (2001). This Court reviews a trial court’s factual findings


1
    Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).


                                              -1-
for clear error. People v Elliott, 494 Mich 292, 300; 833 NW2d 284 (2013). “A finding is
clearly erroneous if, after reviewing the entire record, an appellate court is left with a definite and
firm conviction that a mistake has been made.” Coomer, 245 Mich App at 219. “Whether a
court applied the correct constitutional standard is reviewed de novo.” Elliott, 494 Mich at 301.

        A criminal defendant has a right against self-incrimination under both the federal and
Michigan Constitutions. US Const, Am V; Const 1963, art 1, § 17; People v White, 493 Mich
187, 193; 828 NW2d 329 (2013). However, “[i]t is well settled that Miranda warnings need
only be given when a person is subject to custodial interrogation.” People v Jones, 301 Mich
App 566, 580; 837 NW2d 7 (2013). “Generally, a custodial interrogation is a questioning
initiated by law enforcement officers after the accused has been taken into custody or otherwise
deprived of his or her freedom of action in any significant way.” People v Steele, 292 Mich App
308, 316; 806 NW2d 753 (2011). Further, a “custodial interrogation” is one in a “police-
dominated atmosphere” that is said to “generate ‘inherently compelling pressures which work to
undermine the individual’s will to resist and to compel him to speak where he would not
otherwise do so freely.’ ” Elliott, 494 Mich at 305, quoting Illinois v Perkins, 496 US 292, 296;
110 S Ct 2394; 110 L Ed 2d 243 (1990). Specifically,

       “custody” is a term of art that specifies circumstances that are thought generally
       to present a serious danger of coercion. In determining whether a person is in
       custody in this sense, the initial step is to ascertain whether, in light of “the
       objective circumstances of the interrogation,” a “reasonable person [would] have
       felt he or she was not at liberty to terminate the interrogation and leave.” And in
       order to determine how a suspect would have “gauge[d]” his “freedom of
       movement,” courts must examine “all of the circumstances surrounding the
       interrogation.” Relevant factors include the location of the questioning, its
       duration, statements made during the interview, the presence or absence of
       physical restraints during the questioning, and the release of the interviewee at the
       end of the questioning. [Elliott, 494 Mich at 307, quoting Howes v Fields, 565 US
       ___, ___; 132 S Ct 1181, 1189-1190; 182 L Ed 2d 17 (2012) (citations omitted).]

        In sum, “[w]hether a defendant is in custody for purposes of Miranda at the time of an
interrogation is determined by looking at the totality of the circumstances, with the key question
being whether the accused reasonably could have believed that he or she was free to leave.”
Jones, 301 Mich App at 580.

        It is undisputed that defendant was subject to an interrogation. Specifically, defendant
accompanied detectives to the police station for the express purpose of an interview and,
thereafter, was subject to questioning initiated by law enforcement officers. See People v Zahn,
234 Mich App 438, 450; 594 NW2d 120 (1999). Thus, our inquiry becomes whether defendant
was in “custody.” Applying the controlling legal standard to the facts, we conclude that
defendant was not in custody for Miranda purposes. Detectives approached defendant in the
middle of the day, informed defendant that he was not under arrest, and asked him if he would be
willing to accompany them to the police station for questioning. Defendant voluntarily agreed to
accompany the detectives and the detectives thanked him several times for his willing
cooperation. Defendant rode in the front seat of an unmarked vehicle to the station, which was
only about four blocks away. Once at the station, defendant accompanied the detectives into the

                                                 -2-
station through the public parking lot and entrance. The record does not indicate that he was
ever handcuffed or otherwise restrained during the interview. In fact, although defendant was
occasionally asked to sit down for security reasons, he was also permitted to stand, stretch, and
reenact events related to the incident—including placing one of the detectives in a headlock.
Defendant was also offered several bathroom breaks, and, at the beginning of the interview, was
told that detectives would drive him home after the interview was completed. Further, only two
detectives were present during the interview and there is no indication that weapons were ever
drawn or displayed. Additionally, when defendant asked the detectives what was “holding” him
there, they replied, “Nothing.” The circumstances did not rise to the level of creating an
environment where a “reasonable person [would] have felt he or she was not at liberty to
terminate the interrogation and leave,” Elliott, 494 Mich at 307, and so did not create the
deprivation of freedom necessary to find that defendant was in “custody” for Miranda purposes.
Jones, 301 Mich App at 580.

       Next, defendant asserts we should find that his statements made during the interview
were not voluntary. A statement or confession is voluntary when, “considering the totality of all
the surrounding circumstances, 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 . . . .’” People v Ryan, 295 Mich App 388,
396; 819 NW2d 55 (2012), quoting People v Cipriano, 431 Mich 315, 333-334; 429 NW2d 781
(1988). In determining whether a defendant’s statement was voluntary, the trial court should
consider the totality of the circumstances including:

       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.
       [Cipriano, 431 Mich at 334.]

“The absence or presence of any one of these factors is not necessarily conclusive on the issue of
voluntariness.” Id. “The ultimate test of admissibility is whether the totality of the
circumstances surrounding the making of the confession indicates that it was freely and
voluntarily made.” Id.

        On this record, we find defendant’s argument that his statements were not given
voluntarily to be without merit. With regard to the Cipriano factors relevant to this case,
although defendant was subject to a lengthy period of questioning, was only 21 years of age, and
only finished the tenth grade, there was no indication that defendant had less than average
intelligence and defendant had previous experience with officers in Indiana. Defendant was not
physically abused and detectives testified that they offered defendant food, water, gum,
cigarettes, and bathroom breaks during the interview. See Ryan, 295 Mich App at 398 (finding a
statement voluntary where, in part, “[p]olice officers testified that they offered defendant food,

                                                -3-
drink, cigarettes, and regular bathroom breaks”). Defendant declined the bathroom breaks and,
at the end of the interview, said that he was not tired. Defendant did not appear to be intoxicated
or under the influence of any substances. Moreover, although defendant was not given his
Miranda rights until long into the interview, he thereafter waived his rights and continued to
speak with detectives.

        Defendant’s claim of involuntariness is predicated on his lack of education and the
assertion that the detectives played on defendant’s emotions to elicit a confession. However,
there is no indication on the record that defendant’s emotions affected his mental state in such a
manner to render his confession involuntary. Moreover, even accepting defendant’s allegations
that detectives raised their voices or misrepresented the level of collected evidence, these
behaviors do not constitute “pressures which may sap or sustain the suspect’s powers of
resistance or self-control.” People v Hicks, 185 Mich App 107, 112; 460 NW2d 569 (1990).
Accordingly, we conclude that “[d]efendant’s will was not overborne, nor was his capacity for
self-determination critically impaired.” Ryan, 295 Mich App at 398. Thus, reversal is not
warranted. Id.2

       Affirmed.

                                                            /s/ E. Thomas Fitzgerald
                                                            /s/ David H. Sawyer
                                                            /s/ Douglas B. Shapiro




2
 This Court recently affirmed the murder conviction of co-defendant John Aguilar who was tried
separately and alleged to have acted in concert with defendant in committing the subject murder.
People v Aguilar, unpublished opinion per curiam of the Court of Appeals, issued November 20,
2014 (Docket No. 317215). During Aguilar’s trial, defendant gave sworn testimony in which he
confessed to the murder.


                                                -4-
