                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   September 24, 2015
              Plaintiff-Appellee,

v                                                                  No. 320085
                                                                   Oakland Circuit Court
BOBBY LEE TAYLOR,                                                  LC No. 2013-247025-FC

              Defendant-Appellant.


Before: GADOLA, P.J., and JANSEN and BECKERING, JJ.

PER CURIAM.

       A jury convicted defendant, Bobby Lee Taylor, of first-degree felony murder, MCL
750.316(1)(b),1 and first-degree criminal sexual conduct (CSC). The trial court sentenced him as
an habitual offender, fourth offense, MCL 769.12, to 75 to 120 years’ imprisonment for the first-
degree CSC conviction and life imprisonment for the felony-murder conviction. Defendant
appeals as of right, and we affirm.

                                       I. BASIC FACTS

        Defendant was convicted of sexually assaulting and murdering Rosaline Lee, whose body
was discovered floating in a lake in Pontiac on May 26, 2013. The victim was naked except for
a sports bra pulled up over her breasts. An autopsy revealed that the victim died of manual
strangulation. Abrasions on her arms, trauma to her forehead, and other injuries were indicative
of a struggle. The victim’s vaginal swabs revealed the presence of semen deposited within the
last 24 hours, and DNA testing of it matched defendant’s DNA profile.2 The victim was


1
  Defendant was also charged with first-degree premeditated murder, MCL 750.316(1)(a), and
convicted of the lesser crime of second-degree murder. The parties stipulated, on double
jeopardy grounds, to vacate the second-degree murder conviction.
2
   According to the forensic science testimony, in comparing the DNA sample to the general
population, one in 323.1 sextillion Caucasians would match the profile, one in 6.734 quintillion
African-Americans would match the profile, and one in 751.9 sextillion Hispanics would match
the profile. Furthermore, because a sperm tail was visible, intercourse had occurred within 24
hours.


                                               -1-
involved in a relationship with Julius Hall,3 a longtime friend, and the victim’s family members
and friends reported that the victim never mentioned defendant’s name or engaged in one-night
stands.

        The night before the victim’s body was discovered, Jamar Carter, who had known
Michelle Toth for two weeks and knew defendant “by face,” invited Toth and defendant to his
home. The three were observed on video cameras near a bus stop by St. Joseph’s Hospital in
Pontiac, and their bus ride was confirmed by the driver, Patricia Vuocolo, who exchanged phone
numbers with defendant. Toth and defendant intended to engage in sexual relations in front of
Carter, but Toth changed her mind and left to go to the hospital. After Toth and defendant left
Carter’s home, Carter discovered that three of his prescription bottles were missing. Carter’s
roommate, Andre Teasley, could not have been responsible for the missing bottles because he
was hospitalized at the time. Telephone records and other evidence indicated that defendant had
contacted multiple women that evening, but was not successful in connecting up with any of
them. Defendant admitted in a police interview that he was trying to “hook up” with a woman
that evening.

        The victim was last seen at the Chase office building in Pontiac, where she went to meet
the father of her child, Matthew Caffey, to obtain money for diapers. The victim called Caffey at
3:17 a.m. on May 26 to advise him that she was in the parking lot, but when Caffey began to exit
the building, he saw the victim’s white van drive out of the lot. Caffey believed there was
another individual in the van, but his efforts to contact the victim by phone call and text went
unanswered. The office building was 1-1/2 to 2 miles from the hospital where defendant was
observed that evening. At approximately 9:00 a.m., a man answered Caffey’s call to the victim’s
phone and indicated that he had found the phone in pieces on the ground.

        The day after the victim’s body was recovered, her white van was found near an
abandoned school and wooded area. Prescription bottles belonging to Carter and Teasley were
found in or near the van. Police contact with Carter led them to seek out defendant, and Vuocolo
assisted the police by texting defendant to request his photograph. When brought into custody
on June 5, 2013, defendant gave conflicting accounts of his whereabouts and contacts that
weekend, denied the theft of any prescription medications, and invoked his right to counsel.
During his statement, he admitted to parole violations because of his use of marijuana and
alcohol. A parole hearing was held the next day and defendant received a 30-day sentence.
While serving the sentence, a warrant was authorized against defendant for the victim’s
homicide. When interviewed a second time on June 20, 2013, defendant denied knowing the
victim, but declined to speak further after invoking his right to counsel.

       The prosecution’s theory at trial was that defendant was on a “mission” to have sex on
the night of May 25-26 and, after Toth reneged on their plan to have sex in front of Carter, and
defendant was unsuccessful in connecting with other women, he encountered the victim at the
Chase office building and seized upon that opportunity to carry out his mission, whereupon he


3
 Forensic examination of the DNA evidence excluded both Hall and Bernard Kimble—who will
be discussed in more detail infra—as potential contributors.


                                               -2-
apprehended, sexually assaulted, and then killed her. The defense denied that defendant was the
perpetrator, and argued that the prosecution’s witnesses were not credible, that there were other
plausible suspects, and that the DNA evidence was the product of contamination.

                     II. SUFFICIENCY OF THE EVIDENCE, IDENTITY

        Defendant first argues that the evidence was insufficient to support his convictions. He
does not dispute that there was sufficient evidence to prove that the victim was sexually
assaulted and murdered, but argues that the evidence was insufficient to establish his
identification as the perpetrator. The prosecution must prove a defendant’s identity as the
perpetrator of a charged offense beyond a reasonable doubt. See People v Oliphant, 399 Mich
472, 489; 250 NW2d 443 (1976); People v Kern, 6 Mich App 406, 409; 149 NW2d 216 (1967).

        Appeals challenging the sufficiency of the evidence are reviewed de novo. People v
Henderson, 306 Mich App 1, 8-9; 854 NW2d 234 (2014). This Court must review the evidence
in a light most favorable to the prosecution to determine whether a rational trier of fact could
have found that the essential elements of the crime were proved beyond a reasonable doubt.
People v Dunigan, 299 Mich App 579, 582; 831 NW2d 243 (2013). Circumstantial evidence
and reasonable inferences arising from that evidence may constitute proof of the elements of the
crime. People v Bennett, 290 Mich App 465, 472; 802 NW2d 627 (2010). This Court’s review
is deferential, and the trier of fact, not the appellate court, properly determines what inferences
may be fairly drawn from the evidence and the weight to be accorded those inferences. People v
Unger, 278 Mich App 210, 222; 749 NW2d 272 (2008). Thus, all conflicts in the evidence are
resolved in favor of the prosecution, Bennett, 290 Mich App at 472, and this Court will not
interfere with the jury’s assessment of the weight of evidence or the credibility of witnesses.
Dunigan, 299 Mich App at 582; People v Eisen, 296 Mich App 326, 331; 820 NW2d 229 (2012).

        The evidence revealed that on the night the victim was killed, defendant went to Carter’s
home with Toth to engage in sexual relations in front of Carter. However, Toth declined to
participate, left Carter’s residence, and checked into a hospital. Defendant left his phone number
with Carter and indicated that he frequently had relations with women, and they would “hook”
up another time. Later that evening, after defendant’s departure, Carter realized that three of his
prescription medicine bottles were missing. Carter’s roommate at the time, Teasley, was
hospitalized, and therefore, could not have committed the theft, and Carter did not have any other
guests at his home.

        The victim agreed to meet Caffey later that night at his office building to obtain money
for diapers. The office building was 1-1/2 to 2 miles from St. Joseph’s hospital, where defendant
was last seen. The victim called Caffey at 3:17 a.m. to indicate that she had arrived at his
building. When Caffey came downstairs, he saw the victim’s van driving away from the
building, and Caffey believed that someone else was in the van with the victim.

        The victim was dating Hall, and her family and friends indicated that she did not engage
in a promiscuous lifestyle and had never mentioned defendant’s name. The victim’s body was
found the next morning in Terry Lake, and her bra was raised over her breasts. The evidence
indicated that she struggled with her assailant, causing blunt force trauma to her forehead,
abrasions to her arms, bruising to her elbow, and died from manual strangulation. Testing

                                                -3-
revealed that DNA matching defendant’s DNA profile was found in the victim’s vagina. The
victim’s van was found the next day near an abandoned school, and prescription bottles
belonging to Carter and his roommate were found near the vehicle. Defendant gave a statement
to the police in which he acknowledged having relationships with various women and trying to
“hook up” with a woman that evening.

        The circumstantial evidence permitted the jury to infer that defendant took Carter’s and
Teasley’s prescription medication when he was at Carter’s home. Defendant’s phone records
indicated that he contacted multiple women that evening, but did not successfully connect up
with any of them. However, the evidence revealed that defendant made contact with the victim
within 24 hours of her death because his DNA was left in her vagina. Additionally, she had
incurred multiple injuries, which she did not have before she left her home to meet with Caffey.
The circumstantial, physical, and DNA evidence was sufficient to enable the jury to find beyond
a reasonable doubt that defendant stole pills from Carter’s home, encountered the victim at
Caffey’s office building and drove away with her in her van, and then sexually assaulted her
before strangling her to death and placing her body in Terry Lake. The jury could find that
defendant left the scene in the victim’s van, which he left near an abandoned school, and that the
presence of Carter’s prescription medication in the vicinity of the van, which defendant had
stolen earlier that night, further linked him to the victim’s apprehension, sexual assault, and
murder.

        Defendant identifies various itemized points that he contends refute his identity as the
perpetrator. However, the facts on which defendant relies to cast doubt on his guilt were
submitted to the jury. Defendant essentially argues that the jury should have interpreted the
evidence differently. Defendant’s argument ignores that the weight and credibility of evidence,
and the inferences to be drawn from the evidence, are matters for the jury to resolve. This Court
must defer to the jury’s determination of those matters, and we may not substitute our judgment
for the jury’s verdict. Unger, 278 Mich App at 222. Moreover, the prosecution was not required
to negate every theory consistent with defendant’s innocence, but only had to prove its own
theory beyond a reasonable doubt regardless of contradictory evidence offered by defendant.
People v Chapo, 283 Mich App 360, 363-364; 770 NW2d 68 (2009). The evidence was
sufficient to enable the jury to find beyond a reasonable doubt that defendant was the perpetrator
of the charged crimes.

                               III. MOTION FOR A MISTRIAL

        Next, defendant argues that the trial court abused its discretion by denying his motion for
a mistrial after the prosecution introduced testimony that defendant sent a text photograph of his
penis to Vuocolo, whom defendant met for the first time earlier on the same night that the victim
was killed.4 The photograph was sent when Vuocolo, acting in cooperation with the police,
contacted defendant several days after the offense and asked for a photograph, claiming that she
could not remember what he looked like. Defendant responded by first sending a photograph of


4
  The photograph itself was not admitted into evidence; rather, Vuocolo merely described having
received the text.


                                                -4-
his penis, and then a photograph of his face. Defendant argues that this evidence was irrelevant
and so unduly prejudicial that a mistrial was required. We disagree.

       We review a trial court’s denial of a motion for a mistrial for an abuse of discretion.
People v Lane, 308 Mich App 38, 60; 862 NW2d 446 (2014). An abuse of discretion occurs
when the trial court’s decision falls outside the range of principled outcomes. Id. The motion
for a mistrial was related to the admission of evidence, which the trial court determined was
relevant and not unduly prejudicial. A trial court’s evidentiary decision is also reviewed for an
abuse of discretion. People v Jones, 270 Mich App 208, 211; 714 NW2d 362 (2006). However,
“[w]e review de novo the preliminary questions of law surrounding the admission of evidence,
such as whether a rule of evidence bars admitting it.” Lane, 308 Mich App at 51.

        A mistrial should be granted only when an irregularity occurs that is prejudicial to the
defendant’s rights and impairs his ability to get a fair trial. People v Schaw, 288 Mich App 231,
236; 791 NW2d 743 (2010). A motion for a mistrial should be granted only when the prejudicial
effect of an error cannot be removed in any other manner. People v Horn, 279 Mich App 31, 36;
755 NW2d 212 (2008). The trial court denied defendant’s motion for a mistrial because it found
that the probative value of the disputed evidence was not substantially outweighed by the danger
of unfair prejudice. Thus, the trial court’s decision denying the motion for a mistrial was linked
to its determination that the disputed evidence was admissible and not unduly prejudicial.
Accordingly, if the disputed evidence was properly admitted, the trial court necessarily would
not have abused its discretion by denying the motion for a mistrial. See Schaw, 288 Mich App at
236-238. Thus, we first consider defendant’s argument that the disputed evidence was not
relevant.

        All relevant evidence is admissible unless excluded by constitution or court rule. People
v Fomby, 300 Mich App 46, 48; 831 NW2d 887 (2013). Evidence is relevant if it has “any
tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.” MRE 401.
However, relevant evidence may be excluded if “its probative value is substantially outweighed
by the danger of unfair prejudice . . . .” MRE 403.

        The prosecutor introduced the testimony that defendant sent Vuocolo a photographic
image of his penis for its probative value in showing defendant’s intent on the night the victim
was killed. The prosecution’s theory at trial was that defendant was on a mission to have sex on
the night the victim was killed, had been unsuccessful in his efforts to connect with other women
that evening, encountered the victim at the Chase office building, and decided to seize upon that
opportunity to carry out his mission. Evidence of motive is relevant to show the intent necessary
to prove murder. People v Cipriano, 238 Mich 332, 335; 213 NW 104 (1927); People v
Herndon, 246 Mich App 371, 412-413; 633 NW2d 376 (2001). In Cipriano, 238 Mich at 335,
our Supreme Court explained:

               It not infrequently happens in murder cases that no motive can be found
       for the commission of the crime. If capable of being shown, it may have an
       important bearing on the question of intent and on the probability that the accused
       killed the deceased. Or if it cannot be shown, it may have an important bearing
       on the question of intent and on the probability that the accused killed the

                                               -5-
       deceased. Or if it cannot be shown it is of great importance to the accused; for it
       is a matter of common belief that in the act of murder the normal mind must have
       been led by some motive sufficient to overcome its natural aversion to the taking
       of a human life. It is an important factor in any murder prosecution, but it is not
       an indispensable element in the people’s case. It is not necessary for the jury to
       find a motive in order to convict.

        The testimony regarding the penis text comported with the prosecutor’s theory of the case
that defendant’s interest in sex was the motive for his commission of the charged offenses.
Defendant characterizes the prosecutor’s theory as “laughable,” and argues that testimony
regarding the penis image did not provide a motive for rape or murder. However, prosecutors
are free to argue the evidence and all reasonable inferences with regard to their theory of the
case. People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995). Although an individual’s
desire to engage in sexual acts does not necessarily equate with an intent to commit rape and
murder, evidence that defendant’s interaction with Vuocolo was sexually motivated on the night
in question,5 and that he was willing to text a photograph of his penis to a woman he had only
briefly met a few days earlier, was probative of his interest in sex and the lengths he would go to
satisfy his sexual needs, and was consistent with the prosecutor’s theory that defendant selected
the victim to satisfy those needs.

        Moreover, the trial court did not abuse its discretion in ruling that the probative value of
the evidence was not substantially outweighed by the danger of unfair prejudice. Defendant
argues that the evidence was unduly prejudicial because the jury would naturally have a negative
visceral reaction to it, and give it undue weight as being a horrible reflection on his character.
However, in his statement to the police, defendant admitted that he was attempting to engage in
sex that evening. Defendant acknowledged that he was juggling multiple women, he referred to
himself as a “whore,” he attempted to arrange a meeting with a prostitute on the night of the
murder, he “hit” on bus driver Vuocolo and obtained her phone number, and he had intended to
engage in sex with Toth in Carter’s presence, but did not only because Toth backed out. Sex and
women were a prominent discussion in defendant’s statement to the police. Viewed against this
backdrop, the testimony that defendant sent a text photograph of his penis to Vuocolo could not
be deemed substantially more prejudicial than probative. Moreover, the reference to the text was
isolated and the photograph itself was never admitted. Accordingly, the trial court did not err in
determining that the evidence was relevant and that its probative value was not substantially
outweighed by the danger of unfair prejudice. Therefore, the court also did not abuse its
discretion in denying the motion for a mistrial, which was premised on that evidence.

                               IV. EXCLUSION OF EVIDENCE

       Defendant next argues that the trial court erred in excluding the testimony of a defense
witness, Robert Combs, who was prepared to testify that Bernard Kimble admitted committing


5
  Vuocolo described defendant as “hitting on” her. He inquired whether she was married, asked
for her phone number, and asked if she could go get coffee with him, which she declined because
it was too late and she had to work.


                                                -6-
the charged murder. Defendant argues that Combs’s testimony was admissible under MRE
804(b)(3), as a statement against Kimble’s penal interest, or MRE 803(24), the catchall hearsay
exception, and that the trial court’s exclusion of this testimony deprived him of his constitutional
right to present a defense. The trial court’s decision to exclude evidence is reviewed for an abuse
of discretion. People v Duenaz, 306 Mich App 85, 90; 854 NW2d 531 (2014). We review de
novo preliminary questions of law as to whether evidentiary rules bar the admission of evidence.
Lane, 308 Mich App at 51. In addition, whether a defendant suffered a deprivation of his
constitutional right to present a defense is reviewed de novo. People v Steele, 283 Mich App
472, 480; 769 NW2d 256 (2009).

        “A defendant has a constitutionally guaranteed right to present a defense, which includes
the right to call witnesses. US Const, Am VI; Const 1963, art 1, § 20[.]” People v Yost, 278
Mich App 341, 379; 749 NW2d 753 (2008). But the right to present a defense may be limited by
established rules of procedure and evidence to ensure both fairness and reliability in ascertaining
guilt and innocence. People v Toma, 462 Mich 281, 294; 613 NW2d 694 (2000), citing
Chambers v Mississippi, 410 US 284, 302; 93 S Ct 1038; 35 L Ed 2d 297 (1973). As this Court
explained in People v Orlewicz, 293 Mich App 96, 101-102; 809 NW2d 194 (2011):

               The right to present a defense is not absolute or unfettered. A trial court
       may exclude evidence if its probative value is outweighed by factors such as
       unfair prejudice, confusion of the issues, or potential to mislead the jury.
       Therefore, a court may exclude evidence that is repetitive, only marginally
       relevant, or poses an undue risk of harassment, prejudice, or confusion of the
       issues. Similarly, defendants are entitled to present witnesses in their defense, but
       again that right is not absolute. “To the contrary, it requires a showing that the
       witness’ testimony would be both material and favorable to the defense.” The
       underlying question is whether the proffered evidence or testimony is relevant and
       material, or unfairly prejudicial. [Citations omitted.]

       The exception in MRE 804(b)(3) provides that the following statement is not excluded by
the hearsay rule if the declarant is not available as a witness:

               A statement which was at the time of its making . . . so far tended to
       subject the declarant to civil or criminal liability . . . that a reasonable person in
       the declarant’s position would not have made the statement unless believing it to
       be true. A statement tending to expose the declarant to criminal liability and
       offered to exculpate the accused is not admissible unless corroborating
       circumstances clearly indicate the trustworthiness of the statement. [Emphasis
       added.]

Because defendant was seeking to introduce a statement that tended to expose Kimble, the
declarant, to criminal liability, and the statement was offered to exculpate defendant, defendant
had the burden of showing that corroborating circumstances clearly indicated the trustworthiness
of the statement. People v Miller, 141 Mich App 637, 642; 367 NW2d 892 (1985). The
requirement of corroborating circumstances is enforced. People v Bowman, 254 Mich App 142,
147-148; 656 NW2d 835 (2002).


                                                -7-
          The catchall hearsay exception, MRE 803(24), provides:

                  Other Exceptions. A statement not specifically covered by any of the
          foregoing exceptions but having equivalent circumstantial guarantees of
          trustworthiness, if the court determines that (A) the statement is offered as
          evidence of a material fact, (B) the statement is more probative on the point for
          which it is offered than any other evidence that the proponent can procure through
          reasonable efforts, and (C) the general purposes of these rules and the interests of
          justice will best be served by admission of the statement into evidence. However,
          a statement may not be admitted under this exception unless the proponent of the
          statement makes known to the adverse party, sufficiently in advance of the trial or
          hearing to provide the adverse party with a fair opportunity to prepare to meet it,
          the proponent’s intention to offer the statement and the particulars of it, including
          the name and address of the declarant.

          As our Supreme Court explained in People v Katt, 468 Mich 272, 279; 662 NW2d 12
(2003):

                  [E]vidence offered under MRE 803(24) must satisfy four elements to be
          admissible: (1) it must have circumstantial guarantees of trustworthiness equal to
          the categorical exceptions, (2) it must tend to establish a material fact, (3) it must
          be the most probative evidence on that fact that the offering party could produce
          through reasonable efforts, and (4) its admission must serve the interests of
          justice. Also, the offering party must give advance notice of intent to introduce
          the evidence.

       Thus, MRE 804(b)(3) and MRE 803(24), respectively, require that there be corroborating
circumstances indicative of trustworthiness, Miller, 141 Mich App at 642, or circumstantial
guarantees of trustworthiness, People v Lee, 243 Mich App 163, 178; 622 NW2d 71 (2000), to
allow admission of Kimble’s alleged confession to Combs.

        In Lee, 243 Mich App at 178, this Court delineated the following factors to determine
whether certain statements have particularized guarantees of trustworthiness when considering
the totality of the circumstances:

                   (1) the spontaneity of the statements, (2) the consistency of the statements,
          (3) lack of motive to fabricate or lack of bias, (4) the reason the declarant cannot
          testify, (5) the voluntariness of the statements, i.e., whether they were made in
          response to leading questions or made under undue influence, (6) personal
          knowledge of the declarant about the matter on which he spoke, (7) to whom the
          statements were made . . . , and (8) the time frame within which the statements
          were made. [Citations omitted.]

       Defendant did not establish that there were particularized guarantees of trustworthiness to
demonstrate the reliability of Kimble’s alleged confession. Combs testified that he had limited
contact with Kimble on four occasions, and that Kimble was always intoxicated, angry, and irate.
Combs stated that Kimble was intoxicated and slurring his words when he began to give details

                                                   -8-
about putting a “young girl” in a “river,” at which point Combs cut him off. This testimony did
not present corroborating circumstances or circumstantial guarantees of trustworthiness. Kimble
made the alleged statement while in an intoxicated state, and his limited statement did not reveal
actual knowledge or details of what transpired, only what would have been reported in the
community in news reports. Moreover, Kimble’s unavailability was not adequately explained.
Defense counsel asserted that Kimble was unavailable because he would not appear to
incriminate himself, but counsel also acknowledged that, as a matter of trial strategy, he did not
intend to call Kimble to testify. Rather, counsel stated that he had reviewed Kimble’s statement,
knew Kimble had passed a polygraph, and knew that if he called Kimble to testify and he denied
committing the murder, Combs could be called for impeachment evidence. However, defense
counsel stated that he did not intend to employ the strategy of impeachment evidence.
Considering the totality of the circumstances, the trial court did not abuse its discretion in
determining that Kimble’s alleged confession to Combs lacked circumstantial guarantees of
trustworthiness to be admissible.6 As such, where the evidence was inadmissible, the trial
court’s decision to deny admission of the evidence did not deprive defendant of his right to
present a defense. See Orlewicz, 293 Mich App at 101-102.

                    V. FAILURE TO SUA SPONTE SUPRESS EVIDENCE

        Defendant next argues that the trial court erred by failing to sua sponte suppress the
entirety of his June 5, 2013 police interview. We disagree.

        The trial court conducted a Walker7 hearing to determine the admissibility of defendant’s
police interviews on June 5, 2013, and June 20, 2013. When the trial court requested
clarification regarding the statements that defendant sought to suppress, defendant asserted that
once he invoked his right to silence at page 52 of the transcript for the June 5 interview, all of his
statements after that invocation were inadmissible, including those made at a subsequent June 20
interview. The trial court agreed to suppress defendant’s June 5 interview after page 50,8 when
defendant invoked his right to silence. It also ruled that the June 20 interview was admissible up
to page seven, but agreed to suppress the remaining portion when defendant indicated that he
was done talking. Defendant now argues for the first time on appeal that he invoked his right to
counsel at pages 7-8 of the June 5 interview, and therefore, all statements made during that
interview after page 7 should have also been suppressed, and further, that his invocation of the
right to counsel at the June 5 hearing also requires that the June 20 interview be suppressed in its



6
  And, in regard to defendant’s argument that the statement was admissible under MRE
804(b)(3), defendant failed to show that Kimble was unavailable to testify, creating another
barrier to admissibility under that rule.
7
    People v Walker, 374 Mich 331; 132 NW2d 87 (1965).
8
  Although defendant argued that the invocation occurred on page 52 of the interview transcript,
the trial court suppressed all statements beginning on page 50 of the transcript. The two-page
discrepancy is not at issue on appeal. Rather, defendant argues for the first time on appeal that
he unambiguously invoked his rights at the outset of the interview.


                                                 -9-
entirety. Because defendant did not argue in the trial court that any statements before page 50 of
the June 5 interview should be suppressed, defendant’s present claim is unpreserved.

       We review for clear error a trial court’s factual findings rendered when ruling on a
motion to suppress. People v Tanner, 496 Mich 199, 206; 853 NW2d 653 (2014). “Clear error
exists when the reviewing court is left with a definite and firm conviction that a mistake was
made.” People v McDade, 301 Mich App 343, 356; 836 NW2d 266 (2013). Unpreserved
suppression issues are reviewed for plain error affecting substantial rights. People v Wilson, 242
Mich App 350, 355; 619 NW2d 413 (2000).

        Both the United States Constitution, US Const, Am V, and the Michigan Constitution,
Const 1963, art 1, § 17, prohibit compelled self-incrimination. People v Elliott, 494 Mich 292,
301 n 4; 833 NW2d 284 (2013). The prosecutor may not use the defendant’s exculpatory or
inculpatory statements arising from a custodial interrogation unless it demonstrates the
application of procedural safeguards to protect the privilege against self-incrimination. Miranda
v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966). “Prior to any questioning,
the person must be warned that he has a right to remain silent, that any statement he does make
may be used as evidence against him, and that he has a right to the presence of an attorney, either
retained or appointed.” Id. The defendant may waive his rights if the waiver is made
voluntarily, knowingly, and intelligently. Id. Interrogation must cease if the defendant invokes
his right to counsel. Id. at 473-474; People v Harris, 261 Mich App 44, 53; 680 NW2d 17
(2004).

        The invocation of the right to counsel requires a statement that can reasonably be
considered a desire for the assistance of counsel; an ambiguous or equivocal reference to an
attorney does not require questioning to cease. Davis v United States, 512 US 452, 458-459; 114
S Ct 2350; 129 L Ed 2d 362 (1994); People v Adams, 245 Mich App 226, 237-238; 627 NW2d
623 (2001). In Adams, 245 Mich App at 238, this Court held that the statement, “Can I talk to
him [a lawyer] right now?” was an “utterance . . . not sufficient to invoke the right to counsel and
cut off all further questioning” because the context indicated that the defendant was seeking
clarification regarding if and when he could speak to a lawyer. After the defendant was given
time to think about it, he decided to answer some of the police questions at that time. Id. In
People v Granderson, 212 Mich App 673, 676-678; 538 NW2d 471 (1995), this Court held that
the defendant’s expression that he would need an attorney in the future did not reflect a present
desire for counsel, and assuming the request was unambiguous, the expression that the defendant
might want a lawyer did not require police questioning to cease.

        In the present case, defendant’s statements during the early portion of the June 5
interview, viewed in context, indicate that defendant sought to determine why he was brought in
for an interview. Defendant never made an unambiguous invocation of his right to silence. The
detectives indicated that the purpose of the interview would be revealed during questioning if
defendant agreed to waive his rights and speak to the detectives. Although defendant said he
would “rather stop” and “[t]alk to a lawyer,” he continued immediately thereafter, on his own
accord, by stating that he was willing to be cordial to the detectives. Defendant continued
conversing with the detectives, who explained that they wanted to talk to defendant and would
tell him “what we’re here for,” but they could not do so unless defendant agreed, which was his
right. Defendant indicated that he was reluctant to talk because he might want to stop the

                                               -10-
interview, but after the detectives assured defendant that he could stop the interview at any time,
defendant agreed to waive his rights and answer questions. Because the record does not reflect a
clear, unambiguous invocation of the right to counsel at the beginning of the June 5 interview,
there was no plain error in refusing to suppress the portion of that interview before page 50, or in
refusing to suppress the June 20 interview in its entirety.

                             VI. PROBABLE CAUSE TO ARREST

        Defendant contends that he was arrested without probable cause and not thereafter timely
arraigned.9 Because defendant did not challenge the validity of his arrest or detention in the trial
court, this issue is not preserved. People v Danto, 294 Mich App 596, 605; 822 NW2d 600
(2011). Accordingly, defendant’s entitlement to appellate relief depends on whether he can
establish a plain error affecting his substantial rights. People v Pipes, 475 Mich 267, 274; 715
NW2d 290 (2006).

        A police officer may arrest without a warrant if there is probable cause to believe that the
defendant committed a felony. MCL 764.15; Chapo, 283 Mich App at 366-367. Probable cause
exists when the facts and circumstances available to the officer are sufficient to warrant a
reasonable person’s belief that an offense had been or is being committed. Chapo, 283 Mich
App at 367. The probable cause standard is objective and applies regardless of the motive or
intent of the police officer. Id. An arrest without a warrant may occur when a peace officer has
received positive information that “another peace officer or a court holds a warrant for the
person’s arrest.” MCL 764.15(1)(e). Thus, the statute provides a basis for “a proper arrest when
the officers are informed that another authority holds in his possession an outstanding warrant.”
Hollis v Baker, 45 Mich App 666, 669; 207 NW2d 138 (1973). Generally, the police officer is
not required to make inquiry into the legality of the warrant if it appears valid on its face. Id.

        In addition, a parole officer or peace officer may arrest without a warrant and detain a
paroled prisoner if he has reasonable grounds to believe that the prisoner has violated parole or a
warrant has issued for the parolee’s return. MCL 791.239; Jones v Dep’t of Corrections, 468
Mich 646, 652; 664 NW2d 717 (2003). “Pending a hearing upon any charge of parole violation,
the prisoner shall remain incarcerated.” MCL 791.238(1). Within 10 days of an arrest for an
alleged parole violation, the parolee shall be entitled to a preliminary hearing to address whether
probable cause exists to believe that the conditions of parole were violated or for a fact finding
hearing. MCL 791.239a(1). See also Elliott, 494 Mich at 312 n 12.

        Defendant asserts that the police could not have relied on an outstanding warrant for
traffic violations to arrest him because the warrant for those violations was not issued until July
2, 2013, almost one month after he was arrested. Because defendant did not raise this issue
below, there was little factual development regarding the basis for defendant’s arrest. The record
does disclose, however, that Carter had identified defendant as a suspect in the theft of his


9
   Defendant’s arguments addressed in Sections VI though VIII were raised in his pro se
supplemental brief, filed pursuant to Supreme Court Administrative Order No. 2004-6, Standard
4.


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prescription medications. Although defendant contends that Carter’s credibility was suspect, the
police were able to validate his claims by obtaining video recordings from the hospital and
interviewing Toth and Teasley. Defendant has not established that the police lacked probable
cause to arrest him for the theft of Carter’s medication, and therefore, he has not demonstrated a
plain error.

        We also reject defendant’s argument that his continued detention after his arrest was
illegal because he was not arraigned within 48 hours. See MCL 764.13; People v Cain, 299
Mich App 27, 49; 829 NW2d 37 (2012), vacated in part on other grounds 495 Mich 874 (2013).
The record discloses that defendant admitted during his post-arrest interview that he violated the
terms of his parole. After the interview ended, defendant’s parole officer was notified of the
violations, and a parole hearing was held the next day. MCL 791.239a(1). See also Elliott, 494
Mich at 312 n 12. Defendant admitted violating his parole and received a 30-day sentence for
the parole violations, which he was serving when the warrant for the instant case was authorized.
Thus, the record does not support defendant’s claim that he was illegally detained.

                        VII. EFFECTIVE ASSISTANCE OF COUNSEL

        Defendant next argues that he did not receive the effective assistance of counsel in the
trial court. Because defendant did not raise an ineffective assistance of counsel claim in the trial
court and this Court denied his motion to remand, our review of this issue is limited to errors
apparent from the record. Wilson, 242 Mich App at 352. “Whether a defendant received
ineffective assistance of trial counsel presents a mixed question of fact and constitutional law.”
People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011). To prevail on his claim,
defendant must demonstrate that counsel’s performance was below an objective standard of
reasonableness and that, but for counsel’s inadequate performance, “a different result would have
been reasonably probable.” Id. at 290. “There is a presumption that defense counsel was
effective, and a defendant must overcome the strong presumption that counsel’s performance
was sound trial strategy.” People v Johnson, 293 Mich App 79, 90; 808 NW2d 815 (2011). The
burden of establishing the factual predicate for a claim of ineffective assistance is on the
defendant. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

         Defendant contends that trial counsel should have challenged the basis for his arrest,
challenged the failure to timely present him to a magistrate following his arrest, and moved to
suppress the entirety of his June 5, 2013 police interview. As previously discussed, the record
fails to disclose that the police lacked probable cause to arrest defendant, given that Carter had
identified defendant as the person responsible for the theft of his medication and the police had
conducted an investigation to corroborate Carter’s version of events. Further, defendant was not
required to be brought before a magistrate within 48 hours after his June 5 arrest because he
admitted to violating his parole and a parole hearing was held the next day, which resulted in
defendant receiving a 30-day sentence. Because defendant cannot demonstrate that counsel
could have successfully challenged his arrest or continued detention, counsel was not ineffective
for failing to raise these claims. “Failing to advance a meritless argument or raise a futile
objection does not constitute ineffective assistance of counsel.” People v Ericksen, 288 Mich
App 192, 201; 793 NW2d 120 (2010).



                                               -12-
        Defendant correctly notes that trial counsel did not challenge the first portion of his June
5, 2013 police interview. But as previously discussed, defendant has not demonstrated that he
unequivocally invoked his right to counsel such that suppression would have been warranted.
Furthermore, defendant has not overcome the presumption that counsel’s failure to challenge the
first 50 pages of defendant’s June 5 interview was purposeful, as a matter of strategy. Counsel
utilized the statement to show that defendant cooperated with the police and provided truthful
information, consistent with information provided by other witnesses. That is, defendant
admitted that he intended to engage in sex with Toth in Carter’s presence, and that Toth then
refused, but defendant did not become violent or enraged with her, and simply left Carter’s
home. Similarly, defendant’s statement introduced evidence that he considered himself a “ladies
man” who juggled multiple women. The statement allowed the defense to combat the
prosecutor’s theory that defendant would have felt compelled to go to extreme lengths of
sexually assaulting and killing someone to satisfy his sexual needs. Because defendant did not
make any admissions that directly linked him to the victim’s sexual assault and death during the
first portion of his June 5 interview, counsel’s decision to not seek suppression of that portion of
the interview did not fall below an objective standard of reasonableness. “The fact that defense
counsel’s strategy may not have worked does not constitute ineffective assistance of counsel.”
People v Stewart (On Remand), 219 Mich App 38, 42; 555 NW2d 715 (1996). Further, contrary
to defendant’s assertion, trial counsel did challenge the admission of the second statement in its
entirety.

               VIII. ADMISSION OF DEFENDANT’S SECOND INTERVIEW

       Lastly, we reject defendant’s argument that his June 20, 2013, interrogation was unlawful
because the police reinitiated questioning after he invoked his right to remain silent at the June 5,
2013 interview. The trial court correctly held that, under Maryland v Shatzer, 559 US 98; 130 S
Ct 1213; 175 L Ed 2d 1045 (2010), there was a break in custody to overcome any presumption of
voluntariness established by Edwards v Arizona, 451 US 477; 101 S Ct 1880; 68 L Ed2d 378
(1981). Accordingly, defendant is not entitled to appellate relief. See Shatzer, 559 US at 112-
114; Elliott, 494 Mich at 308-316 (holding that a parolee detained on a parole violation was not
“in custody” for purposes of Miranda). Moreover, having reviewed defendant’s challenged
statements, we find no incriminating information, only denials by defendant that he knew the
victim or that he saw her or had sex with her on the night of her murder. This was essentially the
same argument defendant presented to the jury at trial. In light of the totality of the
circumstances, even assuming error, we would find such error to be harmless beyond a
reasonable doubt. See People v Whitehead, 238 Mich App 1, 7-12; 604 NW2d 737 (1999).

       Affirmed.



                                                              /s/ Michael F. Gadola
                                                              /s/ Kathleen Jansen
                                                              /s/ Jane M. Beckering




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