                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     January 20, 2015
               Plaintiff-Appellee,

v                                                                    No. 318082
                                                                     Saginaw Circuit Court
JAZINE ANNDACOLE RAND,                                               LC No. 13-038708-FH

               Defendant-Appellant.


Before: MURPHY, P.J., and METER and SERVITTO, JJ.

PER CURIAM.

       Following a jury trial, defendant was convicted of carrying a concealed weapon, MCL
750.227; carrying a dangerous weapon with unlawful intent, MCL 750.226; possession of a
firearm during the commission of a felony (felony firearm), MCL 750.227b; and possession of
marijuana, MCL 333.7403(2)(d). Defendant was sentenced to concurrent prison terms of 23
months to five years for carrying a concealed weapon and carrying a dangerous weapon with
unlawful intent, a consecutive two-year term for felony firearm, and 365 days in jail for
possession of marijuana. She appeals as of right. We affirm.

        Defendant’s convictions arose out of a traffic stop. While the car in which defendant was
the front seat passenger was being stopped for a broken taillight, defendant got out of the car and
attempted to walk away. State troopers on the scene believed she was attempting to flee and
stopped her. Defendant was found with a marijuana cigarette behind her ear and a firearm on her
person. After defendant was handcuffed and placed in the patrol car, in which Trooper Joseph
Whited was processing the names of the car’s occupants in the LEIN computer, defendant told
the trooper that she was not sure if she should say anything, to which he responded that “any
cooperation will look good and it’s better to be truthful.” She then stated that she got the firearm
from the two other occupants of the vehicle. Trooper Whited then left the car and conversed
with Trooper Daniel Stickel, who was searching the vehicle, and Trooper Whited proceeded to
read defendant her rights under Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694
(1966), which she waived before she made any more statements. She later told the police that
the driver of the vehicle gave her the gun and she and the driver intended to “shoot up” some
individuals who wanted to fight them.




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         Defendant moved to suppress her statements and a Walker1 hearing was held. Defendant
testified that she was told by the police that if she cooperated she would face only a probation
violation. Trooper Whited testified that he read defendant her Miranda rights before any
questioning occurred and defendant volunteered the initial remarks. Trooper Stickel testified
that he made no offer of leniency to defendant but said that he could refer her case to
“BAYANET,” which could potentially get her a lighter sentence, but that the sentencing decision
was not up to him.

        The trial court ruled defendant’s statements admissible, having been voluntarily and
properly given. The court noted that defendant understood her rights and that she was familiar
with the law due to prior experience with law enforcement. At trial, defendant contested only the
charges of carrying a dangerous weapon with unlawful intent and felony firearm and admitted in
her testimony that she was guilty of carrying a concealed weapon and possession of marijuana.
The jury convicted her of all charges.

        At issue in this appeal is whether defendant was subjected to “express questioning or its
functional equivalent.” See Rhode Island v Innis, 446 US 291, 300-301; 100 S Ct 1682, 64 L Ed
2d 297 (1980). Defendant contends that her initial statement about where she obtained the gun
was obtained illegally and that subsequent statements that she made should be suppressed as fruit
of the poisonous tree. The parties are in agreement that defendant was in custody at the time the
statements were given.

       “An appellate court must give deference to the trial court’s findings at a suppression
hearing.” People v Cheatham, 453 Mich 1, 29; 551 NW2d 355 (1996). When reviewing the
lower court’s decision regarding suppression under Miranda, this Court engages in a de novo
review of the entire record. Id. at 30. However, this Court will not disturb a trial court’s factual
findings unless they are clearly erroneous. Id.

        In Miranda, 384 US at 478-479, the United States Supreme Court held that the
prosecution may not use statements stemming from a custodial interrogation without first
demonstrating the use of procedural safeguards sufficient to secure the defendant’s privilege
against self-incrimination. An “[i]nterrogation has been held to be a practice that police know is
reasonably likely to invoke a response that the prosecution may seek to use at trial.” People v
O’Brien, 113 Mich App 183, 192; 317 NW2d 570 (1982). For purposes of Miranda,
interrogation refers to express questioning or its functional equivalent, including “any words or
actions on the part of the police (other than those normally attendant to arrest and custody) that
the police should know are reasonably likely to elicit an incriminating response from the
suspect.” Innis, 446 US at 300-301. “Miranda also precludes the prosecution from proving
defendant’s guilt with statements made by the defendant while in custody, prior to obtaining or
effectively waiving assistance of counsel.” O’Brien, 113 Mich App at 192.

         However, “[s]tatements that are volunteered by a defendant need not be suppressed at
trial, even if the volunteered remark was not preceded by Miranda warnings.” Id. at 192-193. A


1
    People v Walker, 374 Mich 331; 132 NW2d 87 (1965).


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police officer’s question when prompted by a defendant’s volunteered statement falls under this
exception. Id. at 193.

         In this case, Trooper Whited was in the patrol car with defendant checking the identities
of suspects on LEIN. The trooper was not asking defendant questions or taking any actions to
solicit a response from her. When defendant gratuitously stated to him that she did not know if
she should say anything, Whited responded that cooperation would look good and that it is best
to be truthful. Defendant then stated that she got the gun from the vehicle’s other occupants.
Whited immediately left the car to converse with Trooper Stickel, and defendant was read her
rights.

        It was defendant who first made a statement to Trooper Whited voluntarily and
independently. Whited made no attempt to question or interrogate defendant, merely responding
that cooperation would look good. Whited was not in the patrol car to speak to defendant, but to
do a LEIN search. The record does not indicate that there was an attempt by this trooper to elicit
information from defendant at this time or that he should have known that the situation would
likely lead to an incriminating response from defendant. Defendant initiated the conversation
with the trooper and the merit of defendant’s claim heavily turns on this point; indeed, Trooper
Whited was responding to a statement made by defendant. See, generally, O’Brien, 113 Mich
App at 193.         The circumstances indicate that in the absence of defendant’s initial
statement/question, Whited would have simply continued with his LEIN search; instead, he gave
general information in response to defendant’s statement. Further, the record shows that as soon
as defendant began to make an additional statement Whited left the patrol car and subsequently
Mirandized defendant. Defendant’s statement about where she received the gun was volunteered
and the trial court did not err in denying defendant’s motion to suppress.

        Regarding the subsequent statements made by defendant, these statements were made
following a proper waiver by defendant. Because the initial statement was volunteered and does
not merit suppression under Miranda, the exclusion of the subsequent statements as the fruit of
the poisonous tree is unwarranted. People v Raper, 222 Mich App 475, 481; 563 NW2d 709
(1997).

       Affirmed.

                                                            /s/ William B. Murphy
                                                            /s/ Patrick M. Meter
                                                            /s/ Deborah A. Servitto




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