                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                 UNPUBLISHED
                                                                 June 18, 2015
              Plaintiff-Appellee,

v                                                                No. 320377
                                                                 Eaton Circuit Court
CURTIS COLEMAN GLASPIE, a/k/a, CURTIS                            LC No. 13-020063-FC
ALLEN GLASPIE,

              Defendant-Appellant.


Before: RIORDAN, P.J., and DONOFRIO and BECKERING, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of armed robbery, MCL 750.529,
possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b, and
resisting and obstructing a police officer, MCL 750.81d(1). Defendant was sentenced to
concurrent prison terms of 25 to 40 years for armed robbery, 2 to 4 years for resisting and
obstructing, and a consecutive sentence of 2 years for felony-firearm. We affirm.

                               I. FACTUAL BACKGROUND

        Defendant and two other men robbed a gas station in Delta Township on November 20,
2012. Defendant forced the gas station clerk, at gunpoint, to open the register. Although the
robbers took the money and lottery tickets, the clerk was able to press the emergency button to
alert the police.

        Defendant and his companions fled the scene and eventually got into a taxicab. A police
chase ensued, and the cab pulled over to the side of the road. The three men exited the cab and
fled on foot. Officer Michael Schulte pursued defendant. After a brief altercation, Schulte
tasered defendant twice and took him into custody. Lottery tickets matching those taken from
the gas station were found in the cab. Surveillance video of the robbery was admitted at trial.

       During the unrecorded portion of defendant’s police interview, he confessed that he was
one of the men who robbed the gas station. At trial, however, defendant denied that such a
conversation took place. A recorded jail phone conversation also was admitted, wherein
defendant confessed that he robbed a gas station but also stated that it was not really him.
Defendant was convicted of armed robbery, felony-firearm, and resisting and obstructing. He
now appeals on several grounds.

                                              -1-
                                        II. CONFESSION

                                  A. STANDARD OF REVIEW

        Defendant first contends that the trial court erred in admitting his confession at trial. He
posits that he did not waive his right to remain silent and that his confession was not the result of
a voluntary, knowing, and intelligent waiver. We review de novo the entire record to determine
whether an accused has waived his Fifth Amendment rights. People v Cheatham, 453 Mich 1,
30; 551 NW2d 355 (1996). “Credibility is crucial in determining a defendant’s level of
comprehension, and the trial judge is in the best position to make this assessment.” Id. We will
not disturb the trial court’s factual findings unless they are clearly erroneous. Id. “A finding is
clearly erroneous if it leaves this Court with a definite and firm conviction that a mistake was
made.” People v Shipley, 256 Mich App 367, 373; 662 NW2d 856 (2003).

                                  B. PROCEEDINGS BELOW

        After defendant was arrested, he was informed of his Miranda1 rights before the police
interview began. The following conversation ensued:

                Detective: All right. All right, I want to go over this with you okay. Ah,
         you have the right to remain silent. You understand that?

                Defendant: Mmm, hmm.

                 Detective: Anything you say can and will be used against you in a court
         of law. You have the right to talk to a lawyer and have him present with while
         [sic] you’re being questioned. If you cannot afford to hire a lawyer, one will be
         appointed to represent you at county expense before any questioning if you wish.
         If you give up your right to remain silent and later wish to stop answering
         questions, no further questions will be asked. Do you understand all of those?

                Defendant: Mmm, hmm.

                Detective: Okay, you will to waive those rights and talk with us?

                Defendant: What you mean [sic] waive those rights?

                 Detective: Are you willing to waive your Miranda Rights that I just read
         to ya, and, and talk with us?

                Defendant: About what, man?




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


                                                -2-
              Detective: Well, that’s what we’re gonna get into and that’s one of the
       things with your rights is, you know, you can stop talking, you know, we can
       kinda over [sic] some things . . .

              Defendant: All I wanna is, I wanna know what’s really going on man.

               Detective: Okay. But first we need to hear from you. Are you willing to
       talk with us? You want to know what’s going on, so are you willing to talk with
       us?

              Defendant: If I can help, I will.

               Detective: All right. All right, I just need you to sign here on this form
       that says signature. That’s just that I read these. That you understand them, and
       you said you are willing to talk with us.

             Defendant: I don’t know what to talk about, but I guess. I don’t know
       what we talking about.

              Detective: Okay.

              Defendant: I don’t wanna waive my rights though.

               Detective: You willing to talk with us? Are you willing to talk with us?
       It says right there one of the rights is if, if you give up your right to remain silent
       and later wish to stop answering questions, no further questions will be asked. So
       if you wanna, you say you wanna talk to us, you wanna talk to us . . .

              Defendant: I wanna see, I wanna see if I can help you man



                                           C. WAIVER

       “Statements of an accused made during a custodial interrogation are inadmissible unless
the accused voluntarily, knowingly, and intelligently waives that Fifth Amendment right.”
People v Tierney, 266 Mich App 687, 707; 703 NW2d 204 (2005). The waiver must “ ‘have
been voluntary in the sense that it was the product of a free and deliberate choice rather than
intimidation, coercion, or deception.’ ” People v Daoud, 462 Mich 621, 633; 614 NW2d 152
(2000), quoting Moran v Burbine, 475 US 412, 421; 106 S Ct 1135; 89 L Ed 2d 410 (1986). See
also People v Gipson, 287 Mich App 261, 264-265; 787 NW2d 126 (2010). Further, “ ‘the
waiver must have been made with a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it.’ ” Daoud, 462 Mich at 633,
quoting Moran, 475 US at 421. See also Gipson, 287 Mich App at 264-265. Thus, “[w]hether a
statement was voluntary is determined by examining police conduct, but the determination
whether it was made knowingly and intelligently depends, in part, on the defendant’s capacity.”
Tierney, 266 Mich App at 707.


                                                  -3-
        Here, the detective read defendant his Miranda rights and defendant verbally
acknowledged that he understood them. He signed a written waiver. However, defendant then
commented that he did not know what to talk about, and stated, “I don’t wanna waive my rights
though.” On appeal, defendant contends that this was a clear expression that he was not waiving
his rights, and that by continuing to talk with the police he merely thought he was helping.
Defendant asserts that he unequivocally asserted his right to remain silent.

        As defendant recognizes, the assertion of the right to remain silent “must be
unequivocal.” People v Henry (After Remand), 305 Mich App 127, 145; 854 NW2d 114 (2014).
Defendant’s statements in this case were not unequivocal, as they were not without ambiguity.
See, e.g. Henry (After Remand), 305 Mich App at 147-148 (when a defendant replies, “No, sir”
when asked if he wanted to waive his rights, that was an unambiguous assertion of the right to
remain silent). Here, defendant’s specific statement was that he did not “wanna waive [his]
rights though.” Defendant’s use of the word “though” qualifies the assertion of the right,
rendering it equivocal. “Though” is defined as “however” or “nevertheless.” Merriam-
Webster’s Collegiate Dictionary (2014).

        After defendant stated that he did not want to waive his rights “though,” the detective
sought clarification by asking if defendant wished to speak with them and reminding him that he
could stop the questioning. See People v Catey, 135 Mich App 714, 726; 356 NW2d 241 (1984)
(“Once a defendant chooses to remain silent, the police are permitted to seek a clarification of an
equivocal exercise of that right.”). Defendant then replied, “I wanna see, I wanna see if I can
help you man.” This is an expression of his willingness to speak with the police. In other words,
it is the opposite of an unequivocal assertion of the right to remain silent. See People v
McKinney, 488 Mich 1054; 794 NW2d 614 (2011) (a defendant’s statement that he would “just
as soon wait” until he had an attorney before talking to the police, then the officer’s response,
and the defendant’s immediate statement that he “was willing to discuss the ‘circumstances,’ was
not an unequivocal assertion of the right to counsel or a statement declaring an intention to
remain silent.”).

       Defendant also contends that his waiver was not knowing, voluntary, or intelligent. He
highlights facts such as he only completed the eighth grade, his prior experience with the
criminal justice system was primarily with misdemeanors, he was institutionalized for five years
“in what he believed was a mental health facility,” and he had been physically injured prior to
giving his statement and required hospitalization.

        However, the trial court’s findings weigh heavily against these arguments. The trial court
found that, despite defendant’s claim that he had an eighth grade education and suffered from
mental disorders, his understanding of the legal system and Miranda warnings was
“sophisticated” and he had demonstrated “full awareness of the legal system and his rights.” The
trial court noted that defendant had sent the court two letters, which “showed a great deal of




                                                -4-
sophistication regarding the law.”2 The court also observed that defendant had been arrested
previously, and his claim that he had not been read his Miranda rights for those crimes was
unfathomable.

        As the trial court found, defendant was 25 years old when questioned, and the length of
the interview was not unreasonable.3 Nor did the trial court find any evidence that defendant
was injured, drugged, or intoxicated when he gave his statement, or that he was deprived of food,
sleep, or water. The trial court also found that there was no evidence or allegations of threats or
physical abuse.

       We discern no clear error in the trial court’s findings or its overall conclusion that
defendant’s waiver was voluntary, knowing, and intelligent.

                                    D. HARMLESS ERROR

        Moreover, even if the admission of defendant’s statement was improper, “given the
untainted evidence in this particular case, admission of the statements was harmless beyond a
reasonable doubt.” Henry (After Remand), 305 Mich App at 148. This is not a case with little
evidence, nor one that was a credibility contest between two witnesses. Instead, the jury had
significant, untainted evidence of defendant’s guilt. First, the surveillance video of the robbery
was admitted at trial. Therefore, the jury was able to judge for itself whether defendant was one
of the perpetrators. Several police officers also detailed the frenzied chase that ensued, which
included following the suspects in a cab and pursuing them when they fled. A police officer
continued to chase defendant until he had to be tasered twice to be subdued before he was
arrested. The stolen lottery tickets were recovered from the cab. Additionally, evidence was
admitted that defendant made a phone call from jail to a woman, where he said, “I f***** up. I
f***** up really bad.” When the woman asked him what he did, he replied “I robbed a gas
station.” She then repeated, “You robbed a gas station?” Defendant replied, “Yeah.” When she
asked him why he did it, he explained that he was not really the one who robbed the gas station.

       In light of the overwhelming evidence of defendant’s guilt, “it is clear beyond a
reasonable doubt that a rational jury would have found the defendant guilty absent the error.”
Henry (After Remand), 305 Mich App at 151 (quotation marks and citation omitted).

                                            III. JURY

       Defendant next contends that there was a possible improper, outside influence on the
jury, which warrants a remand. We disagree.


2
  The trial court also found that defendant, after realizing the level of sophistication his letters
revealed, provided testimony that someone else wrote them, which the court found was not
credible.
3
 Although the trial court did not account for the period of the interview that was unrecorded, the
overall length of the detention remained reasonable.


                                                -5-
        During trial, the prosecutor informed the court that when leaving the courtroom one day,
a colleague inquired about a particular witness’s testimony. The prosecutor stated that she did
not respond, although she might have made a gesture indicating that she could not discuss it.
One of the jurors passed by during this conversation. When the issue was brought to defense
counsel’s attention, he agreed with the prosecution and the trial court that the incident did not
create a problem for defendant.

        In light of the foregoing, we find that this issue is waived. Because of defendant’s
affirmative agreement with the prosecution, and his express approval of the trial court’s course
of action, “defendant has waived this issue on appeal.” People v Carter, 462 Mich 206, 215; 612
NW2d 144 (2000). Moreover, even if we were to review this issue, defendant has not
demonstrated an entitlement to relief or a hearing on remand.

        A jury only may consider the evidence presented to it in open court. People v Budzyn,
456 Mich 77, 88; 566 NW2d 229 (1997). In order to establish that an extrinsic influence was
error requiring reversal, the defendant must prove the following: (1) the jury was exposed to the
extraneous influence; and (2) the extraneous influence created a real and substantial possibility
that it could have affected the jury’s verdict. Id. at 88-89. To prove the second prong, the
defendant generally must “demonstrate that the extraneous influence is substantially related to a
material aspect of the case and that there is a direct connection between the extrinsic material and
the adverse verdict.” Id. at 89. If the defendant can prove these two prongs, the burden shifts to
the prosecution to demonstrate that the error was harmless beyond a reasonable doubt. Id. The
prosecution may prove this if the extraneous influence was duplicative of evidence at trial, or if
the evidence of guilt was overwhelming. Id. at 89-90.

       Defendant has not demonstrated that the jury was exposed to an extrinsic influence or
that anything in the prosecution’s conduct would give rise to an improper inference. Even
assuming, arguendo, that a juror heard the disputed exchange, and communicated it to his or her
fellow jurors, defendant fails to explain how this incident could have created a “real and
substantial possibility” that it affected the verdict. Budzyn, 456 Mich at 88-89. Furthermore,
given the overwhelming evidence of defendant’s guilt, not the least of which is his confession,
any error was harmless beyond a reasonable doubt. Id. at 89-90

                               IV. OFFENSE VARIABLE (OV) 9

                                  A. STANDARD OF REVIEW

        Lastly, defendant contends that the trial court improperly scored OV 9 at 10 points.
“Under the sentencing guidelines, the circuit court’s factual determinations are reviewed for
clear error and must be supported by a preponderance of the evidence.” People v Hardy, 494
Mich 430, 438; 835 NW2d 340 (2013). “Clear error exists if the reviewing court is left with a
definite and firm conviction that a mistake has been made.” People v Johnson, 466 Mich 491,
497-498; 647 NW2d 480 (2002). “Whether the facts, as found, are adequate to satisfy the
scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question
of statutory interpretation, which an appellate court reviews de novo.” Hardy, 494 Mich at 438.

                                          B. ANALYSIS
                                                 -6-
        Defendant contends that neither the cab driver nor the police officer who pursued and
captured him were victims for purposes of OV 9. Pursuant to MCL 777.39(1)(c), a trial court
may score OV 9 at 10 points if “[t]here were 2 to 9 victims who were placed in danger of
physical injury or death, or 4 to 19 victims who were placed in danger of property loss.” The
trial court is to count each person who was placed in danger of physical injury or loss of life or
property as a victim. MCL 777.39(2)(a). “OV 9 is scored only on the basis of the defendant’s
conduct during the sentencing offense.” People v Carrigan, 297 Mich App 513, 515; 824 NW2d
283 (2012). “[T]he course of an armed robbery includes the robber’s conduct in fleeing the
scene of the crime.” People v Mann, 287 Mich App 283, 287; 786 NW2d 876 (2010).

         Neither party disputes that defendant placed at least one victim in danger, namely, the gas
station clerk. Defendant and his coperpetrators then fled the scene, and Officer Schulte gave
chase. According to Schulte, defendant resisted arrest and had to be tasered two times. Schulte
testified that after defendant “squared off” with him, defendant resisted and “rolled into” him
when he attempted to handcuff defendant. Thus, Schulte was a victim because this physical
altercation placed him in danger of physical injury. MCL 777.39(2)(a). Furthermore, because
this conduct comprised part of the armed robbery, Mann, 287 Mich App at 287, the trial court
properly counted Schulte as another victim.4

     Because defendant placed at least two victims in danger of physical injury or loss of life,
MCL 777.39(2)(a), the trial court properly scored OV 9 at 10 points.5

                                       V. CONCLUSION

        There is no error warranting reversal regarding the admission of defendant’s confession.
Nor do we find that a remand is warranted based on a potential extraneous influence on the jury.
Lastly, resentencing is not required because the trial court properly scored OV 9. We affirm.

                                                             /s/ Michael J. Riordan
                                                             /s/ Pat M. Donofrio
                                                             /s/ Jane M. Beckering




4
  Although this conduct also comprised the resisting and obstructing charge, that does not
warrant a different result. See, e.g., Mann, 287 Mich App at 287 (“the carjacking incident
constituted not only the commission of separate offenses, but was also a continuation of the
armed robbery.”).
5
  Since this accounts for at least two victims, it is unnecessary to address defendant’s arguments
regarding the taxicab driver.


                                                -7-
