                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   December 18, 2014
               Plaintiff-Appellee,

v                                                                  No. 316375
                                                                   Oakland Circuit Court
DAMON DWAINE BOSTICK,                                              LC No. 2011-236420-FC

               Defendant-Appellant.


Before: MURRAY, P.J., and SAAD and HOEKSTRA, JJ.

PER CURIAM.

       A jury convicted defendant of first-degree felony murder, MCL 750.316(1)(b),
conspiracy to commit armed robbery, MCL 750.157a and MCL 750.529, and armed robbery,
MCL 750.529. The trial court sentenced defendant as an habitual offender, fourth offense, MCL
769.12, to life imprisonment for the murder conviction, and concurrent prison terms of 40 to 60
years each for the conspiracy and armed robbery convictions. Defendant appeals as of right.
Because the law of the case doctrine controls resolution of defendant’s challenge to his bindover
and the trial court did not err in admitting defendant’s custodial statements at trial, we affirm.

         Defendant’s convictions arise from the death of Demetrius Lanier during an armed
robbery on January 26, 2010, in Southfield. The prosecution’s principal witness, Richard
Shannon, had rented two apartments in the North Park Towers, one for his residence and one for
his business ventures. On January 26, he spoke with defendant and arranged to sell him a
quantity of marijuana. While Shannon and Lanier were both in Shannon’s apartment on the sixth
floor, defendant arrived, accompanied by codefendant Curtis Bragg and a third unidentified man.
After Shannon displayed the marijuana for inspection, defendant and his associates gestured as if
they were pulling out the purchase money, but instead pulled out handguns. Defendant
demanded the location of the “rest” of Shannon’s marijuana, and Lanier indicated that it was in
an upstairs apartment. Defendant and the unidentified man bound Shannon with duct tape while
Bragg stood guard over Lanier. Upon leaving the apartment, defendant cautioned Lanier that if
the marijuana was not there, he would call Bragg and instruct him to shoot Lanier. When
Bragg’s telephone rang minutes later, Lanier got up, and he and Bragg wrestled onto the sixth-
floor balcony, from which Lanier ultimately fell to his death. Bragg and the unidentified man
left the apartment and fled the scene with defendant.

                            I. THE FELONY-MURDER CHARGE

                                               -1-
        Defendant initially invites this Court to revisit its decision in a prior appeal, in which this
Court reversed a district court’s decision refusing to bind defendant over for trial on the felony
murder charge. See People v Bostick, unpublished opinion per curiam of the Court of Appeals,
issued August 2, 2012 (Docket Nos. 308627 & 308628), lv den 493 Mich 896 (2012). However,
we are bound to follow this Court’s prior decision under the law of the case doctrine. Under that
doctrine, an appellate court’s determination of a legal issue will not be differently decided in a
subsequent appeal in the same case if the facts remain materially the same and there has been no
intervening change in the law. Duncan v Michigan, 300 Mich App 176, 188-189; 832 NW2d
761 (2013); People v Hermiz, 235 Mich App 248, 254; 597 NW2d 218 (1999). This Court’s
prior decision constitutes the law of the case with regard to defendant’s claim that the evidence
did not support a bindover on the felony-murder charge, and there has been no change in the
facts or law to justify departure from this Court’s previous decision. Defendant has not shown
that justice would not be served by application of the doctrine in this instance.1 See People v
Herrera (On Remand), 204 Mich App 333, 340; 514 NW2d 543 (1994). Indeed, given that the
prosecution presented sufficient evidence to convict defendant at trial, any potential error
regarding defendant’s bindover has been rendered harmless. People v Bennett, 290 Mich App
465, 481; 802 NW2d 627 (2010). Defendant is not entitled to relief on this basis.

                    II. ADMISSIBILITY OF DEFENDANT’S STATEMENT

       Defendant next argues that the trial court erred by admitting his custodial police
statements at trial. In particular, defendant maintains that statements he made to police on
February 3, 2010 were inadmissible because, during an interview with police the night before, he
invoked his right to remain silent and, according to defendant, police were thereafter prohibited
from initiating further conversation with defendant.

        Although defendant challenged the admissibility of his police statements in the trial court
and the trial court decided that issue at a Walker2 hearing, defendant did not argue below that his
statements should be suppressed because he had invoked his right to silence on February 2, 2010
and the police improperly resumed questioning him on February 3, 2010 in violation of Edwards
v Arizona, 451 US 477; 101 S Ct 1880; 68 L Ed 2d 378 (1981). An objection on one ground is
insufficient to preserve an appellate challenge based on a different ground. People v Bulmer,
256 Mich App 33, 35; 662 NW2d 117 (2003). Therefore, this issue is unpreserved and we
review defendant’s claim for plain error affecting defendant’s substantial rights. People v
Carines, 460 Mich 750, 752-753, 763-764; 597 NW2d 130 (1999).

       “Both the state and federal constitutions guarantee that no person shall be compelled to
be a witness against himself or herself.” People v Cortez (On Remand), 299 Mich App 679, 691;
832 NW2d 1 (2013). To safeguard the privilege against self-incrimination, in the context of


1
  Defendant acknowledges that the law of the case doctrine precludes this Court from revisiting
this issue, but indicates that he is raising the issue to preserve it for further review by a higher
court.
2
    People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).


                                                 -2-
custodial interrogation, police must advise a defendant of the now-familiar Miranda warnings.
People v White, 493 Mich 187, 194; 828 NW2d 329 (2013), citing Miranda v Arizona, 384 US
436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966). “Statements of an accused made during
custodial interrogation are inadmissible unless the accused voluntarily, knowingly, and
intelligently waived his Fifth Amendment rights.” People v Gipson, 287 Mich App 261, 264;
787 NW2d 126 (2010), citing Miranda, 384 US at 444.

        If an individual invokes his right to remain silent, or his right to counsel, the interrogation
must cease. Miranda, 384 US at 474-476. More specifically, once a defendant invokes his right
to counsel, the police must terminate their interrogation immediately and may not resume
questioning unless the defendant initiates further communication with the police. Edwards, 451
US at 484. When a defendant asserts his right to remain silent, the police must “scrupulously”
honor that assertion, and may not persist in repeated efforts to wear down a defendant’s
resistance. Michigan v Mosley, 423 US 96, 104-106; 96 S Ct 321; 46 L Ed 2d 313 (1975);
People v Henry (After Remand), 305 Mich App 127, 145; 854 NW2d 114 (2014). Failure to
honor a defendant’s invocation of his Fifth Amendment rights in this manner may render the
defendant’s statements inadmissible. See Edwards, 451 US at 485; Henry (After Remand), 305
Mich App at 148. However, to be effective, the defendant’s invocation of his right to remain
silent or his right to counsel must be unambiguous and unequivocal. Berghuis v Thompkins, 560
US 370, 381; 130 S Ct 2250; 176 L Ed 2d 1098 (2010); Davis v United States, 512 US 452, 459;
114 S Ct 2350; 129 L Ed 2d 362 (1994).

        In this case, the record indicates that on February 2, 2010, defendant arrived at the police
station at about 7:00 p.m. in the company of his attorney. Defendant’s counsel informed police
that defendant would not make a statement and that he was not willing to undergo a polygraph
examination. Defendant was arrested, and his attorney left the police station. Shortly thereafter,
while riding in an elevator with two police officers, defendant voluntarily stated that he did in
fact want to speak with police and that he had something to discuss with them that he had not
wanted to say in front of his attorney.3 At that time, police placed defendant in the police
station’s “Breathalyzer room,” and, after being informed of his Miranda rights, defendant
waived those rights and agreed to speak with police. A conversation lasting approximately 15 to
20 minutes ensued, during which defendant claimed he was working as an informant for the
DEA and had not wanted to discuss the matter in front of his attorney. Defendant readily
concedes on appeal that he initiated discussion with the police in the elevator on February 2,
2010 and that, given the subsequent waiver of his rights, police could question defendant at that
time.

        Defendant maintains, however, that after a short while, he stopped the interrogation with
police. Specifically, in response to a question about whether he would like to continue the
conversation in an interview room, he told police that “I’m going to have to sleep on that and I’ll
let you know whether I wish to continue speaking.” At that time, police stopped the interview



3
  At the Walker hearing, the trial court made the factual finding that defendant initiated this
communication with police.


                                                 -3-
and, at about 9:00 p.m., defendant was placed in a holding cell for the night. Police told him that
if he wanted to continue speaking, he could reach out to someone within the jail, or someone
would speak with him the next day to see if he wanted to continue talking. Police had no further
contact with defendant that day. The following day, February 3, 2010, police made contact with
defendant, and defendant again indicated that he wanted to speak about the incident. Defendant
was again verbally advised of his Miranda rights, which he waived, and he signed a
constitutional rights form indicating that he wanted to speak with police. At that time, defendant
was interviewed by police and he made incriminating statements. It is this interview he now
claims could not be admitted as evidence at trial because, according to defendant, it was obtained
after he had invoked his right to remain silent during the conversation on February 2, 2010 and
he had not reinitiated contact with police.

        Defendant’s argument is without merit for two reasons. First, after defendant chose to
speak to the police on February 2, he did not invoke his right to remain silent with respect to
further discussing the case the next morning. At most, on February 2, defendant conveyed to
police that he was unsure whether he wished to continue the conversation and that he would like
to “sleep on it” before deciding whether to continue the conversation. This statement was not an
unequivocal and unambiguous indication that defendant wished to remain silent. On the
contrary, his statement clearly manifests uncertainty in regard to whether he wished to continue
speaking and he plainly left open the possibility of future conversation with police. This type of
equivocal remark does not serve as an unambiguous invocation of defendant’s right to remain
silent. See Berghuis, 560 US at 381.

        Second, even if defendant’s remark could be construed as an invocation of his right to
remain silent, the record indicates that police scrupulously honored this right as required by
Mosley, 423 US at 104-106.4 When defendant indicated that he wished to “sleep on it,” police
immediately ceased the interrogation. Thereafter, the police did not make repeated efforts to
wear down defendant’s resistance or resume the conversation. See id. at 105-106. Instead,
defendant was transported to a holding cell at approximately 9:00 p.m. on February 2.
Consistent with defendant’s wish to “sleep on it,” police waited until the next day, after the
passage of a significant period of time, to again approach defendant. Cf. id. (approving delay of
two hours between invocation of right to remain silent and subsequent questioning by police).
He was then again given a full and complete set of Miranda warnings which he freely waived.
Cf. id. These facts plainly demonstrate that, to the extent defendant’s request to “sleep on it”


4
  We note that defendant is mistaken in his assertion that, under Edwards, 451 US at 484, only
defendant could initiate discussion on February 3, 2010 and that the police were prohibited from
doing so. Edwards dealt with the unequivocal invocation of the right to counsel, following
which only a suspect may initiate further communication with police. In this case, after
defendant initiated contact with police in the elevator there is no indication that defendant
invoked his right to counsel, meaning that Edwards does not apply to the facts of this case.
Instead, assuming arguendo that defendant invoked his right to remain silent, the relevant inquiry
is whether the police “scrupulously honored” his right to “cut off questioning.” See Mosley, 423
US at 104; Henry (After Remand), 305 Mich App at 148.


                                               -4-
may be construed as an invocation of the right to remain silent, the police scrupulously honored
that right. Consequently, defendant has not shown error in the admission of his custodial
statement.5

       Affirmed.



                                                           /s/ Christopher M. Murray
                                                           /s/ Henry William Saad
                                                           /s/ Joel P. Hoekstra




5
 This same analysis also supports rejection of defendant’s request for a remand to continue the
Walker hearing. Development of an additional factual record is not necessary to determine the
admissibility of defendant’s statements. Consequently, remand is not warranted.


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